Standard of Care - Legal and Lit by huangyuarong

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									NEGLIGENCE SUMMARY -- TABLE OF CONTENTS
Standard of Care .............................................................................................................. 3
   Objective Standard ..................................................................................................................3
      Vaughan v Menlove (1837) (hayrick fire) ...................................................................................... 3
      Buckley v Smith Transport (1946) Ontario CA (truck driver w syphilis) ........................................ 3
      Roberts v Ramsbottom (1980) UK (stroke before driving) ............................................................ 3
      Mansfield v Weetabix (1998) (truck driver with blood sugar problem) ........................................ 3
      McHale v Watson (1966) Aust HC (boyish behaviour) .................................................................. 3
      Fleming, The Law of Torts .............................................................................................................. 3
      McErlean v Sarel ............................................................................................................................ 3
   Learned Hand & Probability Issues ...........................................................................................3
      US v Carroll Towing (1947) ............................................................................................................ 3
      Posner, The Learned Hand Formula for Determining Liability ...................................................... 3
      McCarty v Pheasant Run (1987) .................................................................................................... 3
      Bender's response to Posner ......................................................................................................... 3
      Bolton v Stone (1951) House of Lords (extremely unlikely cricket balls) ...................................... 3
      Wyong Shire Council v Shirt (1979) ............................................................................................... 4
      Latimer v AEC (1953) HL (flooded factory) .................................................................................... 4
      Watt v Herfordshire County Council (1954) .................................................................................. 4
      Wagon Mound 2 (1966) Privy Council (other damaged boat sues exploded boat) ...................... 4
   Industry Standard and Standard of Care ...................................................................................4
      Trimarco v Klein (1982) NY CA (shattered shower glass) .............................................................. 4
      TJ Hooper (1932) (tugboats without radios) ................................................................................. 4
      Ter Neuzen v Korn (1995) SCC (AI and HIV) ................................................................................... 4
Duty of Care..................................................................................................................... 4
   What kinds of relationships generate a duty of care? ................................................................4
     Donoghue v Stevenson (1932) House of Lords (snail in ginger beer)............................................ 4
     Watson v Ogee (1940) King's Bench (hair dye).............................................................................. 5
   Palsgraf: Duty of care is owed to an individual, not society at large ...........................................5
     Palsgraf v Long Island Railroad Co (1928) NY CA (firecrackers) ..................................................... 5
     Weinrib, The Passing of Palsgraf? (2001) ...................................................................................... 5
     Prosser, Palsgraf Revisited (1953) ................................................................................................. 5
     Dobson v Dobson (1999) SCC (injured fetus negligent driving) ..................................................... 5
   Exception to rule from Palsgraf: Rescuers .................................................................................5
     Haynes v Harwood (1935) KB CA (runaway horse van) ................................................................. 5
     Wagner v International Railway Co (1921) NY CA ......................................................................... 5
     Horsley v MacLaren (1971) SCC (passenger jumps in to save other passenger) ........................... 6
   The two-stage test to determine duty of care ...........................................................................6
     City of Kamloops v Nielsen (1984) SCC .......................................................................................... 6
     Cooper v Hobart (2001) SCC (Registrar of Mortgage Brokers) ...................................................... 6
     Childs v Desormeaux (2006) SCC (social host + drunk driver) ....................................................... 6
   Two-stage test vs categorical approach ....................................................................................7
     Caparo Industries v Dickman (1990) HL ......................................................................................... 7
Remoteness ..................................................................................................................... 7
   What is the standard of probability/foreseeability? ..................................................................7
    Re Polemis (1921) KB CA (dropped plank caused explosion) ........................................................ 7


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     Wagon Mound 1 (1961) Privy Council (dock company sues boat owner) .................................... 7
     Wagon Mound 2 (1966) Privy Council (other damaged boat sues exploded boat) ...................... 7
   Thin skull rule ..........................................................................................................................8
     Cotic v Gray (1981) Ont CA (car accident psychosis suicide) ......................................................... 8
     Leech Brain (1962) (molten metal burn cancer) ............................................................................ 8
     Stephenson v Waite Tileman Ltd (1973) NZ CA (injured steeplejack) ........................................... 8
   What type of harm must be foreseen?......................................................................................8
     Hughes v Lord Advocate (1963) HL (kids dropped paraffin lamp in manhole).............................. 8
     Jolley v Sutton (2003) HL (rotting ship falls on kids) ...................................................................... 8
     Mustafa v Culligan (2008) SCC (flies in water) ............................................................................... 8
   Actus Novus and Remoteness...................................................................................................8
     Home Office v Dorset Yacht (1970) HL (dorstal boys damage yacht) ........................................... 8
     Lamb v London Borough of Camden (1981) UK CA (squatters)..................................................... 9
     Bradford v Kanellos (1973) SCC (restaurant fire, not an explosion) .............................................. 9
Causation: Cause in Fact................................................................................................... 9
   “But for” causation ..................................................................................................................9
     Barnett v Chelsea Hospital (1968) QB (man died of poisoning, turned away at hospital) ............ 9
     Baker v Willoughby (1970) HL (leg injured in car accident, then shot by a robber) ...................... 9
     Jobling v Associated Dairy (1982) HL (back injury + spinal disease) .............................................. 9
     Sunrise Co Ltd et al v Ship "Lake Winnipeg" (1991) SCC (two tortious ship accidents) ................ 9
     Athey v Leonati (1996) SCC (two tortious car accidents + non tortious disc herniation) .............. 9
     Cook v Lewis (1951) SCC (two shooters)...................................................................................... 10
   Market Share Liability ............................................................................................................ 10
     Sindell v Abbott Laboratories et al (1980) Calif SC (DES mfg) ..................................................... 10
     Hymnowitz v Eli Lilly (1989) NY CA (also DES) ............................................................................. 10
     BC Tobacco Damages and Health Care Costs Act ........................................................................ 10
   Material Contribution to the Risk ........................................................................................... 10
     McGhee v National Coal Board (1972) HL (dermatitis from dust + not showering) ................... 10
     Fairchild v Glenhaven Funeral Service (2003) HL (exposed to asbestos bc of employers) ......... 10
     Barker v Corus (2006) HL (also exposed to asbestos during self-employment) .......................... 11
     Farrell v Snell (1990) SCC (eye surgery blindness) ....................................................................... 11
     Walker v York Finch General Hospital (2001) SCC (AIDS infected blood) .................................... 11
     Resurfice v Hanke (2007) SCC (poured fuel in the wrong hole of the Zamboni) ......................... 11
Defences ........................................................................................................................ 11
   Voluntary assumption of risk .................................................................................................. 11
     Lambert v Lastoplex (1971) SCC (caution labels, fire from fumes).............................................. 11
     Dube v Labar (1986) SCC (drunk driving hitch-hikers) ................................................................. 11
     Birch v Thomas (1972) UK CA (uninsured driver put up sticker) ................................................. 12
   Contributory Negligence ........................................................................................................ 12
     Bow Valley Husky v Saint John Shipbuilding (1997) SCC (circuit-breaker) .................................. 12
     Ontario Negligence Act ................................................................................................................ 12




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Standard of Care

Objective Standard
Vaughan v Menlove (1837) (hayrick fire)
 • establishes objective standard of care based on "care taken by a prudent man" - not
   own best judgment
Buckley v Smith Transport (1946) Ontario CA (truck driver w syphilis)
 • exception to rule in Vaughan: due to insane delusion or similar, unable to understand
    nor discharge duty of care
Roberts v Ramsbottom (1980) UK (stroke before driving)
 • limit on Buckley: if the defendant has some warning, knows that capacity is diminished,
   still legally liable for negligence
Mansfield v Weetabix (1998) (truck driver with blood sugar problem)
 • in this case the defendant was unaware of his condition and therefore not legally liable
McHale v Watson (1966) Aust HC (boyish behaviour)
 • standard must be adjusted to appropriate level for a child of a particular age
Fleming, The Law of Torts
  • beginners are held to the normal standard
  • tasks requiring expert skill: judged by the standard of the expert
  • standard not lowered for children engaged in adult activities
McErlean v Sarel
 • establishes standard of care for children: reasonable for a child of same age, experience

Learned Hand & Probability Issues
US v Carroll Towing (1947)
 • Learned Hand sets out B<PL
Posner, The Learned Hand Formula for Determining Liability
 • Gives economic rationale for B<PL
McCarty v Pheasant Run (1987)
 • Learned Hand formula has analytic rather than operational significance
Bender's response to Posner
 • society would be better if we held to standard of a caring neighbour
 • tort law should begin with a premise of responsibility rather than rights, safety rather
   than efficiency
Bolton v Stone (1951) House of Lords (extremely unlikely cricket balls)
 • risk of harm has to be extremely small to justifiably disregard, to the standard of the
    reasonable man
 • ie concerned with where unlikeliness becomes unforeseeability



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Wyong Shire Council v Shirt (1979)
 • to be foreseeable, the risk must not be “far-fetched or fanciful”
 • but even if it meets this standard, must balance likelihood and magnitude of the harm
   against burden incurred to prevent it
Latimer v AEC (1953) HL (flooded factory)
 • no negligence because of low probability compared to high cost of the burden
Watt v Herfordshire County Council (1954)
 • firefighter injured in improperly-executed operation
 • doing things that risky way was justified by the emergency
       o “It is always a question of balancing the risk against the end”
 • “the commercial end to make profits is very different from the human end to save life
   or limb”
Wagon Mound 2 (1966) Privy Council (other damaged boat sues exploded boat)
 • in order to be foreseeable, harm doesn't have to be probable, just not unlikely: a "real
   risk" which the reasonable person would not dismiss as too far-fetched
 • if the harm is only possible, and only slightly, only have to take action to avoid harm if it
   takes little effort or cost
       o balances likelihood of harm coming about with the burden of avoiding the harm,
          as in Learned Hand rule.
 • Note: the remoteness test in this case seems more like a standard of care analysis:
   "would the reasonable man take steps to avoid this risk?"

Industry Standard and Standard of Care
Trimarco v Klein (1982) NY CA (shattered shower glass)
 • standard custom in an industry can establish reasonable prudence; however, that
    standard custom must itself be reasonable
TJ Hooper (1932) (tugboats without radios)
 • Learned Hand said the same thing as in Trimarco above
Ter Neuzen v Korn (1995) SCC (AI and HIV)
 • jury cannot make finding on standard of care in an expert field without the assistance
    of expert evidence

Duty of Care

What kinds of relationships generate a duty of care?
Donoghue v Stevenson (1932) House of Lords (snail in ginger beer)
 • narrow ratio: a manufacturer of household products has a duty of care to the consumer
   of its products, as the manufacturer has intentionally placed himself in a relationship
   with all potential consumers.
 • broad ratio: duty of care is owed to persons so directly affected by an act that the actor
   ought reasonably to have in contemplation when deciding whether and how to act.


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 • open to new kinds of relationships giving rise to duty of care beyond what's already
   established in common law.
Watson v Ogee (1940) King's Bench (hair dye)
 • distributor is liable for not ascertaining the truth of claims about a product.

Palsgraf: Duty of care is owed to an individual, not society at large
Palsgraf v Long Island Railroad Co (1928) NY CA (firecrackers)
 • negligence occurs when a particular duty owed to a particular person is breached, thus
    a plaintiff will not be successful who claims that an act was in the abstract negligent and
    plaintiff happened to be unforeseeably harmed by it
 • distinction between tort and crime: crime is a bad deed in general, tort is a wrong
    against another individual's lawful rights
Weinrib, The Passing of Palsgraf? (2001)
 • liability is correlative: defendant and plaintiff are doer and sufferer of the same deed;
   plaintiff's right is the same as the defendant's duty
Prosser, Palsgraf Revisited (1953)
 • Palsgraf cannot set out a rule because it is about a freak accident.
 • There is no hard and fast rule when it comes to the test of foreseeability: best to stick
    with those old chestnuts "proximate" and "remote"
Dobson v Dobson (1999) SCC (injured fetus negligent driving)
 • a pregnant woman does not owe a legal duty of care to her fetus
      o she is always with the fetus, always responsible for it, this would extend too much
         control over all aspects of her life
      o dissenting opinion: there is a clear distinction between situations when a duty of
         care is owed to a third party (eg driving) and when it is not (eg drinking); this
         distinction takes care of these policy concerns
 • broader ratio: a duty of care must always be owed by one person to another, not to the
   public at large - a "general duty of care" does not exist.
 • existence of insurance irrelevant in tort law
 • cannot solve a societal problem (lack of financial support for children with special
   needs) with blunt instrument of courts

Exception to rule from Palsgraf: Rescuers
Haynes v Harwood (1935) KB CA (runaway horse van)
 • the principle of "novus actus interveniens" does not apply when the intervening action
   is something very likely to have happened.
 • volenti non fit injuria does not apply to rescuers, unless they do something stupid.
Wagner v International Railway Co (1921) NY CA
 • classic statement of the basis of liability to the rescuer: "danger invites rescue. The cry
   of distress is the summons to relief"
 • a wrong that imperils a life is a wrong to the victim AND to the rescuer


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Horsley v MacLaren (1971) SCC (passenger jumps in to save other passenger)
 • liability to the rescuer is an independent and not derivative duty because of the
    negligent act's "tendency to induce the rescuer to encounter the danger"
 • decision: there was a duty of care, but boat owner wasn't negligent because he did his
    best to carry it out

The two-stage test to determine duty of care
 • First: establish prima facie duty of care
 • Second: consider policy implications that may negate duty of care
City of Kamloops v Nielsen (1984) SCC
    1. Is there a sufficiently close relationship between the parties…so that, in the
        reasonable contemplation of the [defendant], carelessness on its part might cause
        damage to that person?
    2. Are there any considerations which ought to negative or limit (a) the scope of the
        duty and (b) the class of persons to whom it is owed or (c) the damages to which a
        breach of it may give rise?
Cooper v Hobart (2001) SCC (Registrar of Mortgage Brokers)
 • modifies Anns test
 • First stage: establish prima facie duty of care
      o foreseeability: was the harm that occurred the reasonably foreseeable
          consequence of the defendant's act?
      o proximity: consider policy implications relevant to the particular relationship in
          question here.
 • Second stage: residual policy considerations.
 • most cases of negligence assert duty of care based on analogy to established category
      o don't need to go through the test when it’s analogous
 • Elements to consider in determining proximity:
      o expectations: expectation of society that a duty is owed in this relationship
      o representations: has one person voluntarily said they will take care
      o reliance: was the plaintiff justified to rely on the defendant?
      o property or other interests involved
Childs v Desormeaux (2006) SCC (social host + drunk driver)
 • McLachlin CJC
 • If a proposed duty is not novel, no need to apply Anns/Cooper test
 • Three situations where factors “bring parties who would otherwise be legal strangers
    into proximity”:
        o 1. Defendant invites third parties to a risky situation that she has created or
          controls (eg ship captain, dangerous sporting activity)
        o 2. Paternalistic relationships of supervision and control (teacher, parent)
        o 3. Defendants who exercise a public function (eg commercial host)
 • Common elements of these:
        o Defendant’s material implication in creation or control of risk to which others



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         have been invited.
       o Respect for autonomy of the person only overridden in special circumstances
       o Reasonable reliance

Two-stage test vs categorical approach
 • Foreseeability on its own can’t establish duty; that’s too broad
 • So what limits duty?
      o Two-stage test emphasizes general principle of proximity; where the relationship
        is proximate and harm is foreseeable, there is a duty of care
      o Deane J in Stevens, 1986 Australia: the “requirement of proximity of relationship
        sustains the underlying unity of principle and lack of chaos in the common law of
        negligence”
      o Categorical approach reasons by analogy to already-established duties.
      o Dawson J in Hill, 1997 Australia: proximity simply flags the fact that there is
        further analysis required after foreseeability to determine whether there is a duty
        of care: this further analysis happens as analogy to existing categories.
Caparo Industries v Dickman (1990) HL
 • HL moves away from Anns test approach (basing duty on general principles) back to
    categorical approach, defining distinct types of relationships in which duties arise
 • The general principles of “proximity” or “neighbourhood” can’t be precisely defined
    and therefore aren’t very useful

Remoteness

What is the standard of probability/foreseeability?
Re Polemis (1921) KB CA (dropped plank caused explosion)
 • if the act would reasonably foreseeably cause damage, the act is negligent; if the act is
    negligent, then all harm arising from it can be claimed.
 • NOT the law.
Wagon Mound 1 (1961) Privy Council (dock company sues boat owner)
 • rejects Polemis for creating too broad liability
 • emphasizes importance of blameworthiness in tort liability
 • rule: must be in the reasonable person's capacity to have foreseen this particular type
   of harm
      o liability is founded not on the act (no "negligence in the air") but on the harm
Wagon Mound 2 (1966) Privy Council (other damaged boat sues exploded boat)
 • in order to be foreseeable, harm doesn't have to be probable, just not unlikely: a "real
   risk" which the reasonable person would not dismiss as too far-fetched




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Thin skull rule
Cotic v Gray (1981) Ont CA (car accident psychosis suicide)
Leech Brain (1962) (molten metal burn cancer)
 • although usually tortfeasor is only liable for reasonably foreseeable consequences,
    there are special circumstances for human injury
 • "Thin skull" principle: "take victim as you find her"
Stephenson v Waite Tileman Ltd (1973) NZ CA (injured steeplejack)
 • thin skull exception to Wagon Mound 1 rule is justified by special importance of human
    bodily integrity

What type of harm must be foreseen?
Hughes v Lord Advocate (1963) HL (kids dropped paraffin lamp in manhole)
 • mechanism of harm: if the actual mechanism wasn't foreseeable but the resulting harm
   could have been caused by a mechanism that was foreseeable, there is negligence
 • problematic: negligence in the air?
Jolley v Sutton (2003) HL (rotting ship falls on kids)
  • notes that foreseeability both gives rise to duty of care and circumscribes remoteness
  • how broadly you describe the risk will determine whether the resulting harm was
     foreseeable:
        o example of Hughes: that children would meddle with the boat and be injured; or
           children would climb on the boat and fall through rotten planking
  • “the rotten condition of the boat had a significance beyond the particular danger it
     created. It proclaimed the boat and its trailer as abandoned…to make of them
     whatever use the rich fantasy life of children might suggest”
Mustafa v Culligan (2008) SCC (flies in water)
 • although conduct was negligent, not liable because type of harm was not foreseeable -
   would not have afflicted person of normal fortitude
 • “psychological disturbance that rises to the level of personal injury must be
   distinguished from psychological upset.”
 • thin skull rule applies after possibility of that kind of harm has been established; allows
   for extent not kind of harm
 • if there is an analogous relationship, no need for Anns test (opposite of Scott's
   interpretation of Cooper v Hobart)
 • Bases duty of care decision on foreseeability and policy only, omitting proximity
 • like Bradford v Kanellos, emphasizes fairness to defendant and risk

Actus Novus and Remoteness
Home Office v Dorset Yacht (1970) HL (dorstal boys damage yacht)
 • Need to limit liability: two ways presented here (neither rely on actus novus)
     o Lord Reid: not actus novus because it was the very kind of thing likely to result -
         emphasizes duty of care


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       o Lord Diplock: only those who face exceptional risk (not general public) -
         emphasizes remoteness
Lamb v London Borough of Camden (1981) UK CA (squatters)
 • Denning frames as a policy question: whose job was it to do something to keep out the
   squatters
 • Oliver: Lord Reid's test is workable but should have a higher degree of likelihood than
   he applied
 • Watkins: resorts to instinctive feelings
Bradford v Kanellos (1973) SCC (restaurant fire, not an explosion)
 • "was that consequence fairly to be regarded as within the risk created by the
    respondent's negligence in permitting an undue quantity of grease to accumulate on
    the grill?"
       o was the result within the risk created by the act?
       o emphasizes fairness to defendant - base fairness on reasonable foreseeability

Causation: Cause in Fact

“But for” causation
Barnett v Chelsea Hospital (1968) QB (man died of poisoning, turned away at hospital)
 • deceased would have died anyway
 • no “but for” causation
Baker v Willoughby (1970) HL (leg injured in car accident, then shot by a robber)
 • where a tort is followed by another tort, plaintiff can recover 100% from either
    tortfeasor
Jobling v Associated Dairy (1982) HL (back injury + spinal disease)
  • where a tort is followed by a non-tort, defendant must pay only for harm up to point of
     other harm – ie don’t pay for what would have happened anyway, put victim in position
     he would have been in
Sunrise Co Ltd et al v Ship "Lake Winnipeg" (1991) SCC (two tortious ship accidents)
 • Majority holds that the first tortfeasor was responsible for 100% the loss (longer time in
    dry dock) because the loss would have occurred anyway
 • McLachlin J dissents in part, arguing second tortfeasor should be 50% responsible for
    that shorter period
 • Note this holding conflicts with Baker, supra, on the basis that Baker was personal
    injury: L’Heureux-Dube cites “inherent differences in the nature of the injuries
    sustained”
Athey v Leonati (1996) SCC (two tortious car accidents + non tortious disc herniation)
 • Major J: “If the defendant’s conduct is found to be a cause of the injury, the presence of
    other non-tortious contributing causes does not reduce the extent of the defendant’s
    liability”
       o Distinguishes from Jobling: here the disc herniation wouldn’t have happened


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         without the accidents, while Jobling had that spinal disease anyway
 • Applies thin-skull rule, which is usually about remoteness of harm, to causation
 • Where “but for” test is unworkable (as in standard merging fires example), material
   contribution outside de minimis range should be used
     o Note he does find “but for” causation on these facts
Cook v Lewis (1951) SCC (two shooters)
 • Both are liable, because both acted wrongfully and it is not possible to prove who did it
 • Cartwright J focuses on wrongfulness as being enough to establish liability, while Rand J
   adds that the defendants are probably obstructing evidence and it should be on them
   to prove which was not responsible

Market Share Liability
Sindell v Abbott Laboratories et al (1980) Calif SC (DES mfg)
  • Must join enough defendant companies to make up most of the market
  • Liability apportioned according to market share
  • Defendant must prove that it is impossible that it was responsible (not selling at that
    time, not marketing to pregnant women)
Hymnowitz v Eli Lilly (1989) NY CA (also DES)
 • Also uses market-share apportionment
 • Slight difference: doesn’t matter if you can show you didn’t sell to that particular
   woman, as long as you were part of the national market you have to pay for the risk
   you created to the public at large.
BC Tobacco Damages and Health Care Costs Act
 • Imposes market share liability on manufacturers of Tobacco products where they have
    committed a tort or breach of duty of care

Material Contribution to the Risk
McGhee v National Coal Board (1972) HL (dermatitis from dust + not showering)
 • Reid: there is no difference between materially increased the risk of injury and made a
   material contribution to the injury, based on common sense
 • Simon: proving contribution to the risk is the same as, on a balance of probabilities,
   proving contribution to the harm; proof of risk is prima facie evidence of proof of harm
   and therefore defendants must show the didn’t cause the harm
 • Wilberforce: when someone creates a risk of injury, and then that injury occurs, he
   should bear the loss (ie accepts material contribution to risk)
Fairchild v Glenhaven Funeral Service (2003) HL (exposed to asbestos bc of employers)
 • Exposing a person to a risk makes a material contribution to the harm resulting from
     the risk
 • Clash of policy considerations: employers need to be held accountable for negligently
     exposing employees to risks, trumps concerns about imposing liability on a party who
     has not caused harm
 • Impossible to know factual causation bc of lack of scientific proof


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Barker v Corus (2006) HL (also exposed to asbestos during self-employment)
 • Departs from joint and several liability and apportions liability according to the relative
    degree of contribution to the risk
 • “The law should attribute liability according to probabilities. The justification for joint
    and several liability is that if you caused harm, there is no reason why your liability
    should be reduced because someone else also caused the same harm. But when
    liability is exceptionally imposed because you may have caused harm, the same
    considerations do not apply and fairness suggests that if more than one person may
    have been responsible, liability should be divided according to the probability that one
    or the other caused the harm”
 • immediately after this decision, UK Parliament passed an act that reinstated joint and
    several liability.
Farrell v Snell (1990) SCC (eye surgery blindness)
 • Sopinka: where there is a contribution to the risk but it can’t be known whether the
    defendant cause the harm, burden of proof remains with the plaintiff, but there is a
    tactical burden on defendant to avoid inference of causation
Walker v York Finch General Hospital (2001) SCC (AIDS infected blood)
 • Major J: where it is impossible to prove hypothetically what the donor would have done
   and thus but-for causation is fraught, a material contribution test should be used
 • Major J seems to assume that material contribution to risk = proof of material
   contribution to harm (as per Simon in McGhee)
Resurfice v Hanke (2007) SCC (poured fuel in the wrong hole of the Zamboni)
 • McLachlin CJC: two requirements for material to apply:
       o Impossible for the plaintiff to prove causation using but-for test, due to factors
          outside the plaintiff’s control eg limits of scientific knowledge
       o Defendant breached a duty of care and exposed plaintiff to risk, and plaintiff
          suffered the form of injury from the risk
Defences

Voluntary assumption of risk
Lambert v Lastoplex (1971) SCC (caution labels, fire from fumes)
 • volenti only applies when 1) know and appreciate risk and 2) willingly take on risk
 • if there's no conscious choice, does not enter plaintiff's mind, then volenti does not
   apply
Dube v Labar (1986) SCC (drunk driving hitch-hikers)
 • volenti defense only arises where the plaintiff knows of virtually certain risk of harm
   and bargains away right to sue.
 • only where there is truly an understanding on the part of both parties that defendant
   assumed no responsibility to take care of the plaintiff and the plaintiff did not expect
   him to




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Birch v Thomas (1972) UK CA (uninsured driver put up sticker)
 • plaintiff had assumed the risk and therefore volenti non fit injuria defense was
    successful

Contributory Negligence
Bow Valley Husky v Saint John Shipbuilding (1997) SCC (circuit-breaker)
 • plaintiff was found 60% responsible for the harm because plaintiff had information
   about risk and did nothing to correct it
 • damages apportioned 60-40 based on responsibility
Ontario Negligence Act
 • not clear between English and French versions whether liability is apportioned
    according to how careless the parties were respectively (English) or to what degree the
    parties respectively caused/contributed to the harm (French)




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