Duty of Care Legal and Lit

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Duty of Care Legal and Lit Powered By Docstoc
					1) NEGLIGENCE: DUTY OF CARE .............................................................................................................. 3
   DUNSMORE V. DESHIELD , 1978, SK QB.......................................................................................................... 3
   A) THE NEIGHBOUR PRINCIPLE ................................................................................................................ 3
      Donoghue v. Stevenson, 1932, HL, Lord Atkin ..................................................................................... 3
   B) SUPERVISION AND PREVENTION .......................................................................................................... 4
      Arnold v. Teno, 1978, SCC .................................................................................................................. 4
      Dorset Yacht Co., Ltd. v. Home Office, 1969, COA (Upheld HL), Denning ................................................... 5
   C) GOVERNMENT LIABILITY ..................................................................................................................... 6
      Just v. British Columbia, 1989, SCC, Cory J. .......................................................................................... 6
      Brown v. British Columbia, 1994, SCC .................................................................................................. 7
      Swinamer v. Nova Scotia, 1994, SCC, Cory J. ........................................................................................ 7
      Roncarelli v. Duplessis, 1959, SCC ....................................................................................................... 8
      Jane Doe v. Toronto Commissioners of Police, 1989, ON SC .................................................................... 8
   D) FAILURE TO ACT................................................................................................................................ 10
      “Omissions”, Atiyah ........................................................................................................................... 10
      “Liability for Omissions”, Cooper-Stephenson ........................................................................................ 10
      Horsley v. MacLaren, 1969, ON HCJ ..................................................................................................... 11
      Oke v. Weide Transport, 1963, MAN COA ............................................................................................. 11
      Zelenko v. Gimbel Bros., 1935, SC of NY .............................................................................................. 11
      Crocker v. Sundance Resorts, 1988, SCC, Wilson J ................................................................................ 12
   E) PRE-NATAL INJURY ............................................................................................................................ 13
      Dobson v. Dobson, 1999, SCC, Cory J .................................................................................................. 13
   F) SOCIAL HOST LIABILITY ..................................................................................................................... 13
      Childs v. Desormeaux, 2004, ON COA .................................................................................................. 13
2) NEGLIGENCE: BREACH OF DUTY ........................................................................................................ 15
   A) BREACH OF DUTY .............................................................................................................................. 15
      Vaughn v. Menlove, 1837 ................................................................................................................... 15
      Blyth v. Birmingham Water-Works, 1856.............................................................................................. 15
      Dobson v. Dobson, SCC, Cory J. .......................................................................................................... 15
   B) THE IMPUGNED CONDUCT .................................................................................................................. 16
      Ware’s Taxi v. Gilliham (1949), SCC .................................................................................................... 16
   C) UNREASONABLE RISK FORMULA .......................................................................................................... 17
      US v. Carroll Towing, 1947 ................................................................................................................. 17
      Bolton v. Stone, 1951, HL .................................................................................................................. 18
      Paris v. Stephney Borough Council, 1951, HL........................................................................................ 19
      Priestman v. Colangelo, 1959, SCC...................................................................................................... 19
      Watt v. Hertforshire County Council, 1945, UK, Denning ........................................................................ 20
      Crocker v. Sundance Northwest Resorts Ltd, 1988, SCC, Wilson J. .......................................................... 20
   D) MENTAL DISABILITIES ....................................................................................................................... 20
      Fiala v. Cechmanek, 2001, AB COA ..................................................................................................... 20
   E) THE YOUNG ...................................................................................................................................... 22
      Heisler et al. v. Moke et al. ................................................................................................................. 22
   F) PROFESSIONAL NEGLIGENCE .............................................................................................................. 23
      Challand v. Bell, 1959, AB SC ............................................................................................................. 23
      Brenner v. Gregory, 1973, ON HCJ ...................................................................................................... 24
   G) CUSTOM .......................................................................................................................................... 24
      Waldick v. Malcolm (1991), SCC.......................................................................................................... 25
      Ter Neuzen v. Korn (1995), SCC ......................................................................................................... 25
   H) NEGLIGENCE AND STATUTORY PROVISIONS ......................................................................................... 26
      Saskatchewan Wheat Pool, 1983, SCC ................................................................................................. 27
      Gorris v. Scott, 1874, UK ................................................................................................................... 28
      Ryan v. Victoria, 1999, SCC ................................................................................................................ 28
3) NEGLIGENCE: FACTUAL CAUSATION.................................................................................................. 29
   A) CAUSE-IN-FACT ................................................................................................................................ 29
      Kauffman v. TTV, 1959, ON COA, Morden J.A. ...................................................................................... 29
      Prichard v. Liggett & Myers Tobacco (1961) .......................................................................................... 29
   B) GENERAL ONUS OF PROOF .................................................................................................................. 30
      Snell v. Farrell, 1990, SCC, Sopinka J .................................................................................................. 30
   C) TWO NEGLIGENT DEFENDANTS BUT ONLY ONE CAUSE ........................................................................... 31
      Cook v. Lewis, 1951, SCC, Rand J., Cartwright J. .................................................................................. 31
      Lange v. Bennet, 1964 ....................................................................................................................... 31
   D) MARKET SHARE AND SIMPLE PROBABILITY ........................................................................................... 31
      Sindell v. Abbott Laboratories, SC of California...................................................................................... 31



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   E) MULTIPLE CAUSE ............................................................................................................................... 33
      Athey v. Leonadi, 1996, SCC .............................................................................................................. 33
      Arneil v. Patterson, 1931, HL .............................................................................................................. 34
      Lambton v Mellish, 1894 .................................................................................................................... 34
      Negligence Act .................................................................................................................................. 34
5. NEGLIGENCE: REMOTENESS AKA PROXIMATE CAUSE ........................................................................ 34
   A) DIRECTNESS TEST............................................................................................................................. 35
      Polemis, 1921, UK ............................................................................................................................. 35
   B) FORESEEABILITY OF PLAINTIFF ........................................................................................................... 35
      Palsgraf v. Long Island Railroad Company, 1928, NY COA, Cardozo CJ ..................................................... 35
      Hay v. Young, 1943 ........................................................................................................................... 36
      Farrugia v. Great Western Railway, 1947 ............................................................................................. 37
      Horsley v. MacLaren, 1972, SCC ......................................................................................................... 37
   C) FORESEEABILITY OF DAMAGE ............................................................................................................. 38
      The Wagon Mound (No. 1), 1961, Australia, PC, Viscount Simonds .......................................................... 38
      Smith v. Leech Brain, 1962, QB .......................................................................................................... 40
      Hughes v. Lord Advocate, 1963, HL ..................................................................................................... 40
      Doughty v. Turner Manufacturing, 1964, UK ......................................................................................... 40
      Lauritzen v. Barstead, 1965, AB SC ..................................................................................................... 41
      School Division of Assiniboine South v. Hoffer, 1970, SCC ...................................................................... 41
      R v. Cote, 1974, SCC, Dickson J .......................................................................................................... 41
      The Wagon Mound (No. 2), 1966, PC, Australia, Lord Reid...................................................................... 41
      Intervening Cause, 1995, Cooper-Stephenson & Saunders ..................................................................... 42
      Wieland v. Cyril Lord Carpets, 1969, QB ............................................................................................... 43
      Mercer v. Gray, 1941, ON COA............................................................................................................ 44
      Price v. Milawski, 1977, ON COA ......................................................................................................... 44
   D) NERVOUS SHOCK .............................................................................................................................. 44
      Marshall v. Linell Enterprises, 1972, ON HCJ ......................................................................................... 45
      Rhodes v. Canadian National Railway, 1990, BC COA ............................................................................. 46
      Alcock v. Chief Constable of the South Yorkshire Police, 1991, HL ........................................................... 47
6. NEGLIGENCE: DEFENCES.................................................................................................................... 47
   A) APPORTIONMENT .............................................................................................................................. 47
      Butterfield v. Forrester, 1809 .............................................................................................................. 47
      Davies v. Mann, 1842, UK .................................................................................................................. 48
      Negligence Act .................................................................................................................................. 48
      Wickberg v. Patterson, 1997, AB COA .................................................................................................. 49
      Galaske v. O’Donnell, 1994, SCC ......................................................................................................... 50
   B) COMPLETE DEFENCES ........................................................................................................................ 50
      Hambley v. Shepley, 1967, ON COA .................................................................................................... 51
      Dube v. Labar, 1986, SCC .................................................................................................................. 51
      Crocker v. Sundance, 1988, SCC ......................................................................................................... 52
   2) ILLEGALITY.......................................................................................................................................... 53
      Hall v. Hebert, 1993, SCC .................................................................................................................. 53
7. INTENTIONAL INFLICTION OF HARM ................................................................................................ 54
   A) INTENTIONAL INFLICTION OF MENTAL SUFFERING ................................................................................ 54
      Wilkinson v. Downton, 1897 ............................................................................................................... 54
      Clark v. Canada, 1994, Fed Court of Canada ......................................................................................... 54
   B) BATTERY & ASSAULT.......................................................................................................................... 55
      Bettel v. Yim, 1978, ON County Ct ...................................................................................................... 56
      Bruce v. Dyer, 1966, On HCJ .............................................................................................................. 56
      Norberg v. Weinrib, 1992, SCC ........................................................................................................... 57
8) TORT LAW AND DISCRIMINATION .................................................................................................... 58
       Bhaduria v. Seneca College, 1979, ON COA .......................................................................................... 58
       Jane Doe v. MTCP, 1998, ON Gen Div .................................................................................................. 59




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1) NEGLIGENCE: DUTY OF CARE

Dunsmore v. Deshield , 1978, SK QB
Facts: P purchased eyeglasses from Deshield, optometrist, supplied by Imperial Optical.
Lenses were supposed to be Hardex and thus stronger than regular lens glass. Imperial and
Deshield failed to test lenses to ensure hardex. P’s eye injured when glasses broke as he
was playing touch football.

Issue: did defendants owe a duty of care to ensure Plaintiff received Hardex lenses?

Decision: judgment for plaintiff against defendants jointly and severally; claim of defendant
Deshield for indemnity against defendant Imperial allowed

Reasons: Relationships where duty owed
            o Optometrist – client; or doctor – patient
            o Manufacturer – consumer
Plaintiff was not engaged in a ‘game of violence’ and was not guilty of contributory
negligence. Each defendant had duty to Dunsmore to ensure he received Hardex lenses.
Imperial had duty to Deshield to supply Hardex lenses. The mfg does not have a greater
duty than the optometrist or vice versa. Both have duty to P. Although, Deshield had no
duty to Imperial to test lenses.

Ratio: in case in which co-defendants, a manufacturer and a retailer, contract to provide
product to a plaintiff, they have a duty to ensure the correct product is provided. The
manufacturer co-defendant is ultimately responsible for ensuring the correct product is
supplied.

A) THE NEIGHBOUR PRINCIPLE

Donoghue v. Stevenson, 1932, HL, Lord Atkin
RE: laying the foundation of the “neighbor principle.” The genesis of modern negligence law
is found in this case. It tells us more about the proximity part than the second part.

Facts: Friend of A purchased opaque bottle of ginger beer from café. There are parties
between A and R: friend and café. Thus there is no contract and no duty. Decomposed
snail was in bottle, P claimed injury (gastrointestinal and shock) as a result.

Issue: is a manufacturer under any legal duty, in the circumstances which prevent the
distributor or ultimate consumer from discovering by inspection any defect, to take
reasonable care that the article is free from defect likely to cause injury?

Decision: Yes.

Ratio: Lord Atkin & the neighbour principle: “you must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbour.” Your
neighbour in law: “persons that are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question.”

Notes: we have a manufacturer-consumer relationship.
Lord Atkin transforms one of the basic teachings of Christianity – that you are to love your
neighbour – into the central principle of negligence law. This decision (1) overruled the



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principle that duty was only imposed by contract or statute; (2) developed the field of
product liability from mfg to foreseeable consumers; (3) established that duty of care owed
in negligence actions is not confined to a closed list of specific relationships, as was the case,
but is based upon an open-ended and general concept of relationship of proximity which is
capable of extension to new situations.

Dissent - Lord Buckmaster: worried about “opening the floodgates.” Where does it stop?

The Donoghue formulation of the duty question was subsequently refined into a two-part
test by HL in Anns v. Merton London Borough Council [1978]. involving a proximity leg.
After D. v. S., the test was refined to give us a two part test, which was embraced by SCC in
Kamloops v. Nielsen [1984]. Now Kamloops test, or Cooper v. Hobart (contemporary).

This was extended in Home Office v. Dorset Yacht to apply to public authorities as well.

B) SUPERVISION AND PREVENTION

Arnold v. Teno, 1978, SCC

PH: the truck driver and owner appealed to the Supreme Court respecting liability and
quantum of damages; the owner and driver of the car appealed only respecting their
quantum of damages; the mother appealed the granting of contribution against her.

Facts of Case
Relationships:
   1. Brian Arnold: driver – pedestrian. There is a clear DOC owed here.
   2. Wallace Arnold: vicarious liability.
   3. Yvonne Teno: parent – child. The is a clear DOC owed here.
   4. J.B. Jackson and Galloway: manufacturer – consumer (Per Donoghue, Dunsmore), or
       invitor – invitee. Difference only that product not the source of danger. It is the way
       that the business is run. The ice cream truck is designed to entice and attract the
       children with its lights and music. There is a supervisory relationship here. Because
       their customers are children, and they are attracting the children, they are
       generating a duty for themselves that would otherwise not be there. This is also an
       Invitor – Invitee relationship. When Galloway and Jackson induced the children into
       the street they owed they assumed a duty to take reasonable care of them (became
       their neighbours). This is for the owner and Stuart Galloway. “Wait for the truck”
       sign indicates not only foreseeability, but also acceptance of this DOC.

P bought ice-cream from the defendant’s ice-cream truck parked at the curb, and in crossing
the street to return home was struck by a passing car. The driver of the truck was
untrained and was using a manual provided by the truck owner which required the operator
not to let children cross the street, but this manual was for a smaller truck, adhering to it
was not practical from a business economics standpoint. Yvonne Teno told Diane to “watch
for cars.” Diane was hit and injured by Brian Arnold (driver). Wallace (dad) was owner.

Issue: where one party operates a business which by design attracts small children in a
public area, does the party owe a duty of care to these children to ensure their safety in the
course of transacting its business with them?

Decision: Yvonne Teno’s appeal with respect to contribution was allowed and the
defendant’s claim against her dismissed. The appeal of the driver and owner of the truck



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respecting liability was dismissed. All four defendants should be liable for the full amount of
the damages, split 50/50 between the two defendant parties.

Reason: The Appeal Court’s finding with respect to the mother was overturned as it was
found that she had acted within a parent’s normal standard of care in this situation as her
children had been properly instructed in road safety with respect to visiting ice-cream trucks
and had visited them without incident in the past; moreover it was held that she was
entitled to rely on the vendor to exercise “some care toward the children which it attracted.”

Truck driver and owner “owed a duty of care to customers too young to be held responsible
for their actions and that they were in breach of such duty”; it also reaffirmed the Appeal
Court finding that “the children induced into the street by the defendants…became the
neighbours of the defendants,” and as it was reasonably foreseeable that harm might befall
the children in crossing the street to the truck, the defendants should taken steps to ensure
the safety of their children customers.

This was an omission, D are liable in negligence because they failed to do what others
carrying on a like business ordinarily do, or it was so obviously needed that it would be folly
not to do.

Ratio: where one party operates a business in a public area which by design attracts small
children, a relationship is formed which dictates that the party owes a duty of care to these
children to ensure their safety in the course of transacting its business with them;
furthermore, parents may expect the party to assume a duty to take reasonable care of
these children.

Notes: the judges in majority say that Yvonne Teno did not breach her duty to her child in
letting her go into the street on her own after giving her instructions. BUT, the DISSENTING
JUDGE claims that she did breach her duty and that the ice-cream merchant cannot be held
to a higher standard (De Grandpre J.).

Dorset Yacht Co., Ltd. v. Home Office, 1969, COA (Upheld HL), Denning
Facts: seven borstal boys in the custody of officers of the Home Office escaped from
custody in the night, boarded a privately owned yacht, and did significant damage to the
vessel. The plaintiff’s insurance company paid for repairs and brought an action against
Home Office for recovery of damages.

Issues: is Home Office liable for damage done by prisoners who escape from custody or
done by them whilst on parole? (The prisoners are third-parties)

Decision: Home office did owe a duty of care to those in the neighbourhood.

Reason (Note two different methods of reasoning):
Is there General Proximity?
Lord Denning: Yes. Home office already owes a duty to others in the prison (Ellis v. Home
Office: where authorities owed a duty to another prisoner, Ellis, who was assaulted because
a dangerous inmate’s cell was left unguarded.) Through a series of hypothetical examples
he extends this principle: why should this be confined to prison walls? What if a “visiting
magistrate”? What if they are working out in the field and third party gets assaulted? They
should all be able to recover.

Edmund Davis L.J.: Yes. “The general rule is that one man is under no duty of controlling
another man to prevent his damage to a third”; however, there are exceptions – master-


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servant, parent-child, educational authority-student. They all have some degree of control
over the third party, and it so makes sense that they should be responsible for injury
incurred.

Are there Policy reasons to negate duty of care?
No. Court (both lords) not convinced that the imposed duty would impinge too greatly on
the operation of Borstal institutions (they need freedom to re-integrate), certain risks are
assumed, but they must just operate it in a more secure manner.

Ratio: Home Office is liable for damage done by prisoners who escape from custody or done
by them whilst on parole where the damages could be reasonably foreseen as a
consequence of the Home Office’s breach of duty toward the neighbourhood by failing to
maintain proper supervision of the prisoners. Held that those responsible for prisoners
should be responsible for their actions upon escape just as they are responsible for their
actions while in custody.

Notes: decision upheld in the House of Lords.


C) GOVERNMENT LIABILITY
History: Gov’t originally had total immunity. Over time, increased government activities
gave rise to incidents that would have led to tortuous liability if they had occurred between
private citizens. So, in 1947, crown liability acts were passed under which the Crown could
be sued in tort for the first time. A standard provision is that the crown is liable in tort for
which if it were a private person of legal age and full capacity. Common law has restored a
portion of immunity with respect to policy decisions but not operational decisions. We now
have a compromise between government’s need/ability to govern freely and make true
policy decisions without becoming subject to tort liability and private person liability.


Just v. British Columbia, 1989, SCC, Cory J.
Facts: appellant and his daughter were driving to Whistler on highway 99. While stuck in
traffic, boulder fell down the slope and landed on the car, killing the daughter and severely
injuring the plaintiff. Appellant brought action against the respondent for negligently failing
to maintain the highway properly. Department of Highways had set up system for
inspection on rock slopes like on 99.
    - Rock work section that was in charge of inspection and stabilization.
            o Rock scaling crew is part of RWS, which physically did work.
    - It was found at RWS had absolute discretion to where and when it would do work.
            o They had the responsibility of forming their own policy and standards.
            o Inspected slopes visually and then conduct more detailed inspections if
                necessary.

Issue: Government owe a duty of care to ensure the safety of those using public highways?

Decision: province did owe a duty of care; appellant was entitled new trial for breach.

Reason:
Proximity:
Found that proximity was established by the province’s inviting tourists to use the highways
for travel, thus establishing a duty of care to ensure their safety while using the highways.
Establishes Invitor—invitee relationship



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Reasonably foreseeable that safety of users of road would be compromised if road was not
reasonably maintained

Policy reasons? Just Test established for government actors
1. General proximity: class of persons: Invitor – invitee relationship, since the province
        encouraged tourism at Whistler. Harm is reasonably foreseeable if highway not
        properly maintained.
2. Policy considerations:
        a. Statutory immunity: Crown Proceeding Act and Highways Act has none. If
            anything seemed to impose a great duty.
        b. Common law immunity:
                 i. Policy or operational: the specifics of the inspection system, which may
                 have been responsible for the accident, were a matter of operational rather
                 than policy decisions (expert opinion, and technical standards).

Ratio: “A public authority is under no duty of care in relation to decisions which involve or
are dictated by financial, economic social or political factors or constraints. . . But it may be
otherwise when the courts are called upon to apply a standard of care to action or inaction
that is merely the product of administrative direction, expert or professional opinion,
technical standards or general standards of reasonableness.”

Notes: one stated exception to ratio: policy is actionable when it does not constitute a bona
fide exercise of discretion. This is if it is made in bad faith, or is so irrational as to constitute
an improper exercise of government discretion.

Dissent (Sopinka J.): inspections were a matter of policy and thus protected; in any case, no
evidence of a lack of reasonable care so it’ll probably be dismissed in a finding of fact. He
also finds that in applying test, quality and frequency of inspections relied on scarce
resources and it was a policy decision for the Rockwork Section that they had to inspect
visually from the ground first.

Note that Cory spends time articulating the test, but very little time applying it. This has
created confusion exacerbated in Brown and Swinamer. These next two are Cory J decisions


Brown v. British Columbia, 1994, SCC
Facts: appellant driving on BC highway; hit icy patch and skidded off road. Three other
accidents had occurred already that morning at same spot. Office of Gold River and
Campbell River were still on summer schedule at time, so short staffed. Sand truck was late
in arriving. Claim was the province was negligent in failure to maintain road.
Reason/Ratio: gov’t found exempt because the decision to maintain a summer schedule,
including reduced service, was one of policy – due to financial resources, personnel and
significant negotiations with government unions.

Swinamer v. Nova Scotia, 1994, SCC, Cory J.
Facts: appellant injured when tree fell across truck on highway maintained by province.
Tree fell due to fungus infection. Dept of Transportation was responsible for removing
dangerous trees. There was no policy in place to inspect trees, but months prior, the Dept
marked trees for removal in the area (not one in question). The survey was carried out by
people with knowledge and experience with forestry. Funding to remove these trees was
given only partially due to financial constraints.
Reason/Ratio: Gov’t exempt because decision to mark trees was a preliminary step in
policy making – involved expenditure and allocation of funds.


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Roncarelli v. Duplessis, 1959, SCC
RE: example of a policy decision made in bad faith so that it was subject to tortuous action.
Plaintiff was proprietor of restaurant; brought action when defendant removed liquor license.
At time in QC, bylaw prohibited JWs from distributing materials. Plaintiff was JW, and
provided bail for others. Although this was legal, defendant was so angry that he ordered
the license revoked as punishment.
Reason/Ratio: court found that P exercised a right totally unrelated to sale of liquour and
beyond the scope of the licensing Commission. Bad faith.

Jane Doe v. Toronto Commissioners of Police, 1989, ON SC
Procedural History
1st case- No previous judicial action taken. It was motion by defendants to strike out the
statement of claim and dismiss the action as disclosing no reasonable cause of action.
2nd case – The Actual Trial

Facts: victim was raped at knife point by a serial rapist who was known to be operating in
the area by police, who made no effort to alert the community. Jane Doe fit a narrow group
of people who were likely to be future victims – white, single woman residing in a second or
third floor apartment with a balcony in the Church-Wellesley area. Police claimed that they
had refrained from issuing a warning to avoid a hysterical reaction from neighbourhood
women which might cause the rapist to flee (wanted to use her as “bait”). A public authority
(the police constables and vicariously, the commissions of police) are sued for the decisions
they made in the course of an investigation. The police owe their duties to the public at
large, not individual members of the public. But there are some instances where a private
law duty to an individual member may arise.

Issues
1st case: When does police work (investigation/apprehension) give rise to a private law duty
toward particular members of the public? Does the MTCP have a duty of care to victims of a
serial rapist whom is not in their custody?
2nd case: Was the MTCP negligent of these duties?

Decision
1st Case: Motion to strike out statement of claim dismissed.
Police board and chief may be sued in respect to their own torts; chief also liable under s. 24
for torts of his constables
2nd Case: MTCP is liable for negligence

Reason:
1) General Proximity:
Foreseeability  Yes it was a serial rapist; it is likely that he would strike again
Proximity  You have a special relationship, as the plaintiff belonged to a narrow group of
potential victims of which the MTCP was aware.

Note that the defence tried to argue Hill – that there was no duty because there was no
proximity. Also, there was no relationship with third party like in Dorset Yacht.

2) Policy:
Though the just test was not in effect at the time…it can be applied.
a) Is there statutory immunity? No statutory immunity – Sec 57 of the police act does not
give it.
b) Common Law immunity?



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          i.   Key decision which is of concern: the failure/decision not to warn Jane Doe or
               others of this group. The broader investigation question is that of the
               constitution.
          ii. Operational: it was made by the two constables, not someone higher up in the
               authority, on the basis of “shop talk” from previous rape investigation publicity
               had caused the rapist to flee.
          iii. Policy: police said that if they did do this, this would open the floodgates and
               the door to liability would be opened too great. Decisions would be made
               based on tort liability.
               BUT – not bona fide exercise of discretion - bad faith because they are using
               her as “bait,” and discriminating – women will be “hysterical.”

The trouble with this case is that it is hard to decide what this case stands for: They could
have decided that it is an operational decision, or that it is a policy decision made in bad
faith that is based on discriminatory factors. It is not too clear what the courts say. But we
can conclude one of two things: that it was operational or that it was policy reasons based
on bad faith.

The court Rejects policy defence (same as in Hill) that police would be hampered by
continually fighting law suits because these will only be opened in rare circumstances (need
to have proximity and foreseeability).

Comments
- Johnson v. Adamson— man killed by a constable. Police chief held personally liable for
  allowing racist attitudes to permeate police force, knowing that it would place black
  people in danger
- Beutler v. Bueutler— the police owe a general duty to warn; proximity is easy because
  it’s the people in the area (gas leak explosion)
- Air India – Though there man not have been control over the third party, the RCMP did
  have control over the baggage entering the plane, the passengers, and should have
  known about the threats to Air India flight. An operational decision that certain
  individuals were negligent was held to stand.
- Kamloops v. Nielsen (1984, SCC) – about the duty owing by a public authority (not
  police) for negligent inspection of a building which turned out to have inadequate
  footings, which caused damage to the property. The city made a policy decision to
  regulate construction and charges its building inspector with enforcement of the by-law.
  The court held that in discharging its operational duty through its inspectors, the City
  owed a duty of care to persons whose relationship was sufficiently close that they ought
  to have been reasonably within the City’s contemplation as likely to be injured by breach
  of this duty. By making a decision not to act, they were liable.
- Hill v. Chief Constable of West Yorkshire—police owed a general duty at common law to
  public at large, but no common law duty toward individual members of the public.
       o Final victim was Jacqueline Hill. Her mother brought the action, claiming that the
           Chief Constable and his officers should have known that these crimes were being
           committed by the same individuals, and that it was foreseeable that if not
           apprehended he would continue. The police failed in their duty to direct their best
           efforts toward his apprehension.
       o Foreseeable, yes, however, proximity cannot be established because Hill was not
           part of a closely defined group. She was just a member of the female general
           public that might be at risk.
       o Even if there was a duty, the constable would not be held liable if it was a policy
           decision to decide how to deploy his resources. Only if not bona fide discretion.




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       o   Distinguishes from Hill because plaintiff wasn’t one of a vast group at risk with no
           special distinctive relation to the offender; (Not sufficiently proximate – Young
           and white is not enough)


D) FAILURE TO ACT
Arguments regarding omissions are policy reasons and therefore involve part 2 of the Anns
test. The basic rule is that there is no duty in regards to omissions (Horsley), but there is a
huge list of exceptions. Traditionally, there were only duties where one was by K required to
act or in specific relationships (Parent – Child).

Misfeasance – Acting improperly or illegally (Act)
Nonfeasance- Failure to do something that is legally obligatory (omission)

“Omissions”, Atiyah
Policy reasons for why there should be no duty for omissions; with rebuttals.

   -   Imposition of affirmative duties is more burdensome than negative duties. I.e.
       compelling people to put in time, effort, money and risk.
           o Burdens for affirmative action are not always onerous. How hard would it be
               to shout a warning for a burning house? Or call 911?
           o Even if there was a real burden, a burden would likely not be imposed by the
               negligence formula currently used for misfeasance.
   -   Difficulty in identifying and singling out a person liable for nonfeasance; in
       misfeasance, the D usually identifies himself b/c act causes damage. How about one
       of many bystanders?
           o This is also a problem with misfeasance too; most convenient person is
               blamed (e.g. Jane Doe does not sue rapist, must have $).
   -   Issue of causation: if you are dealing with an act, it is easier to make the causal
       connection between act and damage. Omission, you might put someone in danger
       by not warning, but you have not caused damage in any real sense.
           o However, it is a circular argument here. The way we frame the causation
               issue depends on whether we thing the D ought morally to have done
               something in the first place. E.g. if a man falls off a boat into the water
               (Horsely) and drowns, we might think he caused the death if the owner of the
               boat fails to manoeuvre the boat into a position where a lifeline could be
               thrown.
   -   Bottom line: there is no really satisfactory way of, or reason for, distinguishing
       between misfeasance and nonfeasance. The extent of liability for failure to act is a
       legal policy issue.
   -   The philosophical underpinning that we do not want to constrain people’s liberty in a
       free society. But, you see a shift over time from no duty to the contemporary where
       there are changing social norms that reflect greater social interdependence, and thus
       cases where there is liability for nonfeasance.

“Liability for Omissions”, Cooper-Stephenson
Sutherland: note that we must always look to the larger chain of events. E.g. someone
drives through a stop sign and injures someone – careless driving act. But if you take a
moment in time, could say that omission to brake (this is wrong).

Due to gradual acceptance of communitarian political thought in Western culture,
broadening of categories for liability for omissions:



                                                                                             10
   1)   Where   the failure to act was an integral part of a larger pattern of active conduct
   2)   Where   the defendant participated in the creation of a risk or hazard
   3)   Where   the defendant undertook to do something and thereby induced reliance
   4)   Where   there was failure to perform a contractual promise
   5)   Where   the defendant was in a position of supervision and control
   6)   Where   the affirmative duty was imposed by statute

Horsley v. MacLaren, 1969, ON HCJ
Facts: first victim falls overboard; MacLaren, owner of “Ogopogo” boat manoeuvred poorly,
took a while to get to the body. Horsley jumped in, died from cardiac arrest due to
exposure of the cold water.

Ratio: At trial this is dismissed because in negligence there is no general duty to come to
the rescue of a person who finds himself in peril from a source unrelated to the defendant.
Even when it would take little risk or effort to assist.

Notes
Jessup, J.A. confirms this at the Ontario Court of Appeal.

Oke v. Weide Transport, 1963, MAN COA
RE: paradigm case for the “defendant participated in the creation of the risk” exception.
Facts: driver knocked down a road sign. He removed as much debris as possible, leaving
only an embedded metal post which was too difficult to move. He mentioned it to a garage
attendant and evidenced an intention to report it to authorities, but was so dissuaded by the
attendant. The D participated in the creation of the risk. Because he created it, he had a
duty to counteract it. He even knew that it would be a danger.

Subsequently a passing motorist illegally passing on the shoulder ran over the post and was
impaled.

Decision: appeal dismissed in favour of D.

Reason: the court agreed that there was a duty, but that there was no liability because of
remoteness (lack of foresight). It was a freak accident and the victim was driving illegally
where he should not have been to pass a vehicle.

Ratio: D’s position was different from that of a passing motorist because in destroying the
sign the driver “participated in the creation of a hazard, recognized his obligation to do
something by way of rectification, . . . took some steps in that direction. . . but then failed to
go far enough.” He had a duty because he participated…

Note: since the court concluded that there was a duty, this remains persuasive.

Zelenko v. Gimbel Bros., 1935, SC of NY
RE: paradigm case for gratuitous undertaking exception.
Facts: P became ill shopping in D’s store, an employee put them into a room in the store,
where no other aid could be given and did nothing else. Was left there for six hours and
died. Note that legally they had nothing to do to begin with. Court reasoned that anyone
else would have likely called an ambulance out of charity if D did nothing to begin with.

Decision: found for the P.




                                                                                                11
Ratio: “if a defendant undertakes a task, even if under no duty to undertake it, the D must
not omit to do what an ordinary man would do in performing the task.”

Notes: in this case, D assisted the second party and in doing so lessened the possibility of
the second party receiving assistance from someone else, thus inducing reliance on the first
party.

Crocker v. Sundance Resorts, 1988, SCC, Wilson J
Facts: Sundance held a tubing competition to promote its resort, and for profit. It was on a
dangerous slope. Crocker watched video from the previous year, and joined. Did not read or
appreciate the waiver.

Day of the event, was drinking on his own, and also bought drinks from the resort’s bar
while wearing bib with friend. During one race Crocker fell and got a cut above his eye.
Resort owner saw Crocker’s condition but did not dissuade him from racing again. On final
run, his tube slid away, they gave him another. Second person (manager) suggested he
stop, but did not restrain him. Earlier that day a different competitor suffered a neck injury.
Crocker hit a mogul and got flipped, injured neck  quadriplegic. Sues resort for
negligence.

Issue: does the organizer of a potentially hazardous sporting event owe a positive duty to
prevent visibly intoxicated contestants to compete?

Decision: found for the plaintiff (Crocker)

Reason: court analogizes to Jordan House as the leading case for duty in these
circumstances  tavern and patron – patron was well known for his drinking, there was an
invitor-invitee relationship and breach of a statutory duty (they kept on a patron who was
apparently intoxicated), and the proprietor reasonably knew that by kicking him out, Menow
would walk alongside a busy road to get home.

Proximity  held that an invitor-invitee relationship (as in Menow).

Omission  a special relationship arose which requires a duty for positive action because (1)
supervision and control (ran the event), (2) relationship of economic benefit to the D, (3)
and participation in the creation of the risk (served him liquor, gave him tubes, did not
restrain) (4) actual knowledge of vulnerability/danger (someone was hurt earlier, previous
year’s video showed people falling out, Crocker cut himself).

Ratio: an organizer of a potentially hazardous sporting event held for profit does owe a
positive duty of care to its visibly intoxicated contestants to prevent them from competing.

Note: Whenever you are dealing with these cases of omissions, the concept of a
“special relationship” (different from Jane Doe relationship) is useful. You are
looking for a certain kind of relationship that requires a duty and positive action.
Make your case by adding all these facts up.

Note: violation of a statutory provision (not to serve someone once they are intoxicated) can
help you determine there was a common law tort duty breached. This is PERSUASIVE only.

Note Atiyah – it would not have been onerous – all that had to be done was not give him
another tube.



                                                                                             12
E) PRE-NATAL INJURY

Dobson v. Dobson, 1999, SCC, Cory J
RE: this provides us with more policy arguments.
Facts: the appellant was a pregnant woman who was involved in a car accident which
resulted in damage to the foetus, who now suffers permanent mental and physical
impairment. Suit brought to recover from the insurance on father’s car.

Issues: should there be a duty for a mother toward the foetus in her womb?

Decision: No.

Reasons: court recognizes that 3rd parties may be held liable in tort for prenatal injuries
inflicted by negligence (Montreal Tramways, Duval). However, this is fundamentally
different because the interests of the mother and foetus are no longer aligned.

1) Proximity: the court glosses over this in the hope of dealing with stage two (don’t want
to open the abortion debate); but state that it can be assumed that mother owed a duty of
care under because they two entities are so close together and it is foreseeable that acts or
omissions could harm her unborn child. Within the social policy aspect here, argument that
it would have negative aspects on the relationship between mother and child and family unit

2) Social Policy: reasons why there should be no duty – constitutional considerations:
      1. Privacy and autonomy rights of women – almost everything that the preg woman
          does could affect foetus lifestyle decisions (proper diet, smoking, drinking,
          strenuous exercise), working lives; contravenes s. 7 “liberty” in Charter.
      2. Difficulties in articulating the judicial standard of conduct for pregnant women
      3. This would give rise to gender-based tort, in contravention of s. 15(1) of Charter.
      4. Purpose of tort law is designed to provide compensation for harm caused by
          negligence and to a lesser extended deter tort-feasors. This does neither.
          (compensation comes from same family, lifestyle choices)

Ratio: a mother should not be liable in tort for damages to her child arising from a prenatal
negligent act which allegedly injured the foetus in her womb because to do so would impose
unique and unacceptably great infringement on her fundamental rights under the Charter.

Notes: the courts try to balance this with the need for compensation, and state that it is
possible for the legislature to enact a law that would enable the child to access the insurance
in cases like this. It is something for parliament to decide. We see this in Canwest News.

F) SOCIAL HOST LIABILITY

Childs v. Desormeaux, 2004, ON COA
Facts: Zimmerman and Courrier host BYOB party. Desormeaux, comes to party, is known
as a long time heavy drinker who had been convicted of impaired driving on numerous
occasions and had his license suspended. After Desormeaux’s friend got into an altercation
at the party, they decided to leave. Desmoreaux’s was DUI and rendered Childs and
paraplegic. Childs is suing social hosts Zimmerman and Courrier.

Issue: Do the social hosts owe a duty to the users of the road when a guest at a BYOB
party has been drinking?

Is this a new duty of care or just the same as the commercial host liability?


                                                                                              13
Decision: No general proximity, therefore no duty for the social hosts

Reasoning: there are two arguments submitted by P:
- This is an extension of the already recognized duty for commercial host liability (Jordan
House - kept on feeding him drinks and then kicked him out knowing that he would have to
walk home along the road. He was injured. There was a duty owed to the partron; and
Stuart v. Pettie – fed him drinks, and although he did not look drunk, they gave him
enough alcohol that they should have known; duty of care from a commercial establishment
is owed to the person who is injured by the third party drunk. The duty which is owed to
patrons was equally owed to the plaintiff, who in this case was a class of persons who could
be expected to be on the road driving). The P also speaks of the parental relationship in
previous cases (Prevost and Campbell Estate – there was a relationship established where
the adults would ensure that the children were always safe when they were drinking under
their supervision. Developed a paternalistic relationship whereby she had a duty to ensure
that kids were safe. Similar to Dorset Yacht).

1) There are fundamental differences between commercial host and social hosts. SCOIAL
HOST LIABILITY IS NOT SIMPLY AN EXTENTION OF COMMERCIAL HOST LIABILITY.
Differences include – profit motive, the relationship between the CH and drinker is
contractual, and is regulated by statute. At BYOB, no profit, informal, and alcohol is not
provided.

The courts also decide that this was not a paternal situation – Desormeaux was a grown
man whom the hosts did not take care of, nor did he expect them to. The social hosts were
also found to be unaware of his level of intoxication (this is not a case of supervision and
control as in Dorset Yacht). The court does not find general proximity, and thus does not
get to stg. 2.

2) However, the court does go on to discuss some policy opinions.
   - Deterrence (YES): good to have liability because it would deter drunk driving.
         o Educational programs aimed at stopping DUI have worked (this has been
             evidenced empirically), and this measure may help even more. Private
             gathering rank second behind commercial establishments as a source of
             drivers arrested from drinking. The steps to take are minimal – get a cab,
             etc.

   -   Lifestyle change (NO): the other hand, it becomes hard to say that social hosts ought
       to monitor people’s alcohol consumption and this would put a chilling effect on
       relations at such gatherings. Would then be holding someone liable for omission too.

Ratio: while no duty of care in this case, Justice Weiler hints that there could be social host
liability to third parties on the road in the future if certain factors are met (proximity could
be established in the future ):
    - If there was knowledge and they ought to have known that he would have driven,
         and reasonable efforts were not made to stop the individual.
    - The person liable must be implicated in the creation of the risk – if they served
         alcohol to the individuals (not BYOB).
    - There was a paternal relationship.
    - A duty here could be extended in the future at common law, legislation not required.




                                                                                              14
2) NEGLIGENCE: BREACH OF DUTY

A) BREACH OF DUTY

Vaughn v. Menlove, 1837
Facts : D builds a big haystack near the edge of his neighbour’s property; despite numerous
warnings, he says he will “chance it.” It spontaneously combusts and burns his neighbour’s
cottages down. Neighbour (plaintiff) brings an action in tort against defendant. P appealed
on the grounds that the judge had incorrectly instructed the jury.

Issues: the courts have to choose b/w two proposed standards: RP standard, or whether
the D had acted bona fide to the best of his judgment. Objective versus Subjective.

Decision: rule discharged; trial judgment upheld.

Reasons: if the former, it would take into account his low level of intelligence. Courts state
that the subjective standard would be “so vague as to accord no rule at all…be as variable as
the length of each individual’s foot.” Held that the reasonable person test is less variable
and that years of successful application suggests that the reasonable person test works.

Ratio: persons should be held to the standard of having exercised “caution such as a man of
ordinary prudence would observe.” Objective.

Notes
Policy: we need to hold this person responsible regardless of their low intelligence to be fair
to the P.

Blyth v. Birmingham Water-Works, 1856
Facts: supplied water to a particular region, and there was a severe frost that lead to the
malfunctioning of a properly installed fire plug. The WW followed all proper precautions: it
was constructed according to the best known system and materials at the time; it lasted 25
years up till the leak; they had adhered to the statutory requirements for installation; these
regulations were made with a view to usual climate conditions. The plug failed during frost
and there was flooding damage to the P’s property.

Reasons/Ratio: WW is not held liable because they did what a reasonable man would do.
They would only have been held negligent if they failed to perform the installation standards
according to what a reasonable person would consider prudent, according to average
circumstances and conditions.

The reasonable person would have installed the plug wrt the average circumstances of
temperature in ordinary years. This was truly a freak accident.

Dobson v. Dobson, SCC, Cory J.
The infant respondent (Plaintiff) is trying to argue for a legal duty of care for pregnant
women toward her foetus. One argument is that there should be a “reasonable pregnant
woman” standard to adhere to. Similarly, he child foetus argues that women should owe a
“general duty of care” for which she is liable, and “lifestyle choices peculiar to parenthood”
from which she will be exempt. Thus, they seek to hold the mother liable.

The key is that Cory thinks that to have this specific standard will involve intrusions into the
rights of privacy and autonomy of the pregnant woman.



                                                                                              15
Use this case when you are trying to argue for more exceptions or personal
characteristics, you could use Justice Cory’s argument to make your point.

Difficulties of Articulating a Judicial Standard of Conduct for Pregnant Women
    - Cory J. argues against a standard of conduct for pregnant women
               What standard would women’s acts / omissions while pregnant would the
                  State apply?
               What objective standard would guide juries in tort cases?
               How would they stop prejudicial / stereotypical ideas about women be kept
                  out of equation?
       o Holding women to this specific RWS would have undesirable societal
           consequences and would be unworkable in practice.

Lifestyle Choices Peculiar to Parenthood and Ability to Pay
    - Problem with judicial scrutiny and liability imposed for “lifestyle choices”. E.g. Then
       we are impinging on lifestyle – should we say that preg women cannot smoke?
       Rollerblade?
    - Problem with holding all women to a single standard would be that not all pregnant
       women share the same socioeconomic circumstances. E.g. some are rich and have
       greater access to health care services, education, etc.

Lifestyle Choices Peculiar to Parenthood
       o Proponents of RWS claim that women should owe a duty to the child for regular
            actions (e.g. driving is integral to families/parenthood), but not for “lifestyle
            choices” peculiar to parenthood (i.e. child could not sue on these).
    - Cory, However says impossible to set immunity with respect to activities specific to
       parenthood because so many activities important to parenthood overlap with regular
       life (e.g. driving kid to hockey); would lead to inconsistent results and is best left to
       legislature.

B) THE IMPUGNED CONDUCT

A factual question: what did the D do that the P is at issue with? This makes a difference to
the unreasonable risk formula – what impugned conduct and standard of care that you
apply. When you look to the majority judgment and minority in Ware’s you come up with a
different standard depending on what the impugned conduct is.

Ware’s Taxi v. Gilliham (1949), SCC
Facts: a school child was being transported by taxi per agreement by the child’s parents
and school; while the car was in motion she opened the car door and fell out, sustaining
injuries. Note that the driver already warned the child once about not touching door.

Issue: did the taxi company breach its duty of care to the child in not providing extra
supervision or safety mechanisms for the car?

Decision: appeal dismissed. Finding for the child.

Reason: held that the push button and handle were in easy reach and were an allurement
for the child and that it was foreseeable that children would meddle or play with it with
consequent danger of injury. It was also known that there was a danger with a 4 door
sedan. There were safety devices on the market – cheap, for $10. Other taxi companies
testified that if they did not have the safety devices, they made sure that they had the older


                                                                                              16
children in front. Thus, the REASONABLE MAN would take precautions of ensuring that they
children would not play with the push button and handle. The impugned conduct was failing
to do these things.

Note that the excuse that this was standard custom was not available – ct ruled that for this
to be valid, it had to have been so for a long period of time.

Ratio: when transporting young children, parties should expect that the children will behave
impulsively in ways which endanger their own safety, and should take appropriate measures
to ensure that the children are not able to do so.

Notes: RAND dissenting: the soundest appraisal of reasonable safety is the acceptance of
parents of the protective conditions against hazards into which they allow their children to
be taken by strangers. Cannot hold the company to a higher standard. The child was even
carried in a similar taxi after the accident. There is also tenuous evidence that other
companies always had these kinds of locks on the doors. The push button and handle are
not “allurements” and thus the company cannot be held liable.

Public policy: Rand also argues that this would be floodgates – it would be untenable then to
think that a neighbour would be crippled by lawsuit for taking kids in a ride where they fall
out.

Note that there are a few things that could have been done here: extra supervision and also
just locked the door with a key, but this would have been a great inconvenience and hazard
if car got in an accident (cannot get out). The Maj/Min apply diff standards of care.

The impugned conduct makes a difference when you get to the unreasonable risk formula.
E.g. getting a safety device which is easily available is not much of a burden, having a
second attendant is. You view the unreasonable risk formula through the eyes of RP.


C) UNREASONABLE RISK FORMULA

US v. Carroll Towing, 1947
RE: Famous case, but no precedent for us. However, referred to often by Canadian courts.
The URRF (unreasonable risk formula) does not come from this case, but it is the one that
articulates the algebraic formula.

Facts: major focus is on the question of the owners wanting to recover from the deckhand
and the harbour master b/c of the sunk barge. Barge broke away, bumped into others and
sank. Bargee was away with no excuse for 21 hours including point of break-away.

Decision: for the Plaintiff, but they can only recover 2/3rds of the “sinking” damages
because the bargee was absent and should have been there.

Reason/Ratio: what kinds of factors go into this equation?
   - 1) Probability of harm – conditions at hand
         o Is there a storm in the harbour? Busy? Then increased P that will break away.
            Also with the hustle of the port, it is probable that the work would not be done
            properly.
   - 2) Gravity of harm (seriousness of consequences if injury occurs, “L”)
         o Easy to see that with packed harbour things big damage might occur.
   - 3) The burden of adequate precautions


                                                                                           17
           o   The barge need not be a prison, but bargee should be aboard during daylight.

   -   LIABILITY DEPENDS ON WHETHER B < PL

Notes: using formulas, however, tend to be misleading. Not that exact.
Sutherland refers to this as a balancing test: look at the formula through the eyes of the RP
at a point in time before the impugned conduct took place – e.g. how would they view the
prob of harm, gravity of harm that could occur, and burden of precautions?

For burden of precautions, courts have tended to downplay the notion of pure cost. It refers
to time, inconvenience, personal risk, etc. Social utility only comes up with certain types of
Ds. It is the social utility of the impugned conduct (not the person’s job, etc.). E.g. with a
surgeon – the social utility of leaving a sponge, not the utility of being a sponge. Usually
only comes up with rescue or healthcare workers. E.g. speeding to fire.

Bolton v. Stone, 1951, HL
Facts: playing cricket, ball was hit to the road. Prior to this, there was rarely something hit.
D was hit by a cricket ball, brings action against the club. Over 28 years prior, a ball had
only been hit to the road six times, and on one had ever been injured. The road where the
lady was hit was a quiet side road that gave access to private houses. There were houses
that were closer to the grounds, and the witness stated that he only had balls five or six
times a year in his yard. There was a fence at the end of the cricket field too.

The D claimed negligence in playing too near the road, too low a fence, and failure to ensure
that balls were not hit into the road.

Issue: “What is the nature and extent of the duty of a person who promotes on his land
operations which may cause damage to persons on an adjoining highway?”

Decision: decision for the cricket club; close to fantastic possibility.

Reasons/Ratio: stated that mere foreseeability (probability of harm) is not enough. The
gravity of harm must be taken into account too. The reasonable person will take into
account reasonable probabilities but they are not bound to guard against fantastic
possibilities. The reasonable person does take risks, and is not a paragon of virtue.

   1) Probability of harm – low. 6/28, and quiet side road.
   2) Gravity of harm – could be serious injury. Judge found that, while it was foreseeable
      that a ball might be hit to the road and might injure someone, the odds of this
      happening were known to be remote. This is close to a fantastic possibility. Judge
      held that it was not just foreseeability of harm which should prove negligence, but
      also the likelihood and probably magnitude of harm; harm not likely.

Note that the judge eschews the notion of looking at the difficulty of remedial measures; it
states that for leisure activities, if the activity cannot be carried out safely, it should not be
engaged in at all. This means that there is a higher standard for a leisure activity, and that
courts will not care that much about the burden of precautions in leisure activities. We see
the same for commercial activities is Arnold.

Notes: the court reminds that this is like a balancing act. If the probability is low, the
reasonable person might still take this into account if the gravity of harm is very high.




                                                                                                18
Paris v. Stephney Borough Council, 1951, HL
Facts: disability (one eye) of a worker is relevant to the consideration in determining what
precautions the employer should take in fulfilment of his duty to take reasonable care for the
safety of workers. Worker in this case was working as a fitter in a garage, trying to remove
a bolt with a hammer, metal blinds other eye. Employer should have given goggles, despite
the fact that this was not regular practice!

The gravity was such that precautions should have been taken. Losing one more eye is so
detrimental that it overshadows the low probability of harm.

Priestman v. Colangelo, 1959, SCC
RE: what you look to when trying to weigh the burden of precautions. Also ADDS social
utility to unreasonable risk formula.
Facts: Smythson stole a car and led officer Priestman on a chase. Priestman tried three
times to pull car over and was unsuccessful, almost crashed into a hydro pole himself. Fired
a warning shot, ignored. So he attempted to shoot out Smythson’s tire; arm jolted, bullet
ricocheted and hit Smythson in neck. Lost consciousness, car (which was travelling fast)
killed Colangelo and another. Was approaching a busier intersection.

Issue: should police officers performing their duties in relation to s. 25(4) of the Criminal
Code be held liable for harm inflicted on others in the course of doing so?

Decision: decision in favour of Priestman.

Reason: the test is whether the act is done in a reasonable attempt by the officer to
perform the duty imposed upon him by The Police Act and the Criminal Code. This would be
a complete defence. E.g. it would not be permissible if an escaping criminal ran into a crowd
that the PO shoot into the crowd. Police officers are given firearms to use when it is
reasonable necessary to fire to prevent the escape of a criminal who poses a menace to
society. They already tried to stop the car 3 times, this was all they could do. Further held
that Priestman should not have anticipated having his arm jostled, leading to misdirection of
the shot.

Locke J. is more concerned with the fact that he needs to be apprehended and that he was
approaching an intersection. Views the social utility of stopping him to be much more
important; and the burden of precautions of trying to stop him some other way other than
firing a gun is weighed much heavier.

Ratio: the performance of the duty imposed upon police officers to arrest offenders . . .may,
at times and of necessity, involve risk of injury to other members of the community. Such
risk, in the absence of a negligent or unreasonable exercise of such duty, is imposed by the
statute and any resulting damage is. . . dammum sine injuria.”

Comments
CARTWRIGHT dissenting:
   - Probability of harm: using the Bolton fantastic probability scale; there is a reasonable
     probability that the car would go out of control. Focus on his action to shoot out the
     tire and apprehend the perp in that way.
         o Cartwright is not focusing on the actual chain of events.
         o He is focusing on just the action of the back tire; even if he did hit the back
             tire, there is still a prob of harm associated with this.
   - Gravity: there is not much discussion of gravity of harm, but you can imagine that
     naturally there is a high gravity of harm.


                                                                                                19
   -   Social utility: once again, of the impugned conduct, not being a police officer. The
       concern is with the shooting out the tire to apprehend the suspect.
          o Cartwright says that it was not a serious crime, gives the example of an
              armed robber who has already killed v. an unarmed youth. The suspect is not
              that dangerous. The suspect in this case falls closer to the “unarmed youth”
              example. Less dangerous to just let him go.

This case adds the social utility of the impugned conduct to the unreasonable risk formula as
an additional factor to weigh against the probability and gravity of harm.

Watt v. Hertforshire County Council, 1945, UK, Denning
Denning tells us that this social utility can only come into play when the impugned conduct
is in furtherance of an altruistic activity and, as such, it generally only assist particular
categories of Fs, like medical personnel, fire fighters, police officers and other rescue
workers. The courts will NOT apply this COMMERCIAL MOTIVES.


Crocker v. Sundance Northwest Resorts Ltd, 1988, SCC, Wilson J.
RE: what you try to look at when weighing the burden of precautions. We’re now looking at
what the standard of care is here, and if it was breached?

Sundance should be held liable because its burden of precautions was so low:
     - Could have disqualified him upon seeing that he was drunk
     - Could have preventing him from competing by not supplying a fresh tube!
     - Could have educated him of the risk of what he wanted to do
     - Stopped serving him alcohol upon seeing that he had a bib on.
All they did was ask him if he was in “any condition to race.” This is not good enough.

When you take all the possibilities of what they could have done, there is a miniscule burden
of precautions. There is not much prob or harm of gravity of harm; but remember that
people had been hurt before on the run, and there was video of previous years’ competition
that people were getting hurt. So, it was not unlikely that there would be a prob and gravity
of harm. There is nothing to counterbalance this because the burden is so small. There is
no social utility either. You look at this through the lens of the “reasonable resort” or
“reasonable organizer” prior to the injury.

Finlayson, J.A. stated that the resort just has a duty to warn the participants as to the
nature of the activity with sufficient detail so that they could assess the risks themselves.
Drunkenness carries with it its own hazards.


D) MENTAL DISABILITIES

Fiala v. Cechmanek, 2001, AB COA
Facts: went on a run, experienced his first severe manic episode, later diagnosed as bipolar
disorder, type I. The symptoms prior to this were not so severe that he would have known
that he might have this episode. Got on car, strangled Ceckmanek, who accidentally hit the
gas an injured Fiala in another vehicle. Ceckmanek is being charged with negligence (the
driver of the car). The P is also bringing one against Macdonald. Cechmanek is likely being
tied up due to the automobile insurance. Three psychiatric experts testified, two found him
not to be in the capacity to appreciate his actions; the other agreed on cross-examination.




                                                                                                20
Prior to this time in Alberta, the operative test was that you don’t take mental illness into
consideration at all. There is still the ordinary RP standard.

There is also an alternate test which prevailed in Ontario and still does (Buckley and TTC).
The test was that someone who is suffering from a mental illness sufficiently extreme so
that they do not have the capacity to understand that they owe a duty of care, or cannot
discharge the duty, they cannot be liable.

The court feels the need to revisit the previous Alberta case. They say that it is “factually
different.”

There are two competing philosophies wrt to the tort liability of persons suffering from
mental illness: (1) emphasizes the compensation of the victim, (2) acknowledges the
incapacity of the person who caused the harm.

Arguments for holding the mentally ill to the reasonable person standard (Policy/Theory)
   - When innocent parties are injured they deserve to be compensated – compensation
     is paramount in tort.
   - Institutional competence (courts are not): practical difficulty with determining the
     extent of a person’s mental illness.
   - Liability will encourage their caregivers to take adequate precautions.
   - Judicial administration (we need a firm rule) - any consideration of mental illness will
     erode the objective standard.

Arguments for taking mental illness into account
   - Fault is still an essential element in tort law. There ought to be moral blame. Tort is
     a system of corrective justice, and is not primarily based on compensation. It is an
     inefficient and expensive way to provide for the monetary needs of victims.
   - Institutional competence: given increased understanding of the biological roots of
     mental illness we can more easily distinguish between legitimate and illegitimate
     cases.
   - It would be more effective to impose liability directly on caregivers for failing in their
     duties.
   - Judicial administration (flexible standard): it is important to acknowledge the impact
     of mental illness as to not undermine the legitimacy of these disorders. Holding the
     mentall ill to the objective standard would create a no-fault regime. Physical
     disabilities are already taken into account in the RP test.

Ratio: test: in order to be relieved of tort liability when a D is afflicted suddenly and without
warning with a mental illness, that D must show whether of the following on a balance of
probabilities:

   1) as a result of his or her mental illness, the D had no capacity to understand or
      appreciate the duty of care owed at the relevant time; or
   2) as a result of mental illness, the D was unable to discharge his duty of care as he had
      no meaningful control over his actions at the time the relevant conduct fell below the
      objective standard of care. (this is all done by relying on expert testimony).

Unlike the test in criminal law, the D does not need to know that his actions are “wrong”.
There is also another case where a driver is suffering insane delusions that his truck is being
powered by a remote control, he is not to be held liable in tort because the insanity prevente
him from discharging his duty (Hutchings, 1992, ON Gen Div)




                                                                                                21
McDonald satisfies the onus and is exculpated.

This is very similar to the Buckley case (same test as we have in Ontario). Note that this a
narrowly defined test, and not everyone falls within its ambit.

Wenden (1991, AB QB) rejected the Buckley test and used the RP standard. In our case
here, McDonald had not previously been diagnosed. The court says that this is different
from Wenden (a large part for this decision was that he was covered under insurance b/c he
was driving). The D in this case was already been diagnosed and was in the asylum; this is
different from people that have sudden onsets of mental illness or physical disability (not
knowing that you had a bad heart, get heart attack). So, if in Wenden the no capacity test
was not met, it looks like there are numerous mentally ill people that would not meet this
test.

Note: how about Alzheimer’s, someone during a forgetful element. These are grey areas
which we might see on an exam. We need to draw analogies.


E) THE YOUNG

Heisler et al. v. Moke et al.
Facts: child was warned against jumping. Not important. Pressing on the clutch of tractor.

The court stipulate two part test in order to determine if children should be held liable:
   - 1) Subjective Capacity Threshold Question. Whether child of his age, intelligence,
      and experience has the capacity to capable of being found negligent at law.
           o No absolute rules for age, but general guideline is that children under age 7
              are regarded not to have capacity. If under 7, the inquiry stops here.

   -   2) Evaluate the child’s conduct wrt to the standard of a child with like age,
       intelligence, and experience in the circumstances.
           o We take intelligence and experience into account because there is no direct
               link between age and maturity. Children all mature at different rates. Taking
               subjective factors into account.
           o Note: for a child that is more intelligent etc, would be held to a higher
               standard.

However, there are exceptions to this exception:
   - Dellwo (US) – the child is held to an adult standard, the ordinary reaonsble person
     standard, when the alleged negligence of the child stems from their participation in
     an “adult activity.”
          o Rationale: when a person observes children engaging in a child activity, it is
             possible to anticipate conduct that does not reach an adult standard of care.
             But, one cannot know whether the operator of an approaching automobile,
             airplane, or powerboat is a minor, and thus cannot protect oneself.

   -   Ryan (reaffirmed in McErlean) adopts this in Canada. The former involved
       snowmobiles, and the latter trail bikes.
          o The critical factors here involved motor power, and speed. Machines of this
              nature, would cause danger if the person did not adhere to an adult standard.
                  Dellwo says that it is “playing toys, etc.” The question is that some of
                     these – trail bikes – aren’t these things that children do too? Grey.



                                                                                             22
                     Is using a gun an adult activity? In rural communities, it is quite
                      common for children to go hunting. You must look to how it is that we
                      define adult activities – is it by something that is “dangerous” or
                      something that is “motorized.”
                     There is another question – who is a “child”?
                           16 or 17 years of age? The courts have not been very clear on
                             this question.
                           If the child standard is one that applies, the P can still go after
                             the parents. Not through vicarious liability, but for failure to
                             supervise the children.


F) PROFESSIONAL NEGLIGENCE

Use the standard of that person with the expertise. This is the RP with the expertise. This
will very whether or not you are a specialist. The standard will be consistent with a
reasonably competent specialist. The reasonably competent general practicioner, brain
surgeon, etc.

The court will look to the standard practice of that part of the profession. The court is trying
to create a balance of clients and patients who are entitled to a standard of care, but also
respecting the interest of professional autonomy.

Standard has to comport with the ordinary practice of the profession.
   - E.g. a lawyer is not liable for not winning a case.
   - The reasonable competent professional does not make negligent errors, but does
      make errors or lapses in judgment.
   - Again, we need to rely on expert evidence again.
          o E.g. this is an accepted course of treatment for this illness.
   - You may have already noticed that the RP standard is not what the average person is
      capable of. However, some say that this is (philosophically) not a case for a higher
      standard because the professionals are only held to that of an average professional.

Challand v. Bell, 1959, AB SC
Facts: Farmer fell, working in rural area. It is known that gangrene bacteria are commonly
found in soil contaminated by farm animals and in the clothing and skin of farmers working
around cattle. Wound looked uncontaminated, so Doctor only reset bone. Farmer
complained about circulation problems. He had gangrene and had to have his arm
amputated. Alleged that the defendant doctor should have diagnosed the possibility of
gangrene from occurring.

Issue: was the doctor comporting with standards of professional practice for doctors in his
circumstance in acting the way he did?

Reason/Ratio: doctors, surgeons, and dentists owe to their patients a duty in tort apply
the degree of care which a normally skilled member of his profession may reasonably be
expected to exercise.

The defendant establishes that he has exercised the skill required. Pointed to another
expert and says that this is how these injuries are usually treated. What the doctor did was
what a normal doctor would have done. This was an error, but not a negligent one.




                                                                                             23
Notes: there is talk of the fact that what is “average” will not only take into account the
designation (i.e. GP vs. specialist), but also locality (i.e. rural vs. city doctor). There is a
difference in resources. Note that they also need to know when to refer to specialist.

Policy: note that social need for compensating victims is paramount, and thus BEGINNERS
are held to the standard of those who are reasonably skilled in their particular profession

Remember with the experts, there will always be some that dissent. In this case, Challand
relied on his own experts, while the defendant had different one. There need not be
unanimity, just general consensus.

Policy/Theory - It does seem that some kinds of practice will not be questioned by the
courts as they feel they do not have the expertise to decide it.
   - Therefore if a body of professionals got it “wrong” then there is no recourse.
   - What about innovation – this makes it risky to have a doctor to try a new treatment,
       even if it is better treatment.
   - If they engage in a treatment without expertise, they would be held to the standard
       of what they held themselves out to be. E.g. general practitioner does specialists’
       work, they will be held to the specialists’ duty.

Brenner v. Gregory, 1973, ON HCJ
Facts: P agreed to purchase 4 lots after inspections. Gregory (solicitor) was to search the
title and close the deal. The building on the land encroached on the street. The vendor
warned the buyer about this, but the buyer never asked the solicitor to conduct a survey nor
shared with him what he heard. No survey was done. The lawyer was sued for being
negligent for not having this survey done.

What is the standard that this lawyer is being held to?
  - The standard of the reasonably competent solicitor. Same as the medical standard.
          o You must only follow “standard practice.”
          o The evidence here was that you have to look to the general practice. The
              custom here was not to order a survey unless there were distinct warning
              flags that this was required. The phrase used here is “something that is
              inconsistent with prudent precautions against a known risk.” This would
              require you to go beyond general practice.
          o The issue is that the Plaintiff knew this but did not communicate it to the
              lawyer. If the Plaintiff had done this and said there needs to be a survey, it
              would be incumbent on the lawyer to do so.

So, there is not breach on the part of the lawyer.

Historically lawyers had immunity to litigation. Now, there is a lot less deference given to
the general practice to “lawyers” vs others professionals like doctors, etc. Judges don’t have
a problem doing this because they have no trouble deciding what the reasonable behaviour
would be.

G) CUSTOM

Custom is not regarded as determinative. However, it appears that it is for professionals.
Two issues: How does it operate for ordinary people? For professionals?




                                                                                                   24
Waldick v. Malcolm (1991), SCC
Facts: P slips and falls. Malcolm had not salted or sanded the walkway. He claimed that
this was the custom in the area and thus should escape liability.

Issue: What is the effect of this local custom?

Argument in favour to take custom in account:
   - Crystallizing of standards: much of the RP test can be seen as a crystallization of
     community standards. Customs can crystallize vague standard of reasonable care.

Arguments against:
   - Must look beyond what people do, and look to the safety of the practice.
   - The custom might be negligent on itself. People might do it because it’s easy, not
     safe. Customs can vary from place to place; local custom might make it difficult to
     adhere to a local standard. Customs might be outmoded. It might not be keeping up
     with the evolution of what we think is reasonable. Progress.
   - Evidentiary problem – what can we say is a “custom” to being with?

The only person who says that it is a custom not to salt and sand is Malcolm.

The courts say that they take custom into account, but it is not common that they take
custom into judicial notice (taking it into account without evidence). For some customs, it is
hard to come up with expert evidence (which is required) to prove this. The court says that
there are only certain kinds of customs that are taken into account:
   - “Customary way in which a business or profession is conducted”
           o It appears that custom will thus only apply to business and professionals.
           o Neighbourhood custom is hard to establish. If it is, plaintiff can still prove it to
              be negligent (parking practices of farmers in Drewy v Towns).
                   E.g. Arnold v. Teno, it is hard to imagine that Teno would be found not
                      to have breached on the basis of local custom – that letting kids run to
                      get ice cream is okay.
                   E.g. the courts state that the parking practice for farmers to leave their
                      trucks on the snowbound roadside is negligent and “habit”, not custom.

Ratio: when you do have evidence that there is something that is customary, it will be
taken into account, but it is not determinative. It will not determine breach one way or
another. Note that the D or the P can bring in custom (for defence or charge). The ONUS is
on the person adducing custom to prove it.

Ter Neuzen v. Korn (1995), SCC
RE: standards of professional practice. This is a subset of custom that weighs very
differently. It looks like it can be determinative in some cases.

Facts: got HIV through AI procedures. At this point in time there were no reliable tests to
screen donors for HIV. There was no knowledge that this should be done.

   1. Who is the reasonable person?
        a. The doctor is to meet the standard of the reasonable obstetrician and
             gynaecologist (re: specializations are taken into account) in the circumstances
             that the D was in.
                 i. “Circumstances” takes into account the year. The court says that
                    reasonableness cannot be judged through hindsight. What people
                    should have known at the time.


                                                                                              25
                  ii. The court looks back and decided that “the prudent and diligent
                      specialist” had the standard not to screen for HIV. The D adhered to
                      the standard of professional practice at the time and thus there is no
                      breach.

In normal civil cases, custom is not determinative. In professional practice cases, custom is
determinative. You bring expert evidence, and if the professional adheres to the standard,
the inquiry ends. This is because the courts do not have the proper institutional competence
to gauge what is specifically “proper practice.” You’re not going to get to the reasonable risk
formula if you are dealing with legitimate standards of professional practice. This will
supplant the unreasonable risk formula

Ratio: the courts state the following rule:
   1) Where procedures involve complex medical treatment beyond the experience of a
       judge or jury, it is not open to the court to find a standard medical practice negligent.
   2) The exception: if a standard practice fails to adopt obvious and reasonable
       precautions, this is no excuse (e.g. failure to remove sponges).

You’re not going to get to the unreasonable risk formula if you are dealing with legitimate
standards of professional practice. This will supplant the unreasonable risk formula.

Notes: who is a professional? This is something where the jurisprudence is not all that
clear. Some think that it is deferring to self-governing bodies with professional expertise.
E.g. Plumbers do not have such a body, thus do not qualify although they have professional
expertise. This deference is reserved for doctors, lawyers, engineers, architects.

This leaves room for professions to insulate themselves. On the other hand, some might
say that this is necessary to enable innovation, etc.

H) NEGLIGENCE AND STATUTORY PROVISIONS

Statutory Breach – this is dealt with similar to custom. Notion that stat. standards
crystallize the gov’t idea of what is reasonable. This is similar to custom.

Statutory breach can be a violation of a CC provision; of a city bylaw, etc. Does not have to
be criminal.

How should breach of a statute be weighed? Policy/Theory

Arguments for taking statutory breach into consideration:
   - 1) First, is something said about civil liability especially in the statute?
         o Note that the legislature rarely does specify this.
         o When this is raised as part of a negligence suit, the argument is that it should
              figure into the analysis for respect for the legislature. If the legislature says
              that this is behaviour that you do or do not engage in, the court should show
              deference here.
   - 2) Courts are not the competent institutions – idea that legislature has much better
     ability to research risks, etc. And are better able to take these POVs into account.
     So the courts should take this into account.
   - 3) Deterrence - strengthen legislation by adding the might of tort remedies to it.
   - 4) Judicial Administration – if statute can crystallize what is reasonable or not, why
     go through entire unreasonable risk formula?



                                                                                               26
   -   5) Guidance – statute can give more concrete guidance to jury of what is or is not
       reasonable.

Arguments to not giving statutory breach any weight:
   - 1) Disrespectful – it is disrespectful to the legislation. When not stated – this takes
     the stat beyond the stated intention and distorts purpose.
   - 2) Proportionality problem – by linking civil liability. You can have a minor violation
     that can lead to civil ruin (e.g. a stat provision that has a $50 fine; unfair to add tort
     damages).

Saskatchewan Wheat Pool, 1983, SCC
Facts: the D is a grain dealer. The P is the Canadian Wheat Board. The Board gave an
order for wheat to be loaded onto a vessel. The wheat was loaded from the Pool’s terminal
grain elevators. There was a visual inspection that did not show rusty beetle larvae. Later,
there was a berlase funnel test, which showed that there was indeed an infestation. By this
time, the ship had sailed, so it had to be diverted and fumigated. The Board is trying to
recover the $ from the Pool. The Board is not alleging negligence; it relies entirely on
statutory breach to recover damages for delivery of infested grain contrary to s. 86(c) of the
Canada Grain Act.

The Board could only recover if they could convince the court that they should follow the
English method of stat breach separate of negligence law. It is gambling, looking for that
nominal tort.

There are two positions for the court to choose from:
   - The English position is that stat breach is unrelated to negligence.
           o Nominate tort of SB, distinct of negligence. The P need only show breach of
              the statute, and damage caused by the breach.
           o The UK courts held that the tort was available to breach of stat provisions
              where the duty created in the statute was directed toward the individuals, not
              the state or the public in general. They were trying to narrow this.
                   This all depended on the intention of the legislature wrt the statute.
                       This was heavily criticized because of the vagueness – if the legislature
                       had intended something, they would have said so.
   - US position is that SB is subsumed within negligence law.
           o SB could still play various different roles w/I negligence, two diff views.
           o Majority view in US: SB constitutes negligence “per se.” This means strict
              liability – if the stat provision has been breach, there is negligence (similar to
              Uk position, just called neg). Prima facie. This means that there is an onus
              shift. The P must just show that there was a breach of statute, the D must
              then show that they did not.
           o Minority view: stat breach is evidence of negligence. Evidence.

   -   Cdn courts at this point vacillated between all these options.
          o The most common one adopted in this case was the prima facie evidence
             (minority US).
          o So, the SCC opts for the evidence of negligence position. There is no “tort of
             stat breach” as in the UK, or negligence per se in majority US. They choose
             minority US.
          o So, the Cdn Wheat board is out of luck – they need to put evidence forward to
             make a case against the SK Wheat pool.

   -   Dickson rationalizes his position:


                                                                                              27
           o   Wants to avoid the fictitious hunt for intent of the legislature.
           o   Wants to avoid the inflexible standard of criminal cases applied to civil ones
           o   Wants to make a decision that is more consistent with the contemporary
               developments of tort law. This means to take more and more of tort law w/I
               the umbrella of negligence law (there used to be a lot of different torts with
               their own rules).
           o   Avoids the complete w/drawl from fault principles. Wants to only hold
               someone liable if there is fault.

Ratio: so, breach of stat standards is evidence that a common law duty has been breached.
Compliance with the statute is evidence that it has not been breached. This is not definitive;
it is all evidence for just what you go through after the unreasonable risk formula.

   -   Breach of statute is only mere evidence, and will only be taken into account as part
       of the equation if you can show 4 things:
           o 1) That the statute has been breached.
           o 2) The Breach has to be the cause of the damage. E.g. if we are concerned
               about the speed limit – yes, they have exceeded the speed limit. But was it
               the excessive speed that caused the damage. E.g. you breach a stat by
               driving with broken headlights – but not a big deal if accident while daylight
           o 3) The accident must be of the type that the statute seeks to prevent
           o 4) The P must belong to the class of persons that the stat seeks to protect

   -   These conditions tell us when we take it into account (Scott case).

Gorris v. Scott, 1874, UK
Facts: shipping sheep, they get washed overboard. Sheep not properly penned in
accordance with statute. P argues it was breached, and it should be taken into account in
determining negligence. Court says that the purpose of the stat was to prevent contagious
diseases. It is not about preventing people from losing livestock, it is to keep them away
from each other and avoid bringing diseases into the UK. Thus the court rules that it cannot
be used.

(3) and (4) are the focus here. The class of persons who were sought to be protected by
this was not the P who had a commercial interest. It was the industry as a whole (so
perhaps there was a bit of a connection). The main failing is at stage 3, however.

To figure out (3), we need to fish around for the intent.

Ryan v. Victoria, 1999, SCC
RE: flip side of Saskatchewan Wheat Board case. How heavily we weight compliance of
statute in favour of D, not how heavily we weigh breach against them.

Facts: P crashed when front tire of motorbike became trapped in a gap running alongside
the railroad tracks. This amount of space was OK in the parameters of the statute however.
The railroad argues that they have met the stat, and thus they have met their common law
duties and no negligence. They argue that stat compliance should weigh especially heavily
for them because they played an important historical role in the development of the country.
This is historically based in the fact that liability would impede the industrial and economic
growth of the country.

However, the courts question this. Even 15 years prior to this case, the SCC had questioned
whether or not this exception should continue to hold.


                                                                                                28
In Ryan, the SCC says that there is even more reason to question it, and thus the court
explicitly states that this precedent is no longer valid (this usually only happens when there
has been doubt cast on it for a long time).

Court decides to apply ordinary rules wrt statutory compliance.

The general rule is a mirror image of the Sask WP rule – breach of stat duty is just mere
evidence. This is the same for compliance. Evidence that you have upheld your
common law duty of care. Note that the evidence will weigh more heavily in
“ordinary” cases, cases within the scope of the statute. This links in to what the
intent of the statute is. If the statute is more tangentially related to the issue, it
will not weigh as heavily.

Statute is not determinative, but the reasonable person will comply with stat requirements
so it is taken into account. The railway was held liable.

3) NEGLIGENCE: FACTUAL CAUSATION

A) CAUSE-IN-FACT

Kauffman v. TTV, 1959, ON COA, Morden J.A.
RE: BUT FOR test. This is our THRESHOLD TEST.

Facts: using the escalator, domino effect and the plaintiff suffers serious injuries and so
sues the TTC. The more obvious thing would be to sue the kids, but they might not have $.
So, she must establish cause. Alleged: (1) the TTC should have had a proper kind of
handrail on the escalator – they were slippery; (2) there should have been supervision. The
impugned conduct is also important to causation!

However, note that there was no evidence that the man in front or the two youths
attempted to grab the handrail when they started to fall.

Reason: no evidence that a better handrail would have made a difference – no one grabbed
for it. There is not much discussion about the absence of the attendant, but the court
dismisses this too. If this did constitute a breach, this would not have made a difference.
BUT FOR the alleged negligent conduct, the damage would have happened anyways. The
type of handrail or absence of the attendant was not established as a contributing cause.

Notes: the scientific aspect of causation means that the outcome of the BUT FOR test is
very much dependent on the state of scientific knowledge at the time of the trial.

Prichard v. Liggett & Myers Tobacco (1961)
The court could not scientifically establish causation on a balance of probabilities the
smoking was a cause of lung cancer at the time.

You will always ask the BUT FOR test first. If they cannot establish causation, this is not the
end of the inquiry. There are a number of alternative tests that fit certain circumstance
where the P is given a break. If yes, you move on.




                                                                                             29
B) GENERAL ONUS OF PROOF

Snell v. Farrell, 1990, SCC, Sopinka J.
Facts: D is ophthalmologist that performed surgery on the respondent to remove a cataract
from her right eye. After injecting anaesthetic behind the eyeball, the D notices small
haemorrhage. He found that this was not serious, so after waiting 30 mins he proceeded
with the operation. Following the surgery there was blood in the chamber of the eye which
impaired vision. When it cleared nine months later the P was able to see the first time and
as a result the optic nerve had atrophied resulting in a loss of sight in the eye. However,
the haemorrhage was only one possible cause of the atrophy. Conflicting evidence from
expert witnesses. So, P is not able to establish on BUT FOR test causation. But court takes
issue with this standard which denies the compensation b/c the P is not able to prove all the
technical facts.

Issue: is there some less onerous standard that can be used?

Reason: Sopinka states that there are a variety of times when we might want to deviate
from but for test in the name of fairness. He starts by maintaining the onus is on the P to
prove on a balance of probabilities. The onus only shifts for defences.

But, even if you can adduce expert evidence, the surgeon/D is still the only one that can
really recount what happened.

So, Sopinka decides to relax the onus instead of shift it. He says there are problems, but
they lie in the fact that there is too rigid an application of the factual causation standard. He
says that you do not need scientific precision. We get an alternative test in medical
malpractice cases, it will take very little affirmative evidence to justify an inference of
causation.

Policy Argument for:
    - Institutional Competence: Courts are the right place. Sopinka is convinced that in
        medical malpractice suits, Ps are going with other routes of compensation because
        factual causation is hard to do.
    - Economic Argument – the benefits outweigh the costs.

Policy Argument against:
    - Judicial Administration: Floodgates - The liberalization of rules for recovery in
        malpractice suits is the cause of the medical malpractice crisis of the 1970s in the
        US.
            o Economic Argument: insurance premiums become exorbitant, and some
              insurers just w/drew all together. This will make it harder to get insurance.
            o Also, there would then be the practice of defensive medicine, and less
              innovation.
            o Also, there is the fear that there will be more doctors that will be held unjustly
              liable.

Ratio: the legal or ultimate burden remains with the Plaintiff, but when the facts lie
particularly in the knowledge of the defendant, in the absence of evidence to the contrary
adduced by the D, an inference of causation may be drawn although positive or scientific
proof of causation has not been adduced. NOT JUST MEDICAL.

This is NOT a “shift in onus”, either a legal or evidentiary burden. It is lower – a tactical
burden.


                                                                                                30
Notes: Sopinka did say that there are cases where there might be a shift…this is seen in
Cook v. Lewis.


C) TWO NEGLIGENT DEFENDANTS BUT ONLY ONE CAUSE

Cook v. Lewis, 1951, SCC, Rand J., Cartwright J.
RE: for when you use the reverse in onus shift. Yes this is a valid test in Canada.

Facts: Lewis was hunting, the two others who were deciding to split the catch; Lewis is shot
and is unable to say by which one. They both shot at the same time. We know that one did
it for sure.

Rule under ordinary circumstances: if the P cannot fulfill the onus to prove on a B of P that a
particular P caused the damage the action must fail. As a result there was a perverse result
– the hunters were released from liability by the COA.

Reason: US case Summers v. Tice – two independent Ds who both have breached their
duty to the P by taking an unreasonable risk. In this situation, the P argues that the onus
should shift to them. The P should not suffer. Justification – they are both wrongdoers, but
also, one of the results of the wrongdoing is the Ps problems with proof. So, it would not be
fair to leave this on the P as they are better able to decide what happened. Onus shifted to
Ds.

Ratio: (although not used) the test is that when it is certain that one of the individuals
committed the offence charged but the Ds have destroyed the Ps power of proof, the onus is
shifted to the wrongdoer to exculpate himself. It becomes in fact a question of proof
between him and the others involved.

If they cannot prove the Ds must decide, and if they cannot, it would be 50/50. The liability
will then be apportioned between the two.

Notes: the test was not applied in this case because the court says that the evidence was
that each shot in a different direction. So, this had to go back to be decided. If they shot in
the same direction, this test would have been applied.

Note that this test is limited to cases where there are two negligent defendants,
only one cause, and the P is I NO way responsible for the problems of proof.

Lange v. Bennet, 1964
Facts: P was hunting with two others. Suddenly stood up as the two were firing behind him
and was struck. The P relied on the rule in Cook, but this was not extended because the P
was himself negligent or contributed, so according to the traditional rule the action failed b/c
he could not establish which defendant fired the shot that inured him.


D) MARKET SHARE AND SIMPLE PROBABILITY

Sindell v. Abbott Laboratories, SC of California
RE: “market share” liability. Not a precedent would have to argue for it.
Facts: P is suing via class action for injuries allegedly resulting from prenatal exposure to
chemical DES manufactured by one of the Ds. DES was marketed as a safe drug to prevent



                                                                                             31
miscarriage without adequate testing or warning. Found that less than 1% of DES
daughters were susceptible to cancer; but proven the drug does cause this problem. Breach
– failure to do proper testing or warn once drug was on the market. But because it takes so
long for the injuries to show themselves, it is difficult for the women to prove who took it
and who manufactured it. A number of drug companies manufactured DES by the same
formula. P asserts that Eli Lilly and 6 other companies produced 90% of DES.

Traditional Rule: causation on B of P. There are 11 different companies. The P has been
able to show through expert evidence that the problem was from the DES. But she has to
establish on a BOP which company it was. But none of them had more than 50% of the
market, so they could not say that on BOP it was them.

1) You could not use Snell b/c the companies would be in no better way to tell which co gave
the pill to the mother. The part that the P cannot prove is which company made the pill
that her mother took.

2) Cook – there are more than two Ds, so you cannot lay the problems of proof at the feet of
the companies. However, court decides that it can extend the rule in Summers v.Tice.

When these facts are present…
  1. Must be shown that the product in question caused the Ps damage.
  2. Must be shown the product has to be generic – produced by all companies with the
      same formula.
  3. Mfg that caused the damage can not be identified through no fault of the P (cannot
      be contributory negligence).
  4. The P has to sue enough different Ds to add up to a substantial share of the market.
      (A “substantial” percentage, roughly 75-80%).

…this will be sufficient to show causation. Then, you get REVERSE ONUS. They each D will
be liable according to their market share unless they can exculpate themselves (e.g. that
they did not mfg until after time when mother was pregnant, or that they did not market in
that region where mother was).

Note: this is a US case that has not yet been accepted in Canada! You would have to
make policy argument for/against on the exam to use this.

Policy argument FOR ADOPTING the test: the court states that
    - Moral: Ds are better able to bear the cost of injury resulting from the manufacture of
        a defective product.
    - Moral: this risk can be insured by the manufacturer and distributed among the public
        as a cost of doing business. They also have INSURANCE, Ps do not.
    - Moral: Ds can also though the process of civil procedure add in other Ds who the P
        might have overlooked so that the loss is more equally apportioned.
    - Moral: Ds can still exculpate themselves, if not, still fair cause only liable for market
        share.
    - Deterrence: this would also deter companies from releasing unsafe drugs on the
        market.

DISSENT: AGAINST ADOPTING the test: unfair b/c…
   - Moral/Purpose of tort law: Ds are paying when they might not be at fault. Contrary
      to our basic principles of negligence law.




                                                                                             32
   -   Economic Argument: benefits outweigh the costs. Holding liable for testing means
       that they would have had to wait literally a generation before releasing the drug.
       Should there be liability when over 99% of DES daughters are fine? Benefits.
           o This would also dissuade future research.
   -   Judicial Administration: Floodgates. Nothing to say that this is a test that’s limited to
       a class-action scenario. This could get out of control and spread to other industries.
       Giving preferential treatment to certain classes of Ps.
   -   Judicial Administration: confusing aspects of the test – how is market share
       determined? Nationally, locally, etc.
   -   Institutional Competence: the courts are not the correct arena to decide this. There
       are far reaching effects on the insurance industry, and the industry that the co
       operates in general. This is best left to the legislature.
   -   Note that since the passing of this test, it still has not been adopted!

Note
This is a VALID test in the US. It was applied in class actions with IUDs and breast implants.
Note that there has to be a generic product – for tobacco, a lawsuit did not work because
the product was not valid (Sutherland lecture).

Has not been adopted in Canada, but not rejected either.

E) MULTIPLE CAUSE

Athey v. Leonadi, 1996, SCC
RE: negligence and non-negligent causes. Using the BUT FOR/MATERIAL CONTRIBUTION
TEST.

Facts: P has pre-existing back injuries. Has then two different car accidents. Recovers
quickly, and doctor tells him he can exercise (this was not negligent). P goes to do some
stretching (not negligent) and then suffers a herniated disk. Surgery. Needs to take an
easier, lower paying job.

TJ determined that the accidents were material contribution, in combination with the back
issues, and that the MV accidents are 25% responsible. This creates a problem because
there is no one else for the P to get the 75% from.

1) Multiple Tortious Causes: in essence, the TJ has apportioned between tortious and non-
tortious causes, and THIS IS CONTRARY TO PRINCIPLES OF NEG LAW. Say that
apportionment legislation is for among negligent causes, not non negligent causes leaving P
without recourse.

2) Divisible Injuries: this is different; it is where there are two distinct, divisible injuries (e.g.
hand and foot). Then each D is held liable only for their damage. In a single injury this is
not possible.

Issue: can liability be apportioned between tortious and non-tortious causes?

Decision: for the P. Ds fully liable.

Reason/Ratio: in using the BUT FOR test, court stresses that causation does not mean that
the D is the SOLE cause. To establish causation and thus liability, there must only be a
MATERIAL contribution from each D. It is MATERIAL if it falls outside the DE MINIMIS range.
Causation also need not be determined by scientific precision. It can be answered by


                                                                                                   33
“common sense.” Note, however that we know from the TJ that 25% is enough. In
this case, the accidents were said to be just a “minor cause” but this is good
enough. This was enough to hold the D liable for 100% of the disc herniation
injury.

Damage cannot be apportioned among negligent and non-negligent causes because that
would mean that the P can only recover 100% when the D’s negligence was the sole cause
of the injuries. Since most events are the result of many causes, there will often be non-
tortious causes contributing to the injury.

The court says that if the herniation would have happened ANYWAYS, or the prior conditions
were alone a sufficient cause, the judge must determine on a BOP if the D’s negligence
materially contributed to the injury.

Notes: below cases show when fact patterns have met the but for/material contribution test

Arneil v. Patterson, 1931, HL
Two dogs owned by two different Ds attacked and killed sheep owned by P. (If someone
had witnessed it and you could say what dog did what, you would have a divisible injury
situation and you would hold each owner separately liable for their damage.) In this case it
is not clear. The court says that there is material contribution from each dog and both
owners are jointly and severally liable for whole of damage.

Lambton v Mellish, 1894
Merry-go-rounds operating at same time were held jointly liable for nuisance. Each, on their
own was not loud enough, but together, their combined effect amounted to nuisance.
Hence, each materially contributed to the damage.
Sutherland’s example – mill owners that are all polluting a steam. None individually is
creating a pollution problem. But together they all create a problem. Each is thus
materially contributing.

Negligence Act
Where there are damages that have been contributed to by the negligence of two or more
people, the court shall determine the degree in which each of them is at fault, and these
people will be jointly and severally liable to the P. Each is liable to make the contribution to
which they are liable.


5. NEGLIGENCE: REMOTENESS AKA PROXIMATE CAUSE

Two facets to remoteness: foreseeability of P and fs of damage. Shift from dir test in
polemis to foresight test in wagon mound 1. Forseseeability of P and damage are really
wound together. We are just pulling them apart so you see that both need to be addressed.
The challenge is that now we have shifted to the foresight test, how is this different from all
the other sections that we have covered? Here, we are narrowing in on the specific P and
damage.

Foreseeability of P
   - This is hard b/c we are using cases of duty to look at this.
   - When we get to WM1, and see the shift from dirforeseeability test, you can look
      back and see these cases a bit better.




                                                                                              34
A) DIRECTNESS TEST

Polemis, 1921, UK
Facts: Ship charterers are transporting petrol in cans. They need to move some of the tins
at port, and the stevedores, through their negligent action, dropped a wooden plank into the
hold. There were many fumes in the air, and the spark created by the dropping of the plank
ignited the entire ship. Stevedores were hired by the Charterers. There was a duty owed,
and it was breached because the some damage was foreseeable – if you drop the plank it is
likely to do damage to the ship anyways. It did, in fact, cause the spark.

The Charterers are being sued by the owners and claim:
   1) protection from liability by the exception of “fire” in the charter agreement;
   2) damages were too remote, as it could not reasonably have been anticipated that the
      falling of the board would have caused a spark.

Reason/Ratio:
   1) exception clause was of no effect b/c it did not protect against the loss from the
      negligence of their servants, since this was not expressly mentioned
   2) charterers liable for all the direct consequences of the negligent act (the stevedores
      were their employees), even though those consequences could not reasonably have
      been anticipated. Thus liable for ship.

If there is sufficient foreseeability for a duty and breach, and there is factual
causation, the D is responsible for all the direct consequences flowing from the
impugned act.

Notes: For the most part, remoteness was not much of an element anyways. Before too
long, this directness test was supplanted by a foreseeability test. This was thought to be
more logical and just.

Put this in context – this case is before D v. S. Courts didn’t see much need to use
remoteness to limit liability; the concept of duty was already narrowly restricted to specific
groups. Today, the courts do need some way to shut things down at remoteness stage.

The foresight test for remoteness (as opposed to the directness test) – the Ds are only
responsible for the probable consequences of their acts. It is arguable that once we move to
wagon mound II we get to possible consequences. It can be argued whether or not we are
veering back to the directness test.

B) FORESEEABILITY OF PLAINTIFF

Palsgraf v. Long Island Railroad Company, 1928, NY COA, Cardozo CJ
RE: this is not a precedent and is pre Donoghue, but helps to articulate the ideas of
remoteness that we use. For a foresight test, we’re looking at the foreseeability of the
individual P.

Facts: two men running to catch a train; there were station employees that tried to help get
them on the train by pushing from behind. As the second person tried to get on, the case
was dislodged and it dropped onto the tracks. Package contained fireworks, but nothing
from its appearance gave notice to its contents. The fireworks explode and the shock threw
down some scales (25 feet away) which injure Mrs. Palsgraf. She sues the railway workers.

Decision: for the Ds.


                                                                                             35
Reason/Ratio: Cardozo deals with this as a question of whether or not the railway
employees owed the P a duty. We would probably say that there is a duty, but here they
are operating under the directness test.

There is no way that they could have known that the person that they were helping would
have set this off. If the Ds are found negligent the result of the directness test would be
that anything that happens to the P would make them liable. So, they take a restrictive
view of duty to limit liability.

There is no negligence “in the air”. On these facts the Ds owe duties to the men that they
were trying to help on the train but NOT to the P. She must establish her own claim. The
duty does not extend because P did not fall within the “danger zone”, or the orbit of the
danger as apparent to the “eye of ordinary vigilance.” This is b/c she is not within
reasonable probability of the invasion of her bodily harm – this was a seeming innocent
package. This is simply too far removed.

The zone of danger is not explicitly a geographic concept, but it could be. The other factor is
that they did not know that there were fireworks in the parcel. The zone of danger would be
bigger if there were warnings on the parcel or that they knew what was in it. The
reasonable person could not have known this.

We do use these ideas that Cardozo puts forward in order to articulate is someone is a
foreseeable P for remoteness purposes.

Notes: DISSENT Andrews J – widens the scope of duty – states that it is too narrow here.
Where there is an unreasonable act, there is negligence whether damage does or does not
result. In line with Polemis, states that every one owes to the world at large the duty of
refraining from those acts that may unreasonably threaten the safety of others, even if
beyond the zone of danger.

Andrews however leaves us with some factors to take into account when looking for
foreseeability (remoteness) in our modern investigation:
    - Is there a natural sequence between cause and effect?
    - Are there any intervening causes?
    - Is the cause likely, in the usual judgment of mankind, to produce the result?
    - Is the cause too remote in time and space?

Notes
This is not a precedent for us. If we had a similar situation here, we would likely get
Cardozo’s results because she is not within the zone of danger by using reasoning similar to
that enunciated by Andrews.

Hay v. Young, 1943
Again court is looking at foreseeability wrt to duty not in regards to remoteness/proximity.

Facts: motorcyclist driving at negligently excessive speed and collided with a car and was
killed. P was standing 45 feet away and on other side of streetcar. She only heard the
accident, and it was gruesome. She did in the aftermath see blood on the street, etc. This
caused her fright and severe nervous shock. Thus cannot work and child is stillborn.

Issue: could the reasonable hypothetical observer have foreseen the damage to the P?

Decision: dismissed.


                                                                                               36
Reason/Ratio: again, notion that there is no such thing as negligence in the abstract. The
court looks at this as a duty Q to the specific P. Said that the D (estate) owed a duty to the
person that they crashed into but not to the P due to the position she was in.

Sutherland: she was not within the “zone of danger”, literally, she could not have been hit.
The reasonable observer would not have foreseen this damage.

Foreseeability is not as important here. Would the P be at risk of nervous shock given the
behaviour? Reasoning in Palsgraf. Cannot transfer negligence from the driver to the
plaintiff.

The reasonable observer could not have foreseen that the P was affected in the way she
was. This is the court’s ruling. Not within the zone of danger.

Notes: Sutherland says that today we would say that he owed a duty to everyone in the
vicinity that could be harmed, but we would ask these Qs that the court is asking at the
remoteness stage.

Farrugia v. Great Western Railway, 1947
RE: broadens the sense of who falls within the “zone of danger.”
Facts: D company with large truck drives under a bridge, and container is knocked off. Is
there duty? The P was there b/c he was a trespasser. The D argues that he is not
foreseeable P because he was a trespasser and they had no reason to expect that he would
be there. Court rules for P.
Reason/Ratio: COA said that they owed him a duty similar to anyone that is in the vicinity,
regardless of the lawfulness of the person being there. The duty is not confined to the
person that they might think would be there at that point in time.
Note: this case was conceptualized as one of duty, not remoteness.

When we are making zone of danger arguments, we should bring in policy
arguments too, not just legal principle.

Horsley v. MacLaren, 1972, SCC
Facts: Matthews (M) - invited guest - falls overboard for no negligent reason on his part or
anyone else. MacL (L), instead of following the recommended method of effecting a rescue
(to circle and bring the boat bow towards the body), reversed the engines. They tried to
rescue him with a pike pole and life belt to no avail. They had to then restart engines
because the boat was starting to drift away. Only after 3-4 mins (long time) does Horsley
(H) at this point intervenes as second rescuer, and dies instantly because of shock sustained
in contact with the icy water. A third passenger jumped in (J), (did not die), and her
husband took control of the boat. He swung it around properly bow-on and was able to pull
wife out successfully (she lived).

Issue: may the defendant be held liable for harm to a second rescuer where the defendant’s
actions were responsible for prompting the rescuer to act? Could a particular P be
foreseeable as a rescuer?

Decision: sided for D. Action dismissed.

Reason/Ratio:
General rule: If a person by his fault creates a situation of peril, he must answer for it to any
person who attempts to rescue the person who is in danger. So long as it is not wanton
interference.


                                                                                              37
When dealing with a second rescuer, there must be such negligence in the method
of the first rescuer to place the victim in a position of increased danger subsequent
to and distinct from the initial danger which induced the second rescuer to act.

Richie J. finds that although McLaren made judgment errors they were not negligent errors.

Notes
LASKIN J dissent: Basic rule: a rescuer is a foreseeable plaintiff as long as they have not
acted so utterly foolhardy as to be outside of any accountable risk and thus even beyond
contributory negligence.

The original duty for the rescuer is to encourage rescue, so we say that if you do get injured,
there will be compensation. If the first R gets it wrong, and then is liable to second R, this
undercuts this entire doctrine of rescue. So, the courts say that what the first R does must
be very extreme so as to generate liability to second R.

What would be recklessness or foolhardy:
         o Say, if H did not know how to swim and he lept into ocean
         o Attempting medical procedure when you have no training
         o The courts use such a rule because they know that this is all happening under
             extreme rescue circumstances and we want to encourage rescue.

Claims that liability can examined by looking at (1) the alleged breach between the original
two parties (McLaren and Matthews), (2) whether this breach was sufficiently negligent to
prompt the second rescuer to intervene, (3) whether the second rescuer was so utterly
foolhardy to constitute contributory negligence or exonerate all together.

Claims that all 3 are met, and that it is not foolhardy given the fact that Matthews died when
he hit the water – we only know this in hindsight. Note also that Jones did not have a
problem spinning the boat around properly after wife jumped in, and McLaren admitted to
knowing the proper procedure for effecting a rescue. Note that McLaren’s counsel argues
that even if first rescue attempt was sufficient negligent to generate duty to Horsely, Horsely
himself was not a foreseeable rescuer because he was asked to stay in the cabin. The court
DISMISSES this argument.

C) FORESEEABILITY OF DAMAGE

The Wagon Mound (No. 1), 1961, Australia, PC, Viscount Simonds
Facts: Respondents repair ships in a bay in the Port of Sydney. They owned a Wharf and
there was a ship that was being worked on at the time. The Appellants were charterers of
the s.s. Wagon Mound that was moored at a short distance away. Due to their carelessness,
they were leaking furnace oil into the harbour. The R’s stopped welding when this was
discovered. But after consulting with the manager of the oil company and it was decided
that it was ok to continue working. They continued to work for an entire day until it caught
fire, damage is done to Rs wharf and ship being worked on. It was not foreseeable that
furnace oil spread on oil would ignite. Experts testified to this, and the P and Ds agreed on
this fact. This is important for WM 2.

The Ps did suffer damage apart from fire damage (from oil congealing around the slipways of
the wharf) and this was foreseeable.

Decision: appeal allowed for Wagon Mound.


                                                                                              38
Reason: Courts in this case find that directness test in Polemis, which was the governing
test at the time (once a D has owed a duty, breached, and caused damage, they would be
held responsible for all the direct consequences for the act, even if they were NOT
foreseeable) is NO LONGER GOOD LAW.

Viscount Simonds’ reasoning:
    - Looks at the history of the decision. It was based on only a few authorities. He goes
       back to these authorities and that these authorities cited no authorities.
    - Found that these authorities dealt with a different EXTENT of damage, not TYPE of
       damage.
    - These authorities were decided at a time when the full implications of tort law
       expansion were not yet realized.
    - Polemis was a COA decision that was never approved by the higher levels – HL. Also,
       there were other cases which did not really follow this test.
    - The Polemis directness test is not consonant with current ideas of justice that for an
       act of negligence, however slight, which results in some trivial foreseeable damage
       the actor should be liable for all consequences however unforeseeable as long as they
       are direct (this is the directness test defn).

Ratio: an actor is considered to be responsible for the probable consequences of
his act. Thus, the test of remoteness is to be “judged by the standard of the
reasonable man” such that the negligent party is responsible only for those
damages which were “reasonably foreseeable.”

Notes: this is different from breach inquiry b/c you are looking thru the eyes of the RP to
look at the consequences that the D should have foreseen. Here though, we are not looking
at it in a general sense. In the URR formula, through eyes of RP for prob and grav harm,
you are looking at the prob of harm overall at a moment of time before it happens. The
grav of harm that could have been foreseen. At REMOTENESS we are looking at the actual
harm that did occur. You could have decided that there was a breach based on what could
have happened, but at remoteness could say what did happen was not foreseeable. Not just
a repetition of the same inquiry. This is the point when the court turns its mind to the
question of how foreseeable, and the kind of damage that occurred. The court says that fire
damage was NOT foreseeable, but the congealing damage WAS. So can we say based on
this, all of the fire damage should be paid for? NO.

Court says that we need to deal with the damage separately. Refers to Bourhill v. Young
case where the test of liability for shock was foreseeability of injury by shock. Says that we
can replace “shock” with “fire” to demonstrate the principle they are getting at.

Criticism after WM1; Flemming – this is out of step with current ideas, and tort should be
less focused on fault, and more on compensation.

Bringing foreseeability in the duty inquiry to begin with brings more liability. Injecting
foreseeability into remoteness constricts actions. Foreseeability here serves to restrict
liability. This is a big shift from the expansive Polemis directness test.

However, after WM1, we see cases with exceptions and restrictions…WM1 is still good law
and the primary case. Polemis is done. But pay attn to other exceptions.




                                                                                             39
Smith v. Leech Brain, 1962, QB
Facts: P is galvaniser, lowering articles into a tank of molten metal. Normally stood behind
a sheet of iron for protection. One day his head was outside of shield and got hit by splash
and burned. This burn was the promoting agent of cancer, which developed at the site of
the burn and from which he died three years later. BUT he had pre-malignancy condition in
that area. He had a THIN SKULL for it was likely that he would die of this at some point
(w/o burn).

Decision: for P.

Ratio: states that TS cases are an EXCEPTION to WM1 foreseeability test. TSR – notion that
a tortfeasor takes his victim as he finds him - is a long standing rule and the court here
interprets the WM1 decision as not doing away with this rule.

The court then is able to reconcile this with the WM1 test by stating that what needs to be
foreseeable is the TYPE of damage, but not the EXTENT that is important in the WM1
foreseeability test.

In this case, the type of damage is foreseeable because the splashing and burning is
foreseeable. A burn is foreseeable. The burn turned into cancer, this is the extent of it.

Hughes v. Lord Advocate, 1963, HL
Facts: post office employees working on telephone cables in a secluded area where there
were no houses and no children had bothered them in the past. They had to lift off manhole
covers, put warning lights around a tent covering the manhole. They went on break, there
was no one to guard the manhole. Children came along to play, knocked paraffin lamp into
hold which caused the paraffin to vaporize and cause an explosion. One child fell in, and
was burnt. Even experts testified that the explosion was unlikely. Ds argued that the
damage was of a kind that was not foreseeable and thus would fail on remoteness grounds,
citing WM1.

Reason/Ratio: the court does not buy the argument that this kind of damage was
unforeseeable. The courts reason that BURNS are the TYPE of damage, and it cannot be
said that BURNS were unforeseeable from these lamps if they were to fall and break. Only if
the type of damage was unforeseeable would there be a defence.

The TYPE of damage must be reasonably foreseeable, but the precise concatenation of
circumstances which led up to the accident must not.

Notes
As a counter-point, the courts seem to have confusion about all of this.

Doughty v. Turner Manufacturing, 1964, UK
Sounds like Smith and Hughes. P was a workman injured at the factory where he worked
when another workman knocked loose an asbestos cement cover which fell into vat of
molten liquid. This caused the asbestos cement to undergo a chemical reaction which led to
an eruption from the cauldron. P was injured. No one prior to this knew that this could
happen. Held: employer was not liable because eruption was unforeseeable by a
reasonable man at the time when the accident happened, and because splashing of the
liquid was foreseeable, this was of a different type because of the intrusion of a new factor –
the chemical change of the compound.




                                                                                              40
This is a rebuttal to Hughes and Smith. Note that Cdn courts have looked at it differently, so
you would likely not get far with the Turner argument.

Lauritzen v. Barstead, 1965, AB SC
P gets a ride in car with D. D picked up other workmen on the way, drank alcohol.
Improbable sets of events. D tugs on wheel gets them stuck in a ditch. P and D walk
eventually by foot to get out. P gets frostbite and needs parts of feet amputated. Held: for
P; the particular harm and the precise sequence of events or manner in which it occurred
need not be forseen. Like Hughes, they TYPE of damage was foreseeable even if
they never left the ditch. The manner in which is came about was not important.

School Division of Assiniboine South v. Hoffer, 1970, SCC
RE: shows complete adoption of WM1, and Smith logic. “It is not necessary that one
foresee the precise concatenation of events; it is enough to fix liability if one can foresee in a
general way the class [type] or character of injury.”

R v. Cote, 1974, SCC, Dickson J
The most recent Canadian authority stating that it is not necessary that one foresee in a
general way the class or character of injury which occurred.

The Wagon Mound (No. 2), 1966, PC, Australia, Lord Reid
Facts: Arises from same incident as WM1. Same D but different P. In this case the Ps are
the owners of two vessels at a wharf for repairs. Furnace oil is spilled and ignited by sparks
from welding and damages ships. Note that P only owns ships, not doing repairs. Again,
the oil is sitting in the water for about a day until ignited some other materials in the oil.

In WM1 there was agreement between P and D and experts saying that it could not burn. P
likely agreed that it was not foreseeable that furnace oil spread on water would burn,
otherwise they could be liable for contributory negligence (a complete defence in Aus) for
continuing to weld. So they had to argue for the directness test or nothing.

In WM2 was doing no welding so they argue that in fact furnace oil when spread will burn is
foreseeable otherwise they will not recover.

Decision: for the owner of the vessels against Wagon Mound.

Reason: the court, given this different evidence comes to a different finding of fact.

Lord Reid considers degrees of foreseeability. This was not taken into account in WM1
because finding was that the fire was not foreseeable at all, so there was no reason to delve
deeper into the notion of just what the RP would have foreseen (re: D and P + experts
agreed). Here, it does become important b/c P is alleging that it is foreseeable. So we need
to examine degrees of foreseeability.

In order to make this determination of how foreseeable, they look to Bolton v. Stone -
fantastic possibilities and reasonable probabilities. If it is possible not probable, could the Ds
be justified in overlooking the risk?

Need to do this because we are in the realm of URRF. Probability of harm (the engineer
should have known this was risk and that it had in fact happened before), gravity of harm is
not very high here. Burden of precautions is very low to stop this. There is also discussion
of social utility here. Is there any value in what the Ds are doing here? Social utility – here



                                                                                               41
they take into account social disutility. They say there is nothing good about letting this oil
seep out into the bay, and it is in fact illegal and a financial loss to the ship itself! Thus even
a POSSIBILITY has to be taken into account in this case. This is a refinement of the URRF.
What does this have to do with remoteness? Breach was a more general Q. Here we talk
about the specific type of harm that occurs.

Once you get to remoteness inquiry, what this case seems to be suggest is that at
remoteness, as long as there is a POSSIBILITY of the type of harm here is OK. Not
PROBABILITY like in WM1.

It was foreseeable as a POSSIBILITY, not a probability. The D should have known about
this. When you look at how likely it was that it would burn, you need to look at the fact that
they were using it for a day and a hald before it burned. What does foreseeability as a
possibility mean?

Notes: critics say that this is taking us back to the Polemis test - direct consequences must
be surely be possible ones. But, the way that courts have treated this means that we are
not. Courts nowadays cite WM1, they often do not even refer to WM2. They only make
reference to WM2 if the D was engaged in an illegal activity. Courts have imported the
disutility in the breach to the remoteness test. If your breach is an illegal activity, you
are responsible for all the POSSIBLE, not PROBABLE consequences. There must be
either illegal or no social utility whatsoever.

Intervening Cause, 1995, Cooper-Stephenson & Saunders

Novus Actus Interveniens – the intervention of an independent new cause that breaks the
legal chain of causation, thus denying recovery.

A NAI must be something which is “completely outside the range of normal experience”
(Kolestar v. Jeffries), and must be something that is “freakish, fantastic or highly
improbable” (Williams v. New Brunswick). NAI is something which intrudes after the Ds
tortious conduct.

Kolestar – it was held that not even a supervening medical error would be good enough
unless it was “completely outside the range of normal experience”.

Why it is no longer relevant: (1) it is a holdover from the 19 th century, and is linked to the
Polemis notion of “directness” (i.e. if you are held to be responsible for all the direct
consequences, you’ll need this to exculpate yourself!) which has now been supplanted by
foreseeability. (2) Also, due to the development of apportionment and contributory
negligence the concept of NAI has become less important (courts are more likely to just
apportion the liability. (3) Broadening scope of duty of care (e.g. Dorset Yacht and third
party liability).

If an event, inanimate or human, was reasonable foreseeable as a consequence of the Ds
conduct, it will not be held to be a NAI. However, the converse is not the case. Just
because an event was unforeseeable does not mean that it will be held to be a NAI (Hughes
v. Lord Advocate). To exonerate it must be “extraneous” and a “fresh, independent cause.”
It must be more of something that was so outside the range of normal human experience
(extraordinary) as was the case in Doughty v. Turner Manufacturing Co. THUS NAIs are
RARE. The concept still exists, but is invoked only rarely.

Types of NAIS:


                                                                                                  42
1. Inanimate events – rare. Loss caused by ice, flooding, or bad weather can be attributed
to people who fail to take reasonable steps to avoid its effects. Something like an
earthquake or a freak frost would work though. E.g. Doughty v. Turner Manufacturing.

2. Non-negligent Human Conduct – where third party conduct results from the Ds conduct.
Rare. Cannot necessarily be exculpated even when not foreseeable (Hughes v. Lord
Advocate).

3. Negligent Human Conduct – does not necessarily exonerate you. E.g. medical error post-
injury in Kolestar shows that you may not get off.

4. Grossly Negligent, Reckless or Intentionally harmful Conduct – THIS IS THE MOST
COMMON SCENARIO WHERE AN NAI MAY BE ALLOWED.
    - Bradford v. Kanellas, SCC – flash fire started at a restaurant grill because there was a
       negligent build up of greatse. The fire extinguished was activated which made a
       hissing sound. This caused a unidentified patron to shout out that there was an
       impending gas explosion. Stampede, and the P was injured. NAI denied recovery
       from restaurant.
    - Dallaire v. Paul-Emile Martel Inc., SCC (1990) – child injured by mechanism of a
       conveyor trough at a poultry farm. The SCC denied liability of the company because
       the father removed the protective covers and the boy straddled the trough. Both of
       these in combination proved to be NAIs.
    - Stansbie v. Troman – even crim conduct does NOT always constitute a NAI. In this
       case a decorator negligently left a house open with the result that good were stolen.
       The D owed a duty to ensure that the door was locked just so that this criminal
       conduct could not occur.
    - Dorset Yacht – criminal damage by a third party will not necessarily prove a NAI.


Wieland v. Cyril Lord Carpets, 1969, QB
RE: post-injury event
Facts: the original injury during the bus accident, which was caused by the negligence of
the D. She went to the hospital and was told to come back two days later to see a
specialist. She did this, and was fitted with a collar. She was wearing bi-focal glasses, and
as a result of the collar, could no longer tilt her head to see properly. She called her son to
pick her up; when he did, he was helping her down the stairs and she fell. This is the injury.
The D argues that there is (1) no factual causation and that (2) if so, this is too remote
under the WM1 test.

Issue: is this too remote to hold the D liable?

Decision: for the P.

Reason: (1) Court says that it IS a factual cause using BUT FOR test. So, injury sustained
in one accident may be the cause of a subsequent injury, this much is clear.
 (2) Continue by saying that the 2nd accident happened two days after the first; this is
important because then they could have brought up the fact that the causation question
would not be as easily answered. If it had happened much later for her it might be
unreasonable to have gone down the stairs. But since it happened so shortly afterwards,
the causal connection is made. The courts state that WM1 does not deal with the extent of
the injury or the precise mechanics of the injury be foreseeable.




                                                                                            43
Ratio: Wagon Mound No 1 doesn’t require that extent of the first accident be foreseen, nor
does it require that “the precise mechanics of the way in which the negligent act results in
the original injury [be] foreseen”, just that it is foreseeable that one injury may affect a
person’s ability to cope and therefore another injury of a general nature may be foreseen.

Mercer v. Gray, 1941, ON COA
RE: post-injury event which exacerbates
Facts: D was driving and hit a child. Both legs fractured and had to go to the hospital to
see a specialist. Further medical treatment exacerbated the injury - Cast was put on, but
there was swelling which took place. Much of the damage was the result of this condition.

Issue: who bear the liability for the exacerbated injuries?

Decision: D is fully liable.

Reason/Ratio: as long as reasonable care is used to employ a competent physician or
surgeon to treat personal injuries wrongfully inflicted, even the error of treatment or
unsuccessful treatment will still be a proper head of damages (otherwise contributorily
negligent). The injured person is not bound to employ the most skilled doctor to treat him.
Only if the medical treatment is so negligent as to be actionable will it be in effect a novus
actus interveniens and the P would be able to claim against the doctor.

Notes

Price v. Milawski, 1977, ON COA
The notion of negligent medical practice being a novus actus is NO LONGER GOOD LAW and
does not break the chain of causation! A person doing a negligent act may be liable for
future damages arising in part from the subsequent negligent act of another, and in party,
for his own negligence, where such subsequent negligent was reasonably foreseeable as a
possible result of his own negligence. In this case, it was foreseeable that Dr M, once he
negligently entered incorrect information into the patient’s hospital file, subsequent doctors
might rely on this information and incorrectly treat the patient. The later negligence of a Dr
C did not stop Dr M from being 100% liable. Where the subsequent negligence is
reasonably foreseeable, the original defendant will be held liable for the whole of
the damage. This is not just applicable to doctors.


D) NERVOUS SHOCK

NS relates to numerous different sections of negligence law. But the contemporary state of
law is easiest to have this as part of the remoteness inquiry.
   - NS was originally rejected as a type of damage at the duty stage.
           o Conerns (policy)
                    How easily it would be to fake
                    Floodgates
                    There is less concern about people faking this kind of injury now due to
                      scientific improvements
                    Nowadays, P must prove that they are suffering from a RECOGNIZABLE
                      PSYCHIATRIC ILLNESS – depression, etc. Need to bring expert
                      evidence.
                    The court has addressed the floodgates concern through remoteness
                      principles.



                                                                                             44
                     It really does fit within the rubric of remoteness because only
                      compensable when it is foreseeable injury.

Marshall v. Linell Enterprises, 1972, ON HCJ
Re: this just was a first step in broadening the test – it is now okay to have witnessed the
aftermath, did not need to be there in person. This was further broadened in Rhodes. The
key of this one is more about the history.
Facts: Marshall purchased a snowmobile manufactured by the D. The clutch broke while in
use and caused grievous injury. Wife was nearby and when she saw him, went into shock.
She suffered shock from witness of the aftermath, not the accident itself.

Ratio: Court reasons that there should exist a duty not to cause nervous shock to others
when it can be foreseen as the likely result of certain conduct. Judge opines that it would be
foreseeable that there would be nervous shock to a wife who had just come upon the injured
body of her husband.

The court is not dealing with the case at trial, but merely a motion to have it dismissed.
Court rules that there are no predetermined limitations on the position which the P must
occupy to be compensated for nervous shock.

Ct states that these claims should be allowed because we understand much more than we
did back in Victorian Railways. Back then they were anxious about the floodgates.

Ct however, does hint that there might be a problem at trial with deciding how far this
extends – close relatives would surely be covered for damage by NS. But what about family
members, fiancés, loved ones and friends or bystanders?

Notes
Importantly, we get a history of the evolution of the law here in this case. There has been
evolution and adaptation over time.

The initial denial of liability for illness caused by shock was enunciated in Victorian Railways
v. Coultas (1888) because the damages were said to be too remote, and it would be too
hard (scientifically) to prove these claims. This has been reversed many times since. Note
that early on, there was a tendency to award this only to mothers protecting their children
and pregnant females.

Bodily Safety
Next step: there was liability for shock experienced by a P through negligent conduct of the
D but only where such negligence put the P in fear of his own bodily safety. In Dulieu v.
White & Sons (1901), a claim was held up by a barmaid who suffered a miscarriage from
fear of bodily injury when the Ds pair-horse was hurtled into the pub she was in.

Own Children
Next step: there was liability for shock occasioned by fear of the safety of one’s children. In
Hambrook v. Stokes Brothers (1925), a mother could recover from shock of seeing a run
away lorry rushing down the road to where she had just left her children. Note that the
limitation was then that it had to be what one saw with their own senses to produce the
shock and not what others told them. Note that this was at the time that POLEMIS
directness test was operating – as long as the damage was traceable to the D’s negligent act
it was irrelevant that the particular injury was not foreseeable.

Foreseeability


                                                                                              45
Hay or Bourhill v. Young (1943) – this established that the test for liability for shock is the
foreseeability of injury by shock. P got off tramcar when motorist collided with a car. P only
heard the accident, and saw the blood later on the ground. This resulted in shock. But
since there was no duty owed, since due to the tramcar between the two, the NS damage
would not have been foreseeable. However, the court did state that NS is actionable even
when it was NOT directly seen or heard.

King v. Phillips (1953) – taxi driver backed his cab negligently and ran into a child on a
tricycle. Mother who was far away heard the scream, and saw the tricycle and car, but not
the child. NS resulted. Held that the taxi cab driver could not have reasonably foreseen the
damage to the mother.

Boardman v. Sanderson (1964) – D runs over young boy’s foot in car, the father was close
and head the boys screams. He suffered shock. In this case, D was liable because he knew
that the father was close by. Thus he ought to have seen it as reasonably foreseeable.

Expands to rescuers
Chadwick v. British Transport (1967) – adds rescuers. P took voluntarily part in rescue of
victims in nearby train crash. Shock as a result of his experience. D liable since it was
reasonably foreseeable that others might participate and there would be NS.

Cdn Jurisprudence
Pollard v. Makarchuck (1958) CDN CASE – D liable for shock where mother and daughter
were passengers in a car in an accident. Mother suffered NS after seeing what she thought
was dead body of child on pavement. It was foreseeable that injury to daughter in front of
mom would lead to NS. Note this case is decided under POLEMIS still.

Abramzik v. Brenner (1967) CDN CASE POST WM1 – D found negligent for driving in front of
a train while conveying the Ps children. The P (mother) suffered shock after being told
about the accident (did not witness personally). Ct stated that it had to be the foreseeability
of the NS injury, not just any injury. The courts held that this type of injury was not
foreseeable, and the mother could not claim because she had heard the info from her
husband and not her unaided senses.

Rhodes v. Canadian National Railway, 1990, BC COA
RE: part of the proximity test, and then we also see the cts wanting to restrict NS liability.
Facts: mother has extremely close bond with son. Son is killed in train crash in Alberta.
Mother is on Vancouver Island at the time. She heard about the accident on the Radio, and
was unsure for a while as to whether her son was involved in the particular crash. Was told
by someone else about her son’s death, and was only arrived at the scene 8 days later.
Claimed against railway for NS.

Decision: for the railway.

Reason/Ratio: court finds that there has never been liability found for NS when the P has
merely heard about the accident from a third party. The test to be applied here is one of
foreseeability limited by proximity considerations. The requisite proximity relationship is
made up of a combination of various relational factors:
       1. Relational Proximity – closeness of the relationship between the claimant and the
           victim
       2. Locational Proximity – being at the scene and observing the shocking event.
       3. Temporal Proximity – relation between the time of the event and the onset of NS.
Neither one of these, is by itself, determinative, BUT the most important one is (1).


                                                                                             46
It is decided that this is not reasonably foreseeable. Someone who is present at the time of
the accident and sees or hears it can claim for NS. But someone who suffers NS only from
being informed of the death of a relative and visiting the scene some time later is too far
removed. The exceptionally strong (1) is not enough, since (2) AND (3) ARE WANTING.

Alcock v. Chief Constable of the South Yorkshire Police, 1991, HL
Facts: Football match – police were responsible for crowd control let people into an area
that was already full. 95 people were crushed to death. Actions were brought for NS.

Decision: against the Ps. No liability.

Reason/Ratio: enunciate our three stage test again – relational proximity, locational
proximity, temporal proximity. The people that were bringing this had relationship proximity
– these people were all close relatives and one fiancee but where they failed was on
proximity in time and space. None of them actually SAW the accident. They were in
different parts of the stadium. Others saw it on TV – relational in TIME, but not SPACE.
Also, due to broadcasting regulations, none of the reports depicted the suffering of SPECIFIC
individuals (people’s faces weren’t shown).

Notes: however, the courts leave the door open. Stated that (1) is not limited to
husband/wide or parent/child relationship. It must just be within the Ds contemplation.

A bystander who suffers NS can recover if a “reasonably strong-nerved person would have
been so affected.”

There may also be cases where LOCATIONAL proximity may be met visuallt cia witnessing
the accident on TV when say the specific victim is shown.

McLoughlin – raced down to hospital – saw husband injured in the hospital. Extend it
beyond witness of the actual accident, or just the aftermath.


6. NEGLIGENCE: DEFENCES


A) APPORTIONMENT

Butterfield v. Forrester, 1809
Facts: P was negligently riding his horse very fast, and hit a pole that was left by the D
protruding out into the road. It was found that there was enough light to see, and that the
P, if was not riding so fast, could have avoided it as there was room to ride around it.

Ratio: the ct finds for the D, because at this time contributory negligence was deemed to be
a complete defence. The notion was that the law was only supposed to protect those
deemed worthy of protection, those with clean hands.

This is known as the “STALEMATE” rule – if both parties are at fault, loss is left where it falls.

Policy reasons for having a complete defence:
    - Morality: careless person did not deserve protection from the law.




                                                                                               47
   -   Judicial Admin: The courts were also trying to pinpoint a single source of fault. Here
       the P was the last source, had they not been riding so fast, the cause would have
       fallen on him.
   -   Economic: Concern about protecting industry and advancements in the industrial age
       from tort liability so contributory negligence was put forward to ensure that there
       were fewer negligence cases.
   -   Deterrence: The idea is that this would also deter negligent conduct on the part of Ps.

Policy for not having this – this is too cruel a result even in the 19th century:
    - Judicial Administration: Courts would sometimes go ahead and apportion even while
        there was no legal basis for doing this at the time
    - Morality/Purpose of Tort Law: compensation not corrective justice.
    - Over the long term, a new rule developed…we see this in Davies v. Mann

Davies v. Mann, 1842, UK
Facts: The P is the owner of the donkey, its fore feet were tied together (negligent because
it could not get out of the way), grazing at the side of a road 8 yards wide. The D owned
the wagon and horses which were negligently travelling fast down the road. The horse and
wagon hit and kill the donkey. We have a situation that sounds similar to Butterfield. In
this situation the P does recover however.

This is different from Butterfield, because the D was negligent LAST. In Butterfield, we have
the stalemate rule, too bad. Here, there is negligence on the part of the P, but the D is the
one that did not avoid the donkey. So, the P gets recovery here although his behaviour was
negligent.

Ratio: this is the “last clear chance” rule. The person with the last clear chance to avoid the
damage is the one who bears the loss.

Notes: this case is really almost consistent with Butterfield. But this is really a shift from
the previous rule; there is no longer this stalemate. We’re still stuck looking for sole cause;
there is no apportionment.

Negligence Act
Legislative reform now enables plaintiffs to be contributorily negligent. Apportionment
legislation allows apportionment rather than this all or nothing approach.

ON was the first to have this apportionment information. All of the other provinces
ultimately enacted apportionment legislation, the UK, US, etc.

Apportionment legislation enabled (1) cts to apportion b/w multiple Ds, and also (2)
eliminated the D to use contributory negligence for a COMPLETE defence.

S. 3 of the Negligence Act enables cts to apportion between P and D if P has been negligent.

The act also enables:
   - Joint and several liability: an administrative mechanism to make like easier for the P.
       can claim the full amount from one D.
   - If there are more than one Ds, the courts will apportion between the Ds.
   - If it is not possible to determine the respective degree of fault or negligence between
       any parties to an action, such parties shall be deemed equally at fault.
   - If there is a party that is responsible that has not been included in the action, they
       can be added as a third party (civ pro rules).


                                                                                             48
   -   Limitation of actions against another tortfeasor: after an action is commenced or
       settled against one tortfeasor, P has a year to commence another one against
       another person if necessary.

Note that while apportionment legislation was meant to fix the all or nothing CN rule, we still
see an appearance of the LCC rule after this. This was particularly true in provinces where
there was wording to indicate that the LCC would continue to survive. This was never the
case in ON.

Wickberg v. Patterson, 1997, AB COA
Facts: P is driving a motorbike on a two lane highway. There is an accident, where a car
was overturned in the ditch. The D, driver of a truck, decided to stop, back up and park on
the shoulder. However, because it was “soft”, due to fears of getting stuck, the driver
decides to park with car protruding out into the road. The P sees the truck, but also looks at
the accident, has about 12-15 seconds to react, does not, and hits truck.

The Ps actions were considered to be negligent – was not paying careful enough attention.
But at trial, the judge awards nothing to the P because he had the last change to move –
LCCR is in effect.

Issue: LCCR in effect? The courts need to solve this for once and for all.

Decision: CN – 50/50 split for damages.

Ratio: the McKee SCC case is what the TJ relies on to interpret the ambiguous legislation to
say that LCCR is still in effect. However, the clear opinion is that this decision is inconsistent
with the goal of the Apportionment legislation. This is particularly pertinent in Alberta,
where the legislation does not explicitly rule out the LCCR (it is done away with in ON).
Essentially, they find that the LCCR no longer survives and thus the TJs ruling incorrect. NO
MORE LCCR. The LCCR was noble at a time when the slightest act of neg would bar a P
from recovery – it was allowed if the D has the last clear chance to avoid the accident. But
no longer needed with apportionment legislation.

In this case, the truck driver was parked on the road, not shoulder with no flashers or brake
lights on. He knew the road well, and was creating a hazard being the way he was. The
fact that there was a ditch in the road HIGHTENED the risk too. It is well known that an
accident itself may create a risk situation. The reasonable driver would have risked the
chance of getting stuck and parked further on the shoulder.

Notes: it is up the cts to decide the percentage. There is no set formula. This is
precedential only in AB, but we see that there was never this wording in ON in the first place
and courts saying that the LCCR should never be applicable.

The only difference is that the D does not have to show duty. The D though, to show CN will
have to show all the other elements on a B of P. It is presumed that the P owes a duty, but
the D must then show the breach, and it caused the damage, and that it is not too remote.
This is why Sutherland will rarely ask about this – it would take too long.

In doing so, all the same exceptions apply. E.g. for breach, the P must behave in a
reasonable manner, same exceptions with the child standard, etc. Although the P is
supposed to be held in the same standard although they are in D, but notice that sometimes
in this tug of war, the courts unofficially are a bit easier on the P. A bit more reluctant to



                                                                                               49
say that they breached their duty to themselves, etc. You see this in the cases involving the
child standard.

Galaske v. O’Donnell, 1994, SCC
Facts: D is truck owner, giving a ride to P, aged eight, and his father. The D did not ensure
that the child was wearing a seat belt because he figured that it was the responsibility of the
father. Accident and the child is injured (assuming that the father died in crash). Note that
the D was not responsible for the accident. Only thing that the D is being blamed for is
failing to take steps to ensure that seatbelt was worn.

We are looking at this under contributory negligence because the SCC talks about this
before getting to the real issue of this case. This is such a common scenario for CN that this
is called the “seatbelt defence.” SCC takes from DENNING ruling in saying that there is a
duty for everyone to wear a seat belt, all the time. It is not acceptable for people to fear
wearing seatbelts (being trapped in the car, etc) and thus not wear them. This is not
something that a reasonable person would do. The courts in CAN consistently deduct 5-25%
from claims for damages on the grounds that the victims were CN for not wearing seat-belts
when it can be shown that the injuries would have been reduced if the belts had been worn.

This case is really about the duty that an adult driver owes to a child passenger to ensure
that they are wearing their seatbelt. The court states that there is this duty. The driver has
care over the vehicle; we see that this is like supervision and control.

You have a particular responsibility for child passengers, who are not capable of looking out
for their own safety.

The ct states that there is a duty owed by a driver to ensure that passengers under 16 wear
seat belts. Regardless of WHO else is in the car, the driver is always one person who will
assume this responsibility. This is because they are the one ultimately in control of the car.
Also, this is supported by the Motor Vehicle Act which states that no person shall drive with
a child between the age of 6 - 16 who is in a seat without them having their seat-belt
fastened. According to SK Wheat Pool, this is evidence of negligence.

The driver’s duty of care is NOT negated by the presence of a parent (Arnold v. Teno). We
see that it will fluctuate (e.g. 17 year old driver with old dad and his kid will have lower
duty). This will all be determined by the reasonable person in the circumstances.

This is all because of policy:
    - Economic: people may complain that this will increase insurance. However at the
        same time this will reduce the cost of healthcare too.
    - Morality: Importantly we are fostering the safety of children.

Decision: There is CN on part of D, a new trial is needed to determine the amounts.


B) COMPLETE DEFENCES
     1) Voluntary assumption of risk

Courts would rather find CN rather than (2) or (3). There is reluctance toward complete
defences. You only get to the defences if you can show that there was negligence in the
first place. This is a drastic step to get all here to reverse all this and grant nothing. Only
will be used if the P has done something extreme.



                                                                                                  50
Consent is an underlying concept…WHY? Underlying concepts POLICY:
          o “One who is willing, no harm is done”
          o Philosophy: liberial individualism – you can consent to whatever you want,
              including harm.
          o If you consent, you are not a worthy victim, so the courts will not help you
              out.
          o Reliance – if you consented to the risk, the D should be able to rely on this.

Hambley v. Shepley, 1967, ON COA
Facts: policeman is P, looking to recover from damages. The D is speeding motorist. He
was told by radio instructions to block a road with his cruiser. Before the policeman can get
out of the car, however, he is hit.

Issue: is this a voluntary assumption of risk?

Decision: for the P.

Reason: the Trial Judge stated that the police officer is barred from recovering because of
volenti (voluntary assumption of risk) doctrine. COA held that modern construal of volenti
doctrine requires evidence of actual consent, and it does not exclude employers from actions
brought by employees for harm from known. Thus, the court rules that TJ is wrong, and
that the principle does apply so far as to bar individuals who are discharging a public duty
(police) from recovering from the negligent actions of others.

The courts state that although there is assumption of risk in the employment context as a
police officer, this does not waive all his rights. What he is doing is not necessarily voluntary
because he is doing as told in the course of his job.

Ratio: FLEMMING quote: “The defence of volenti cannot succeed unless the evidence
permits a genuine inference that the P consented not merely to the risk of injury, but to the
lack of reasonable care which may produce the risk.”

Dube v. Labar, 1986, SCC
RE: precedent for what it takes for VOAR
Facts: P and D were drinking and driving around the Yukon; at some point the defendant
convinced the plaintiff to let him drive; defendant was then driving, and turned around to
talk to hitchhikers they had picked up in the back, and veers off road. P tries to grab wheel.
Eventually, D’s attempts to correct course results in car crashing, injuring plaintiff. D
showed significant levels of blood alcohol. Trial judge put (1) volenti non fit injuria and (2)
contributory negligence to the jury.

Decision: appeal dismissed. In favour of D.

Reason: Jury found plaintiff to have consented to bear the legal risk when he entered the
car as passenger knowing the defendant was impaired. Appeal judge held that, while an
unusual conclusion (not even CN), it was not so unreasonable as to warrant setting aside,
and was thus allowed to stay.

For volenti, we see also that the burden is on the D in each case to prove that the P
expressly or by necessary implication agreed to exempt the D from liability for any damage
suffered as a result of the D’s negligence. The question is NOT whether the P knew of the
risk, but whether the circumstances were such as necessarily to lead to the conclusion that
the P assumed to bear the whole risk without compensation.


                                                                                              51
Note that P argues that the defence of volenti is inapplicable to a case involving negligence
on the highways. The courts rejects this, as it is inconsistent with Car & General
Insurance Corp, 1956, SCC, which establishes that while volenti is in principle available to
a D driver, this case shows that it will be only made out in unusual circumstances. In this
case, the judge conceived of volenti as a BILATERAL EXCHANGE OF TERMS governing the
activity in which the parties were engaged. I.e. there must have been an express or implied
bargain between the partied whereby the P gives up his rights. Thus…based on this…

Ratio: “. . . volenti will arise only where the circumstances are such that it is clear that the
plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to
sue for injuries incurred as a result of any negligence on the defendant’s part. Common
sense dictates that only rarely will a plaintiff genuinely consent to accept the physical and
legal risk of the defendant’s negligence.” Seen as a BILATERAL EXCHANGE.

Common sense also thus dictates that the defence of volenti will therefore be inapplicable in
a great majority of drunken driver-willing passenger cases because the D will be drunk too,
and thus unable to bargain to give up their rights.

Notes: the judge also speaks to the fact that volenti is a complete defence, and thus shows
a preference for CN, where apportionment is available. States that it is more flexible, and
permits a sensible distribution of financial burden of negligent conduct in many of the cases
where volenti defence is raised.

Which facts account for the reasonableness for the jury’s conclusion for VAOR?
   - Common design and common purpose. There was a joint enterprise – they were
       doing everything together. If you find evidence of common design, there is common
       design (6-23). The parties have been together for a number of days here. Note,
       however that this was not accepted by the courts.

Crocker v. Sundance, 1988, SCC
Reiteration of test in Car & General Insurance Corp and Dube v. Labar. The notion that the
volenti defence only applies in situations where the P has assumed both the physical and the
legal risk involved in the activity.

This case shows again how the defence is a complete bar to recovery and therefore the
courts have restricted its scope in an age of apportionment.

Facts: P signed an entry form and waiver. However, it is found that there was NO attempt
on the part of the resort to draw the release provision to his attention. He did not read it,
and did not know it even existed. HE THOUGHT HE WAS JUST SIGNING AN ENTRY FORM.
Moreover, he signed this form AT the bar!

Decision: for P.

Reason: D argued volenti either on (1) IMPLIED - Crocker’s voluntary participation in a
sport that was obviously dangerous or (2) EXPRESS - the fact that he signed a waiver form.

(1) is dismissed. This could be viewed as assumption of the PHYSICAL risks, but certainly
not the LEGAL risks. Moreover, this is dubious because his mind was clouded by alcohol.




                                                                                              52
(2) Nothing was done to bring it to his attention, did not even know it existed. Thus, the
resort had no reasonable grounds for believing that the release truly expressed Crocker’s
intention. His signing could not be construed as his act. So, no volenti.

Notes: Dyck v. Manitoba Snowmobile Association shows that a K waiver clause CAN
servce as a full defence to a claim of tort. In this case, it was successful because the P read
the waiver and signed it knowing that it purported to release the D from any liability.
There is an assertion of implied volenti and express (due to waiver).

Usually express volenti will come up when you have a signing of a waiver form.

Note also that in this case despite no VAOR, there was CN of 25%. In this case, there was a
change in the life expectancy as the case was progressing up to SCC. Thus, the SCC orders
a new trial for quantum of damages. Note that this is one of the problems with tort
damages – his health could change, and is barred for more money. They can change it
while they are still arriving at the determination, but cannot do anything else.


       2) Illegality

Hall v. Hebert, 1993, SCC
Facts: D, who owned a muscle car, and his passenger (P) were both drinking. The car
stalled, and the D decided that they should try to re-start using a rolling start. At the Ps
request, D let him get in drivers seat. D knew that P had lots to drink. P lost control of the
car, and was injured when it flipped. Issue is under what circumstances should the immoral
or criminal conduct of a P bar the P from recovering damages to which he/she would
otherwise be entitled?

Decision: for the P.

Reason: McLachlan J states traditional public policy reason for denying recovery is based on
the notion that a damage award should not allow a person to profit from illegal or immoral
conduct, or permit an evasion or rebate of a penalty prescribed by criminal law thus
introducing an inconsistency in the law.

McLachlan J reasons that one should not be allowed to profit, e.g. when there is a tort
against another for financial loss arising from a joint illegal venture (Canada Cement
LaFarge). However, it is reasoned that is different from compensation for personal injury.

Such damages accomplish nothing more than to put the P in the position he or she would
have been in had the tort not occurred. No part of the award can be said to be the profit of,
or the windfall from an illegal act.

This is a defence, for which the onus rests of the defendant. The P should not be required to
disprove the existence and relevance of his/her illegal or immoral conduct. Rather it should
be for the defendant to establish it. THIS IS AN ABSOLUTE DEFENCE.

Notes: in this case the P is found CN due to intoxication. Again, shows that the courts are
more willing to do this, they do not want to allow an absolute defence. The illegality was
that they were drinking and driving. This is an important point – you must be able to point
to something illegal that the P has done (do not necessarily need a criminal conviction).




                                                                                             53
7. INTENTIONAL INFLICTION OF HARM

A) INTENTIONAL INFLICTION OF MENTAL SUFFERING

*Each of these torts has its own rules; cannot use any negligence precedents here. Three
intentional torts all require intent, but then the rules are still different for each.

Wilkinson v. Downton, 1897
Re: origin of this intentional tort
Facts: in a practical joke, D tells P that husband got in an accident and broke both legs. P
has a violent shock reaction, mental and physical suffering. P was otherwise in good health
before this event.

Issue: can the P sue for intentional infliction of mental suffering?

Decision: for P.

Reason/Ratio: court states that there is a cause of action because D has wilfully done an
act calculated to cause physical ham to the P – infringe on her legal right to personal safety
and has in fact thereby caused physical harm.

For intent, as long as the person intended the conduct that caused the harm and it was such
that a reasonable person in an ordinary state of health would have reacted this way, we can
impute intent. Note that this wilful act is in law malicious, although no malicious purpose to
cause the harm is imputed to the D.

Note that the thin skull rule is not part of this tort (different from nervous shock). It is not
necessary that the D foresee the extent of damage that the P recovers, as long as there is
the initial intent, don’t need the foresight that you need for negligent infliction of nervous
shock cases.

Notes: In Canada, recovery for the intentional infliction of mental suffering requires that the
P suffer from a “visible and provable illness.” (Frame v. Smith, 1987, SCC and
Rahemtulla v. Vanfred Credit Union, 1984, BCSC – bank teller suffering nercous shock
following wrongful accusation of theft and dismissal). Note that this is not as stringent as
say the requirement of a recognized psych illness as is in the negligent shock cases.

Clark v. Canada, 1994, Fed Court of Canada
Facts: P was RCMP officer 1980-87. Following resignation, action in damages against the
crown. Put forth evidence to show a pattern of sexual harassment by superiors and
colleagues and superiors. When she complained nothing was done to rectify. Name calling,
offensive remarks, display of porn material, touching. Following these complaints,
evaluations of her job performance also suddenly became negative and transfer to a traffic
section was suggested. She asked for a transfer and was told to quit, get a medical
discharge, or she would be fired. She was also subjected to a crim investigation for
treatment of prisoners from previous years which was ultimately dropped – suspicious
timing. Resigned due to aggravated asthma, depression and anxiety. A doctor even said
that at the end she was having a “mental crisis.”

Key facts are that the tort is inflicted by multiple individuals (colleagues and superiors), over
extended period of time. We see that in the end the employer is held liable because this is
all done during the course of employment by the employees.



                                                                                               54
Issue: can these facts can lead to a finding of intentional infliction of nervous shock?

Decision: for the P.

Reason/Ratio: we see that the Wilkinson principle has been adopted and applied in a
number of Canadian cases. The court in Clark then borrows from Rahemtulla, where
McLachlan J applied three criteria gleaned from previous cases for the case at hand (up to
this point there had been no definitive decisions at the SCC on this tort, mostly lower level):

   1. Outrageous, flagrant, or extreme conduct –
          a. Need not involve physical touching or threat to the Ps physical safety.
          b. Can arise from the Ds position of authority, i.e. if a landlord, police officer, or
             school teacher utters insults to someone over whose future well being they
             had some control.
          c. Particular knowledge of the Ps susceptibility to this harm can also elevate
             otherwise innocuous conduct to level of “extreme”. The D is not held liable if
             he does not know about this vulnerability and the P reacts in a way that the
             normal person would not.
   2. Conduct calculated to produce mental suffering – cases are rare where the nervous
      shock involving physical injury was fully intended.
          a. Need only be RECKLESS. Sufficient if the conduct would have been capable of
             alarming or frightening a reasonable person OR
          b. D ought to have known that this would be enough to affect the P in this
             particular manner.
   3. Severe mental suffering - the requirement of a visible or provable illness need not be
      so strenuously observed. Less onerous than negligent infliction of nervous shock
      which involves reactions to witnessing accidents or accident victims.
          a. The deterioration of P’s condition is sufficient. E.g. asthma.

Because of these reasons, claim for intentional infliction of nervous shock is allowed. The
employer is liable because the activity is done within the course of employment.

Notes: Wilkinson scenario is one-time shock. We’ve moved now to accumulation of events
which have happened over the course of 7 years. But the court does not seem to think that
this should bar recovery. In fact, we might see in some cases that this sort of accumulation
is just what makes it so outrageous. Also, there are several different people involved, which
makes it all the worse. The court has no trouble with this because it has no problem with
finding vicarious liability here. This was overlooked by supervisory people, so they can find
vicarious liability here.


B) BATTERY & ASSAULT

Battery is the intentional infliction of harmful or offensive conduct on the body of another
(Bettel v. Yim). Protects an individual’s interest in bodily security from deliberate
interference from others. You are doing this in order to protect DIGNITY as well.

The tort of battery is designed to achieve that you do not need to retaliate. The idea is to
clamp down on long-standing vendettas, etc. The other thing is that b/c this is a tort it
provides a vehicle for compensation. Someone is harmed, you can deal with intentional
conduct through the law; the tort of battery provides a vehicle for damages.



                                                                                               55
Assault: conduct which intentionally arouses apprehension of an imminent battery.
With assault, we are trying to protect an individual’s interest in freedom of fear of being
physically interfered with. Here we are NOT talking about contact. Usually not just words
alone, but could be. Most often words in combination with some kind of action – brandishing
a weapon, shaking your fist.
   - “Imminent” means that this needs to be something that is immediate.
   - “Apprehension” means that it needs to be reasonable. It has to be conduct which
       would arouse this fear in a reasonable person. We are looking about the
       reasonableness of the P’s response, not D’s conduct.

Bettel v. Yim, 1978, ON County Ct
Facts: matches thrown into store. The D went up to the child and shook the child by the
shirt in order to make him confess. Did intend to shake him, but not hit his nose with his
head. Thus caused injury.

We get a definition of battery – intentional infliction of contact on the body of another.
Intent is central here; the D freely admitted that he wanted to grab and shake him to make
him confess, but did not intend to cause him harm. The accidental hitting of the nose.

Issue: does the doctrine of foreseeability in negligence apply to intentional torts?

Decision: for the P.

Reason: the court states that the intent which is required is the intent of the ultimate
consequences. Here, the court says that directness prevails. The intentional shaking was a
battery in itself. So as long as this was intended, he was responsible for any consequences
regardless of foreseeability. Unlike in negligence, “remoteness has no place” in this
intentional tort. Why?

Policy – why no remoteness
    - Deterrence: need to deter intentional harmful conduct. The interest is in protecting
        the victim, not the wrongdoer. Even if you end up causing more harm, your liability
        should not be limited. The unforeseeable consequences should fall on wrongdoer,
        not innocent victim. Do not want to indemnify the wrongdoer.
    - Moral: while there are strong policy reasons for using foreseeability in negligence, the
        same does not apply to intentional torts even when the ultimate consequences are
        not intended. In the law of intentional torts, it is the DIGNITARY interest, the right of
        the P to insist that the D keep his hands to himself that the law is looking to protect.
    - Purpose of Tort: compensation, we do not want to limit this.

Ratio: “The logical test is whether the defendant was guilty of deliberate, intentional and
unlawful violence or threats of violence. If he was, and a more serious harm befalls the
plaintiff than was intended by the defendant, the defendant, and not the innocent plaintiff,
must bear the responsibility for the unintended result.”

Notes: we also see that the defences for intentional tort of battery are consent, self-
defence, defence of property, necessity and legal authority.

Bruce v. Dyer, 1966, On HCJ
Facts: D was trying to pass P on highway, P would speed up every time and block him.
Stopped in traffic, P gets out and shakes his fist as he walks towards D. D punches, breaks
jaw. P had a weak jaw due to bone disease. P claims battery. D claims self-defence.



                                                                                               56
Issue: can you respond to an assault with a battery in self-defence?

Decision: for the D.

Reason/Ratio: an assault is conduct that intentionally arouses apprehension of an
imminent battery. So, in this case, the courts must first determine if there was an assault
on the D by the P. Courts state that there need not be any actual intention to use violence,
it is enough if the reasonable person believes on reasonable grounds that they are in fact in
danger of violence. Must only show the intention to engage in conduct that would create
fear of the part of the D. In this case, intention to shake the fist was sufficient.

Using one’s car to block another is itself an assault. This is controversial. You can commit a
battery with your vehicle for sure. In this case, the deliberate blocking of one’s path was
threatening and enough to constitute a battery. Based on Innes v. Wylie (Cop obstructs
path of guy trying to get into house is an assault without lawful authority). It is the use of
the car and the shaking of the fist combined which constitute the assault.

Once this is established, question turns to self-defence. When one is assaulted they have
the right to hit back in defence of person or property. However there are restrictions.

   -   1) Must proceed from necessity – there must be no legal way out. In this case, he
       was stuck in traffic.
   -   2) Proportionality/Cannot use excessive force. Only one hit in this case, not “beaten
       up”. Note that it did not matter that there was severe damage. The P should have
       not been doing this in the first place because he knew of his internal frailty. There is
       no TSR in intentional torts

Notes: note that self-defence applies for both assault and battery. Same limitations too.

If there is an assault without a battery you would be measuring then the state of mind to
represent what this person has lost when awarding damages.

Norberg v. Weinrib, 1992, SCC
RE: consent as a defence.
Facts: young, moderately educated woman became addicted to painkillers. Referred to
Wynrib. He prescribes at first, and when finds out that she is addicted stops. Tells her to
quit, but offers no assistance. He offers sex for drugs, she rejects. Eventually due to
desperation agrees. Sexual contact = battery. Consent is a defence to this.

Issue: was there consent?

Decision: for the P. No consent, thus battery.

Reason/Ratio: To determine if consent is legally effective for sexual assault,
   - 1) First you need to look at a few things – look at inequality of bargaining power –
     look to proof of inequality between the parties.
   - 2) Second, look to proof of exploitation (there can be consent therefore between
     parties of unequal power).

(1) To establish a relationship of unequal bargaining power, the courts look to the
cumulative effect. There is a doctor - patient relationship. Generally speaking, such a
relationship will be unequal prima facie. Other factors include the addiction and Wyrib’s



                                                                                              57
knowledge of this. She is also only moderately educated and young. It is the CUMULATIVE
EFFECT that says that there is an unequal relationship.

(2) He has awareness of this addiction, does not offer to help her to get over it, rather drugs
for sex. Tells her to just “quit”. There is also a body of opinion which argues that in a
doctor-patient relationship, sexual activity is ALWAYS unacceptable due to the inequality of
bargaining power.

Conversely, it is argued that she is exploiting his loneliness. The court states however the
determining factor is that HE instigated this relationship. He used his power/knowledge to
exploit her. If he truly wanted to help her, he would have helped her overcome addiction.

Thus there is no consent as a defence available.

Notes: note that this case was not barred for immorality/illegality.


8) TORT LAW AND DISCRIMINATION

Bhaduria v. Seneca College, 1979, ON COA
Facts: P is highly qualified – has BA, MA, and Doctorate. Is qualified teacher in Ontario and
has 7 years of experience. Applied to numerous jobs, and was never granted an interview
because of ethnic origin – East Indian. Claims damages for discrimination in tort, NOT under
the Ontario Human Rights Code.

Decision: for the P.

Reason/Ratio: court states that while there has been no such tort of discrimination
recognized before, there has been no case which has expressly repudiated such a tort. The
mere fact that this is a novel tort should not bar the court from giving a remedy.

Claims that the HRC did not create the fundamental human right of being free from
discrimination. Nor does the code expressly exclude a potential tort action.

Notes: this decisions was overturned by the SCC. Stated that while this was bold, a tort
action could not be based on an action that was covered under the HR code.

However, this is still contentious. While the SCC (1981) declined to create a novel tort
action, it made no pronouncement on the validity of using existing tort actions to achieve
the same purpose. The tort of intentional infliction of mental suffering seems well-suited to
this purpose, particularly given the recent decisions invoking it to compensate victims of
sexual harassment (Clark v Canada – note that ironically, Bhaduria was not mentioned in
Clark). The tort could be used in a similar fashion to address other forms of discrimination.
We see that the courts are more willing to extend existing torts to cover this rather than
institute a brand new one.

Although this is private law, this is affected by Charter. In dolphin delivery it was found that
the Charter does not apply, but McIntyre said that courts should develop the law of Common
Law in line with the Charter values. So, the notion of imbuing a new tort with discrimination
in mind might just work.




                                                                                               58
Further, it is arguable that the entrenchment of the CORAF with s. 15 guarantee of equality
since the Bhaduria decision now compels a different result. Could argue that this would no
longer be a valid approach. The next case raises the possibility of compensation for the
“constitutional tort” of discrimination under the Charter.

Jane Doe v. MTCP, 1998, ON Gen Div
Facts: Police knew that there was a serial rapist, and the profile of the attacker. They even
knew of the cyclical nature, and the fact that the next rape would happen near the 25th of
the month! The two investigators on this file said that learned from a previous “annex
rapist” case that was dealt with that extensive media coverage was purported to have driven
the rapist to flee. Thus they wanted this to be low-key. We also see that there was not
much emphasis put on this case overall by the police force in general – only two main
investigators. For the “annex rapist” there was an entire task force due to the increasing
violence used.

Ms. Doe was told that it was not policy for the police to issue warnings to the area after her
rape. This was incorrect, warnings were given in the annex case. Women were given no
warnings because it was feared that they would become hysterical and scare of the attacker.

Note that the police force, in internal reports, acknowledge since the 1970s that there was a
problem with the investigation of sexual assaults, but little was done.

Reason/Ratio: it was found that rights of s. 15(1) equality because they failed to warn just
because the victims were female. S. 7 for security of the person was transgressed because
they were using the females essentially as bait.

The police simply denied this, did not attempt to make a defence under s. 1.

Under s. 24 (anyone whose rights have been infringed upon can apply to the courts for a
remedy), the court stated that the P was entitled to compensation for damage suffered.
However, P is not entitled to any “extra” damages because Charter rights were breached.

Notes: if this was between two private parties, the Charter would NOT be applicable.
In this case, as a public body, they must exercise their duty to protect in accordance with
the CORAF and cannot discriminate based on gender.

Note for future police-related cases  S.57 of the Police Act establishes a “duty of
preserving the peace preventing robberies and other crimes” which indicates a duty of care
to protect the community members from violent assaults.




                                                                                              59
1) DUTY OF CARE
“The duty of care question is a threshold question. To determine if a duty exists, I will apply
the Anns test (adopted by the SCC in Kamloops, refined in Cooper), for which there are two
steps: general proximity and social policy.”

Stage 1: General Proximity & Foreseeability

   A) “General Proximity has an element of foreseeability; one must determine if the
      parties are so close that harm is reasonably foreseeable (Donoghue). This is
      established by reference to previously identified categories where a duty exists.”

          o   In the instant case, there are analogous categories that have already been
              determined to establish a duty… (note: almost never just “one”)
                   Manufacturer - Consumer: (Donoghue, Dunsmore (SK QB), Arnold)
                   Invitor – Invitee (Just, Arnold, Jordan House, Crocker, Ryan –
                      foreseeable that carelessness of railway could hurt others.)
                   Parent – Child (Arnold - was duty, just not breached)
                   Relationship of supervision and control (Crocker, Arnold, Galaske –
                      Arnold and Galaske – not negated by presence of a parent)
                   Doctor (Optometrist/medical specialist) – Patient (Dunsmore)
                   Retailer – Consumer (Dunsmore)
                   Driver – Pedestrian (Arnold)
                   Government – Citizen (NOT recognized in Just)

          o   Damage by third parties:
                 Relationship of supervision and control (Dorset Yacht)
                 P belongs to specially identifiable class (Jane Doe NOT Hill), NOT
                   police-citizen


                                                                                            60
                     Unknown third party, but limited class of passengers (Air India)
                     Commercial Host (Jordan House, Crocker), NOT Social host (Childs,
                      Campbell Estate, P, K, Stat)

           o   Courts reluctant to impose new duties (Childs)

       “Since there are no analogous categories in which a duty has been established, the
       courts are likely to extend an existing category…”

   B) Stage one proximity analysis also includes policy considerations arising from the
      relationship between the parties that may negate the establishment of liability
      (Cooper). However, I will deal with this specifically in the second stage of analysis.
          o This refers to case-specific factors
                  Courts likely to recognize duty when there is physical harm v. pure
                     economic or emotional loss
                  Is there any statutory indication that there should be a duty? (Jordan
                     House liquour licence statutes indicate there is).

“If both (A) and (B) are established, there is a prima facie duty of care. One must move on
to stage two…”

Stage 2: Social Policy
“Stage two examines residual social policy reasons (beyond immediate relationship) why the
prima facie duty ought to be negatived/limited.”

       -   Identity of the defendant – Government Actor?
       -   Nature of the defendant’s act – Omission?
       -   Nature of damages – emotional harm? Pure economic loss?
       -   Constitutional considerations?
       -   Purpose of Tort Law

       Boyle Typology
       - Judicial Administration factors – floodgates?
       - Institutional Competence?
       - Moral arguments
       - Deterrence or social utility arguments
       - Economic arguements

   A) Governement Actor
      For government actors, the social policy stage takes the form outlined in Just. The
      test is concerned with the existence of either statutory immunity or common law
      immunity.
          1. Statutory immunity? If NO, move on.
          2. Common law immunity requires inquiry into:
                 a. Level of authority of the decision maker
                    Higher = policy
                 b. Nature of the decision – “the decision I will focus on is…”
                         i. Policy: linked to financial (budgetary) (Just – Sopinka J. dissent,
                            Brown, Swinamer), economic, social, political factors/constraints
                        ii. Operational (execution of a policy decision): administrative
                            direction, expert/professional opinion and discretion (Just, Air
                            India), technical standards or general standards of




                                                                                            61
                         reasonableness, decision to ignore policy (Kamloops), “shop
                         talk” (Jane Doe).

   “Due to ____ factors, the decision appears to be operational. Hence duty is
   established and one must proceed to determine if this was breached.”

   “Due to ____ factors, the decision appears to be a policy one. However, this must be
   made in the bona fide exercise of discretion (Just).”
      o Based on prejudice (Roncarelli)
      o Amounted to discrimination (Jane Doe – women act hysterical)
      o Irrational (cannot be so irrational as to constitute improper discretion in Just)

B) Omissions
   “There is no duty for omissions (Horsley v. McLaren) unless a special relationship
   can be established (Crocker). In the instant case, it can be argued that a special
   relationship exists because…”

       o   Defendant participated in the creation of the risk. (Oke, Crocker)
       o   Gratuitous undertaking and reliance (Zelenko)
       o   Failure to perform a contractual promise (Dunsmore)
       o   Relationship of supervision and control (Arnold)
       o   Affirmative duty imposed by statue (Just)
       o   Defendant’s status as a public authority with affirmative duties to individuals
           (Jane Doe)
       o   A relationship of economic benefit to the defendant (Crocker)
       o   Actual knowledge of the vulnerability/danger (Crocker)

   Counter-arguments: was it too burdensome to do something, hard to identify D, or or
   spurious causal connection (Atiyah)?

C) Nature of Damages
   Consequential economic loss or emotional loss are included in the overall part of the
   assessment only if they accompany physical personal injury (K.D. Cooper-
   Stephenson & I.B. Saunders).

D) Constitutional Considerations
      o 15.1 - Equality (gender based tort contravenes this in Dobson) [sex, race,
          origin, religion, disability]
      o 2(a) - Religion
      o 2(b) - Freed of expression and press
      o 2(c) - Freedom of peaceful assembly (Midterm Practice case)
      o 7      - Right to life liberty and security of person – Dobson – by moving into
                  lifestyle choices, etc.

E) Purpose of Tort Law
   Compensation
      o Montreal Tramways and Duval, as opposed to the result in Dobson recognized
         negligence on the part of a third party in damage to a foetus because it was
         stated that the primary purpose of tort law is designed to provide
         compensation for harm caused by negligence and to a lesser extended deter
         tort-feasors (Dobson).

   Corrective Justice



                                                                                          62
       o   Not just about compensation (Fiala), there are other sources – insurance,
           public and private compensation sources (Cooper-Stephenson & Saunders).
       o   Fault is still an essential element in tort law. There ought to be moral blame.
           Tort is a system of corrective justice, and is not primary based on
           compensation (Wittmann, J.A. in Fiala).

F) Judicial Administration: Floodgates argument
   YES: finding a duty in this case would open the floodgates to lawsuits, and clog up
   the legal system (Lord Buckmaster’s dissent in Donoghue).
       o Viscount Dilhorne, HL, in his dissent in Home Office, claims that if the
           Donoghue foreseeability principle is applied to determine to whom duty is
           owed, there is no end to who could qualify.
       o Sopinka J. in Just – expansion of traditional negligence liability to a widening
           range of activities will lead to problems of overly-litigious system like in the
           US.

   NO: this is not an issue by establishing a private law duty does not necessarily lead
   to finding of liability in negligence. There are other stages that still need to be
   passed, such as finding that the standard was breached, damage is legally
   recognizable, factual causation and remoteness.

G) Institutional Competence
   Courts are not competent institution:
       o Legislature has greater access to resources and points of view to properly
           decide the issue. Dobson: if children who sustain damages as a result of
           maternal prenatal negligence should be financial compensated, this should be
           debated and formulated by the legislature (indeed, AB in CanWest News).

   Courts are the competent institution
      o Weiler J.A. in Childs - possible for court to impose duty w/o legislature.
      o Courts can decide with the help of expert evidence (Fiala).

H) Deterrence arguments
      o In Childs, Justice Weiler states the social host liability will deter drunk driving
          because hosts would then be responsible for ensuring that their guests get
          home safely.

I) Economic Arguments
      o Cost-benefit analysis
             Spreading the losses (Arnold)
             Defendant is in a better position to bear the cost (Abbott Laboratories)
             Conversely, 99% of DES daughters fine – greater benefit (Abott)
      o Posner – there should not be an economic burden on industry.



                   Insurance arguments (does one party have access to insurance?)
                    (Abbott Laboratories, Wenden).
                       Will this increase insurance premiums and make it untenable?
                   Imposing a duty would have a chilling effect on the relationship
                    between the parties (Childs, Dobson).
                   Courts should take note of the legislation in AB allowing mothers who
                    are insured to be sued for pre-natal damage (CanWest News)



                                                                                           63
      ADD IN ALL POLICY ARGUMENTS HERE FOR MORE FODDER>




“Having applied the Anns test, it appears as though there IS/IS NOT a duty owed.”




                                                                                    64
2) BREACH OF DUTY

“The determination of whether a breach of duty exists involves a three-stage analysis.”

Stage 1: Standard of Care:
“The first stage involves asking ‘who is the reasonable person against whom the defendant
is to be measured?’”

   A) Generally: the reasonably prudent person/company/organizer in the defendant’s
      circumstances. This is an objective standard, but is subjectivized to the extent that
      the reasonable person is placed in the factual circumstances of the defendant.
          o Not intelligence (Vaughn)
          o Not freak accidents (Blyth)
          o Not more subjective/exempt certain actions (Dobson)
          o Reasonable safety best appraised by parents (Rand J. dissent Ware’s Taxi).

   B) Exceptions: these negative, raise, or lower the standard.
         1) Mental Disability: ON and AB if defendant suffers from mental
             disabilities/illness are not found negligent if their illness (i) renders them
             incapable of appreciating their duties of care, or (ii) even if they can
             understand them, they are incapable of discharging them (Buckley (ON), Fiala
             (AB)).
                      Otherwise held to reasonable person standard
                      Other jurisdictions require a policy debate
                      Must be a sudden onset, did not know prior (Wenden).

   C) Children: two stage test (set out in Heisler)
          1) Subjective inquiry to determine if child has the capacity to be found negligent.
                      General guideline – under 7? Inquiry ends (Heisler).
          2) Child is held to the standard of the child of like age, intelligence and
             experience.
                      Exception: if child is engaged in “adult activity”, held to adult
                         reasonable person standard (Dellwo, US). Rationale.
                      Ryan v. Hickson, McErlean adopts this in Canada – snowmobiles
                         and trail bikes.
                      Motor power, speed, and danger are key.

   D) Physical Disability: a defendant with a physical disability is eld to the standard of the
      reasonable person with that disability (Carrol v. Chicken Palace).

   E) Professionals: held to a higher standard which takes in account the expertise that
      they hold themselves out to have. Held to the standard of the reasonably competent
      member of their profession (e.g. reasonable brain surgeon) (Challand, Brenner).
         o Professionals have specialized knowledge and self-gov.
         o Must only follow “standard practice” (Brenner).
         o Specialization and locality (Challand)
         o Beginners held to same std (Challand)

   F) Superior Knowledge: heightens the standard of care for those without professional
      status. E.g. pedestrian that knows CPR (deduced from Challand, Brenner).




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Stage 2: Impugned Conduct: “The second stage involves determining what the impugned
conduct is. Based on the facts, _____ failed to do what the reasonable ____ would do. This
action will become the focus of the unreasonable risk formula.”

Stage 3: Unreasonable Risk Formula: “The unreasonable risk formula involves weighing
4 aspects.”

   B) Probability of Harm: the reasonable ____ takes into account reasonable probabilities,
      not fantastic possibilities (Bolton).
         o Fantastic possibility – rare, 6/28, quiet? (Bolton)
         o Reasonable probability – car out of control (Cartwright J. dissent in
             Priestman).
         o General conditions at hand (Carroll Towing).

   C) Gravity of Harm:
         o Can overshadow low probability – one eye (Paris).

   D) Burden of Precautions of Preventing the Harm: courts downplay pure economic cost.
         o Economic considerations receive little sympathy (Arnold, Ware’s Taxi,
            Crocker).
         o Leisure activities receive little sympathy (Bolton).
         o Little had to be done (Crocker)
         o Lot had to be done (Priestman)
         o Precautions cost little - $10 (Ware’s taxi)
         o Cannot be overly restrictive – prison (Carroll Towing)

   E) Social Utility of Impugned Conduct: only comes into play where defendant is engages
      in altruistic pursuit (Watt).
          o Not applicable to commercial motives (Watt).
          o Policeman – yes, important to stop b/f intersection (Locke J. in Priestman)
          o Policeman – no, armed robber who killed v. unarmed teen (Cartwright J.
              dissent in Priestman).

   F) Exceptions to URRF:
         a. Custom: onus on party alleging custom to establish via expert evidence. If it
             is, plaintiff can still prove it to be negligent (parking practices of farmers in
             Malcolm).
                      Compliance/deviation not determinative, only persuasive that there
                          was/wasn’t breach (Malcolm).
                      Neighbourhood custom hard to establish (Malcolm, Arnold).

          b. Standard Professional Practice: subset of custom. Can be determinative.
             Can be conflict, look on the whole (Challand). Depends on info @ time (ter
             Neuzen). If not complicated, looked at as would be any other custom.
                   1) Where procedures involve complex medical treatment, it is not
                       open to court to find this practice negligent.
                   2) Unless there is failure to obvious reasonable precautions (ter
                       Neuzen).

          c. Statute: breach of statute is not determinative, only persuasive evidence only
             of breach of duty (Sask. Wheat Pool) as long as:
                    1) There is an actual breach
                    2) The breach is the cause of damage



                                                                                            66
                     3) The type of harm suffered is the type that the statute is meant to
                        guard against –
                            NO in (Gorris). YES – will weigh more heavily in “ordinary”
                               cases within ambit of statute (Ryan).
                     4) The plaintiff belongs to the class of persons that the statute is
                        designed to protect
                            NO in (Gorris).
                      Converse – compliance with statute will constitute only evidence
                        that there had not been a breach of duty (Ryan).




3) FACTUAL CAUSATION

“Factual causation is a scientific inquiry into cause and effect, where on a balance of
probabilities, the defendant’s conduct must be established to have been a cause of the loss.”

BUT FOR/Threshold Test
“The threshold test for factual causation is the BUT FOR test, where it must be asked if “but
for” the defendant’s breach, would the Plaintiff’s damage have occurred (Kauffman v. TTC)?”

   -   This needs to be proved by the Plaintiff on a balance of probabilities.
   -   Outcome of BUT FOR test is very much dependent on the state of scientific
       knowledge at the time of trial (Liggett & Myers Tobacco).

   -   Always start with the BUT FOR test.
          o NO  factual causation established.
          o YES  it would have occurred regardless, and this is not the end of inquiry.
             There are alternative tests for cases where BF is inappropriate…
                  Facts lie in knowledge of the D
                  Two Ds, one cause, cannot prove who did the one act.
                  Product of Industry
                  Multiple causes working together

   A) Relaxed Onus of Proof Exception
         o “In the instant case, it can be argued that there should be a relaxed onus of
            proof because the facts relating to causation lie particularly within the
            knowledge of the defendant (Farrell).”
         o Onus remains with the P, just that in the absence of evidence to the contrary
            adduced by the D (tactical burden), an inference of causation may be drawn
            although positive or scientific proof of causation has not been adduced.
                    Medical malpractice (Farrell).

          o   Policy – YES
                       Institutional Competence: Courts are the right place. Sopinka
                         doesn’t want in medical malpractice suits, Ps to go to other routes
                         of compensation b/c of difficulty with proving factual causation.
                       Economic Argument – the benefits outweigh the costs.

          o   Policy – NO



                                                                                           67
                     Judicial Administration: Floodgates - The liberalization of rules for
                      recovery in malpractice suits is the cause of the medical
                      malpractice crisis of the 1970s in the US.
                     Economic Argument: insurance premiums become exorbitant, and
                      some insurers just w/drew all together. This will make it harder to
                      get insurance.
                           Practice of defensive medicine, less innovation.
                           Doctors may end up being held unjustly liable.

B) Two Negligent Defendants but only ONE Cause

       o   “The SCC in Cook establishes that when there are two negligent defendants,
           and only one cause, the onus can be shifted to the defendants to exculpate
           themselves.”
                   However the plaintiff cannot have in any way negligently
                     contributed to the problems of proof (Lange).

                     If they cannot decide between themselves  50/50 liable (per
                      Negligence Act).
                     This is taken from the US case of Summers v. Tice.


C) Product of Industry, Multiple Potential Defendants, Unsure Which One
      o “Because the problems of proof are not attributable to the plaintiff or the
          defendant but to the nature of a product or industry, one could argue for the
          application of the market share liability test adopted by some US jurisdictions
          in Abbott Laboratories.” Where P show…

                    Product in question caused the plaintiff’s damage.
                    A number of defendants manufacture a generic product
                    Through no fault of his/her own, the Plaintiff is unable to pinpoint
                     which defendant was the source of the damage.
                   The plaintiff must bring the action against a “substantial” share of
                     the market (75-80%).
       o   …the onus shifts to the defendants to exculpate themselves. Damages will be
           apportioned among those unable to do so in accordance with their share of
           the market.

       o   “This US test has not yet been accepted, nor rejected in Canada. There are a
           number of policy reasons that it should be…”
                   Moral: Ds are better able to bear the cost of injury resulting from
                      the manufacture of a defective product.
                           Risk can be insured by the mfgs and distributed among the
                             public as a cost of doing business. Plaintiffs do not have
                             insurance to cover for this.
                           Via rules of civ pro, Ds can add other Ds who Ps overlooked
                             so the loss is more equally apportioned.
                           Fair - Ds can still exculpate themselves, if not, still fair cause
                             only liable for market share.
                   Deterrence: this would deter companies from releasing unsafe
                      drugs on the market.

       o   “This test is unfair and should not be adopted because…”



                                                                                           68
                    Moral/Purpose of tort law: Ds are paying when they might not be at
                     fault. Contrary to our basic principles of neg law.
                    Economic: benefits outweigh the costs. Holding liable for testing
                     means that they would have had to wait literally a generation
                     before releasing the drug. How can we justify this when over99%
                     of DES daughters are fine?
                          Would also retard future research.
                    Judicial Administration/Floodgates: US case does not necessarily
                     limit this to a class-action scenario. Could get out of control and
                     spread to other industries.
                          Giving preferential treatment to certain classes of Ps.
                          Ill defined test – how determine mrt sh? Natl/Local?
                    Institutional Competence: there are far reaching effects on the
                     insurance industry, and the industry that the co operates in
                     general. Issue is best left to the legislature.

D) Multiple Causes (neg/non-neg) working together
      o “It can be argued that because there are multiple causes the “material
          contritubtion” test in Athey should be applied.”
                   For Ds to be jointly and severally liable it must be shown that each
                     materially contributed to the harm.
                          A contributing factor falls outside de minimis range (Athey –
                             25%, “minor cause”).
                          Damages are apportioned between the Ds in accordance
                             with their respective degrees of fault (Negligence Act).
                             Note: cannot apportion between negligent and non-negligent
                             causes.
                          Can not apportion between neg/non-neg causes.

                    Material contribution is also met when...
                         There is a pack mentality, and people urge each other on
                            (Arneil).
                         Two parties act together two create damage that neither
                            could have done alone (Lambton).




                                                                                     69
4) REMOTENESS/PROXIMATE CAUSE

“There has been a decisive shift in the governing test regarding remoteness from the
directness test (Polemis, 1921) to a foreseeability test (Wagon Mound 1, 1961). The issue
regards what degree of foreseeability is required.”

   A) Element 1: Foreseeability of Plaintiff

   -   Negligence does not exist “in the air”. Is the plaintiff within the zone of danger or
       range of apprehension (Palsgraf)?
          o Conditions which might widen the zone
                  Warnings (hinted at by Cardozo Ch. J in Palsgraf)
                  Lawfulness irrelevant, anyone in the vicinity (Farrugia)
          o Conditions which might narrow the zone – distance (Hay)
                  Lack of warnings
                  Geographic proximity (Palsgraf – 25 ft, Hay)

          o   Policy   – for wide zone v. narrow zone – remoteness is inherently pol, so argue
                       Purpose – compensation v. corrective justice.
                       Economic – cost benefit – insurance?
                       Deterrence – recognizing legally protected interests (Farrugia)
                       Judicial admin - floodgates

   -   A duty may be owed to rescuers by the person responsible for putting another in peril
       (whether it be a 3rd party or the imperilled person him/herself).
          o Rescuers are foreseeable plaintiffs provided the intervention was “not so
              utterly foolhardy as to be outside any accountable risk and thus beyond even
              contributory negligence” (Horsley).
          o There has to be an extremely negligent act by 1R to generate duty to 2R b/c
              otherwise undercuts purpose of doctrine of rescue (Laskin in Horsely).

          o   Policy – for rescuers
                   Economic/Deterrence - Purpose is to encourage altruistic behaviour (in
                      Horsely)


   B) Element 2: Foreseeability of Damage – restricting the expansive scope of the
      directness test.

   -   The defendant is responsible only for the probable consequences of his/her acts
       (Wagon Mound 1).
          o Foreseeability of the TYPE/KIND of damage not EXTENT, which the reasonable
              person would have foreseen, not the “precise concatenation of circumstances”
              (Leech Brain / Lord Advocate (UK), Barstead (AB SC), School division of
              Assinboine South (SCC), R v Cote (1974, SCC) (CDN)).
                  Thin skull rule – tortfeasor takes victim as is – is an exception to WM1
                     foreseeability test and still stands. This need not be foreseen. The full
                     extent of the damage need not be foreseeable (Leech Brain).

          o   Counter-point: courts seem to be confused about type/extent
                  Turner Manufacturing, UK, would not hold up.



                                                                                               70
                         This is weak – SCC shows complete adoption of WM1.

-   Contentious point – what degree of foreseeability? WM2 states POSSIBLE, not
    probable.
       o Critics state that this is taking us back to Polemis.
       o However, courts rarely refer to WM2; use WM1 (e.g. Cyril Lord Carpets). The
          only make reference to WM2 only when the D has engaged in an illegal
          activity or one that has no social utility whatsoever (Sutherland Lecture).

C) Intervening Cause/Novus Actus Interveniens (Cooper-S/Saunders)

-   Recovery may be denied on remoteness grounds if the causal chain is interrupted by
    a “fresh, independent cause…something that would be freakish, fantastic or highly
    improbable…un short, so freakish or fantastic that completely outside the range of
    normal experience” (Martin, Williams, Kolestar).
-   Practically, no longer relevant because (1) holdover from the 19th C, linked to Polemis
    notion of “directness”, which now foreseeability (2) apportionment legislation & CN
    (3) broad scope of duty of care (e.g. Dorset Yacht).
-   If an event, inanimate or human, was reasonable foreseeable as a consequence of
    the Ds conduct, it will not be held to be a NAI. However, converse is not the case
    (Lord Advocate). Must be so fantastic…(Turner Manufacturing). Thus, concept of NAI
    exists, but RARELY invoked.

-   Types of NAIS:
       o 1) Inanimate events – rare. Loss caused by ice, flooding, or bad weather can
           be attributed to people who fail to take reasonable steps to avoid its effects.
           Something like an earthquake or a freak frost would work though. E.g.
           (Doughty v. Turner Manufacturing).
       o 2) Non-negligent Human Conduct – where third party conduct results from the
           Ds conduct. Rare. Cannot necessarily be exculpated even when not
           foreseeable. E.g. (Hughes v. Lord Advocate).
       o 3) Negligent Human Conduct – does not necessarily exonerate you. E.g.
           medical error post-injury in Kolestar shows you may not get off.
       o 4) Most common circumstance which may give rise to a NA involves conduct
           which goes beyond negligence, that is, grossly negligent, reckless or
           intentionally harmful (Bradford (SCC), Dalaire (SCC)).
                Note even crim conduct does NOT always constitute NA (Stansbie,
                   Dorset Yacht).

D) Second Accident

-   The law recognizes that one accident may cause another. As long as the original
    type of harm is foreseeable, plaintiff does not need to show that the every
    consequence of the original injury was within range of foreseeable extent of the
    original injury (Cyril Lord Carpets).
        o Note that conduct on the part of the Plaintiff leading to the second accident is
            no longer to be considered to be a novus actus given the test above. It would
            more likely lead to apportionment/CN.

E) Intervening Medical Error – Injury is Exacerbated due to ME/Med Neg




                                                                                        71
   -   So long as reasonable care is used to employ a competent physician the results of
       the treatment, even if it is unsuccessful will be a proper head of damages (Mercer,
       ON COA, 1941). Do not need the best doc.
           o If the treatment is negligent, it could be a NAI (Mercer).
                  Counter: this is dated and not likely. Negligent medical practice is no
                     longer considered a NA. If subsequent negligence is reasonable
                     foreseeable, original D liable for all (Price).
                  Only if the act is completely out of range of normal experience, or
                     gross, shocking act of malpractice (Kolestar).

   F) Nervous Shock

   -   “Assuming that the D’s negligence caused the death or injury, I will now continue to
       examine whether there is a claim under nervous shock. Original view was that these
       claims should not be allowed (Victorian Railways) but cts have since evolved. There
       is a test with four stages that must be met…”
    - You first need the trigger of negligence, once you have this in place, you must meet
    - The following requirement must be met for plaintiff to success in a NS case:
           o 1) Recognizable psychiatric illness. Proven via expert evidence.
           o 2) Proximity in time and space: must have witnessed first hand or its
               immediate aftermath (at the scene, or afterward (Marshall, McLoughlin).
                     Hearing from a third party insufficient (Rhodes, Abramzik (CDN)), or
                       being at the scene but not seeing (Alcock).
                     Must be close in time (Rhodes)
                     TV/Radio not good enough unless specific view (Alcock).
           o 3) Proximity of relationship between P and injured.
                     Proximity of relationship is most important, but not alone
                       determinative, even if very strong (Rhodes, Marshall).
                     Spouses, parent-child, but others unsure; just must be within the Ds
                       contemplation (Alcock)
                     Rescuers covered (Chadwick)
                     Bystanders cover if “reasonably strong-nerved person would have been
                       so affected.” (Alcock).
4) The Plaintiff’s psychiatric injury was induced by shock, fright, terror or horror in response
to the accident itself. Proven by expert evidence.




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