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					Torts Summary FRAMING THE ANSWER AND THINGS TO CONSIDER: IRAC ........................................... 7 DUTY OF CARE ...................................................................................................................... 9
Foreseeability .......................................................................................................................................................................... 9 Resurfice Corp. v. Hanke ............................................................................................................................................. 9 General duty of care test ........................................................................................................................................................ 9 M‟Alister (Donaghue) v. Stevenson (H.L.) .................................................................................................................... 9 Anns v. Merton London Borough (H.L.) ...................................................................................................................... 10 Cooper v. Hobart ........................................................................................................................................................ 10 Odhavji v. Woodhouse ............................................................................................................................................... 10 Bella v. Young ............................................................................................................................................................. 11 Limits on those to whom a duty of care is imposed: .......................................................................................................... 11 Moule v. N.B. Elec. Power Comm ............................................................................................................................. 11 Palsgraf v. Long Island RY Co. (US) ........................................................................................................................... 11 Special Duties of Care – Affirmative Action ...................................................................................................................... 11 Duty to rescue ....................................................................................................................................................................... 12 Osterlind v. Hill (US).................................................................................................................................................... 12 Matthews v. MacLaren (Ont) .................................................................................................................................... 12 Good Samaritan Act...................................................................................................................................................... 12 Duty to control the conduct of others ................................................................................................................................. 12 Crocker v. Sundance Northwest Resorts .................................................................................................................. 12 Stewart v. Pettie .......................................................................................................................................................... 13 Liquor License Act, 1990 ............................................................................................................................................. 13 Hunt v. Sutton Group Incentive Realty Inc (Ont) ................................................................................................... 13 John v. Flynn (Ont) ..................................................................................................................................................... 14 Childs v. Desormeaux ................................................................................................................................................. 14 Duty to prevent crime .......................................................................................................................................................... 14 Jane Doe v. Metropolitan Toronto Police (Ont)............................................................................................................ 14 Hill v. Chief Constable of West Yorkshire (H.L.) ........................................................................................................ 14 Jane Doe. Tarasoff v. University of California (US) .................................................................................................... 15 Duty of care owed to rescuers.............................................................................................................................................. 15 Horsley v. MacLaren .................................................................................................................................................. 15 Videan v. British Transport Comm (UK) ..................................................................................................................... 15 Duty of care owed to the unborn ......................................................................................................................................... 15 U.A.W. v. Johnson Controls (US) ................................................................................................................................ 15  Bovingdon v. Hergott (Ont) .................................................................................................................................. 16  Dobson v. Dobson ................................................................................................................................................. 17  Maternal Tort Liability Act (Alta) .......................................................................................................................... 17 Duty of care dealing with nervous shock ............................................................................................................................ 17 Strong v. Moon (BC) .................................................................................................................................................... 17 Rules limiting recovery where a defendant is liable for psychiatric harm unaccompanied by physical injury: ................ 17 Mustapha v. Culligan Water (Ont) ........................................................................................................................... 18 Special Duty of Care – Negligent Misrepresentation ........................................................................................................ 18 Hercules Management Ltd. v. Ernst & Young ......................................................................................................... 19

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Torts Summary
Deraps v. Coia (Ont) ................................................................................................................................................... 20 Concurrent liability in tort and contract ............................................................................................................................. 20 BC Checo International Ltd. v. B.C. Hydro & Power Authority ........................................................................... 21 Pre contractual misrepresentations .................................................................................................................................... 21 Queen v. Cognos.......................................................................................................................................................... 21 Special Duty of Care – Recovery of pure economic loss in negligence ............................................................................ 22 Negligent Supply of Shoddy Goods or Structures ............................................................................................................. 22 Winnipeg Condominium Corp. no. 36 v. Bird Construction .................................................................................. 22 Relational Economic Loss ................................................................................................................................................. 23 Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. ..................................................................... 23 New Categories of Pure Economic Loss ........................................................................................................................... 24 Martel Building Ltd. v. Canada................................................................................................................................. 24

STANDARD OF CARE ......................................................................................................... 26
Factors Considered in Determining Breach of standard of care: .................................................................................... 26 Probability of injury............................................................................................................................................................. 26 United States v. Carroll Towing Co. (US) .................................................................................................................... 26 Probability/severity of injury .............................................................................................................................................. 26 Bolton v. Stone (H.L.) .................................................................................................................................................. 26 Paris v. Stepney Borough Council (H.L.) ..................................................................................................................... 26 Cost of precautions ............................................................................................................................................................... 26 Vaughn v. Halifax-Dartmouth Bridge Comm (NS) ................................................................................................. 26 Law Estate v. Simice (BC) ........................................................................................................................................... 26 Social utility .......................................................................................................................................................................... 27 Watt v. Hertfordshire County Council (UK appeal) ..................................................................................................... 27 Reasonable person ................................................................................................................................................................ 27 Arland v. Taylor (Ont) ............................................................................................................................................... 27 Special Standards of Care ................................................................................................................................................... 27 Disabled ............................................................................................................................................................................. 27 Fiala v. Cechmanek (Alta) .......................................................................................................................................... 27 Children ............................................................................................................................................................................. 28 Joyal v. Barsby (Man) ................................................................................................................................................ 28 Professionals ...................................................................................................................................................................... 28 White v. Turner (Ont) ................................................................................................................................................ 28 Custom............................................................................................................................................................................... 29 Ter Neuzen v. Korn .................................................................................................................................................... 29 Girard v. General Hospital of Port Arthur (Ont) .................................................................................................... 29 Resurfice Corp. v. Hanke ........................................................................................................................................... 29

CAUSATION ......................................................................................................................... 30
But-for test ............................................................................................................................................................................ 30 Kauffman v. TTC (Ont) ............................................................................................................................................. 30 Qualcast v. Haynes (H.L.) ............................................................................................................................................ 30 Richard v. C.N.R. (PEI) ................................................................................................................................................ 30 Barnett v. Chelsea Kensington Hospital (UK) .............................................................................................................. 30 Independent tortfeasor......................................................................................................................................................... 31

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Torts Summary
Divisible loss .......................................................................................................................................................................... 31 Joint tortfeasor ..................................................................................................................................................................... 31 Cook v. Lewis .............................................................................................................................................................. 31 Multiple causes ..................................................................................................................................................................... 32 Indivisible loss ................................................................................................................................................................... 32 Independent insufficient causes ......................................................................................................................................... 32 Athey v. Leonati .......................................................................................................................................................... 32 Nowlan v. Brunswick Construction ........................................................................................................................... 33 Independent sufficient causes ............................................................................................................................................ 33 Alternative causes of damage .............................................................................................................................................. 34 Dillon v. Twin State Gas and Elec. (US) ...................................................................................................................... 34 Successive Causes of parallel injury ................................................................................................................................... 34 Penner v. Mitchell (US) ................................................................................................................................................ 34 Baker v. Willoughby (H.L.) .......................................................................................................................................... 34 Alternative causes and devaluing the plaintiff’s loss. ........................................................................................................ 35 Cottrell v. Gerrard (Ont) ........................................................................................................................................... 35 There are limited exceptions to the default use of the but-for test. .................................................................................. 35 Multiple negligent defendants ........................................................................................................................................... 35 Cook v. Lewis .............................................................................................................................................................. 35 Learned intermediary rule ................................................................................................................................................. 35 Buchan v. Ortho Pharmaceuticals (Ont) .................................................................................................................. 35 Hollis v. Dow Corning ................................................................................................................................................ 36 Informed consent ............................................................................................................................................................... 36 Hopp v. Lepp; Reible v. Hughes ................................................................................................................................ 36 Arndt v. Smith ............................................................................................................................................................. 37 Attempts to modify the but-for test..................................................................................................................................... 37 Material contribution ......................................................................................................................................................... 37 Athey v. Leonati .......................................................................................................................................................... 37 Walker Estate v. York Finch General Hospital ....................................................................................................... 37 Materially increased risk ................................................................................................................................................... 37 McGhee v. National Coal Board (H.L.) ........................................................................................................................ 38 Wilsher v. Essex Area Health Authority (H.L.) ............................................................................................................ 38 Snell v. Farrell ............................................................................................................................................................. 38 Resurfice Corp. v. Hanke ........................................................................................................................................... 38 Proportionate cause/loss of chance .................................................................................................................................... 39 Cottrell v. Gerrard (Ont) ........................................................................................................................................... 39 Proof of negligence ............................................................................................................................................................... 39 Wakelin v. London & South Western RY (H.L.) ......................................................................................................... 39 Exceptions to the general principles of the burden of proof ............................................................................................. 39 Statutes and shifting the burden of proof ........................................................................................................................... 40 MacDonald v. Woodard (Ont) ...................................................................................................................................... 40 Winnipeg Electric Co v. Geel ..................................................................................................................................... 40 Parental Responsibility Act .......................................................................................................................................... 40 Shannon v. T.W. (Ont).................................................................................................................................................. 40 Common law exception - Directly caused injury .............................................................................................................. 40 trespass to the person ......................................................................................................................................................... 40 Dahlberg v. Naydiuk (Man) ....................................................................................................................................... 40 Common law exception - Multiple negligent defendants .................................................................................................. 41 Cook v. Lewis .............................................................................................................................................................. 41

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Torts Summary
Res Ipsa Loquitur ................................................................................................................................................................. 41 Fontaine v. British Columbia (Official Administrator) ........................................................................................... 42 Novel approaches to the problem of proof ......................................................................................................................... 42 Sindell v. Abbott Laboratories (US) ............................................................................................................................. 42 Tobacco Damages and Health Care Costs Recovery Act ............................................................................................. 42

REMOTENESS ..................................................................................................................... 44
Directness Test ...................................................................................................................................................................... 44 Re Polemis and Furness ................................................................................................................................................ 44 Foreseeability Test ................................................................................................................................................................ 44 Wagon Mound (No. 1); Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co (P.C.) .............................. 44 Modification to the foreseeability test – kind of injury ..................................................................................................... 45 Hughes v. Lords Advocate (H.L.) ................................................................................................................................. 45 Jolley v. Sutton London B.C. (H.L.) ............................................................................................................................. 45 Doughty v. Turner Mfg. ................................................................................................................................................ 45 Thin skulled plaintiff / Eggshell personality rule .............................................................................................................. 46 Smith v. Leech Brain & Co........................................................................................................................................... 46 Marconato v. Franklin (BC) .......................................................................................................................................... 46 Possibility of Injury ........................................................................................................................................................... 46 Wagon Mound (No. 2); Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (H.L.) ..................................... 46 Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co. ................................................................ 47 Intervening causes ................................................................................................................................................................ 47 Bradford v. Kanellos................................................................................................................................................... 48 Price v. Millawski (Ont) ............................................................................................................................................. 48 Block v. Martin (Alta) .................................................................................................................................................. 48 Janiak v. Ippolito; Bourgoin v. Leamington ............................................................................................................... 48

DEFENCES IN NEGLIGENCE .............................................................................................. 49
Contributory negligence ...................................................................................................................................................... 49 Walls v. Mussens Ltd. (N.B.) ...................................................................................................................................... 49 Heeney v. Best (Ont) ................................................................................................................................................... 49 Gagnon v. Beaulieu (B.C.) .......................................................................................................................................... 50 Negligence Act (1990) (Ont) ........................................................................................................................................ 50 Mortimer v. Cameron (Ont) ...................................................................................................................................... 50 Chamberland v. Fleming (Alta) .................................................................................................................................... 50 Snushall v. Fulsang (Ont) ........................................................................................................................................... 50 Voluntary assumption of risk .............................................................................................................................................. 51 Dube v. Labar.............................................................................................................................................................. 51 Participation in criminal or immoral acts .......................................................................................................................... 52 Hall v. Hebert .............................................................................................................................................................. 52 John Bead Corp v. Soni (Ont) .................................................................................................................................... 53 Beljanski (Guardian ad litem of) v. Smithwick (BC) ............................................................................................... 53

ASSESSMENT OF DAMAGES............................................................................................. 54
Damages divided into three categories: .............................................................................................................................. 54 Burden of proof .................................................................................................................................................................... 54

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Torts Summary
Mitigation of damages .......................................................................................................................................................... 54 Set off ..................................................................................................................................................................................... 55 Lump Sum payment ............................................................................................................................................................. 55 Framework for quantifying general damages: .................................................................................................................. 55 Andrews v. Grand & Toy Alberta Ltd. ..................................................................................................................... 55 Jamie Cassels – Remedies: the Law of Damages ......................................................................................................... 57 Courts of Justice Act ..................................................................................................................................................... 57 Survival of actions and dependants‟ claims .................................................................................................................. 58 Fatal Accidents Legislation: ......................................................................................................................................... 59 Death of the family provider.............................................................................................................................................. 59 Keizer v. Hanna .......................................................................................................................................................... 59 Death of the dependent family member ............................................................................................................................. 59 Collateral Benefits ............................................................................................................................................................. 60 Ratych v. Bloomer....................................................................................................................................................... 60 Cunningham v. Wheeler ............................................................................................................................................. 60

INTENTIONAL TORTS ......................................................................................................... 61
Battery ................................................................................................................................................................................... 62 Bettle v. Yim (Ont) ....................................................................................................................................................... 62 Norberg v. Wynrib...................................................................................................................................................... 62 Non-Marine Underwriters, Lloyd’s of London v. Scalera ...................................................................................... 63 Feldthusen – Canadian Experiment with the Civil Action for Sexual Battery .................................................................. 63 Assault ................................................................................................................................................................................... 64 Holcombe v. Whitaker (US) ......................................................................................................................................... 64 Police v. Greaves (NZ) ................................................................................................................................................. 64 Intentional Infliction of Nervous Shock.............................................................................................................................. 65 Wilkinson v. Downton (UK)......................................................................................................................................... 65 Radovskis v. Tomm (Man) ........................................................................................................................................... 65 Samm v. Eccles (US) .................................................................................................................................................... 65 Bell-Ginsberg v. Ginsberg (Ont)................................................................................................................................... 66 Broadening Liability ............................................................................................................................................................ 66 Common law tort of discrimination .................................................................................................................................... 66 Bhadauria v. Board of Governors of Seneca College (Ont) .................................................................................... 66 Human Rights Code (1990) (Ont) ................................................................................................................................. 67 Informed Consent and a doctor’s duty of disclosure ........................................................................................................ 67 Marshall v. Curry (NS) ................................................................................................................................................. 68 Mallette v. Shulman (Ont) ............................................................................................................................................ 68 Minors and consent ............................................................................................................................................................ 68 C. v. Wren (Alta) ......................................................................................................................................................... 69 Professional‟s duty of care ................................................................................................................................................ 69 Arndt v. Smith ............................................................................................................................................................. 69 Health Care Consent Act (1996) (Ont) ......................................................................................................................... 70

TORT LIABILITY OF PUBLIC AUTHORITIES ..................................................................... 71
R. In right of Can v. Sask Wheat Pool ...................................................................................................................... 71 Negligence liability of public authorities ............................................................................................................................ 72

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Torts Summary
Just v. British Columbia ............................................................................................................................................. 72 Determining what is a policy decision and what is an operational decision is difficult. ................................................... 74 Effect of Cooper v. Hobart .................................................................................................................................................... 74 Williams v. Canada (Ont) ............................................................................................................................................. 75

VICARIOUS LIABILITY ........................................................................................................ 76
Principle-agency relationship .............................................................................................................................................. 76 T.G. Bright & Co. v. Kerr .......................................................................................................................................... 76 Employer – Employee relationship (Master - servant relationship) ................................................................................ 77 Baxley v. Curry ........................................................................................................................................................... 77 Jacobi v. Griffiths ....................................................................................................................................................... 79 Independent contractors ...................................................................................................................................................... 79 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. ............................................................................................. 80 ** Non-delegable duties ** .................................................................................................................................................. 80 Lewis (Guardian ad litem of) v. British Columbia ................................................................................................... 81

TORT LAW: THEORIES, CRITICISMS AND ALTERNATIVES ........................................... 82
Feldthusen: Theories, criticisms and alternatives ............................................................................................................. 82 Slater Report ......................................................................................................................................................................... 82 Osborne Report .................................................................................................................................................................... 84 Compensation for victims of crime ..................................................................................................................................... 85 Palmer – NZ accident compensation scheme ..................................................................................................................... 85

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Torts Summary FRAMING THE ANSWER AND THINGS TO CONSIDER: IRAC Goals of the tort system  Compensation – somebody who has been harmed should be compensated for the loss suffered as a result of the fault of the defendant  Deterrence – imposing liability and sanctions in the form of damages to the defendant will let other people take that as a cautionary note  Corrective justice – liability imposed for the harm caused by the defendant for his wrongdoing. General principle: Put the plaintiff back in their original state. Elements of a negligence claim: (You need to establish ALL of these elements in your analysis) Plaintiff has the burden of proving the first five while the defendant has the burden of the sixth. 1) Duty of Care  obligation of one person to another. Legally sanctioned obligation, the breach of which results in liability. Relationship between the plaintiff and defendant. 2) Standard of Care and its breach  uniform standard of behaviour which the theory of negligence is based. Questions what the reasonable person would do. Falling below the standard may result in liability. 3) Causation  Links the defendant‟s breach to the plaintiff‟s loss. It‟s important to state with precision the breach of the standard of care and the specific injury caused by it. (Factual causation between the breach and loss) 4) Actual injury/loss  divisible loss (attributed to one tortfeasor) indivisible loss (attributed to more than one tortfeasor) multiple independent loss (a series of different, successive injuries) 5) Remoteness of damages  Liability will be denied if the connection between the breach and the loss was too remote. (Legal causation between the breach and loss) 6) Defences &/or plaintiff‟s conduct (contributory negligence, voluntary assumption of risk or illegal/immoral activity)  Reduces (or precludes) plaintiff‟s recovery of damages. 7) Damages Burden of proof  plaintiff or defendant? Usually on the balance of probabilities.  Usually on the plaintiff but can be shifted to the defendant in certain circumstances (statutory, difficult to prove causation, multiple negligent defendants etc.)  Legal burden of proof  after evidence has been heard, party who bears the legal burden of proof will lose unless he convinces the jury on the balance of probabilities. Plaintiff has the burden of all the elements and defence has the burden of proving any defences.  Evidentiary burden  practical desirability of adducing evidence in support of ones position.  Plaintiff has 2 burdens: o Obligation of ultimately proving the elements of the case on the balance of probabilities o Burden of immediately adducing sufficient evidence to establish a prima facie case arising from the evidentiary burden.  Defendant not usually required to prove on the balance of probabilities that he is not negligent. Enough to introduce evidence to prevent the jury to conclude that the plaintiff has established his case on the balance of probabilities.  Sometimes the allocation of the burden of proof determines who wins.  An issue at the standard of care and especially at the causation stage of the analysis. General information Page 7 of 92

Torts Summary Situation: Default rule Plaintiff  (person who asserts negligence generally bears the burden) Defendant

Asserting a disability as a defence  (poor result  negligence)  (if plaintiff asserts that the compliance with custom is bad)  (though there are some exceptions)  (prove the defendant‟s negligence contributed to the risk which was the cause of the injury)

 (proves that he really is disabled and he didn‟t know about it before) (if defendant asserts that the custom is good)

Poor result in plastic surgery a result of negligence Using customary practice as a justification for how they‟re acting (role of custom) Causation – but-for test Materially increased risk

 (Wilberforce - must disprove causation)      (must prove that it was not part of the market or had any contribution to the harm)

Statutory provisions (highway traffic act) (parental responsibility act) Trespass to the person Multiple negligent defendants Historical approach of the Res Ipsa Loquitur Market Share Liability  (suffered a type of loss recognized as recoverable in tort law)

Damages and quantum of damages

Defences in negligence Volenti non fit injuria (to one who is willing, no harm is done) Proving consent in a sexual assault Intentional torts - Battery case

Consent forms

 (must prove that the plaintiff contributed in negligence or voluntarily assumed risk)  (must prove that the plaintiff consented)  (must prove harmful or  (must prove that he didn‟t offensive contact) have intention and wasn‟t negligent)  (burden on the person who is  (in cases of lack of trying to assert the validity of the informed consent, must consent) establish that the consent was informed)

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Torts Summary

DUTY OF CARE Core concept of the tort of negligence. Court needs to be satisfied that the defendant owed the plaintiff a legal duty to exercise care with respect to the plaintiff‟s interests. Legal responsibility didn‟t flow naturally from moral responsibility. The theory of legal obligations – acts was seen as being more culpable than omissions. A distinction between misfeasance (an act) and nonfeasance (omission). Courts more likely to hold somebody responsible for a misfeasance than a nonfeasance. Physical injuries and damaged property were compensable but emotional harm and loss were not. For omissions, there is a question of whether the defendant has a duty of care at all. Foreseeability Necessary but not sufficient to determine when a duty of care is owed. Reasonable foreseeability is when a duty of care is owed in the first place. Relevant at three stages of the negligence action (duty, standard of care and remoteness of damages). Court will impose a duty of care only if the defendant’s conduct created a foreseeable risk and the probability of injury is one of several factors considered in determining the breach of the standard of care. The plaintiff’s loss will be held to be too remote if they were not a reasonably foreseeable result of the defendant’s breach of the standard of care. It is often very difficult to establish what is foreseeable and what is not under the DoC test. This is because the foreseeability of the harm caused is entirely dictated by how the damages is framed. If you speak of the damage in general terms, it is much more foreseeable than if you describe the foreseeability in very specific terms. Resurfice Corp. v. Hanke  defendant owes a duty of care but had done what it should have done in terms of taking reasonable care. Gilmour thinks foreseeability is a standard of care issue but it is obvious that foreseeability can fit in with duty of care as well. General duty of care test M’Alister (Donaghue) v. Stevenson (H.L.) (snail in the ginger beer)  Neighbourhood principle – Must take reasonable care to avoid acts or omissions which is reasonably foreseeable to be likely to cause injury to your neighbour. A neighbour is somebody who: are so closely affected by my actions that I should reasonably have them in contemplation when I think about the consequences of my actions. Proximity extends to such close and direct relations that the act complained of is directly affected by the careless act. Proximity not just in the physical sense but also where there are close and direct relationships where the acts claimed of will be directly affected by one’s careless act. Even though almost anything we do is risky, you’re responsible when the harm of the risk is foreseeable. A split decision in the H.L. and a radical change. The courts were responding to the different realities in the way things were manufactured and distributed. (dissent – floodgates argument that it would open up the duty to lots of different relationships).

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Torts Summary Anns v. Merton London Borough (H.L.) (two stage analysis to establish whether a duty of care is owed)  1) sufficient relationship of proximity between the parties such that the reasonable contemplation of alleged wrongdoer, if he’s careless is likely to cause damage to the person 2) consider whether or not there are any policy considerations that would call upon the duty to be set aside. Not a test for determining a recognized duty of care but an approach for analyzing existing categories of negligence and for recognizing new situations where a duty of care is owed. Anns no longer backed by the UK and fell out of favour in Australia but in Canada, it has been adopted and modified in City of Kamloops v. Neilson. Today, the test for standard of care in Canada is a modified version of the test from Anns v. Morton London Borough. It was imported to Canada, and most recently refined in Cooper v. Hobart as a three-stage test: 1 – Is harm reasonably foreseeable as affecting P if D acts negligently? 2 – Is there proximity between P and D? 3 – Are there any policy reasons to deny a prima face duty established under (1) and (2)? The notion of proximity is the most difficult concept to understand. It deals with policy between two parties on if there should or shouldn’t be a duty, their closeness in space and time, their connection under any statutory or regulatory scheme, etc. In the third branch, the discussion is only about negative policy reasons with respect to a DoC. While the proximity branch deals with policy both for and against a DoC based on the relationship between P and D, the policy issues here deal with issues beyond the direct relationship. For instance, the policy branch has often been used to deny liability for public institutions. Cooper v. Hobart (mortgage registrar sued for not protecting investors from a bad mortgage broker)  Interprets and reviews the Anns test and the role of policy concerns. First step is to find an analogous case, if no analogous case exists, then go through the Anns test to determine whether a duty of care exists. Not all harms that are conceivable give rise to liability. There must be some relationship of proximity to give rise to liability. Proximity can be established by examining the expectation, reliance and consideration that would apply at the second stage of the Anns test. Policy considerations factor at both stages of Anns test, with the first stage dealing with party-specific policy and the second stage dealing with broader policy considerations. Need more than just reasonable foreseeability to establish a duty of care, there needs to be more. Odhavji v. Woodhouse (plaintiff‟s estate sues the Toronto police chief and others because some police officers didn‟t comply with the SIU investigation which caused the family emotional stress)  an analysis of how duty of care works out with respect to the different defendants. Only the police chief owed a duty of care because his relationship was sufficiently proximate and it was reasonably foreseeable the his negligence would have caused the plaintiff’s harm. The police board and

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Torts Summary the province did not owe a duty because they were further removed from the activities of the police and the relationship was not sufficiently proximate. Bella v. Young (university student who was expelled because of a missed footnote when the professor mistakenly thought she was a child abuser and reported her to child services)  defendant said that they didn‟t owe a duty to the student because of the statutory provisions of having to report suspected cases of child abuse to child services. Proximity was rooted in the broader relationship between the professors and their students. Standard of care was such that those who are in the position of power over the future of somebody need to get their facts straight before they go and do something that could potentially harm the career of a student. Limits on those to whom a duty of care is imposed: Moule v. N.B. Elec. Power Comm (kid who climbed a tree near powerlines and was electrocuted even though the defendant had taken precautions to prevent an accident)  deals with foreseeable risk of injury. If the defendant has taken measures to prevent an accident but one occurs because of other reasons that were not foreseeable, the defendant will not be liable. Defendant should not be guilty of negligence for not having foreseen the possibility of the occurrence of an unlikely event. Palsgraf v. Long Island RY Co. (US) (plaintiff was standing on a platform when the negligence of the railway porter caused an explosion and she was injured)  the conduct of the defendant was wrong in relation to the holder of the package but was not wrong in relation to the plaintiff who was standing far away. Negligence is not actionable unless it involves the invitation of legally protected interest. The plaintiff was too far removed or not sufficiently proximate for the defendant to owe a duty of care. Limits the duty of care to plaintiffs who are among the category of people for who a duty of care is owed. Class of people who are owed a duty of care are those who are within the range of reasonable apprehension or within the risk of the danger of the act. In order to be owed a duty of care, the plaintiff has to be within the reasonable apprehension of danger. Plaintiff must prove that the defendant‟s conduct gave rise to a duty of are and that the duty was owed to her. This does not mean that the individual plaintiff must be foreseeable, but rather that the plaintiff must belong to a class of persons who are foreseeably at risk. (dissent – everyone owes to the world at large the duty to refrain from acts that may unreasonably threaten the safety of others. Not only is he wronged to whom harm may reasonably expect to result, but also those who are in fact injured, even if they are outside the zone of danger. Proximity in terms of direct cause. The dissent‟s opinion is the more expansive approach) Special Duties of Care – Affirmative Action No general duty to take affirmative action to benefit other people. Nonfeasance may not necessarily attract liability. Courts more willing to impose liability for misfeasance but not for nonfeasance. Duties of affirmative action recognized in limited form if parties shared a special relationship or if the defendant had a contractual or statutory obligation to intervene. General principle is that there is no liability for negligence for nonfeasance though the courts have begun Duty of Care Page 11 of 92

Torts Summary to recognize various exceptions to this rule. Dealing with when a duty of care is owed that requires taking positive steps and to whom that duty of care is owed. Duty to rescue Osterlind v. Hill (US) (two drunk men rent a canoe and it tips over, the defendant didn‟t rescue even though he heard their cries for help)  There is no legal duty to take action. Likely that this will not be the result today as the standard has increased. The courts have imposed a duty to rescue of the defendant innocently or negligently created the perilous situation or if they deny the plaintiff other opportunities for aid or induce the plaintiff to rely upon them to the plaintiff‟s detriment. Matthews v. MacLaren (Ont) (two men died on the plaintiff‟s boat, one man accidentally fell overboard and the other man jumped in to try to rescue him and the defendant negligently tried to rescue the first man)  A special relationship between boat captain and invited guests imposes a legal duty to rescue. Even though there was some case law and statutory provisions which found no duty. Shows how the case law develops and changes with social circumstances. A development in the common law on the sense of moral obligation which is then extended to legal duty. Even if there was no initial duty to rescue, once the rescuer begins the rescue operation, then he voluntarily assumes a duty to act. Question in this case about the standard of care and what a reasonable boat operator would have done in the same situation and it was found that the defendant didn‟t use the correct method. Nevertheless, the defendant‟s breach of the standard of care was not the cause of the death as he was likely dead upon hitting the water. Liability does not follow a finding of negligence even where there is a legal duty to rescue unless the defendant‟s conduct was the effective cause of the loss. A special relationship exists between captain of a boat and his invited guests that imposes a legal duty of affirmative care to rescue on the captain. Good Samaritan Act Protects rescuers from liability. Response to concerns raised for potential legal liability to rescue This covers acts and omission. In order to be held liable, there must have been gross negligence. Does not impose a legal duty to act but says that you have acted, there are some situations where you might be relieved of liability. Duty to control the conduct of others Crocker v. Sundance Northwest Resorts (tubing competition where the drunk participate injures himself)  One is under a duty not to place another person in a position where it is foreseeable that the person could suffer injury. The plaintiff’s inability to handle the situation in which he is placed (age, intoxication etc.) is an element in determining how foreseeable the injury is. A defendant has the responsibility as the promoter of a dangerous sport to take all reasonable steps to prevent an intoxicated person from participating. The defendant and plaintiff had a sufficiently special relationship that meat that the defendant had to step in to act to prevent the injury. The common law thread where there is a finding of a duty to control the conduct of others is that one is under a duty not to place another in a position where it is foreseeable that the person could be injured Duty of Care Page 12 of 92

Torts Summary where the plaintiff‟s inability to handle the situation is an element in determining how foreseeable the injury is. The defendant could have taken numerous easy steps to dissuade the plaintiff from participating and clearly breached the standard of care. Even thought the plaintiff signed a waiver form, there was no reasonable grounds for believing that the waiver truly expressed the plaintiff‟s intention. A commercial establishment that makes profit from a person is under a common law duty not to allow that person in a position where it is foreseeable that the person could suffer injury – there is a special relationship between the establishment and its patron. Stewart v. Pettie (drunk driver injures his sister and the plaintiff sues the restaurant for not preventing the accident)  Commercial host liability - duty of care owed by a commercial host is not owed just to the patron but also to third parties who might be injured by the patron. Relationship of sufficient proximity is founded on the proximity of harm to persons who were in the general class of persons who could be injured. Establishments which serve alcohol must either intervene in appropriate circumstances or risk liability and the liability cannot be avoided where the establishment has intentionally structured the environment in such a way as to make it impossible to whether intervention is necessary. Plaintiff couldn‟t prove that even if the restaurant had intervened, that the accident wouldn‟t have occurred because they two sober ladies still got in the car even after having a conversation in the parking lot. Commercial hosts have a duty to prevent intoxicated patrons from driving home and have to meet this duty by ensuring that the patron has alternate means of getting home without having to get behind the wheel. Commercial establishments serving alcohol owe a duty of care to prevent harm to its patrons and to third parties who may foreseeably be harmed by its patrons. However, the mere existence of a special relationship between alcohol vendors and the motoring public does not itself permit the imposition of a positive obligation to act – there must also exist a reasonably foreseeable risk as a result of the circumstances. Liquor License Act, 1990 If a person or agent of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person‟s intoxication so that he or she would be in danger of causing injury to himself or injury to another person: 1. if the person to or for whom the liquor is sold commits suicide or meets death by accident while so intoxicated, a wrongful death action under the Family Law Act lies against the person who sold the liquor 2. if the person to or for whom the liquor is sold causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee sold the liquor. There is strict liability. You only need to find that damage was caused by the patron to whom liquor was sold. No element of foreseeable risk or proof of causation required. Hunt v. Sutton Group Incentive Realty Inc (Ont)  special relationship between employer/employee. Employer has to take positive steps to ensure that their employee gets home safely. The duty of an employer at a work-related Duty of Care Page 13 of 92

Torts Summary function is getting more onerous. Employer owes a duty of care to employees to safeguard her from harm and this includes a duty to make sure that she would not enter into such a state of intoxication while on his premises and on duty so as to interfere with her ability to drive home afterwards. John v. Flynn (Ont)  Employer does not duty of care to third parties for injuries caused by their intoxicated employee. There isn’t a relationship of sufficient proximity to protect this class of persons. The employer didn‟t even owe it to their employee to protect him in general. Childs v. Desormeaux (drunk driver injures a person after leaving a party hosted by his friends)  Social host liability – social hosts do not owe a legal duty of care to third parties who may be injured by the actions of their guests because there is no relationship of sufficient proximity. A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by the guest’s actions unless the hosts’ conduct implicated him in the creation or exacerbation of the risk. Hosting a party where alcohol is served does not, without more, establish a degree of proximity required to give rise to a duty of care. No special relationship between a host and a guest that would impose a positive duty to act. The law does not impose a duty to eliminate risks. The courts recognize that people are autonomous actors. No duty on social hosts to control the conduct of their guests. Duty to prevent crime Jane Doe v. Metropolitan Toronto Police (Ont) (plaintiff was raped by a serial rapist and claims that the police failed to warn her about the rapist‟s presence in the neighbourhood)  Police have a duty to warn people of a foreseeable risk of harm. In this case, there was a foreseeable risk of harm. Even if they couldn‟t warn, they are under a statutory duty to protect and this means that they should have taken protective steps to protect the public. Police have a duty to warn the public of imminent danger and in the absence of a legitimate warning, they have a duty to protect the public because the statutory and common law establishes that police have this duty and a failure to do so when the harm was reasonably foreseeable is liable. Case establishes a special relationship of proximity between the police and the public at large. Police owe citizens a duty to warn where there is a foreseeable harm and special relationship of proximity between the potential harm and the target group subject to certain justifiable policy considerations. If the warning is not given due to policy considerations, the police owe an even stronger duty to protect that target group from foreseeable harm that they might suffer. Hill v. Chief Constable of West Yorkshire (H.L.) (deceased‟s family sues the police claiming that if they acted reasonably and would have been able to arrest a serial killer before he killed their daughter)  Police do not owe a duty to victims of crime unless the offender commits the offence while in police custody or after escaping police custody. There was an insufficient relationship of proximity between the police and the deceased as she was one of many potential victims of an unidentified killer.

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Torts Summary Jane Doe. Tarasoff v. University of California (US) (patient told his psychologist that he would kill his girlfriend, he ended up killing her. The psychologist told the police but not the victim or her family.)  Confidentiality obligation to the patient ends when the peril to the public begins. While not a Canadian case, it is likely that the Canadian courts would find that a duty is owed by the psychologist to the victim’s family. Duty of care owed to rescuers This is an instance where special duties of care are imposed in addition to where there is a general duty to care to take some action. Use the same elements in applying the Anns test. Horsley v. MacLaren (the rescue attempt at the second man who jumped in to save the first man who had fallen overboard)  When the defendant did not create the dangerous situation, he does not have a duty to help rescue somebody who tried to go in to rescue another. Defendant not under a duty to do more than take all reasonable steps which would have been likely to effect the rescue of a man who was alive and could take some action to assist himself. A person who by his own negligence, creates a situation of peril and induces a rescuer to put himself in danger as a result is liable to that rescuer, as long as the rescuer‟s conduct was not s wonton and foolhardy as to be unforeseeable. (Dissent – based on the standard of care of the defendant boat captain. Liability to the rescuer is independent of the liability to the original man overboard, it is not derivative of the defendant being liable to the person who is originally in peril. The defendant‟s breach induced the rescuer to take on the rescue. Defendant can be liable to the rescuer even if the person who was wrongfully placed in a dangerous situation is not injured at all. Horsley was not acting recklessly in trying to rescue and was within the range of the natural and probable.) Videan v. British Transport Comm (UK)  child trespasses onto train tracks has no business being there, but the rescuer does and so the defendant owes a duty to the rescuer. Wider concept of reasonable foreseeability vis-à-vis rescuers than victims Duty of care owed to the unborn Preconception wrongs When defendant carelessly causes a parent to suffer an injury that detrimentally affects the subsequently conceived child (i.e. exposure to hazardous chemicals). Complex problems of causation and policy issues regarding the scope of the defendant‟s potential liability. Material contribution comes to play in the broad sense. U.A.W. v. Johnson Controls (US)  raised the spectra of claims against a woman‟s free choice to work in a hazardous workplace. Decision to take the risk was up to the woman to make herself. Wrongful birth/wrongful life Physician carelessly fails to inform a woman that she faces potential risk of giving birth to a baby with a disability. The negligence in failing to inform means the woman may continue with

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Torts Summary a pregnancy that she would have otherwise aborted. Physician deprives the mother of an opportunity to make an informed decision about an abortion.  Wrongful birth – mother‟s claim based on principles governing physician‟s duty to inform about medical risks.  Wrongful life – child‟s claim. But for the defendant‟s negligence, the child would not have been born and wouldn‟t have to suffer through life with the disability. Suggests that it would have been better if the child had not been born at all.  Bovingdon v. Hergott (Ont) o (woman sues her doctor for prescribing fertility drugs that increased the risk of twins. The twinning caused the premature birth which caused the children‟s disabilities)  A case where the abnormalities have been caused by the wrongful act of another. They were born prematurely because the doctor failed to warn the mother about the risks of the drugs. Defendant conceded that the drugs caused the twinning. Not a case where the injury to the child occurred independently of any action by the physician and the mother was deprived of a choice to terminate the pregnancy. Wrongful life claim should proceed to trial because it would be anomalous to allow parents to recover for future costs of children but to deny the recovery to the actual person injured. Court tried hard to put this case as one where an act of a third party caused the injury to the fetus so that the babies could claim for damages. Doctor negligently prescribed the drugs, the drugs caused the disability and the disabilities would not have occurred but for the negligent advice and a reasonable person would not have taken the drug if properly advised that there was a risk to the babies. Where a doctor negligently fails to communicate a material risk to a patient, where that risk materializes, the doctor is liable. The facts actually point to a stronger case where but for the wrongful act, the child wouldn‟t have been born at all. The doctor‟s negligence doesn‟t cause the injuries, it is the failure to warn of the option of having an abortion. Wrongful pregnancy – when parents have taken steps to prevent childbirth or pregnancy but due to the negligence of the doctor, the pregnancy occurs or continues. If physician carelessly performs an abortion with the result that a pregnancy is not terminated, the woman may claim economic loss, pain and suffering. No damages recovered if child is born healthy without disability as healthy babies are seen as blessing. Damages recoverable but confined to the foregoing together with any additional costs of rearing a child with a disability. (The Canadian approach). Parents who give birth to an unwanted child may claim expenses associated with the unwanted pregnancy and childbirth and mother may claim damages related to pain and suffering. If the child is disabled, the parents may claim extra costs associated with raising a child to maturity. Pre-natal injuries – whether a child can sue in negligence for injuries sustained in-utero. If the child is born with no injury, no action arises. If a child is born with a disability, a claim for negligence may be possible. Montreal Tramways  establishes that a third party owes a duty to a fetus that is harmed if the mother is involved in an accident that the defendant negligently caused and if the baby is born alive with disabilities.

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Torts Summary  Dobson v. Dobson o (child sues his mother who was in a car accident while pregnant which caused his premature birth and subsequent disabilities)  The case passes the first step of the Anns analysis but fails at the policy considerations step. Policy considerations include: extensive and unacceptable intrusion into bodily integrity, privacy and autonomy rights of women. Potentially intrudes on a woman‟s fundamental rights. Would be difficult to distinguish between tortious and non-tortious behaviour. Lifestyle choices may be beyond the control of pregnant women. May have repercussions for family unity. A child can‟t sue its mother unless there is legislation. A mother does not owe a duty of care to her unborn child for injuries suffered as a result of the mother’s negligence during pregnancy, unless there is legislation for car accidents. (dissent – should impose a duty of care upon a pregnant woman towards her fetus where she already owes a duty of care towards other parties. The burdens associated with this approach would not be increased.) Maternal Tort Liability Act (Alta) o allows a child to its mother for negligence if she is involved in a car accident and allows it to recover damages from insurance money.

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Duty of care dealing with nervous shock Nervous shock  special rules apply to negligence actions for psychiatric harm unaccompanied by physical injuries. Requirement for a successful claim is that the plaintiff must have suffered a recognized psychological illness. (Plaintiff‟s right to recover damages depends on whether the nervous shock was reasonably foreseeable. Right to recover extended to circumstances where the plaintiff was performing the role of a rescuer. Courts reluctant to claims of nervous shock and have a difficult time with it if there is no physical injury. The claim tends to be narrow. In a nervous shock claim, the injury is the indirect result of a direct physical injury to somebody else or some occurrence that may not have resulted in injury to anyone. Strong v. Moon (BC) (road pizza)  Difference between persons who suffer psychological illness as a result of what was seen or heard and those who suffer because they were informed of death or injury by other post-accident incidents. Here, the plaintiff not entitled to recover damages where there is no proximity to the traumatic event. Sets out the law in Canada and shows how the courts are reluctant to award damages for a claim where there is no injury to the plaintiff in the physical sense. Defendant driver did not owe a duty of care to the plaintiff even if she met the relational, temporal and locational proximity as a secondary victim because she was not in the class of persons who could reasonably be foreseen to be affected by the injury. She wasn’t a reasonably foreseeable plaintiff suffering a reasonably foreseeable injury. Rules limiting recovery where a defendant is liable for psychiatric harm unaccompanied by physical injury:  Rescuer responding to an emergency created by the defendant‟s negligence. Bechard v. Haliburton Estate (Ont). Duty of Care Page 17 of 92

Torts Summary   Primary victim – Person within the ambit of foreseeable physical risk resulting from the defendant‟s negligence. Doesn‟t need to prove reasonable foreseeability of physical injury even if they didn‟t suffer any physical injury, they can recover for nervous shock. Secondary, relational victim – experienced trauma after witnessing a serious accident involving a loved one or its immediate aftermath. o Requires: (this was the fact up until the Mustapha case)  Relational proximity – close family member of the person injured  Locational proximity – being at the scene or witnessing the immediate aftermath  Temporal proximity – short time span between witnessing the traumatic event and the onset of psychiatric illness. Grief alone is not compensable in damages. Difficult to rationalize awarding damages for physical scratches of minor nature but not for damages for deep emotional distress which fall short of a psychiatric condition. Trivial injuries should attract trivial damages (Mason v. Westside Cemetaries). McDermott v. Ramadanovic Estate (BC)  awarded plaintiff for emotional scars caused by watching the death of her parents in a car accident even though the emotional scars didn‟t amount to a psychiatric condition. Anderson v. Wilson (Settlement, and not a trial judgement in Ontario) (emotional distress caused by being informed that they potentially had Hep. B from a clinic.)  foreseeable that some suffering from shock would be occasioned by the notice. Nominal damages awarded for those who received the letter but were not infected. This case doesn‟t advance the law but shows that the consideration of nervous shock absent physical injury is being considered seriously.

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Mustapha v. Culligan Water (Ont) (fly in the water caused the plaintiff to have a severe mental reaction)  reasonable foreseeability of harm is the hallmark of tort liability. The test for the existence of duty in cases where there is psychiatric harm is whether it is reasonably foreseeable that a person of normal fortitude or sensibilities is likely to suffer some type of psychiatric harm as a consequence of the defendant’s careless act. The reaction was disproportionate to the trivial nature of the incident. The injury was an exaggerated reaction by an obsessive person with a particular predisposition. The reaction was individualist and more severe than how a person of normal fortitude would have reacted. Distinction of primary and secondary victims should not be adopted in Ontario, it is artificial and camouflages the policy choices that have to be made and is probable in its application. The application of the thinskull principle only applies to determine the extent of the injuries caused after a decision about liability has been made. If the wrong is established, then the wrongdoer must take his victim as he finds him, but this is true only on the condition that the wrong was established. The question of liability is independent of the question of the measure of the consequences that go with liability. Special Duty of Care – Negligent Misrepresentation  Duty of care may arise with respect to written or oral communications.  Hedley Byrne Co. v. Heller & Partners – established that a duty of care will arise with respect to careless statements that cause pure economic loss.

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Torts Summary     Policy concern  volatility of words has led to concerns that recognition of a duty of care with respect to negligent misrepresentation can lead to liability in an indeterminate amount for an indeterminate time to an indeterminate class. Formulate the rules more narrowly than the rules governing negligent actions. Liability for physical injury from careless statements it falls under the basic duty of care test (Donaghue v. Stevenson). With respect to personal injury and property damage, no distinction made between negligent actions and negligent words. Five requirements for a successful claim of negligent misrepresentation 1. Must be a duty of care based on the special relationship between the representor and representee 2. Representation in question must be untrue, inaccurate or misleading 3. Representor must have acted negligently in making the representation 4. Representee must have relied in a reasonable manner on the negligent misrepresentation. 5. Reliance must have been detrimental to the representee in the sense that damages resulted As both the scope of what constitutes special relationship and reasonable reliance have been expanded, the fear of unlimited liability has gotten worse. Since statements tend to multiply and propgate without control, there can be unlimited individuals who fall into the class of persons actually relying on them. To control such liability, the courts have required that only certain classes of persons may recover under the HB principle.

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Hercules Management Ltd. v. Ernst & Young (defendant accountants made inaccurate financial statements which the plaintiffs relied on and then subsequently lost part of their investment). Determine duty of care by two stage Anns test: 1) proximity  circumstance of the relationship inhering between the plaintiff and the defendant are of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff‟s legitimate interest in conducting his affairs. The relationship between plaintiff and defendant arises through reliance by the plaintiff on the defendant‟s words. Proximity is meant to connote that the circumstances of the relationship between the plaintiff and the defendant being such that the defendant is under an obligation to be mindful of the plaintiff‟s legitimate interests in conducting his affairs. Plaintiff‟s claim stems from his detrimental reliance on the defendant‟s negligent representation. What gives rise to the responsibility to take care is the reliance on the plaintiff to the defendant‟s words and whether the reliance is reasonable in the circumstances. In addition to proximity, the defendant must know the identity of the plaintiff or class of plaintiffs and that the plaintiff use the statements in question for the specific purpose for which they were prepared. Defendant ought reasonably to foresee that the plaintiff would rely on his representation and that the reliance by the plaintiff in the circumstances would be reasonable. 2) Policy considerations  fundamental policy consideration is that defendant might be exposed to liability in an indeterminate amount for an indeterminate time to an indeterminate class. Even though the defendant owed a duty of care, the duties are negated by policy consideration at stage 2 of Anns. The court articulated policy concerns in terms of reliance and purpose. In the case, the court found no liability. There was not sufficient proximity between the auditors and the potential investors. Further, on the policy branch, there would be a disallowance of any prima face duty of care that might be established. This is due to fears of indeterminate liability, and the resulting increase in fees due to passing on insurance costs, or simple withdrawal of accounting Duty of Care Page 19 of 92

Torts Summary services. To impose a duty would expose the auditors to the possibility of indeterminate liability since such a finding would imply that the auditors owe a duty to any known class or potential class of plaintiffs regardless of the purpose to which they put the report. Arguments FOR imposing a duty of care Incentive to auditors to produce accurate reports could be a deterrence against negligent conduct. Concerns about indeterminate liability overstated – premise that actual liability will be limited in so far as plaintiff will not be successful unless both negligence and reliance on statements are established. Arguments AGAINST imposing a duty of care

Outweighed by the socially undesirable consequences of which an imposition of indeterminate liability might lead. Concern over indeterminate liability.

Feldthusen argued that recognition of a duty of care in misrepresentation cases improperly allows a plaintiff to unilaterally appropriate the services of the defendant in so far as the plaintiff is entitled to compensation if the defendant‟s negligent statements cause pure economic loss. Argues that the recognition of a duty of care should be confined to circumstances in which the defendant voluntarily assumed responsibility toward the plaintiff. While the absence of reasonable reliance may justify the negation of a duty of care, it cannot justify the imposition of a duty of care: only assumption of responsibility can serve that role. Deraps v. Coia (Ont) Failure to divulge information may be just as actionable as providing positively misleading advice. Negligent performance of a service could be analyzed as involving a negligent misrepresentation or a more novel way of causing pure economic loss. Concurrent liability in tort and contract  The right to sue in tort is not taken away by the contract, although the contract may limit the scope of the tort duty or waive the right to sue in tort or limit or negate the tort liability.  While there is no possibility of double recovery, the plaintiff may see some advantage in suing in tort rather than contract.  Where a wrong supports an action in contract and in tort, the party may sue in either or both except where the contract indicates that the parties intended to limit or negative a right to sue in tort.  It seems as though any time there is a contract, there is a relationship that would imply a duty of care. This includes, and especially relates to, negligent misstatements. The question is how the two areas of law may interact. In the emergence of tort law, the entire point was that it operated where contracts did not. Now, there are situations where there is concurrence.  The modern rule is that if a damage is both a tortious wrong, and a breach of a contract, then the plaintiff mat select to sue in one, the other, or under both. However, if P sues Duty of Care Page 20 of 92

Torts Summary under both regimes, there is no ability to double-recover. Only that if the action fails under one, it may succeed under the other. If a term of K is breached, and this breach also is a damage under tort, what is the effect of a LEC in the contract with respect to the breach? Unless the exclusion clause is very specifically worded as to exclude tort liability, then the LEC only applies to an action for breach of K. An action may be brought for negligence, and the LEC would not apply (unless very explicit, and properly incorporated)

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BC Checo International Ltd. v. B.C. Hydro & Power Authority (Hydro accepted Checo‟s tender there was an issue about the clearing of a right of way. Hydro had contracted that to another company and knew that the work was not done adequately and did not inform Checo). Three situations which may arise when contract and tort are applied to the same wrong: 1. Where the contract stipulates a more stringent obligation than the general law of tort would impose. Plaintiff would not likely sue in tort because he would not recover in tort for the higher contractual duty. 2. Where the contract stipulates a lower duty than which would presumed by law. Occurs where parties indicate that their usual liability imposed by the law of tort does not bind them. (i.e. exemption clause) Duty imposed by the law of tort can only be nullified on clear terms. 3. Where a duty in contract and tort are co-extensive, the plaintiff may seek to sue concurrently or alternatively in tort to secure some advantage. Source of liability is an objective obligation. When dealing with a matter by an express contract term will not in itself categorically exclude the right to sue in tort. Parties may by their contract limit the duty one owes to the other or waive the right to sue in tort, but the right to sue concurrently in tort or contract remains. Defendant is liable for breach of contract and could sue in tort for negligent misrepresentation as well. The right to sue in tort is not taken away by a contract necessarily. Where a given wrong prima facie supports an action in contract and in tort, the party may sue in either or both, except where the contract indicates that the parties intended to limit or negative the right to sue in tort. The court found that, even in this situation where the tort and K action are over the exactly identical act, the disclaimer will only apply to K. P is still able to take action under K or tort. The exception is if the parties agree to very explicitly exclude liability under tort. However, in order to do this, any LEC must be extremely explicit about excluding negligence liability. (Dissent: existence of a contract between two parties does not preclude the existence of a common law duty of care. If parties to a contract choose to define a specific duty as an express term of the contract, then the consequences of a breach of that duty ought to be determined by the law of contract, not tort. Believes the parties could only sue contract and not in tort.) Pre contractual misrepresentations Queen v. Cognos (A case that deals with a claim for damages based on a negligent misrepresentation stemming from pre-contractual negotiations. Plaintiff was hired by the defendant on the basis of a job offer that was to last two years. Plaintiff moved from Calgary to Ottawa for the job but was let go a Duty of Care Page 21 of 92

Torts Summary short time later because the job did not materialize) Defendant had acted carelessly in making statements and owed a duty of care to the plaintiff. Defendant was under a duty of care during the pre-employment interview to exercise reasonable care and diligence in making representations as to the opportunity being offered. Both parties acknowledged the existence of a duty of care not to make negligent misrepresentations about the employer, the nature of the job or permanence of the job. Distinguished from Checo because the alleged pre-contractual misrepresentation had been incorporated verbatim as an express term of the subsequent contract whereas in Queen, there was no concurrency. The negligent misrepresentation was made before the contract. Special Duty of Care – Recovery of pure economic loss in negligence  Pure economic loss  economic loss that does not flow from personal injury or property damage. Plaintiff does not sustain any personal injury or property damage but nonetheless suffers an economic loss. Courts take a more restrictive view.  More efficient for pure economic loss to be borne by the victim, typically a business entity that is in a better position to assess the prospect of losses and arrange insurance coverage before hand.  In Canada, the SCC states that, in general, this type of economic loss is not recoverable, but there is an exception for when a defective product is both dangerous and nondisposable. Thus, a defective hair dryer is not recoverable, because the danger can not be avoided by simply not using it. Defective buildings, however, are recoverable up to the cost of making them non-dangerous.  Five categories of pure economic loss: o Negligent misrepresentation o Independent liability of statutory public authorities – imposes a particular set of conditions that have to be satisfied. o Negligent performance of a service – successful claim depends on a relationship of sufficient proximity. Depends on the service provider‟s specific knowledge of the specific needs. o Negligent supply of shoddy goods or structures – product quality claims. o Relational economic loss Negligent Supply of Shoddy Goods or Structures  Liability with respect to personal injuries and property damage that the plaintiff suffers as a result of the defendant‟s supply of shoddy goods or structures.  Defendant also liable for breach of contract for pure economic losses. Winnipeg Condominium Corp. no. 36 v. Bird Construction (Plaintiff didn‟t have a direct contract with the original construction company that constructed the structure, but there was concern that the building was poorly constructed) Where a contractor is negligent in planning or constructing a building and where the building is found to contain defects resulting from that negligence which pose a real and substantial danger to the occupants of the building, reasonable costs of repairing the defects and putting the building back into the non-dangerous state are recoverable. A pure economic loss claim because it is the loss of what the owner had to pay in repairing the damages, not because of injury or damages to other property. The court finds that the faulty siding represents an imminent danger, and it cannot be Duty of Care Page 22 of 92

Torts Summary avoided by anything short of replacement. The court awards the cost of minimal cure, meaning, the least amount of money needed to make the siding safe. This is not the same as the amount of money to get the siding that was originally expected. Person who constructs the structure, if negligently constructed has the capacity to cause serious damage to other persons and property in the community should be held to a reasonable standard of care. Anns test to determine whether there is a duty of care: 1) Proximity and foreseeability  reasonably foreseeable to contractors that if they design a building negligently then if that building contains defects as a result of that negligence, subsequent purchasers may suffer personal injury or damage when the defects manifest. The lack of contractual privity between the contractor and the new owners does not make the potential for loss less foreseeable. Allowing recovery against contractors for the cost of the repair of dangerous defects serves an important preventative function by encouraging socially responsible behaviour. 2) Policy considerations  warranties respecting quality of construction are contractual in nature and cannot be defined or limited in tort. Concern about being subject to an indeterminate amount of liability for an indeterminate number of successive owners over an indeterminate time period. Doctrine of privity of contract and caveat emptor provides courts with limiting liability in tort. No adequate policy considerations exist to negate a contractor’s duty in tort to subsequent purchasers of a building to take reasonable care in constructing the building and to ensure that the building does not contain any defects that pose foreseeable and substantial danger to the occupants. Relational Economic Loss  Situation where the defendant, as a result of negligently damaging property belonging to a third party, also causes a pure economic loss to the plaintiff with whom the third party had a relationship. Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. (Does a third party owe a duty to another party for damage to property that results in lost profits?) If the plaintiff is in a joint venture with a person whose property is damaged, the plaintiff may claim consequential economic loss related to that property. Relational economic loss only recoverable in special circumstances where the appropriate conditions are met: 1) cases where the claimant has a possessory or proprietary interest in the damaged property; 2) general average cases or 3) cases where the relationship between the claimant and property owner constitutes a joint venture. Courts should follow the Anns test to determine whether a duty of care is owed. Policy considerations, especially the potential liability to an indeterminate class for an indeterminate time negatives the duty of care owed to the plaintiff. No way to distinguish these plaintiffs from other potential class of plaintiffs such as employees, investors etc. The contract negates the duty to warn that would otherwise have been owed. Manufacturer and supplier has a duty to warn all those who may reasonably be affected by products that may be dangerous. There is a duty to warn even if there is no privity of contract.

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Torts Summary New Categories of Pure Economic Loss Martel Building Ltd. v. Canada (Plaintiff leased a building from the defendant who led the plaintiff to believe that it would be amenable to renewing the lease. In the end, it decided to lease somewhere else and plaintiff sues on the grounds that the defendant breached a duty of care to negotiate in such a way as to avoid causing pure economic loss) Two stage Anns analysis: 1) pre-existing arrangement between plaintiff and defendant is a strong indicator of proximity (landlord-tenant); 2) policy considerations serve to negative a duty of care, especially the scope of indeterminate liability. Needless litigation should be discouraged. To extend negligence into the conduct of negotiations could encourage a multiplicity of lawsuits given that a number of negotiations don’t end up in a deal.  The inherent nature of negotiations place definable limits on the ultimate extent of liability.  Objective of negotiation works against recovery.  To extend a duty of care to pre-contractual commercial negotiations could deter socially and economically useful conduct.  Would defeat the essence of negotiation and hobble the marketplace to extend a duty of care to the conduct of negotiations and to label a party‟s failure to disclose its bottom line, its motives or its final position as negligent.  To impose a duty would interject tort law as after the fact insurance against failures to act with due diligence or to hedge the risk of failed negotiations through the pursuit of alternative strategies or opportunities.  Undesirable to place further scrutiny upon commercial parties where other causes of action provide remedies.  Would introduce the courts to a significant regulatory function, scrutinizing the minutiae of pre-contractual conduct.

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Torts Summary Established cases of duty of care – when recognized and when not recognized
Duty of Care recognized When the act is reasonably foreseeable Manufacturer to end user (Dongahue v. Stevenson) The manufacturer has a duty to warn if he knows or should have known about current risks with taking the products. Manufacturers of products have a duty to take care, not to harm the end-users of those products. (Buchan v. Ortho Pharmaceutical); Duty of an employer to take reasonable care for its employees (Paris v. Stepney Borough Council) Duty of Care Not recognized Social host liability not recognized toward intoxicated guest or user of the road (Childs v. Desormeaux) Statutory regulator against particular investors (Cooper v. Hobart) Because its presence is not foreseeable, the trespasser isn‟t owed a duty of care by the person who negligently harmed him (Videan v. British Transport Comm) The general rule is that a defendant won‟t owe a duty of care to a third party who suffered nervous shock without physical damages (Rhodes v. C.N.R.) Police office Board and Province of Ontario when they don‟t have statutory obligation (not sufficient proximity) (Odhavji v. Woodhouse) Women don‟t owe a duty to their fetus (Dobson v. Dobson) General rule that defendants don‟t owe a duty to third parities who suffer nervous shock Financial auditors to people who rely on the statements for other purposes (Hercules Mgt. v. Ernst & Young)

Duty of care of the professor and the university toward the students (paternalistic approach). They should have gotten the facts straight with a student before taking a potentially career ending move (Young v. Bella) The government has a duty to protect children from physical and sexual abuse (when they put children in foster homes) The healthcare providers have a duty to warn others who have been or might be endangered by the patient (Tarasoff v. Regents of the University of California (US)) Duty to the rescuers: a negligent defendant owes a duty to a rescuer who‟s coming to the aid of somebody who has been empiriled by the defendant‟s negligence, provided, that the rescuer‟s intervention is not so utterly foolhardy as to be outside of any accountable risk and thus beyond even contributory negligence. When the presence of a rescuer is reasonably foreseeable, the negligent driver who hit the rescuer owes the rescuer a duty of care (Horsley v. McLaren; Videan v. British Transport Co.) The employer owe a duty of care to its employees to keep the place of employment safe (Hunt v. Sutton Incentive Realty (Hunt v. Sutton Realty) Paternalistic relations (teacher & student; parent & child) Duty to rescue Duty to rescue: duty on the master of the vessel to attempt to rescue a man overboard when he could do that without imperilling the safety of the ship, of the crew or others who were on board (Matthews v. MacLaren); Duty to control the conduct of a third party: a commercial tavern is under a duty to take positive action (make sure he got home safely) to protect a patron he knows to be drunk (= probable risk of injury) because of the invitor/invitee relationship (Liquor Licence Act; Stewart v. Pettie; Jordan House v. Menow) Police has a duty to warn and to protect the public (Jane Doe v. Metropolitan Toronto Police Services) Third parties to injured fetus if baby is born alive (Montreal Tramways) Careless statements that result in pure economic loss Not to make negligent misrepresentations to prospective employees of a firm in a job interview (Queen v. Cognos) Non-privity owner and the original builder when there is a risk of danger to the inhabitants of the building (Winnipeg Condominium v. Bird Construction)

Police to victims of crime (Hill v. Chief Constable of West Yorkshire) Parties who are engaged in pre-contractual negotiations (Martel v. Canada) Manufacturer does not owe a duty to a third party who suffers relational economic loss (Bow Valley Husky)

Employer does not duty of care to third parties for injuries caused by their intoxicated employee. (John v. Flynn)

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Torts Summary

STANDARD OF CARE Factors Considered in Determining Breach of standard of care: 1. Probability of injury/risk (*) 2. Potential severity of consequences (*) 3. Private & public social costs of avoiding the risk  burden of adequate precautions  cost of avoidance 4. Social utility of the conduct (generally only considered for public officers, i.e. police, firemen, paramedics etc.) Probability of injury United States v. Carroll Towing Co. (US)  probability of risk evaluated in light of the circumstances. L. Hand J giving us an economic formulation of what might take place with other considerations. (L = B < PI). Though you can‟t quantify these factors. Need to measure 1) magnitude of the loss 2) probability 3) burden of taking precautions. Problem in that you can‟t quantify burden and probability. Probability/severity of injury Bolton v. Stone (H.L.) (cricket balls)  look to the probability and severity of harm in determining the nature and extent of the standard of care. Point at which the magnitude of risk becomes unacceptable. Foreseeable risk important but not there needs more, i.e. remoteness. Foreseeability is not sufficient, a reasonable person, considering the matter from the point of view of safety, may think it right to refrain from taking steps to prevent foreseeable danger if the probability of the danger occurring is very small. Paris v. Stepney Borough Council (H.L.) (One-eyed employee)  standard of care in a particular circumstance where the gravity of injury is different to different people. The content of what you have to do to meet the standard of care may change depending on the situation. (dissent – remoteness of injury means no breach of standard of care. Relies on custom) Cost of precautions Vaughn v. Halifax-Dartmouth Bridge Comm (NS) (paint drippings from bridge)  Obligation to take all reasonable precautions to minimize damages. Where the cost of taking the precautions is low and would have prevented the loss, the standard of care is breached. Law Estate v. Simice (BC) (doctor didn‟t provide timely ER care and said it was because of the allocation of costly medical resources)  if it comes to a choice between a physician’s responsibility to patients and the

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Torts Summary responsibilities to the medical system overall, the patient should come first. Severity of harm to allow a patient to go undiagnosed is greater than the financial harm incurred if the medical system has to do another test. Plaintiff must prove that there was a reasonable practicable precaution that the defendant failed to adopt. For the most part, courts have not given much weight to the costs of risk avoidance but the physician must place his responsibility on his patient above his responsibility to the medical system overall. Social utility Watt v. Hertfordshire County Council (UK appeal) (fireman injured by truck lorry)  measuring due care must balance risk against the measures necessary to eliminate the risk. Saving lives justifies taking the risk. You must balance the risk of an activity against the end to be achieved by that activity. If the conduct in activity provides valuable social utility such as saving lives this justifies lowering the standard of care. (A 1959 SCC decision means there are now explicit policies of pursuit. The standard of care for police are higher when determining how to pursue a suspect to avoid risking lives of innocent people). Reasonable person  The care that would have been taken by a reasonable and prudent person (objective test) Care is a matter of degree. Not a standard of perfection and is not set too high or too low. An objective test applied to establish the standard of care. The standard to meet is to take reasonable care. Advantages: since it is objective, it can be applied from one case to another. It is sufficiently flexible so it can respond to changing times, values and circumstances. It allows some community values to enter into the test. Arland v. Taylor (Ont)  imposes an objective standard of care of what the reasonable person would have done and not a subjective standard of what the defendant would have done. Standard of care assessed on what OUGHT to have been done. Special Standards of Care  Degrees of the standard. Modified standard of care (higher standard for professionals, lower standards for children and the disabled). Sometimes the objective reasonable person test is not appropriate and needs to be adjusted for special circumstances and different actors. Lowers the standard of the reasonable person to special situations. Standard is based on what is reasonable to expect of those with recognized skills, education, training, abilities etc. Disabled Fiala v. Cechmanek (Alta) (mentally disabled man charges at a woman in her car who then rams into another woman)  People with disabilities are required to meet the standard of care of a reasonable person with a similar disability. 2 tests: (this test doesn‟t erode the objective reasonable person standard as it is a variable standard). Standard of care Page 27 of 92

Torts Summary 1) defendant has no capacity to understand or meet the duty of care as a result of a mental disorder 2) defendant unable to discharge the duty of care because he didn‟t have control over his actions. If the medical condition was known, they would have had to take reasonable steps. Debate whether the lowering of the reasonable person standard Good – should be lowered Bad – should not be lowered Lowers the standard where a mental illness Emphasis on victim compensation in tort may prevent him from meeting the normal liability. May erode the objective standard standard of care – emphasis on fault in tort liability (fault is still the essential element in Canadian tort law) Impossible to attribute fault to someone with a Courts unable to draw the line between mental illness and holding him liable would mental illness and variations in temperament. amount to strict liability and could create a nofault regime Holding mentally ill to a higher standard would encourage caregivers to take adequate precautions. Result in their isolation and people may avoid contact with them for fear of harm without compensation ** Courts still take mental illness into account ** Children Joyal v. Barsby (Man) (whether a kid who ran across a highway and was injured can be guilty of contributory negligence)  law is more open to use a subjective standard for children. 2 tests: 1) Think about whether the child is old enough to be thought of as negligent or not. 2) What would a child of like age, intelligence and experience do? Child will be held to the standard of care of what another similar child would do EXCEPT where the child is engaging in an adult activity (i.e. hunting or driving) in which case they will be judged by the adult standard. Professionals White v. Turner (Ont) (plastic surgeon botched a breast reduction surgery)  Professionals are held to a higher standard of care. Standard of care of a professional is what a reasonably prudent practitioner operating under similar circumstances would do. Being judged against their peers. If the work done falls below the accepted practices of colleagues, he is liable. Physicians have a duty to conduct practice in accordance with the conduct of a prudent and diligent doctor

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Torts Summary in the same circumstances. Individuals may be held to a professional standard of care if they implicitly or explicitly suggest that they have the skills and training of a professional. Custom What the customary standard of conduct was and allows the reasonable person to use accepted community practices. Ter Neuzen v. Korn (plaintiff developed HIV from artificial insemination even though it was not customary practice to test for it at the time)  clarifies the legal status of commonly accepted practice, prior to this case, the courts accepted that compliance with custom provided evidence of reasonableness and breach of custom provided evidence of negligence.  To determine standard of practice (Customary practice principle): if the matter is highly complex, scientific or technical, the judge can’t make the judgment of standard practice and must rely on expert evidence. If the matter is understandable to the common person, judge could decide if the behaviour is customary practice or not. (i.e. if a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the judge, the customary practice is not an excuse.)  If doctors act in accordance with a recognized and respectable practice of profession, he will not be negligent. Doctor not liable if the treatment given corresponds to those recognized by science at the time, even if there are competing theories.  Conformity to common practice will generally exonerate physicians but there are situations where the standard of practice will be negligent if it is fraught with obvious risks. Girard v. General Hospital of Port Arthur (Ont) (lady who has difficulty walking is told to perform a test which required her to walk)  Even though the standard practice was accepted, on the basis of the plaintiff’s medical situation, trial judge said it is common sense to not give her the standard test without taking precautions. The trial judge erred by effectively rejecting Kutcher's professional judgment on the basis of his own assessment of the patient's history and symptoms. The trial judge can not reject the professional judgment of the expert evidence or the customary standard of care. Resurfice Corp. v. Hanke (zamboni explosion with the two similar looking tanks)  reasonable foreseeability. Foreseeability depends on what a reasonable person would anticipate, not the seriousness of the injury or the relative financial positions of the parties. Was the risk of harm created by the act or was the omission of the defendant reasonably foreseeable? Need to enforce standards of reasonable conduct to deter risky behaviour.

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Torts Summary

CAUSATION General test of causation is “but-for” test but it is subject to modifications and exceptions. Can the plaintiff prove on the balance of probabilities that the defendant‟s breach of the standard of care caused the loss? Difficult hurdle for some plaintiff‟s to face. When doing the analysis on causation, need to ask if the defendant is an independent or a joint tortfeasor then ask if the injury is indivisible or divisible. Defendant is only responsible for the injuries that he caused. The goal of awarding damages is to restore the plaintiff to the position that he would have been in but for the defendant‟s negligence or breach of the standard of care. Restore the plaintiff to the original position that the tortfeasor finds him. But-for test  Plaintiff‟s injury would not have occurred but for the defendant‟s negligence. Standard test of factual causation. Onus on the plaintiff to show that the defendant‟s negligence caused his injury. Culpable cause doesn‟t have to be the only cause. Predicts what would have happened if the defendant had taken the standard of care. In order to show liability, it is necessary to show that the negligent action of the tortfeasor actually caused the damages that the victim sustained. If the victim sustained damages for reasons apart from the negligence, the negligent party is not liable. The standard test to show causation is the but-for test: “But for the negligence of the tortfeasor, would P have suffered damages?” If the answer is that they would still have suffered damages, then there is no causation. However, if the negligence was a necessary source of the damage, then here is causation under this test. Kauffman v. TTC (Ont) (escalator accident where people piled up on her)  fundamental principle that the causal relationship between the negligence and the injury must be made on the basis of the factual cause of the injury. In this case, there was no evidence that the plaintiff would not have been injured but for the defendant‟s negligence. But-for causal relation between the negligence and the injury must be made out by the evidence and not left to the conjecture of the jury. Qualcast v. Haynes (H.L.)  No breach of standard of care by the defendant. Even after being injured, defendant returned to work without taking the precautions necessary and so it was the plaintiff’s own negligence which caused his injury. Richard v. C.N.R. (PEI) (somebody yelled out “we‟re here” and plaintiff drove off the ferry)  injuries suffered were due to his own carelessness. Sole, direct, proximate and effective cause of the accident was the plaintiff’s own actions contrary to the warning signs and crew’s attempt to stop him. Barnett v. Chelsea Kensington Hospital (UK) (arsenic poisoned victims went to the hospital but still died because the doctors wouldn‟t have been able to save them in time)  timetable is important. Need to carefully analyze the relationship between the allegation of negligence and causation. The negligence allegation must be carefully drafted to ensure that it is the cause of the plaintiff’s loss. Causation Page 30 of 92

Torts Summary Independent tortfeasor  only liable for injuries they caused. Can be held jointly and severally liable when each independent tortfeasor is liable because of the causal role that their carelessness played. Each defendant acts independently of the others and are held jointly and severally liable for the plaintiff‟s losses that are caused by the combined effects of their careless acts or omissions.  where two actors are acting independently, the plaintiff may have two independent actions against each and will have to prove each person‟s negligence independently. Divisible loss  single cause approach. Can the injuries be divided into distinct losses that are each readily attributable to the conduct of a particular tortfeasor. One tortfeasor. Use this approach were there is a negligent defendant, an absconding tortfeasor, a contributory negligent plaintiff, an innocent or pre-existing or naturally occurring contributory condition. Can be divided into distinct losses and each loss can be attributed to the conduct of a particular tortfeasor.  when the losses are divisible, the plaintiff has a separate course of action against each wrongdoer, each is only liable for the harm they caused. Joint tortfeasor  liable for torts committed by fellow tortfeasors even if they didn‟t contribute to the loss directly. Plaintiff needs to prove that one was a negligent cause. Two or more independent tortfeasors and they cause a loss to a plaintiff and even though they are independent, if they have caused a single indivisible harm than each of them will be jointly and severally liable for the loss. One is responsible for the full extent of the damages suffered and is jointly liable with all of the other joint tortfeasors for the injuries suffered. Plaintiff can sue for the whole of the losses from one tortfeasor and could sue all tortfeasors and recover losses from the tortfeasors collectively. All would be liable for the losses if the courts can‟t hold one causally responsible for it. The burden has to do with the relationship to each other and not on their action that did or didn‟t cause the loss.  when there are two independent actors causing an indivisible injury, they are jointly and severally liable to the plaintiff.  liability stems from the legal relationship from them rather than from the causal role that they individually played in bringing about the plaintiff‟s loss.  Where multiple tortfeasors cause harm jointly, then any of them may be held liable for 100%, and they may apportion the damages amongst themselves later based on their contribution. In Cook v. Lewis 3 situations for joint tortfeasors  Agent committing a tort while acting on principal‟s behalf  Employee committing a tort while acting on his employer‟s behalf  Two or more individuals agreeing to act in concert to being about a common end that is illegal, dangerous or where negligence can be anticipated. Remoteness  defendant not liable if the loss is too far removed or too remote in consequence. Defendant only liable for foreseeable injuries they caused.

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Torts Summary Multiple causes  if a plaintiff is injured by two or more tortfeasors in independent acts, the plaintiff will have a separate cause of action for each defendant and needs to have all of the evidence and facts separately to make a claim. The liability is divisible between the defendants when the losses are divisible, and the liability will be joint and several between the defendants when there is an indivisible loss may by an independent tortfeasor. Steps of the analysis: assess whether the losses are divisible or indivisible. If two tortious events, is it independent or joint or are there 1 tortious and 1 non-tortious event. Measure the loss that was caused. Situations where there are multiple negligent parties, and damages had to have come from only one party‟s negligence can present problems of causation, if there are enough parties. If you are unable to determine which of the negligent parties actually cause the injury, and there is no reason to pick one over another, there can be difficulties. The but-for test certainly is not a possibility. There have been several solutions presented by the courts. In joint enterprises, if one member is negligent and causes damage, all members may be held liable even if they were not individually negligent. Where the alternate tortfeasors are in a joint enterprise, it does not matter which one actually causes it; in either case, the other would be held liable. The court has also developed a rule in Summers v. Tice, which states that if each individual potential tortfeasor actually was negligent, and there are no other sources of causation, then the courts will shift the burden of proof onto D to establish that it was not them. This is based on policy grounds; it prevents conspiracies of silence where parties protect each other by being potential but improvable causes. It also prevents parties from destroying the ability of P to prove by taking additional negligent actions. Indivisible loss  multiple cause approach. (first guy shot her arm, second guy shot her leg, she died of the bleeding, the death is the indivisible loss). Independent insufficient causes  use but-for test. Several factors combine to cause the plaintiff‟s loss. Each factor is individually necessary as the loss wouldn‟t have occurred without it, but no factor is individually sufficient to have caused the loss in the absence of the other factor. Athey v. Leonati (pre-existing back condition, suffered injuries in a crash negligently caused by defendant and herniated a disk after doing an exercise program. Tortious and non-tortious event)  not necessary for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury, as long as the defendant is part of the cause of injury, the defendant will be liable even though his act alone was not enough to create the injury. There is a single indivisible injury and the defendants were found to have negligently caused or contributed to the injury and are liable for it. Plaintiff must prove causation by meeting the bit-for test. Crumbling Causation Page 32 of 92

Torts Summary skull  recognizes the pre-existing condition was inherent in the plaintiff‟s original position. Defendant is liable for the injuries caused even if they are extreme but only need to compensate for the debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. Defendant liable for additional damage but not the pre-existing damage. Thin skull  makes tortfeasors liable of the injuries even if the injuries are more severe owing to a pre-existing condition. The tortfeasor takes his victim as he finds him and is liable even though the plaintiff‟s losses are more than they would be for the average person. Difference between thinskull and crumbling skill is in how the court characterizes the plaintiff‟s original position. The defendant is liable for any additional damage caused but not liable for the pre-existing damage. As long as the defendant is part of the cause of the injury, the defendant is liable even though his act alone was not enough to create the injury. If the defendant‟s tortious conduct is a substantial cause of the injury (proved by the plaintiff on the balance of probabilities with the but-for test (generally) or the material contribution test (rarely) then the presence of a nontortious cause does not reduce the defendant‟s liability. If the defendant has materially contributed (contribution outside the de minimis range) to single indivisible injury (along with a non-tortious cause) or has made a necessary contribution to that injury, then the defendant is fully liable for the damages flowing from the injury whether or not there was another cause of the injury. The court awarded damages to P, based on the conclusion that D‟s negligence made a materal contribution to the injury, and that contribution (found to be 25%) was beyond de minimus. Nowlan v. Brunswick Construction (defendant negligent in constructing the plaintiff‟s house who argued that the damage wouldn‟t have occurred but for the poor design by the architect)  Each factor on their on would have caused the loss and they both contributed to the dame damage. Liability is joint and several and both are liable. Where there are independent torts which have contributed to the same damage will be held jointly and severally liable. Where there are concurrent torts both contributing to the same damage, whether or not the damage would have occurred in the absence of either cause, the liability is joint and several and either party causing or contributing to the damage is liable for the whole damage. If two or more negligent defendants caused an indivisible injury, each defendant will be held jointly liable for the entire loss. Where there are concurrent torts contributing to the same damage, whether or not the damage would have occurred in the absence of either cause, the liability is joint and several and either party causing or contributing to the damage is liable for the whole damage. Independent sufficient causes  When the plaintiff is subjected to several causal factors, each of which independently is sufficient to cause a certain injury. i.e two hunters fire fatal shots simultaneously that strike the plaintiff. Under the but for test, each tortfeasor could be absolved of liability because the plaintiff would have suffered the same loss regardless of any individual tortfeasor‟s negligence. The causal factors can be alternative causes of damage or additional causes of damage

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Torts Summary Alternative causes of damage Dillon v. Twin State Gas and Elec. (US) (kid falls off a bridge due to his own negligence and before falling, he grabbed onto the defendant‟s wires and was electrocuted)  There was a wrongful act and a non-tortious act. The defendant liable for exposing the boy to the charged wire. No liability for the kids playing on the bridge and did not owe him a duty to protect from falling. Loss suffered is determined by figuring out what the plaintiff’s normal state would have been but for the defendant’s breach. Defendant needs to return the plaintiff to the condition he would have been in but for the defendant’s breach. An impending devaluing factor should only be taken into account to reduce the plaintiff‟s claim if the impending factor is innocent in nature and an objective observer would say that at the time of the tortious act, the impending factor was certain to come to pass. In a situation where there is a tortious and a non-tortious cause of one’s injury, one must look at the state the plaintiff would have been in but for the tortious act, taking into consideration the remaining presence of the non-tortious cause. Successive Causes of parallel injury  assesses the extent of the original tortfeasor‟s liability when the plaintiff suffers an independent successive parallel injury. Penner v. Mitchell (US) (plaintiff awarded damages for 13 months of loss income but suffered a heart attack which took her off work during this time for 3 months. Issue was whether she was allowed to recover damages for losses unrelated to the tortious act) Tortious and non-tortious injury plaintiff should not be awarded damages for a non-tortious act that would have happened anyway because such a case would over-compensate the plaintiff and would infringe upon the dominant rule of assessment of damages for personal injuries. A person is not compensated for the physical injury, they are compensated for the loss which he suffers as a result of the injury. If the second injury reduces the disabilities from the injury which the defendant is liable, then the first defendant will have to pay less damages and the second defendant will pay the rest of the damages. If the second injury became a concurrent cause of the disabilities caused by the injury inflicted by the first defendant then the later injury doesn‟t diminish the liability of the first defendant so the first defendant is still liable for the damages he caused and the second defendant is responsible for the additional costs (takes the victim as he finds him). Where you have a tortious cause and a non-tortious cause of injury, the non-tortious cause needs to be considered when assessing damages or else you may over-compensate; future non-tortious contingencies arising before trial need to be considered. For future tortious contingencies, they should not be taken into account in assessing damages such a loss of income. The 2 nd tortfeasor takes his victim as he finds him, as already injured, thus the 2 nd tortfeasor is only liable for the damages flowing from the 2nd tort. Baker v. Willoughby (H.L.) Where there are two tortious acts, the 1st tortfeasor is responsible for all of the plaintiff’s losses that flowed from the first tort and the 2nd tortfeasor is liable for only the additional harm that may have flowed from the second tort. The second claim is not a relevant factor in assessing damages against the first tortfeasor except where the plaintiff was killed by the second Causation Page 34 of 92

Torts Summary shot. The general rule when there are two torts is each tortfeasor is responsible for losses that their tort caused and each tortfeasor takes his victim as he finds him. Alternative causes and devaluing the plaintiff’s loss. Cottrell v. Gerrard (Ont) (plaintiff who suffered from diabetes went to see the doctor with a sore between her toes, doctor told her to go see a specialist but he never made the appointment. Her leg was amputated, but it was discovered that she had a blood condition inhibited her ability to fight an infection and so she would have lost the leg anyway)  Doctor breached his standard of care, but even if he didn‟t breach it, there‟s no way of knowing if the loss could have been prevented. It is not sufficient to prove that adequate diagnosis would have afforded a chance of avoiding the amputation unless that chance is greater than ‘more likely than not’. A person is not liable for the loss after failing to meet the standard if the loss is less than a 50% chance of being caused by the defendant’s negligence. (this case is NOT a Snell type case nor an Athey type case) There are limited exceptions to the default use of the but-for test. Multiple negligent defendants Cook v. Lewis (two shooters shot at the plaintiff at the same time and it was unclear who exactly caused the injury)  court holds that in the case where the plaintiff can prove that the two (max of 2) defendants were negligent, one had to have caused the loss and it was impossible to prove which one – this shifts the burden to the defendants who must disprove their causation. Because its impossible to say who the defendant was, it would be unfair to leave the innocent plaintiff uncompensated. Both defendants could be held liable and would be responsible pay the plaintiff each half of the damages. One non-tortious defendant would be paying damages. Learned intermediary rule An exception to the manufacturer‟s duty to warn. Manufacturer‟s duty to warn is discharged if the manufacturer provides the prescribing physician with adequate warning of potential danger. Buchan v. Ortho Pharmaceuticals (Ont) (failure to warn about the dangers of the BC pill) Manufacturer as a common law duty to warn consumers of danger inherent in the use of its product of which it knows or has reason to know. The nature and extent of the warning depends on the circumstances. Ordinarily, the warning must be addressed directly to the person likely to be injured. A drug manufacturer who relies on the intervention of prescribing physicians under the learned intermediary rule to except itself from the common law duty to warn consumers directly must actually warn prescribing physicians. The duty cannot be delegated. The products liability test is whether the consumer would have used the product if she had been aware of the risks.

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Torts Summary Hollis v. Dow Corning (ruptured breast implant)  manufacturers of products not directly available to the public (i.e. prescription drugs) can discharge their duty to inform consumers by adequately disclosing information to a learned intermediary. If plaintiff can‟t blame either the doctor who was supposed to be informed nor the manufacturer who caused the loss, there would be no recourse for the plaintiff to recover (doctor would say he wasn‟t informed and manufacturer could use the rule to say that it was up to the doctor to warn). The court says that the test is not objective for consumer-manufacturer relations. If P would subjectively not consent, then that branch of causation is proven. The court also states that the second causation argument by D cannot stand. They did not give A the chance to inform or not. On policy grounds it would not make sense to allow D this defense, because then both D and A would be free of liability. Unless D actually informs an intermediary, they cannot use the learned intermediary as a defense. Informed consent This problem needs to be distinguished from two other related problem: 1. If a doctor performs a procedure without consent, it is an assault and battery, independent of any injury sustained 2. If a doctor performs a procedure with consent, but does so negligently, causing injury, it is negligence Informed consent torts revolve around the situation where a procedure is performed nonnegligently, but some harm still results. This can be a problem if a patient states that the doctor negligently failed to give them the full information about the procedure, and had she, they never would have done it. This is a difficult area of tort law as it, like wrongful birth, deals primarily with counterfactuals. Further, there are fears of placing huge amounts of liability on doctors. A doctor is not required to disclose certain risks that we presume all persons will be aware of. This includes that surgery may result in some pain, scaring at the incision point, etc. A doctor must disclose all material risks. What constitutes a material risk is based on looking at the probability and significance of a risk. A doctor must disclose all highly significant risks, even if they are very rare, and all common risks, even if minor. The claim that a patient would not have gone ahead with surgery had he been properly informed (causation) must be shown on a qualified-objective test. The test is what would a reasonable person in the position of the patient have consented to had they been fully informed. Hopp v. Lepp; Reible v. Hughes health care providers owe a duty to their patients to obtain informed consent prior to treatment. Plaintiff needs to prove that even if the doctor had given her informed consent, she wouldn‟t have gone through with the surgery. This is not the subjective basis, but whether a similar reasonable person would have gone through with the procedure. Modified objective/subjective test  what would a reasonable person in the plaintiff‟s position have done? Would a reasonable person in the plaintiff‟s position have consented if adequately informed? Use this so the plaintiff isn‟t tainted by hindsight. Still, when people are given informed consent to a medical procedure, many would still opt for it because it is necessary.

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Torts Summary Arndt v. Smith (wrongful birth – daughter is disabled because of doctor‟s failure to warn mother of dangers of chicken pox and mother said she would have had an abortion if she knew of the risk of having a disabled child) – split decision. Court reaffirmed the modified objective standard test  Majority: should not be a purely subjective test in this case, what this particular plaintiff would have done if she had been given the choice, would have been coloured by hindsight and bitterness and leave causation to be determined by the patient‟s testimony of how they would have acted if properly informed. Minority: a reasonable person might have done it either way, for some people, abortion is an option and for others, it‟s not. Attempts to modify the but-for test Some uncertainty with these tests and unclear how the material contribution test is different from the but-for test or when the material contribution test is applied. Material contribution  Canadian approach parallels the but-for test but in different words. The H.L. has a broader approach. Athey v. Leonati Idea that it does not have to be the only cause, it just have to be beyond de minimis. Enough that it was more than nothing. But-for test may be relaxed as unworkable in cases where it’s impossible to determine the precise cause of the injury and may be substituted with the material contribution test only where the precise cause of the injury is unknown. Walker Estate v. York Finch General Hospital (tainted blood and the procedures used by the CRCS screening process and the pamphlets it issued)  general test for causation where a single cause could be attributed to the harm is the but-for test, but it is unworkable where multiple independent causes may bring about a harm because it is unfair to leave legitimate plaintiffs uncompensated. Difficult to prove in this case what the donor would have done if properly screened. In negligent donor screening, question is not whether the defendant‟s conduct was a necessary condition using the but-for test, but whether the defendants negligence materially contributed to the injury and if it did so in more than a minimal contribution (beyond de minimis range). The material contribution test applies when it may leave legitimate plaintiffs uncompensated, but it’s still unclear when it will apply. The bottom line is that the court recognizes that not all cases where the but-for test is used will be fair. In this case though, causation is established on the but-for test. Applies and brings to the fore the material contribution test introduce to Canadian law by way of Athey v. Leonati. Materially increased risk But for isn‟t quite as clear but for policy reasons, the courts wanted to impose a duty. Mostly English jurisprudence. When you get only some statistical probability but not enough to get reasonable probability. Some cases where it is very difficult to meet the but-for test of causation. Some courts have been willing to abandon the but-for test in certain categories if the plaintiff can prove that the defendant‟s negligence significantly increased the risk of a particular kind of injury and that kind of injury occurred. Causation Page 37 of 92

Torts Summary McGhee v. National Coal Board (H.L.) If a defendant’s negligence materially increased the risk of a type of injury or harm and the plaintiff develops that exact type of injury or harm, then it will be deemed that the defendant was the cause of the injury. Lord Wilberforce – burden of proof should shift to the defendant who must disprove causation on the balance of probabilities. Inference of causation warranted because there is no practical difference between materially contributing to the risk of harm and materially contributing to the harm itself. Sopinka – McGhee should NOT be used in Canada. Instead, should apply Snell. Wilsher v. Essex Area Health Authority (H.L.) Reaffirmed the principle that the burden of proving causation rested on the plaintiff. McGhee hadn‟t changed the burden of proof and was a robust and pragmatic approach to undisputed facts. Draw the inference of negligence even if scientific evidence couldn‟t prove it. Snell v. Farrell Couldn‟t prove causation and the court was willing to shift the burden of proof. (cataract operation gone wrong resulting in blindness in one eye) Where the subject matter of the allegation lies with only one party, the onus is on the party with the knowledge to prove it. Causation should be applied with ordinary common sense. If the facts lie with the defendant’s knowledge, then there needs to be very little affirmative evidence on the plaintiff to justify drawing an inference of causation. Court has a lower standard of proof than the scientific standard. Not essential that the medical experts provide a firm opinion supporting the causation. Snell doesn‟t adopt McGee and Sopinka J. rejects shifting the burden of proof. In many malpractice cases, the facts lie particularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary. The burden of proof has not shifted but the hurdle for the plaintiff has been lowered. Cases where only the defendant knows the situation. This type of case needs very little affirmative evidence to justify causation. The ultimate burden of proving causation rests with the plaintiff but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive proof of causation has not been adduced. Plaintiff must prove the defendant’s negligence increased the risk to the extent that the negligence was more likely than not to have been the cause. Burden of proof remains with the plaintiff, but in some cases an inference of causation may be drawn from the evidence without positive scientific proof. Resurfice Corp. v. Hanke (zamboni explosion with the two similar looking tanks)  SCC addressed some of the confusion of the material contribution test and outlined narrow circumstances in which is might be available. The plaintiff must establish a substantial connection between the defendant's conduct and the plaintiff's injury. 2 tests for when to use the material contribution test. 1) It must be impossible for the plaintiff to satisfy the "but for" test due to circumstances beyond the plaintiff's control.

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Torts Summary 2) The defendant must have breached a duty of care owed to the plaintiff exposing the plaintiff an unreasonable risk of injury, and the plaintiff must have experienced that form of injury. This was not a case in which the use of the material contribution test was justified. SCC narrowed the material contribution test and affirmed the but-for test for both divisible and indivisible injuries. Proportionate cause/loss of chance  not yet adopted by Canadian courts. Arises when the defendant‟s negligence has denied the plaintiff the possibility of avoiding a loss. Plaintiff would recover based on the possibility that the defendant was a cause. If there was a 30% chance that the defendant‟s negligence was a cause, the plaintiff would recover 30% of the loss. Cottrell v. Gerrard (Ont) (diabetes and a blood condition resulting in amputation)  loss of chance doctrine suggests that the plaintiff may be compensated where their only loss is the loss of a chance at a favourable opportunity or a chance at avoiding a detrimental event. Here, the court rejects the argument that the plaintiff would have had a chance to save her leg if the doctor didn‟t breach his standard of care. The court says it has to be a greater than 50% chance of being able to save the leg in order to use the loss of chance principle. Proof of negligence (burden of proof is generally on the plaintiff to show on the balance of probabilities) Wakelin v. London & South Western RY (H.L.) (husband was hit by a train, the wife couldn‟t prove that the defendant negligently caused the death or that husband didn‟t run into the train himself)  Plaintiff has to prove that the loss was caused by some negligence of the defendants. If this is not proved, the plaintiff fails. If the plaintiff says the defendant did something and the defendants deny it and there‟s no direct proof that the defendant did it, the plaintiff fails because the burden of proof is on the plaintiff to show that the defendant caused the loss. It has to be a probable cause and not just a possible cause. If the plaintiff’s evidence is equally consistent with injury having bee caused by plaintiff’s own negligence as by the negligence of the defendant, he has not established a prima facie case and a non-suit must be ordered. (dissent – onus of proving that there was contributory negligence of the deceased should be on the defence and in the absence of the injury caused by their own negligence, it should not be up to the plaintiff to prove that it was not her own negligence to win the case. If the plaintiff‟s evidence was sufficient to show that the negligence of the defendants materially contributed to the injury and showed no other information on the question of the injured party‟s negligence, then in the absence of counter-evidence from the defendant, it should be presumed that there was no contributory negligence). Exceptions to the general principles of the burden of proof the onus of proof can change the assessment of who‟s liable under the facts. The facts of the case and who bears the onus of proof is enough to tell you who wins the case.

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Torts Summary Statutes and shifting the burden of proof MacDonald v. Woodard (Ont) (plaintiff was struck why standing in front of the car driven by the defendant)  s. 133 of the Highway Traffic Act – burden of proof shifts to the defendant to show that he wasn’t negligent. Section 133 enacted to overcome difficulties experienced by plaintiffs to present sufficient evidence of a motorists act, behaviour etc. leading up to the accident. Statute shifts the onus where there has been damage to a person by reason of a vehicle on a highway. Plaintiff needs to show that there was a collision, not what caused the collision. Defendant must satisfy the jury that the accident was not caused by his negligence. Onus on defendant will not be discharged unless he satisfies the court not merely that the damages were sustained without negligence. Winnipeg Electric Co v. Geel Rebuttable presumption of negligence – the onus of disproving negligence remains throughout the proceeding and if there is not enough evidence to prove that the defendant was not negligent, the plaintiff wins the case. Parental Responsibility Act an act to make parents responsible for the wrongful acts intentionally committed by their children. Parents liable for damage unless the parent satisfies the court that they were exercising reasonable supervision of the child at the time and that the activity which caused the loss was not intentional. Court may consider age, prior conduct, potential danger of the activity, physical/mental capacity of the child, psychological factors, supervision etc. in determining whether to hold parents liable. Onus of establishing that the parent exercised reasonable supervision rests with the parent. Shannon v. T.W. (Ont) parents proved that they provided reasonable supervision and so the plaintiff could not recover for damages from the parents for the actions of their kid. Read the statutes carefully to make sure that it applies in the situation and the fact pattern of the case. Common law exception - Directly caused injury trespass to the person trespass = injury to the person, a direct application of force, an intentional tort Dahlberg v. Naydiuk (Man) (defendant had consent to hunt of plaintiff‟s land but when he fired over the plaintiff‟s farm, he shot the plaintiff)  In a negligence action, the onus is on the plaintiff to prove that the defendant was negligent. If a trespass action, the onus is on the defendant to prove that he wasn’t negligent and there was no intention to harm the plaintiff. If the defendant wants to escape liability, he has to prove both the absence of intention and the absence of negligence which means it‟s hard for the defendant to win his case. Onus of proving negligence where trespass is not intentional lies with the plaintiff whether the action is framed in trespass or negligence. If the defendant inflicts injury unintentionally, the plaintiff doesn’t have a Causation Page 40 of 92

Torts Summary cause of action in trespass and the only cause of action is negligence and then only on proof of the breach of standard of care. In situations where there is both trespass and negligence, trespass will be used to frame action if it was intentional. Trespass shifts burden to the defendant and so it is easier for the plaintiff to win the case. If you have more than one type of cause of action and the facts could support either a claim of trespass or negligence, you would plead both for the plaintiff. The court will decide which of the types of causes that you meet and if it succeeds or not. If you can‟t succeed on one, the court may look to the other cause of action but you can‟t double recover. If arguing for the defendant, you would want to avoid having to defend a trespass cause of action because it is hard to beat. In an action for trespass to the person, once the plaintiff establishes a direct application of force, the burden of proof shifts to the defendant, who has to prove both absence of negligence and absence of intention. Common law exception - Multiple negligent defendants Cook v. Lewis (plaintiff shot by one of two defendants who fired in his direction at the same time. Plaintiff can‟t say exactly who was the shooter)  If two people were negligent and you can’t prove which one was the guilty party, it is wrong to say that none of them were. The burden of proof is shifted to the defendants to prove between each other that they weren’t the culpable party. When a person is negligent and injuries another person within the scope of mischief and in conjunction with circumstances which he must have held to contemplate to have made it difficult if not impossible to prove the possible damages resulting from his own act or similar acts of another, he has violated the victim‟s right to security as well as hindered the victim‟s right of establishing liability and destroyed the victim‟s power of proof. (dissent – different way to find the defendant liable  the jury could have found both defendants liable). Res Ipsa Loquitur sometimes the plaintiff must rely on circumstantial evidence to prove that the defendant was negligent. Circumstantial evidence  evidence from which an inference may be drawn to reach a conclusion. Occurrence must be one that would have happened due to carelessness otherwise it would not be possible to draw an inference of carelessness against the defendant. Must not be other direct evidence as to why the event happened otherwise the court could use that rather than the circumstantial evidence. Three approaches of Res Ipsa Loquitur if it is successfully invoked: 1) Historical approach –reversed the burden of proof such that the defendant was required to prove that his carelessness wasn‟t the cause. 2) Conservative approach – didn‟t reverse the burden of proof but the defendant was required to adduce evidence that was sufficient to raise an inference of proper care that was at least as strong as the inference of negligence itself. 3) Most conservative approach – trier of fact entitled, but not required to draw an inference. If an inference is drawn, it may or may not be enough to tip the balance of probabilities in the plaintiff‟s favour. Defendant may avoid liability without even attempting to rebut the inference. Not a separate doctrine. Setting it up as a separate doctrine makes it appear that the plaintiff doesn‟t need a high standard of proof, but the courts say this is not the case. Where there is circumstantial evidence, it will be taken into account along with other direct evidence and it will be up to the judge to determine whether that is enough to meet the burden of proof.

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Torts Summary Fontaine v. British Columbia (Official Administrator) (two men died in a car crash, the estate of the passenger sues the estate of the driver saying that it was his carelessness that caused the car accident but they don‟t have any hard evidence as to the exact cause of the accident)  When res ipsa loquitur applies is when the circumstances of the occurrence permits an inference of negligence attributable to the defendant. Strength or weakness of that inference will depend on the factual circumstances. Plaintiff bears the burden of proving on the balance of probabilities that the negligence on the part of the defendant caused the injury. If the judge chooses to draw an inference of negligence from the circumstances, it will be a factor in the plaintiff‟s favour, whether it‟s enough for the plaintiff to succeed will depend on the strength of the inference drawn and any explanation given by the defendant to negate that inference. Trier of fact will weigh circumstantial evidence along with other evidence to decide if it is enough to meet the burden of proof. If defendant gives a reasonable explanation consistent with no negligence than this will neutralize the inference. If the plaintiff doesn’t have strong and convincing circumstantial evidence which the defendant can not poke holes in the theory, the plaintiff has failed to show on the balance of probabilities that the inference drawn should point to negligence on the defendant’s part because there is enough evidence on the defence to show that it was not a result of his negligence. Novel approaches to the problem of proof Sindell v. Abbott Laboratories (US) (plaintiff was injured before birth after her mother had taken a prescription drug. She is unable to determine which of the 200 manufacturers of the drug was the one her mother took)  Market share liability. Each manufacturer’s liability is approximately equivalent to market share it had. (i.e. if Drug company A produced 15% of the drugs, it would be liable for 15% of the damages). The plaintiff ordinarily would need to prove that the drug caused the injury, but in this case was unable to prove causation and so she would lose even though it was clear that the defendants were negligent. The onus is on the defendant to prove that it was not a cause of the harm in order to escape liability. Court‟s decision based on considerations of the changing needs of society, the defendants were better able to bear the cost of the injury than the innocent victim. Each defendant will be held liable for the proportion of the judgment represented by its share of the market unless it demonstrates that it could not have made the product which caused the plaintiff‟s loss. Each manufacturer‟s liability would approximate it s responsibility for the injuries caused by its own products. (Dissent – wrong for a plaintiff to receive damages from multiple defendants without proof that any of the defendants caused the harm. Wrong to allow plaintiff to go after the deep pockets. Would be better for the judges to stick to the conventional convictions of liability) Sopinka J. in Canada says that market share liability has no place here and should be done in legislation. Tobacco Damages and Health Care Costs Recovery Act Emulates US legislation which allowed some states to sue tobacco companies on the basis of market share liability because it recognized the problem with causation. Legislation passed that is then used to sue the tobacco companies to recoup the money spent on health care. This is a modified market share liability approach done through legislation. Legislation provides that the BC government can sue and legislated away the difficulties in proving causation. Causation Page 42 of 92

Torts Summary Defendant can be held liable for the proportion of damages based on length of time defendant was a seller/manufacturer of tobacco, the market share it had, the degree of toxicity, amount spent on promoting and advertising, degree to which defendant collaborated or acted in concert with other manufacturers etc.

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Torts Summary

REMOTENESS Remoteness  a rule of fairness. Law relieves the defendant of responsibility for an injury that he carelessly caused. Allows judges to limit a defendant‟s responsibility to compensate injured victims. Assumes a duty of care is owed. Remoteness defines the borders of what times of harms will be recoverable under tort. The principle states that certain types of damages emerging from negligent activity may not be recoverable. The essential principle of remoteness is that a given type of harm must be reasonably foreseeable as occurring due to an instance of negligence. However, the extent of the harm need not be foreseeable. This replaced the older principle that the negligent act must simply cause the damage. Even more so than in DoC, the level of generality with which one describes the type of damage suffered will essentially define if there is recovery or not. The more generally a type of harm is articulated, the more foreseeable it is as a consequence of any given type of negligence. Directness Test  old test. Defined in terms of close temporal and spatial connection between the defendant‟s breach and the plaintiff‟s loss. Used to be the test before the current test of reasonable foreseeability. Re Polemis and Furness Plaintiff‟s loss would not be too remote to be recoverable if it was the direct result of the defendant‟s carelessness. Criticized as unworkable, unfair, illogical and pro-plaintiff. Directness test does not relate to the degree of the defendant‟s fault to the extent of his liability. Foreseeability Test Wagon Mound (No. 1); Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co (P.C.) Liability for a consequence has been imposed on the ground that it was reasonably foreseeable or on the ground that it was natural or necessary or probable. Wrong for a man to be held liable for damage unpredictable by a reasonable man because it was direct or natural, it would be wrong that he escapes liability however indirect the damage was if he foresaw or could reasonably foresee the intervening events which led to its being done. It is a principle of civil liability subject to the qualification that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh and to demand less is to ignore the requirement for a minimum standard of behaviour. You ought to be liable where you have done wrong and for the damages that are reasonably foreseeable, but not beyond that. Foreseeability becomes the effective test. The standard of foreseeability is used because if the acts were foreseeable (natural or necessary or probable) then the injurer could have done something to prevent it. Foreseeability becomes the effective test for remoteness, not directness.

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Torts Summary Modification to the foreseeability test – kind of injury Hughes v. Lords Advocate (H.L.) (Paraffin lamp left by an open and unattended manhole – application of Wagon Mound No. 1 and an expansion of the remoteness rule) Defendant is going to be liable for injuries even though the damage may be a good deal greater than the extent that it was foreseeable. The fact that the injuries suffered by the plaintiff, though different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The cause of the accident was a known source of danger, but it behaved in an unpredictable way. Defendant can only escape liability if the damage can be regarded as differing in kind from what was foreseeable. That the accident was caused by a known source of danger but was caused in a way which could not have been foreseen affords no defence. The plaintiff doesn‟t have to establish the foreseeability of the actual course of events, it is enough that the plaintiff establish that some kind of harm that was reasonably foreseeable would result. With respect to the remoteness of damages, one need not foresee the mechanism of the damages. If the accident was foreseeable, with a type of damage that is foreseeable, then the defendant will be liable for those damages even if the extent of the damages or exactly how this damage would occur is other than what would have been foreseen. If there is a foreseeable accident and a type of damage that’s foreseeable, then the defendant is liable even if the extent of the damages or exactly how the damages occurred is greater or different than what was foreseen. Plaintiff would likely try to argue a Hughes approach to establishing liability if there is an issue of remoteness. Defendant liable so long as he caused injuries to the plaintiff which were reasonably foreseeable in kind, even if they were not foreseeable in degree or in exactly how the damage occurred. This case essentially stands for the rule that you only have to foresee the injury, not the specific way that it happens. Impact of Hughes depends on how broadly or narrowly one characterizes the kind of injury that the plaintiff suffered. Jolley v. Sutton London B.C. (H.L.) (eventually took a broad view of Hughes) Court of Appeal took a narrow view of Wagon Mound (No. 1) and Hughes and said that the accident was of a different type and kind from anything which the defendant could have reasonably foreseen. It was reasonably foreseeable that the children might be hurt while playing on the boat, but not reasonably foreseeable that they would be hurt while engaged in the adult activity of trying to repair it. House of Lords reversed the decision and said that the relevant was more broadly and said that in considering the foreseeability of risk to children, it is necessary to bear in mind that play can take the form of mimicking adult behaviour. Doughty v. Turner Mfg. Unsuccessful case, court said the injury that was caused by the chemical reaction was not foreseeable. Court took a narrow view of Hughes. Need to say that the ACCIDENT was reasonably foreseeable and not necessarily that the type of damage was reasonably foreseeable.

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Torts Summary Thin skulled plaintiff / Eggshell personality rule Smith v. Leech Brain & Co. Thin skull plaintiff  (burn on lip caused cancer and he died) Decision in Wagon Mound (No. 1) doesn‟t change the thin skull principle. The question is whether the defendant could reasonably foresee the type of injury which he suffered and what in the particular case is the amount of damage which he suffers as a result of that injury depends on the characteristics and constitution of the victim. Once the type of injury is reasonably foreseeable, then you don’t need to establish that the actual injury is reasonably foreseeable. Once it is established that the type of injury is reasonably foreseeable, the defendant is liable for all the injuries and this is true even if the plaintiff had any pre-existing conditions. Defendant is liable for the injuries caused to the plaintiff if the type of injury could have been reasonably foreseen, regardless of the extent of the injury‟s impact on the plaintiff. Tortfeasor takes his victim as he finds him so the extent of injury need not be foreseeable. Marconato v. Franklin (BC) Egg shell personality  (car accident where plaintiff suffered minor physical injuries but resulted in a major personality change) The consequences that she suffered were unforeseeable, but a tortfeasor should take his victim as he finds him. The plaintiff was predisposed by her personality to suffer the consequences which she did suffer. The defendant must pay for damages for all of the consequences of the negligence. Once some personal injury is recognized as reasonably foreseeable as a result of a certain negligent act, that is sufficient to find the defendant liable, the type and extent of the plaintiff‟s thin skull does not need to be reasonably foreseeable. Thin skull rule distinguished from the crumbling skull rule in that the plaintiff with a thin skull is not doomed from the start. The legal question is whether the defendant should be responsible for carelessly cracking a skull that while weak, might otherwise would have survived. The crumbling skull is not only thin, but doomed to damage. Damages are available in the crumbling skull only to the extent that the defendant worsened the plaintiff‟s condition. Possibility of Injury Wagon Mound (No. 2); Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (H.L.) Not justifiable that no matter what the circumstances may be, it is justifiable to neglect a risk of a small magnitude. A person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. If a real risk can properly be described as remote, it must then be held to be not reasonably foreseeable. If a real risk is one which would occur to the mind of the reasonable man in the position of the defendant and which he would not brush aside as far-fetched and if the criterion is to be what that reasonable man would have done in the circumstances, then he is surely not to neglect such a risk if action to eliminate it presented no difficulty. Reconcile with Bolton v. Stone – when a risk is too small as to be virtually impossible to happen, a reasonable person might have been justified in disregarding it and taking no steps to eliminate the risk. Damages can only be recovered if the injury complained of was not only caused by the alleged negligence but was also an injury of a class or Remoteness Page 46 of 92

Torts Summary character foreseeable as a possible result of it. There does not have to be foreseeability of probable risk, only possible risk. A reasonable person would take steps to eliminate the risk of injury if there is a real risk, meaning that it is not far fetched, so long as the cost of prevention is not high. Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co. (boy runs his snow mobile into a gas riser pipe which lets gas escape into a boiler room and causes an explosion in the school – Application of Wagon Mound and Hughes in Canada) Enough to find liability if one could foresee in a general way the consequence. The extent of damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable. Foresight is the test for both duty and remoteness. Extent of the damage and its manner of incidence need not be foreseeable if physical damages of the kind that ensues is foreseeable. Extent and manner of its incidence doesn’t have to be foreseeable as long as physical damage of its kind is foreseeable. Applying the but-for test, the plaintiff wouldn‟t have suffered the loss but for the boy‟s fault. He can‟t escape liability for the consequences of that fault merely because other causal factors for which he is not responsible also contributed to the damage which resulted. He was a cause, but not the sole cause of the harm. The gas company ought to have reasonably foreseen damage, but the risk of damage should be weighed against the cost and difficulty of precautions which could have been taken. The gas company failed to exercise reasonable care where there was a duty. A broad approach to question of remoteness of damages and the ambit of foreseeability. Extent of the damage and its manner of incidence need not be foreseeable if the physical damage of the kind that is ensued is foreseeable. Enough to fix liability if one could foresee in a general way the sort of thing that happened. The extent of the damage and its manner of incidence need not be foreseeable if the kind of physical damage that ensues is foreseeable. Intervening causes Intervening act  One that causes or contributes to the plaintiff‟s loss after the original defendant‟s breach or negligence. Second act broke the chain of causation so the first defendant wouldn‟t be responsible for any additional injury after the second negligent act. Sometimes the conduct of a third party intervenes between the defendant‟s conduct and the plaintiff‟s injuries. Novus Actus interveniens  New intervening act. Last wrong doer was held solely responsible for the plaintiff‟s loss even if his conduct was a relatively minor cause of the injury. Works to limit the defendant‟s liability. Three categories of intervening acts based on nature and moral blameworthiness 1. Intervening acts that were naturally occurring or non-culpable. Does not break the chain of causation. 2. Negligent intervening acts. Breaks the chain of causation, original tortfeasor not liable. 3. Deliberate wrongful or illegal acts. Breaks the chain of causation unless original tortfeasor had a duty to prevent the act. Principle now applied is whether or not the later occurrence is within the scope of the risk that was created by the first tortious conduct.

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Torts Summary Common law does not hold somebody responsible for the acts of another person. This applies to limit the liability that flows from the defendant‟s negligent act. Bradford v. Kanellos (grease fire in a restaurant where somebody heard the hissing sound of the fire extinguisher and yelled out „explosion!‟) The second negligent act (yelling out “explosion”) was held to have broken the chain of causation so that the defendant is not responsible for the unforeseen consequence. Will be liable if the consequence can fairly be regarded as within the risk created by the defendant’s negligence. Plaintiff‟s injuries were not fairly to be regarded within the risk caused by the defendant‟s negligence to safeguard against patrons who would yell out something incorrectly. If the intervening act was not reasonable on the part of the actor and therefore could not reasonably have been anticipated by the original tortfeasor, it is not within the scope of the risk created by the original negligent act, and so the original tortfeasor is not liable. (Dissent – felt the defendant should have reasonably anticipated that the subsequent intervening negligence would have occurred. Said the person who yelled out “explosion” acted humanly and this was a foreseeable pert of the natural consequences of the events that led to the plaintiff‟s injuries.) Price v. Millawski (Ont) (plaintiff injured his ankle but first doctor only x-rayed his foot. Second doctor relied on the xray and misdiagnosed his injury) Where there are negligent acts by two persons in succession, the person doing the negligent act may be held liable for future damages arising in part from the subsequent negligent act of another and in part from his own negligence where such subsequent negligence and consequent damage were reasonably foreseeable as a possible result of his own negligence. A person committing a negligent act may be held liable for future damages arising in part from the subsequent negligent act of another and in part from his own negligence, where such subsequent negligence and consequent damage were reasonably foreseeable as a possible result of his own negligence. Block v. Martin (Alta) Defendant held liable for injuries that the plaintiff sustains while recovering. Original injury was a contributing cause of the second injury and the plaintiff‟s conduct was not a novus actus interveniens. The defendant was liable for the entire loss. Janiak v. Ippolito; Bourgoin v. Leamington Should original tortfeasor be held liable for additional losses a plaintiff suffers as a result of failing to undergo a needed operation? Janiak and Bourgoin distinguished. Court held in Bourgoin that the plaintiff need not be subjected to a major invasive surgery to reduce damages from the pain cause.

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Torts Summary

DEFENCES IN NEGLIGENCE Even if plaintiff proves that he was negligently injured by the defendant, damages may be reduced or denied on the basis of a valid defence. Defences pertaining to the plaintiff’s own behaviour: 1. Contributory negligence 2. Voluntary assumption of risk 3. Participation in criminal or immoral act Contributory negligence  Plaintiff traditionally denied recovery if his negligent conduct contributed to the injury. There was no apportionment of loss between the defendant and the plaintiff even if the plaintiff‟s contribution was minor. To avoid this inequity, the court developed the last clear chance or last opportunity rule  permits plaintiff to recover even if he was contributory negligent or had the last clear chance to avoid the accident but didn‟t take it.  By allowing the dividing of liability according to the parties‟ relative degree of fault, the legislation in the late 20th century tempered the harshness of the all or nothing approach.  Contributory negligence includes plaintiffs who: carelessly enter into a dangerous situation; contribute to the creation of an accident; contribute not to the creation of an accident, but the resulting harm of the accident.  Reduces the amount of the award and does not act as a complete bar to recovery.  Standard of care imposed in contributory negligence is affected by age, disabilities and professional training of the plaintiff. Walls v. Mussens Ltd. (N.B.) (fire at a gas station where the plaintiff‟s employee kicked snow on it instead of using a fire extinguisher) Failure to use the extinguisher did not constitute contributory negligence even though the use may have minimized the loss. The negligence of the defendant was the sole cause of the damage. The situation was created by the defendant, even though the plaintiff didn‟t have the presence of mind in the emergency to use the fire extinguisher, the plaintiff is entitled to invoke the agony of the moment rule in the situation which says that a person‟s conduct in the face of a sudden emergency cannot be judged from the standpoint of what would have been reasonable behaviour in hindsight and a calmer atmosphere conducive to the evaluation of alternatives. Test to be applied in emergency situations is not whether the plaintiff exercised careful and prudent judgment in doing what he did but whether what he did was something an ordinary prudent man might reasonably have done under the stress of the situation. Can‟t hold somebody in an emergency situation that is not the result of their own negligence to the same standard of care as you would somebody who is not in the emergency situation. Heeney v. Best (Ont) (plaintiff‟s chickens dies when defendant negligently cut off the power supply) Plaintiff found contributorily negligent for not failing to take reasonable care of his own property. Case raises

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Torts Summary the issue of precautions that an individual must take to protect against the tortious or illegal conduct of others. Gagnon v. Beaulieu (B.C.) (plaintiff injured in a car accident where she didn‟t wear the full seatbelt, injuries arose because of the failure to wear the seatbelt) If the plaintiff knew or ought to have known that wearing a seat belt would reduce the possibility of being injured in a collision and at the time of the accident was not wearing a seatbelt, and if his injuries would have been less severe if he had been wearing the seatbelt then the plaintiff was negligent and that negligence contributed to the nature and extent of the injuries. Onus is on the defendant to satisfy the court that not only was the seatbelt no worn, but injuries would have been or lessened if the seatbelt had been worn. Does not matter if the plaintiff believes in the effectiveness of the seatbelt. Negligence Act (1990) (Ont)  Divides responsibility among the defendant and can include the plaintiff if the plaintiff had been contributorily negligent.  Degree of fault as between the parties is for the jury to decide.  Permits the court to divide responsibility for damages between parties according to their relative degrees of fault.  Where damages have been caused or contributed to by the fault or negligence of two or more persons, the court shall determine the degree to which each of the persons is at fault and where there are two or more persons at fault, they are jointly and severally liable.  If plaintiff is guilty of contributory negligence, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.  Some ambiguity as to whether it applies to all torts or just negligence – the Ontario decisions takes the position that it would apply to intentional torts as well. Mortimer v. Cameron (Ont) (Plaintiff and friend were horsing around and both fell down and hit a will with minimum force which then gave way and plunged the two down 10 feet below) Neither Cameron nor Mortimer‟s contributory negligence entailed a reasonable or foreseeable likelihood of the risk or hazard that actually occurred. The risk they exposed themselves to was the risk of being injured by falling down the stairs, but the risk that materialized was of a different nature. They had no reason to think that the wall would give way, the risk of falling to the ground was beyond the reasonable contemplation and it was not within the scope of the risk created by their horseplay. Even if the plaintiff contributed to the negligence, if the incident that occurs was something that was beyond the reasonable contemplation or beyond the scope of the risk of the negligence of the victim, the defendant is still liable and there is no limit to the recovery of the plaintiff. Chamberland v. Fleming (Alta) Court suggested a rough upper limit of 25% for contributory negligence if the plaintiff‟s negligence did not cause the incidence but merely affected the extent of the loss. Snushall v. Fulsang (Ont) (plaintiff failed to wear her shoulder belt) The appropriate deduction for contributory negligence should not exceed 25%. The plaintiff is injured by the defendant’s negligence and there Defences in negligence Page 50 of 92

Torts Summary would have been an accident regardless of whether the plaintiff wore her seatbelt or not. Wearing a seatbelt helps prevent worse consequences. Plaintiff‟s contributory negligence is the failure to take reasonably prudent steps to protect herself from injuries that might result from another‟s negligence. Not wearing a seatbelt is not a tort but a failure to protect oneself from the tort of others. Both the defendant‟s negligence and the plaintiff‟s contributory negligence has a different nature to the relationship of the injury. The defendant‟s negligence caused the injury while the plaintiff‟s failure to wear the seatbelt prevented her from having less serious injuries. The degree of the defendant‟s negligence in causing an accident bears no relationship to how much of the damage might have been prevented had the plaintiff worn a seatbelt. There is a distinction between causation and blameworthiness and apportionment must be made on the basis of the degree to which each person was at fault. The apportionment must not be on the basis of the degree to which each person‟s fault caused the damage. Assessing degrees of fault and not degrees of causation. Negligence of the defendant is the primary cause of the accident and injuries suffered by the plaintiff and the defendant should bear the greater share of responsibility. Sometimes, the failure to wear a seatbelt made no difference, the damage would have been the same, therefore, the damages should not be reduced. In cases where the failure to wear a seatbelt did make a difference or would have prevented the injuries all together, the damages should be reduced by a maximum of 25% (i.e. 25% for when the failure to wear a seatbelt made all the difference). Voluntary assumption of risk  A complete bar to recovery for the plaintiff. Canadian courts reluctant to apply the defence of voluntary assumption of risk.  Volenti non fit injuria – to one who is willing, no harm is done.  Defence of volenti is inapplicable in drunk driving cases.  A plaintiff may voluntarily assume the risk if he encouraged the defendant to be careless. If an individual consents to assume the risk of another party‟s negligence, then they may not later go back and sue for negligence. You are able to waive your rights to sue for negligence, but there are two requirements: 1. P must have knowledge of the risks associated with an activity 2. P must actually accept a transfer of liability for the risk from the negligent party to themselves. This shows that there is a clear difference between knowledge and acceptance. A sign that simply says “We take no liability for injuries suffered on our premises” is not valid unless persons entering the property actually agree to take on the liability. The warning of danger must be specific – it must warn about particular risks, not risky-ness in general. Dube v. Labar (both defendant and plaintiff were drunk, the plaintiff got out of the car and the defendant shifted over to the driver seat. There was a car accident and the defendant is claiming a defence of volenti and contributory negligence) Plaintiff voluntarily assumed the risk of getting in the car and remaining in the passenger seat. Volenti is a defence in cases of negligence on highways. To constitute a defence, there must have been an express or implied bargain between the parties whereby the plaintiff gave up his right of action for negligence. Volenti only arises Defences in negligence Page 51 of 92

Torts Summary in circumstances where it is clear that the plaintiff’s knowing of 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. Acceptance of risk may be express or may arise by necessary implication from the conduct of the parties, but will arise where there is an understanding on the part of both parties that the defendant assumes no responsibility to take due care for the safety of the plaintiff and the plaintiff did not expect him to. Defence of voluntary assumption of risk will only apply when the defendant has proven that the plaintiff expressly or by necessary implication, consented to exempt the defendant from liability of any damage suffered by the plaintiff as a result of the defendant‟s negligence. Not enough that the plaintiff knew of the risk of injury, the plaintiff must have consented to the risk of getting injured without compensation. The court set out a rule that there must be some active communication whereby P absolves D for liability for negligence. It is not enough for P to be aware of a risk and undertake the activity. In this case, while it did not appear that this test was met, the SCC did not overturn the conclusion of the jury that such a communication had taken place. It is not enough to simply be warned about a risk, and then do the risky activity. There must be consent to take on the legal liability for the risks, not just consent to the activity itself. Further, there is no assumption of legal liability that can be inferred from action alone. There must be something more explicit, approaching contract (does this even make sense? It is not a reflection of how human interactions actually work) Participation in criminal or immoral acts  Ex turpi causa non oritur actio  precludes recovery altogether The principle of illegality has changed over time, and is now a rather narrow defense. It can only apply to accidents that occur in the active commission of a crime, not in those activities that surround it. Further, it can only be applied to certain types of injuries; one could never get lost profits from an illegal act, but potentially could get cost of care. The SCC has essentially taken illegality and placed it into the policy branch of the Anns test. This makes it very flexible for when it is applied, but not very flexible for particular damages. In the leading case, McLachlin for the dissent argued that this should still be considered a proper defense – this would mean that it would exclude certain heads of damage, but not others. Hall v. Hebert (drunk driving case where the plaintiff was injured and sued the defendant owner of the car for allowing him to drive in his intoxicated state) Defendant tried to raise a defence of illegality on the plaintiff‟s part to negate the plaintiff‟s cause of action. Better to treat immorality as a reason why a cause of action, which might otherwise be fully made out should not succeed. Treat it like a defence rather than a notion that is at the heart of the relationship between plaintiff and defendant. Onus on the defendant to prove that the plaintiff was engaging in an illegal act. Morality doctrine is limited to when a given plaintiff seeks to profit from his illegal conduct or where the claimed compensation would amount to an evasion of criminal sanction. Should continue to treat illegality as a defence and it is up to the defendant who bears the onus of proving it and it allows the court to distinguish among heads of damage. Defence of ex turpi applies in tort only where it will be necessary to maintain the internal consistency of the law. Defences in negligence Page 52 of 92

Torts Summary Most commonly, this will apply where a given plaintiff genuinely seeks to profit from his illegal conduct or where the claimed compensation would amount to an evasion of a criminal sanction. John Bead Corp v. Soni (Ont) (Plaintiff claimed defendant stole money from his company. The defendant claimed the defence of ex turpi causa on the basis that the plaintiff also stole money from the company) Court said that the defence does not apply merely because the plaintiff was engaging in an illegal activity that was unrelated to the facts underlying the plaintiff’s claim. Two examples of when damages will be refused in order to prevent the plaintiff from profiting from his own wrongdoing 1) where one wrongdoer claims in tort against another for financial loss arising from an illegal activity; 2) where the plaintiff claims as a dead of damage suffered in a personal injury claim, loss of earnings from an illegal activity. Beljanski (Guardian ad litem of) v. Smithwick (BC) Dependent children of career criminal brought a claim when their father was negligently killed. The court relied on ex turpi causa in refusing to base any part of the award on any illegal income the deceased would have made through criminal activity.

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ASSESSMENT OF DAMAGES The general principle of compensation for a tort is that the liable party must, as far as money can do so, place the injured party back into the position they were in prior to the negligent act. Damages divided into three categories: 1. Nominal – awarded to vindicate the plaintiff‟s rights in situations where he suffered no injuries. Plaintiff must establish loss or injury as one of the elements of the negligence claim, therefore, it is not available in negligence claims. 2. Compensatory – rare. Purpose is to put the plaintiff in the position that he would have been in but for the tort. Difficult to apply. 3. Punitive – Can be awarded in negligence cases where the defendant has acted with an arrogant, high-handed or blatant disregard for the plaintiff‟s safety or interest. Reluctant to award punitive damages because negligence often an accident. a. Robitaille v. Vancouver Hockey Club – rare award of punitive damages in a negligence claim. Defendant‟s conduct was high-handed, arrogant and displayed a reckless disregard for the plaintiff‟s rights. b. Kraft (Next friend of) v. Oshawa General Hospital – Punitive damages not awarded even though the defendant carelessly injured the plaintiff. The defendant was doing a crossword puzzle instead of attending to the plaintiff. This is an indication of how high a bar is required to get punitive damages. c. Aggravated damages – not intended as punishment but are designed to compensate for intangible injuries like humiliation or distress. Burden of proof  Plaintiff has the burden of proving that he suffered a loss recognized as recoverable in tort law and proving the quantum of damages claimed on the balance of probabilities. Regular grief and sorrow not enough in and of itself.  Standard of proof: o Balance of probabilities test – if plaintiff can establish that future loss would occur, can recover the entire amount. If not, claim is denied. Pre-trial o Reasonable or substantial possibility test – (recent line of thought) once plaintiff establishes that there is a substantial or reasonable possibility of injury, he is entitled to recover for this loss subject to the likelihood of it occurring, i.e. 35% chance = 35% recovery. Calculate damages by taking into account the probabilities of the damages occurring and recognizing that the plaintiff has already proved that it is more probable than not that the defendant caused the loss. Post-trial  Defendant has burden of proving that plaintiff failed to act reasonably in mitigating his loss. Mitigation of damages  Plaintiff must take all reasonable steps to avoid or minimize loss  Plaintiff may recover for losses incurred in taking such reasonable steps

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Torts Summary   Plaintiff cannot recover for losses that have been successfully avoided, even if he was not required to avoid them. Defendant trying to say that the damages should be reduced.

Set off  Take into account amounts that would have been spent anyway.  Attempt by defendant to avoid having included in the damages parallel expenditures, i.e. food, clothing, shelter. Lump Sum payment  Damages awarded on one occasion. Parties only have 1 shot at convincing the courts what the damages will be.  Not taxable, but the interest earned on the payment is taxable. Framework for quantifying general damages:  Pecuniary loss o Future Loss o Lost Earning Capacity o Considerations relevant to both heads of pecuniary loss  Non-pecuniary loss Andrews v. Grand & Toy Alberta Ltd. (establishes the quantification for recovery of damages in a personal injury case – part of the Trilogy of cases) Money is in short supply for the victim. Basis of calculation is made on actuarial evidence but that evidence depends on the soundness of the premises or assumptions that are fed into the calculation. Pecuniary Loss  Cost of future care – amount which may reasonably be expected to put the plaintiff in the position he would have been had there been no injury. Money is a barren substitute for health and personal happiness. Award must be moderate and fair to both parties. Seeking compensation, not retribution. o What the plaintiff will need for future medical care Special Equipment – one time payment for special medical equipment needed Monthly Payments – payments for ongoing care costs. Based on projected life expectancy taking into account the injuries, and the reasonable level of care based upon the needs of the plaintiff  Deduction for Contingencies – the premise is that, even uninjured, her would need some medical care for other problems, so the damages can not double compensate him for these  Inflation/interest adjustment – calculate the amount that you would need to give as a lump sum today that, if properly invested, would yield the amount calculated above over the course of the person‟s projected life. (higher return, lower award. Higher inflation, higher reward)  Lost earning capacity – Not a loss of earnings award, but a loss of earning capacity. Need to take into account the level of earnings that he was making before the accident Assessment of damages Page 55 of 92

Torts Summary and the length of working life. There is a general practice to take into account contingencies which might affect future earnings such as unemployment, illness etc. o What the plaintiff would have made over the course of his life had he not been inured. Time frame – normal life expectancy Pay per month – average pay projected as if her were to continue on his current employment path  The monthly pay is discounted for downside contingencies like periods of unemployment or illness dropping the average  Further discount for duplication of things like shelter, already done under future cost of care  Further modified based on investing the lump sum  Considerations – Capitalization rate – the allowance for inflation and the rate of return on investments and the allowance for tax. Use the present rate of return on long-term investment and make some allowance for the effects of future inflation. For taxes, no deduction for tax which might have been attracted had it been earned over the working life of the plaintiff. No consideration should be taken of the amount by which the income from the award will be reduced by payment of taxes on interest, dividends or capital gains.  Duplication of compensation for loss of future earnings – plaintiff cannot recover for the expense of providing for basic necessities such as food, clothing and shelter. Give the plaintiff an award for future care which makes no deduction for the basic necessity of life then deduct that amount when computing the award for loss of prospective earnings. Non-Pecuniary loss  Calculation of losses where it is not easy to attach a dollar value to.  No objective yardstick for translating non-pecuniary losses such as pain and suffering and loss of amenities into monetary terms. There is no market for expectation on life.  Award must be fair and reasonable and fairness is gauged by earlier decisions. An upper limit of ~$300,000 for non-pecuniary loss. If the loss is severe (i.e. as severe as what Andrews suffered, then the plaintiff should get the maximum amount, otherwise, it is something lower than that.)  No money can provide true restitution.  The compensation for harms that are less easily quantified Compensation for pain and suffering Punative damages – almost never awarded in Canada Loss of life expectancy Loss of enjoyment of life – the premise being giving you money to give you alternate pleasure that makes up for the lost pleasures due to tort, and is generally caped at about 300k. Criticisms  We only look at downside contingencies, but not up side ones will pushs towards undercompensation.  Dogmatic aversion to double compensation. Why more concern with D overpaying than with P?

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Torts Summary   How can you predict the long-term movements of the market when working out lump sums? When making predictions about lost earnings, how do we deal with young children?

Jamie Cassels – Remedies: the Law of Damages  Estimating lost earnings capacity may be difficult for those who do not have an established earnings records.  Children o Danger that biases and stereotypes will affect the award. Judges probably rely on certain unstated assumptions about the gender and the assumption that girls will marry and this reduces her earning capacity. o Experts could try to approximate the child‟s earning capacity based on the likely educational level the child attained but for the accident and present earning statistics for persons of that level of education. o Take into account the earnings and education of parents. o Controversial whether statistical data should be used which reflect racial and socio-economic stereotypes.  Gendered and racialized statistics o Female plaintiffs often receive less compensation than males. Gender is a major factor in the compensation figure for women because there is a societal wage gap between the earnings of women and men. Standard practice now when using female statistics to adjust the wage gap upward to take into account the trend towards wage parity. o Visible minority women are double-disadvantaged. o Practice of relying on gendered and racialized statistics which result in „accurate‟ predictions raises the issue of whether the law of damages should seek to replicate with precision the results that would have been achieved in an unfair society. o Reliance of statistics reproduces and replicates social injustice, but should it be up to the defendant to fix this by awarding the plaintiff a more generous amount since the defendant didn‟t cause the societal injustice?  Marriage contingency o Deductions made on women‟s awards because it is assumed that women will marry, which will lower her earnings capacity. o Marriage is treated as a positive contingency for men and this increases a man‟s award. Courts of Justice Act  Periodic payments in medical malpractice actions – where the court determines that the award for future care costs exceeds $250,000, the defendant who is liable to pay the plaintiff‟s future care costs may do so by periodic payments.  Agree on the amount of damages and where the amount is high, they may turn into a structured settlement so that it comes out over a period of time.

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Torts Summary Survival of actions and dependants‟ claims  Legislation which allows a person‟s estate to maintain legal actions that the deceased could have brought. Also allows actions to be brought against the deceased‟s estate if the deceased could have been named as a defendant.  Claims by estates for loss of deceased‟s earning capacity.  Excludes causes of action such as defamation, malicious prosecution or false imprisonment.  Excludes non-pecuniary and punitive damages.  Damages for death or loss of the expectation of life are excluded only if death results from tortiously caused injuries. Such damages are recoverable by the injured person‟s estate where the person‟s death is caused independently of the injuries brought on by the conduct of the defendant.  Quantification of non-pecuniary loss  courts tend to utilize a modified version of the personal approach, focusing mainly on the deceased‟s age. Functional analysis of damage awards for non-pecuniary has a moderating effect on the quantum of awards since it is recognized that the sum awarded cannot benefit the victim.  Survival of Actions Act (2000) (Alta.) o Cause of action vested in a person who dies survives for the benefit of the person‟s estate. Cause of action existing against a person survives against the person‟s estate also. o Only damages that resulted in actual financial loss are recoverable. o Not recoverable: punitive or exemplary damages; damages to loss of expectation of life; pain and suffering; damages in relation to future earning. o If death of a person was caused by an act or omission that gives rise to a cause of action, damages shall be calculated without reference to a loss or gain to the person‟s estate as a result of the person‟s death, but reasonable expenses may be included in the damages amount if they were incurred by the estate.  Trustee Act (1990) (Ont.) o Except in cases of libel and slander, administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would have been entitled to. o When recovered, damages will form part of the deceased‟s estate, but if death results from such injuries, no damages allowed for the death or for the loss of expectation of life. o If a deceased person committed or is liable for a wrong to another, the person wronged may maintain an action against the executor of the person who committed the wrong. No action shall be brought after a two-year expiration period. o Claim for loss of earning capacity survives to the estate of the deceased victim, however, it fits uneasily with the statutory rights of family members to claim in respect of their pecuniary losses consequent upon the death of a tort victim and gives rise to the possibility of the defendant paying twice.

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Torts Summary Fatal Accidents Legislation:  Designed to compensate the deceased‟s dependants for the losses they suffer as a result of the death.  Purpose is to put the dependants in the position they would have been in had the victim not been wrongfully killed.  Derivative Action  Dependant‟s ability to sue depends on the deceased‟s ability to sue, if the deceased had a good cause of action, then the dependant would also.  Fatal Injuries Act (1989) (N.S.) o Puts the deceased‟s dependants in the position that they would have been in if the deceased hadn‟t been wrongly killed. o Liability – where death of a person was caused by a wrongful act or negligence of another person, if death had not ensued and the deceased was entitled to maintain an action and recover damages, the person who was responsible shall be liable in the action of damages. o Damages  Pecuniary and non-pecuniary damages includes: out of pocket expenses; allowance for travel; nursing etc. o Plaintiff has the burden of proof.  Family Law Act (1990) (Ont) o Provides broader recovery – broader range of dependants can claim. o Dependant‟s claim for damages if a person is injured or killed by the fault of another – family members are entitled to recover the pecuniary loss resulting from the injury or death from the person who injured or killed the victim. o Damages  actual expenses reasonably incurred for the benefit of the person injured or killed; funeral expenses; travel expenses; an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. Death of the family provider Keizer v. Hanna (death of a family provider) Quantum of damages is the main issue. The goal is to put the dependants in the position that they would have been in had the deceased not been negligently killed. Start with projected earnings which is then reduced by an amount on income taxes and what he would have spent on himself. Contingencies are taken into account in determining the total amount of awards. Best way to calculate is to do the cost of future care. A fair and adequate sum of award for damages is one that takes into account of contingencies but also one that would allow the plaintiff to reasonably expect to live if there was no loss of the primary earner. Death of the dependent family member  Provide damages for pecuniary losses, not compensation for grief or sorrow.  Amounts awarded are small. No expectation that the child would have supported the parents.  Actions usually brought under fatal accidents legislation.

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Torts Summary  When a young child dies, it is difficult to accurately assess the pecuniary loss suffered by the parent. Court must speculate on how the child would have fared economically in life and how the parent would have benefited from the child‟s economic fortune.

Collateral Benefits  Accident victims are frequently entitled to benefits other than from the tortfeasor – i.e. health care insurance, employment insurance etc.  In the absence of statutory or contractual provision, certain types of collateral benefits are not deducted from the plaintiff‟s damages, i.e. private insurance, pension benefits, employment insurance are not taken into account in reducing a defendant‟s liability. Public welfare payments used to be taken into account.  If plaintiff is required to miss work as a result of injuries sustained through the defendant‟s negligence, the lost income is compensable. Ratych v. Bloomer (Police officer who continued to receive payment from his employer while recuperating) Held that the defendant was able to deduct those payments from the damages that were payable because plaintiff failed to prove that he had paid for the disability benefits that he received from his employer. Cunningham v. Wheeler (railway employee who continued to receive payment from his employer while recovering) Held that the defendant was not able to deduct those payments from the damages that were payable. Distinguished from Ratych because the plaintiff proved that while he did not pay for the disability benefits, he purchased those rights through his union membership during labour negotiations. It was unjust to deprive the employee of benefits which they purchased themselves. If the plaintiff can prove that he paid for the extra benefits, then he is entitled to keep them and the defendant is still responsible for the amount of damages. Doctrine of subrogation  substitution of one claim for another. Effect is that a party who has provided an indemnity payment to another is entitled to recover any excess compensation received by the other party for the same loss.

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Torts Summary

INTENTIONAL TORTS Intentional torts  Protects an individual‟s physical integrity, i.e. battery, assault and false imprisonment.  Defendant will be held liable for an intentional tort if the conduct is both voluntary and intentional  Volition  was the defendant‟s act voluntary? Requisite element is if the defendant exercised control over his physical actions. Voluntary if his act is directed by his conscious mind. An individual has control over his physical actions. He is directed by his conscious mind.  Intent  actor‟s desire to bring about the results or consequences of his act, rather than the desire to do the physical act itself. Intent need not be hostile or blameworthy. Fact that the defendant had intent does not mean that he will be held liable. Relevant question is whether the defendant wanted to bring about the specific consequence that brought about the action. o Imputed (constructive) intent  includes desired consequences of the act and those unintended consequences that are certain or substantially certain to result from it, even if they are unintended or unwanted. If the consequences or certain to result, then the plaintiff can still call the action intent. Will be imputed if the consequence was certain or substantially certain to result. o Transferred intent  when a defendant intends to commit an intentional tort against one party, but unintentionally commits and intentional tort against the plaintiff. Wrongful intent regarding the first tort is transferred to the second tort to permit recovery.  Motive  actor‟s desire to bring about a particular consequence, not motive or reason for wanting that result to occur. Plaintiff must prove that the defendant‟s conduct was intentional but does not have to establish that the defendant had a blameworthy motive. May aggravate or reduce damages claimed, but doesn‟t matter in terms of liability.  Mistake  defendant intends the consequence of their actions but they have a different factual or legal significance than contemplated. Not relevant in establishing the element sin a cause of action.  Accident  refers to a situation in which the defendant unintentionally and without negligence injured the plaintiff. A defendant cannot be held liable in intentional torts or negligence for injuries caused by accident. Absence of intent that distinguishes accident from mistake.  What matters with intentional torts is that the defendant wanted to bring about a consequence. Doesn‟t matter why the defendant wanted it to occur.  Liability for children and the mentally disabled – there is the same volition but in terms of liability, it is whether the particular defendant is capable of understanding his actions and consequences. Parents and guardians are not vicariously liable for the actions of the children under the Parental Responsibility Act.

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Torts Summary Battery Bettle v. Yim (Ont) (defendant shook a kid and then accidentally hit the kid‟s nose with his head. Defendant said he didn‟t intend to hit him) Once plaintiff proves that he was injured by the direct act of the defendant, the defendant is entitled to judgment only if he satisfies the onus of establishing both intention and negligence n his part. Most common form of trespass to the person is the tort of battery which is committed by intentionally bringing about a harmful or offensive contact with the other person. Interests protected in Battery: 1) porters from personal harm; 2) protection for one‟s bodily integrity and human dignity. Battery is an intentional wrong: offensive contact must have been intended or known to be substantially certain to result. Foreseeability ought not to be imported into intentional torts. 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. If physical contact was intended, the fact that its magnitude exceed all reasonable or intended expectations should make no difference. Although battery does require intention, it is not necessary that the actor intended to inflict harm. Plaintiff may recover even if he has not suffered physical harm or injury because battery is against another‟s bodily integrity. Defendant must have intent to bring about a physical contact, he need no intend that contact to be harmful or socially offensive (Wilson v. Pringle). A plaintiff may recover in battery even if he suffered no physical harm or injury (Cutler v. Smith). A plaintiff need not be aware of the physical contact at the time in order to recover in battery. Battery can only be committed when the defendant undertakes a positive act which causes a physical contact, i.e. blocking another‟s path is not a battery (Innes v. Wylie). Defendant‟s conduct could give rise to criminal charge of assault and a civil action in battery (Simpson v. Geswein). There is an increase in the number of civil claims brought by the victims of childhood sexual abuse, many of the cases which occurred long before the limitation period set by statute has expired. Courts increasingly willing to postpone the running of the limitation period until the plaintiff becomes aware of the wrongful conduct and the harms that it has caused and is psychologically capable of dealing with it. Norberg v. Wynrib (Plaintiff was addicted to pain killers and obtained the drugs from a doctor who made suggestions in a sexual nature. Plaintiff consented to sexual acts to obtain the drugs) Defence of consent was not available. Sexual assault falls under the tort of battery which is the intentional infliction of unlawful force on another person. Consent, implied or express is a defence to battery. Failure to resist or protest is an indication of consent if a reasonable person who is aware of the consequences and capable of protest would voice his objections. Consent must be genuine and must not be obtained by force or threat and may be vitiated by fraud or deceit as to the nature of the defendant‟s conduct. Consent will be considered legally ineffective if it can be shown that there was a disparity in the relative position of the parties that the weaker party was not in a position to choose freely. When there is a situation where the defendant has the ability to dominate the plaintiff in a power dependency relationship, consent to a sexual relationship on the part of the weaker party is suspect. Where there is inequality in the relationship, there is proof of exploitation on the basis of the unequal relationship. Defence of consent is predicated on the Intentional torts Page 62 of 92

Torts Summary assumption of individual autonomy and free will. Beyond the standard factors such as force and fraud, free will could be affected by power dependant relationships. If a defendant can prove the existence of a power dependant relationship and prove that the defendant has exploited the relationship, the court will refuse to recognize a defence of consent. Cannot accept consent on face value, you need to look to the reality of the consent and consent can be vitiated where there is exploitation in light of a power-dependency relationship. There will be no legally effective consent to a sexual assault when both of the following conditions are satisfied: 1) proof of inequality between the parties, which ordinarily occur within the context of special power dependency relationships, where one party has the ability to dominate and influence the other; 2) proof of exploitation, if the type of sexual relationship at issue is one that is sufficiently divergent from community standards of conduct, this may alert the court to the possibility of exploitation. Non-Marine Underwriters, Lloyd’s of London v. Scalera Court ruled that plaintiff had no obligation to establish that she did not consent, rather the burden was on the defendant to assert and prove consent. This principle should apply to battery cases as well because it is reasonable to assume a lack of consent in most cases. Plaintiff in an action for trespass to the person succeeds if she can prove direct interference with her person. Interference is direct if it is immediate consequence of force set in motion by an act of the defendant. The burden shifts to the defendant to allege and prove his defence. Offensive or harmful contact  broadly understood as everything outside of the trivial contact that simply occurs in everyday normal life. A low hurdle for plaintiffs to prove. Feldthusen – Canadian Experiment with the Civil Action for Sexual Battery  Survivors of sexual abuse increasingly turn to civil courts for relief instead of or in addition to criminal prosecution.  Most common action is battery. Civil battery requires proof only that the defendant made intentional physical contact with the plaintiff.  Not yet recognized a new nominate tort of sexual battery although some courts speak loosely of sexual battery as a unique cause of action. Sexual aspects of the claim relevant only to damages.  Battery is actionable, without proof of damage. If the plaintiff was unable to prove that she suffered any compensatory loss, she is entitled to punitive damages.  Sexual battery tends to be prolonged and patterned. Makes sense to distinguish discrete from continuing harm than to distinguish battery actions depending on whether they were sexual or non-sexual.  Greatest difficulty with using standard battery analysis for sexual abuse rests with consent. Even though mistake as to whether or not the plaintiff consented is taken as irrelevant in the analysis, the plaintiff‟s consent to the nature of the act will excuse the tort, even if the plaintiff was ignorant of or deceived about matters.  Express consent and implied consent are defences, but it is up to the defendant to prove.  Limitation periods a reason why there aren‟t more civil suits even though the period does not begin until the survivor reaches the age of majority, man are still not able to consider litigation until years afterwards.

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Torts Summary  Compensatory damages have been inordinately low and reflects the fact that no money would satisfy the judgment at the end of the day. Also low because of the systemic, unconscious discrimination against women and children which resulted in the low compensation. All damages are covered, not limited to foreseeable damages. The injury is to the person as well as the autonomy and integrity of the person. Most survivors compensated under the non-pecuniary head of damages and this is quantified by reference to the conduct of the defendant rather than the damage to the plaintiff. Requirements for punitive damages: harsh, vindictive, reprehensible and malicious conduct by the defendant. Canada does not limit punitive damages.

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Assault  Assault  intentional creation in the mind of another of a reasonable apprehension of immediate physical contact.  Threats, future threats and words alone, without some overt act does not constitute assault.  Courts increasingly focus on the impression created in the plaintiff‟s mind. Protects one‟s right to be free from threat of imminent harm.  Need not have actual physical contact with the plaintiff nor need the defendant to carry out the threat.  Assault and battery cause of action usually go together, there is usually not a case of assault alone.  Look for  defendant’s conduct was a reasonable apprehension of imminent harm. The reasonable person would have felt threatened. Holcombe v. Whitaker (US) (If you take me to court, I will kill you) defendant claims the statement was constitute assault because it was a conditional threat of violence and because no overt action was involved. While words alone may not constitute an assault, they may give meaning to an act and taken together may constitute an assault. A show of force accompanied by an unlawful or unjustifiable demand, compliance with which will avert the threatened battery is an assault. Defendant is not free to compel the plaintiff to buy her safety by compliance with a condition which there is no legal right to impose. Question is not whether an overt act took place but whether the defendant had the ability to carry out this threat. The defendant‟s conduct (banging on her door) taken with the threat meant that it was not just a conditional threat. Criticism where words were intended to cause and did cause a reasonable apprehension of imminent physical contact. It is the immediate physical threat which is important rather than the manner in which it is conveyed. Future threats will not constitute assault because of the requirement of immediacy. The threat must be capable of being carried out. However, the courts focus on the impact of the defendant‟s threat on the plaintiff, the immediacy requirement will be relaxed. (Stephens v. Myers) Police v. Greaves (NZ) (Police went to the home of a domestic dispute and were threatened by the defendant with a knife.) Defendant guilty of assault if there was a threat of violence exhibiting an intention to Intentional torts Page 64 of 92

Torts Summary assault and present an ability to carry the threat out. No reason why a conditional threat should not constitute an assault. A threat by its nature provides the person threatened with an alternative, unpleasant though it may be. It was an assault because it was a threat to another that lead the other to believe that there was an ability to carry out the threat. Intentional Infliction of Nervous Shock Wilkinson v. Downton (UK) (practical joke where defendant told plaintiff her husband was smashed up in an accident that left the plaintiff in violent shock) A person who makes a false statement intended to be acted on must make good on the damage that naturally arises from its being acted on. Plaintiff‟s reaction was natural given the nature of the statement. The effect on the plaintiff was not too remote to be regarded as a consequence for the defendant to be answerable. The tort requires: 1) act or statement (false statement); 2) calculated to produce harm; 3) harm was produced. Statements don‟t necessarily have to be false, but most cases that involve statements are ones that involve false statements. There can be recovery where the statement is made to the plaintiff or somebody who repeated the statement to the plaintiff. Court will exercise caution when dealing with statements because they have to respect freedom of speech. When dealing with statements, that statement must be extreme, meant to cause harm and must be egregious. This is distinguished from the negligent infliction of harm. The defendant does not have to foresee the full extent of the injury. Motive is of no concern. Radovskis v. Tomm (Man) (plaintiff‟s daughter was raped by the defendant, this is an action by her parents to recover damages for the mother for nervous shock) In the absence of visible or provable injury or illness that arises due to the act in question, a person cannot claim for intentional infliction of nervous shock. In order to have a cause of action, there needs to be visible and provable injury or illness. Couldn‟t recover because she didn‟t suffer harm that was visible enough. This is a way the court used the threshold requirement to limit the potential reach of tort. Samm v. Eccles (US) (plaintiff was annoyed by the indecent proposals of the defendant) Due to the highly subjective and volatile nature of emotional distress and the variability of its causations, courts have been wary of opening the door to recovery because claims can be easily fabricated and assert but hard to defend. Still, some courts have strained to find a tort to peg upon in order to find a right of recovery for the plaintiff. Basis for recovery is the outraged feelings and emotional distress resulting from some aggravated conduct of the defendant. Cause of action for severe emotional distress not accompanied by bodily impact or physical injury where the defendant intentionally engaged in some conduct toward the plaintiff (a) with the purpose of inflicting emotional distress or (b) where any reasonable person would have known that such would result and his actions are of such a nature as to be considered outrageous and intolerable and that they offend against the generally accepted standards of decency and morality. Shows some loosening up of the requirement. A more expansive view of what would be sufficient harm and sufficient injury to claim for intentional infliction of nervous shock. There Intentional torts Page 65 of 92

Torts Summary could be recovery where the plaintiff suffered emotional distress even were she did not suffer physical injury. Bell-Ginsberg v. Ginsberg (Ont) (bi-sexual husband who exposed plaintiff to the risk of HIV) Battery could be a cause of action in this case. The deliberate concealment by the defendant of his risky sexual activity could amount to fraud or deception sufficient to vitiate consent to sexual activity. Liability could be attached to the claim of intentional infliction of emotional distress if the defendant’s conduct were (a) direct and immediate (b) intended or foreseeable or a probable consequence. Broadening Liability  Courts expanding recovery for intentional infliction of nervous shock either from generously interpreting facts to meet the traditional requirements of the tort or by rephrasing the requirements in broader terms.  Defendant need not intend to cause nervous shock. If the defendant acted in reckless disregard for the possibility or it was foreseeable that profound distress would ensue then that will be enough.  Though visible and provable illness is required, the absence of expert medical evidence is not fatal to a claim.  Women have successfully employed intentional tort theories to recover damages from the courts for sexual harassment in the workplace.  Boothman v. Canada – plaintiff awarded damages after she endured a pattern of verbal and physical abuse from her supervisor.  Clark v. Canada – female RCMP officer was driven to resign by the harassing conduct of male colleagues was able to recover for the intentional infliction of nervous shock. Her superiors were also liable in negligence for failing to intervene to protect her.  Sexual harassment that constitutes an existing, recognized tort gives rise to a common law cause of action based on that tort. Where there is also an existing tort that accompanies harassment, it can give rise to a civil cause of action.  Petrovics v. Canada – court expressed frustration at the need to squeeze common law actions for sexual harassment into tort law categories that are ill-suited to capturing the understanding of the wrongful conduct. Common law tort of discrimination Bhadauria v. Board of Governors of Seneca College (Ont) (South Asian woman claims discrimination in hiring practice of the college. Case requires us to look at whether or not a breach of a statute together with the facts would give rise to a common law claim.) Court of appeal recognized a new tort of discrimination and said that while there has never been a tort of discrimination recognized before, when it is clear that the plaintiff‟s interests are entitled to legal protection against the conduct of the defendant, there is no reason why a new tort should not be recognized. The preamble to the Ontario Human Rights Code was cited as evidence of public policy. Supreme Court of Canada said that the Code forecloses civil action based entirely on the breach and excludes any common law action based on the invocation of public policy expressed by the code. Plaintiff should go through the Code rather than the Intentional torts Page 66 of 92

Torts Summary common law. Common law tort of discrimination not recognized. Attempted to use human rights legislation to establish a new tort. Supreme Court of Canada ruling does not support the proposition that human rights legislation should be interpreted as subsuming already existing tort remedies. There is a set procedure in the Code that deals with discrimination set out in code and that’s the procedure the plaintiff must follow. One cannot pick and choose which avenue to follow for the remedy. Human Rights Code (1990) (Ont)  Freedom from discrimination o Every person who occupies accommodation has a right to be free from harassment from the landlord because of sex. o Every person who is an employee has a right to be free from harassment in the workplace because of sex o Everyone has the right to be free from the sexual solicitation or advancement made by a person in a position to confer, grant or deny a benefit, where the person making the solicitation ought reasonably to know that it is unwelcome.  Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.  Amendment coming into force on June 2008 – can go straight to the tribunal without having to go through the commission first. Provision which specifically recognizes that where there is a civil proceeding and the court finds that one of the parties has breached the Code, the court is empowered to either order compensatory damages or to order that the offending party make restitution other than monetary damages. Person does not have to base an action solely on the basis that somebody had breached the Code. It preserves Bhaduria, but will allow monetary compensation or restitution when one of the parties has breached a provision of the Code. Informed Consent and a doctor’s duty of disclosure General principles of informed consent:  Healthcare professionals must obtain consent to initiate any physical examination, test or procedure and should be obtained in advance.  If the patient is competent to give valid consent, it is his consent alone that is required. Patient‟s next of kin is only required when the patient is unable to give consent.  Valid consent is voluntary and the decision must be a product of his conscious mind.  Patient may consent implicitly by participation, behaviour or demeanor or explicitly either orally or in writing.  Doctor has an affirmative duty to disclose the risk of the treatment. Battery applies when:  Patient did not consent to the operation at all  Where the consent had been exceeded  Where it was obtained fraudulently Exceptions to the general principles  Unforeseen medical emergency where it is impossible to obtain a patient‟s consent

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Torts Summary   Patients who have given consent to treatment will be viewed as implicitly consenting to subsequent sessions or treatments. This implied consent can be negated if the patient expressly objects. Healthcare professionals used to have the right to withhold information from the patient if that disclosure would undermine the patient‟s morale and discourage him from needed treatment, since the rise of patients‟ rights, the subsequent cases have rejected this privilege and narrowed its scope.

Marshall v. Curry (NS) (removal of patient‟s testicle without his consent) In the ordinary case where there is opportunity to obtain consent of the patient, a person‟s body must be held inviolate and immune from invasion by the surgeon‟s knife if an operation is not consented to. In cases of emergencies where it would be unreasonable to postpone a procedure it is a surgeon’s duty to act in order to save the life of the patient and that should not expose him to liability. The removal was necessary and it would be unreasonable to postpone the removal at a later date despite the absence of express and implied consent. In operations: 1) need consent of the patient; 2) consent can be express or implied, but if the operation is forbidden, there is no implied consent; 3) in cases of emergencies, where the patient agrees to a particular operation and in the course of that operation, a condition is found calling in the patient‟s interest for a different operation, the patient is said to have made the surgeon his representative to give consent. Mallette v. Shulman (Ont) (Jehovah‟s witness who had a card expressing her wish to not have blood transfusions but the doctor gave her transfusions anyway which saved her life. She recovered and is suing for negligence and battery) There is an issue underlying the doctrine of informed consent that finds its roots in the patient‟s well recognized right to self determination. The patient has the right to decide what is done to his body. Doctor is legally obligated to treat within the confines of that consent. Certain aspects of life are properly held to be more important than life itself and the refusal of medical treatment on religious grounds is such a value. Doctrine of informed consent does not extend to informed refusal. Written direction on the card contained a valid restriction of the doctor’s right to treat the patient and the administration of blood transfusions constituted battery. There was informed refusal that amounted to her instruction that was binding on health care professionals and that refusal had to be honoured. First case to recognize that individuals had legal authority to give binding instructions that had to be followed by health care providers. Emergency exception does not apply when the patient has explicitly refused consent. A doctor‟s doubt of the validity of the consent must be reasonably based. Minors and consent  may be affected by statutes and in particular statutes may speak of the age at which young people can consent and may impose some requirements. The mature minor the courts may be swayed by things like chances of success of treatment, world views etc. When the physical benefit of the treatment is uncertain and the physical burden is onerous, the courts may decide that the child is of the age of consent if the child doesn‟t want to consent. If the chances of success are poor and the young person meets the criteria for a mature minor, then the courts may decide not to force treatment. Courts allow parents some leeway in the decision but will

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Torts Summary intervene if necessary to prevent serious risk to the health or life of the child. Court usually errs on the side of preserving life and heath. C. v. Wren (Alta) (16 year old girl became pregnant and consented to an abortion. Her parents argue that she is too young to give consent) Age of discretion – 14 for boys and 16 for girls. The principle underlying this was that a child had sufficient intelligence and understanding to make up their own mind. At her age and level of understanding, the law permits her to make up her own mind. The parental right to determine whether or not their minor child below age 16 will have medical treatment terminates if the child achieves a sufficient understanding and intelligence to enable him to understand fully what is proposed. Capacity or competence to consent to heath care means the ability to understand fully to what is proposed. For young children, parent have the control. As the child gets older, the scale of parental control goes down. Professional’s duty of care 1. Treatment provided in keeping with the standard of care. Treat properly 2. Ensure that informed consent is maintained. a. Informed consent codified in Ontario b. To a large extent, rules as to what constitutes informed consent is codified, but there are cases where the consequences of treatment are not codified and thus, need to revert back to the common law to find principles on how to deal with it. c. Informed consent should include the relevant experience of the doctor to allow the patient to assess whether the doctor has the experience to deal with the situation, on the other hand, the argument could be made that the focus should be on the treatment instead of the experience of the doctor. Arndt v. Smith (plaintiff sues doctor for wrongful birth after doctor failed to advise her that her baby could be born with complications and says that she would have had an abortion if she was fully informed) Question of whether if she was warned would have made a difference. Plaintiff must prove that there was a breach of the standard of care that caused injury. If there was a failure to get informed consent or failure to be warned of the risk, was the failure to inform the cause of the injury? Subjective test Asks whether the particular patient would have foregone treatment if properly informed. This is criticized because it depends on the plaintiff‟s testimony as to his state of mind, thereby exposing the physician to the patient‟s hindsight and bitterness. Hardly expected that a plaintiff who is suing would admit that he would have agreed to the surgery even knowing the accompanying risks. Places too much weight on inherently unreliable testimony. Objective test  whether the average prudent person in the patient‟s position would have foregone treatment if informed of all material risks. Prevent inappropriate emphasis on the plaintiff‟s testimony. Criticism in whether causation could ever be established if the surgeon has recommended surgery which is warranted by the patient‟s condition. Would put a premium on the surgeon‟s assessment of the relative need for surgery and on supporting medical evidence of that need. Might result on undue emphasis placed on the medical evidence, deferring completely to medical wisdom.

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Torts Summary Modified objective test  contains aspects of the objective standard in what the average, prudent person in the respondent‟s position would agree to if all material and special risks of going ahead with the surgery were made known. A patient‟s particular situation and the degree to which the risks of surgery are balanced would reduce the force on an objective appraisal of the surgeon‟s recommendation. Requires the court to consider what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation. Reasonable person who sets the standard of the objective test must be taken to possess the patient‟s reasonable beliefs, fears and expectations. Modified objective test is flexible enough to take into account a wide range of personal circumstances of the plaintiff and at the same time to recognize that physicians should not be held responsible when idiosyncratic beliefs of their patients might have prompted unpredictable and unreasonable treatment decisions. (Dissent – appropriate test is what, on the balance of probabilities the particular plaintiff would have done having regard to all of the evidence bearing on the issue including the medical recommendation.) Health Care Consent Act (1996) (Ont)  Common law rules regarding consent to treatment now in statute.  Healthcare practitioner cannot provide treatment unless a capable patient has given consent or a substitute decision-maker has given consent on behalf of an incapable patient.  Capacity is determined by a person‟s ability to understand the information that is relevant to making a decision about the treatment and to appreciate the reasonably foreseeable consequences of a decision.  Consent is valid if it relates to the treatment, is informed and given voluntarily and not obtained through fraud or misrepresentation.  Consent is not valid if it is not informed and treatment without consent is battery.  Treatment can be given to an incapable person in an emergency absent consent where the delay required to obtain consent will prolong the suffering that the person is experiencing or will put the person at risk of sustaining more serious bodily harm.  No minimum age of consent with respect to medical treatment. It is up to a reasonable belief of the ability of the minor to consent to the treatment. Depends on the seriousness of the treatment.

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Torts Summary

TORT LIABILITY OF PUBLIC AUTHORITIES The tort of negligence requires some unreasonable action. Strict liability torts, on the other hand, do not require unreasonableness. They only need a DoC, and damage. If this occurs, then notwithstanding taking all reasonable steps, there is liability. There is an issue of violation of a statutory regulation constitutes an actionable wrong notwithstanding a lack of negligence. Some statutes explicitly state that their breach gives rise to a civil cause of action. Other statutes explicitly deny such a remedy. In these cases, the answers are simple. However, the vast majority of statutes and regulations are silent on the subject, so it is unclear if their breach results in a strict liability offense. When a statute is silent about the remedies for its breach, can there be liability without fault, or is standard of care still a live issue? R. In right of Can v. Sask Wheat Pool (Wheat pool delivered infested wheat to the board in violation of the grain Act) English position  tort of statutory breach distinct from any issue of negligence. Cause of action rests on proof that the legislature intended that violations of the right conferred by statute is treated as a tort. Non-existent intention of Parliament to create a civil cause of action has been criticized as capricious and arbitrary. Duty to the public may not give rise to a private cause of action whereas a duty to an individual may. Purpose of the statute must be to protect certain class of individuals of whom the plaintiff is one and the injury must be of a kind which was the object of the Legislature to prevent. Justification for the tort of statutory breach – provides fixed standards of negligence and replaces the judgment of amateurs with that of professionals in highly technical areas. American position  assimilated civil responsibility for statutory breach into the general law of negligence. Recovery of damages for injuries due to violation rest on common law principles. Statutory breach may be considered totally irrelevant, merely relevant or prima facie evidence of negligence having the effect of reversing the onus of proof. Criticism has been the inflexible application of the Legislature‟s criminal standard of conduct to a civil case. Canadian approach  Use breach of statute as evidence of negligence as opposed to recognition of a nominate tort of statutory breach is more acceptable as it avoids the fictitious hunt for legislative intent to create a civil cause of action and avoids the inflexible application of the legislature‟s criminal standard of conduct to a civil case. Breach of statute where is has an effect on civil liability should be considered in the context of the general law of negligence. In Canada, there is no tort of statutory breach, and such a breach does not result in a flipping of the burden of proof as to negligence as it does in the US. Rather, a breach of a statute can be one piece of evidence amongst many that indicated a breach of the standard of care. Civil consequences of breach of statute should be subsumed in the law of negligence. Proof of statutory breach causing damage may be evidence of negligence. Statutory breach in and of itself wouldn’t necessarily be liable, but could be used as evidence of negligence. First need damages that result in the breach of the statute. Then need to show that damages were caused as a result of the breach. If you could prove that the breach of a statutory duty was negligent, you have a cause of action. If negligence is neither pleaded nor proven, the case fails. Breach of statutory duty is not a nominate tort in Canada: A plaintiff cannot succeed unless there existed a common law duty of care. While the statute may be relevant to the issue of common law duty, it is not determinative. Court was not willing to recognize a separate, distinct, Tort liability of public authorities Page 71 of 92

Torts Summary new nominate tort that would risk imposing liability on a defendant without any fault on their part. Unless it is exempted by express statutory language to the contrary, a public authority can be vicariously liable for the torts of its employees committed within its employment. Negligence liability of public authorities The presence of a public authority in a nonfeasance case greatly changes the dynamics of judicial reasoning. There are clear differences between public and private bodies, how they operate, what their interests are, and how they can be effected by findings of liability. Public authorities are also far more open to mass-liability based on the wide nature of what they do, and while making private actors pay compensation to individuals is generally a “good thing,” it is not so clear if this is what we want to do to public interest bodies. Much as in statutory torts, one must look at legislation if liability has been excluded. Assuming that there is no explicit extinguishment of liability, there is a presumption that there can be liability, but the standard that is associated with it can be varied based on government policy. This is due to the unique nature of dividing a limited pie of public resources between competing interests. Thus, the distinction is that decisions of policy will lower the standard, making a finding of liability difficult. Decisions of operation, how policy is implemented, however, will not affect the standard, and make liability more easily found. The method of distinguishing the two is unclear. Two issues in discussing public authority’s liability in negligence: 1. Statutory public duty  enabling legislation required the public authority to pursue a particular course of action. Public authority cannot be held liable simply for doing what was required. Existence of a duty as opposed to a power means the court may be circumspect in imposing liability. If a statute requires the authority to take a particular course of action, then it will not be held liable for doing what it is required to do. Liability may be imposed if the public authority performed its task carelessly or failed to perform its duty at all. Court can take this into consideration in deciding whether or not a common law claim could be made. This could be evidence of negligence. 2. Statutory discretionary power  where the public authority had the ability but not the obligation to act in a certain way. Courts more hesitant to impose liability because of concern that if they impose liability for negligence, then they are substituting their opinion of what‟s reasonable for the judgment of the legislature. Court must be concerned about substituting its choices for that of the legislature; law has developed distinctions between policy matters and operational matters. Not required to take a particular cause of action. If it has discretion, then its acting under statutory power rather than statutory duty. Just v. British Columbia (plaintiff driving on the highway and a big boulder falls on his car and injures him and kills his daughter) Court will draw a distinction between policy decisions as opposed to operational activities as a way to mark out areas that are considered appropriate for tort liability to be found against the government. If the complaint is about the authority‟s lack of due care, then negligence review is not appropriate. As long as the authority exercised discretion in formulating Tort liability of public authorities Page 72 of 92

Torts Summary the policy conscientiously and in good faith, then the authority cannot be sued in tort for the policy decision. There is legislation which imposes liability on the crown for its acts as though it were a person, but the crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions. Duty of care should apply to public authority unless there is a valid basis for its exclusion. True policy decision undertaken by a government agency constitutes a valid basis for exclusion. Once a policy decision to inspect has been made, the court may review the scheme of inspection to ensure it is reasonable and has been carried out in light of all the circumstances to determine whether the government has met the requisite standard of care. If the negligence is something done at the operation stage, then negligence analysis is applied. In determining whether a duty of care exists, the first question is whether the parties are in a relationship of sufficient proximity, in the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit statutory exemption, or may arise as a result of the nature of the decision made by the government. The government may be exempt from the imposition of a duty of care in situations which arise from its pure policy decisions. A policy decision‟s main characterization rests on the nature of the decision, such as budgetary allotments. Policy decision is a product of administrative direction, expert or professional opinion, technical standards or general standards of care. It is open to challenge on the basis that it is not made in the exercise of discretion. Duty of care must be separate from standard of care. Duty of care may relate to budgetary constraints, availability of resources, personnel and equipment. The court found the government negligent in operational consideration. The negligence was related to the manner and quality of the inspection system. Majority said that the visual inspection system was not a policy decision and is construing policy narrowly. In the case of a government agency, exemption from the imposition of a duty of care may occur in one of two ways: 1. As a result of an explicit statutory exemption or 2. As a result of the nature of the decision made by the government agency Nature of decision – Policy decision v. operational decision:  Policy decisions are usually made at a high level  Decisions based on budgetary limits and availability of personnel are policy decisions  Decisions to carry out a certain task are policy decisions  Decisions on the details of how that task should be carried out (i.e. implementation phase) are operational decisions. Liability imposed for operational decisions if the plaintiff can establish:  Parties are in a sufficiently proximate relationship that a duty of care is owed by the government to the plaintiff  Standard of care and its breach – standard should be determined in light of all the circumstances, including budgetary constraints, personnel and equipment.  Causation  Injury to plaintiff (Dissent – said majority decision is based on an attack on the policy of government with respect to the extent and manner of the inspection program. If court assumes the power to review a policy decision which is made in accordance with the statute, this amounts to a usurpation by the court of a power committed by statute to the designated body. Saying the majority approach

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Torts Summary leaves no room for the policy immunization of government because anything and everything could be policy.) Determining what is a policy decision and what is an operational decision is difficult.  Consider the level of decision making  Is it more like Just or not really like Just  If you consider it operational, then make sure that you do the negligence analysis to establish liability Swinamer v. Nova Scotia – Supreme Court of Canada found that implementation of the program to identify and remove trees was a matter of policy and cannot be reviewed. Operational activities:  Failure to erect higher median barriers on a highway in a timely manner  A municipality‟s decision to issue a building permit and its failure to identify construction defects  Crown‟s failure to inspect and maintain a highway  Denial of a crabbing license by the ministry on account of an officer‟s negligent measurement of the plaintiff‟s boat  Failure to anticipate freeze-up and apply salt to highways in a timely manner. Policy activities:  Maintenance of municipal manhole covers  Adoption of a particular system for clearing snow and ice from municipal sidewalks  A municipality‟s decision not to reduce speed limit in a school area  Refusal to enter into an agreement with parents to provide for needs of special needs children Court draws no distinction between cases involving physical damage and pure economic loss. Once a court recognizes a duty of care and formulates the standard of care applicable to a public authority, the defendant is liable for either type of loss. Effect of Cooper v. Hobart Affected negligence analysis relating to public authorities in 4 ways 1. Became necessary to situate policy/operational distinction within the framework provided in Cooper a. Assess whether harm was foreseeable and assess whether there was a proximate relationship between parties b. Residual policy considerations that might negative a duty of care i. Policy/operational dichotomy falls here 2. Greater emphasis on proximity than before. Cases that would have been decided on the issue of policy and operational function now decided on the question of proximity. 3. If statute was the only source of the defendant‟s duties, this conflates statutory and common law duties. Makes the interaction of statutory duty and common law duty of care difficult. This is contrary to historical jurisprudence which suggest that the common law duty of care must be determined independently from statute. Statutory duty and common law duty were essentially co-extensive. Early cases were prepared to recognize Tort liability of public authorities Page 74 of 92

Torts Summary that the duty was separate, but the potential conflict has not yet been fully resolved. Cooper suggests that where you have a statutory entity that is created by statute, that is te source of the extent of duties that the entity owes. 4. Reflects a more restrictive attitude towards public authority liability. Court seems reluctant to impose a duty of care to public authorities. Williams v. Canada (Ont) (lawsuit against the crown in connection with the SARS outbreak) Alleged that the crown had breached its duty to prevent the spread of diseases in Canada and failed to co-ordinate its response to the SARS crisis. The claim was struck out because the element of proximity was not satisfied. There was no close and direct causal connection between the alleged omissions and the harms suffered by members of the class and the relevant statutory duties were framed in terms of the general public. Could not say that the government owed this kind of private law duty of care to its own citizens.

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Torts Summary

VICARIOUS LIABILITY Vicarious liability  liability imposed even though the defendant did not breach any obligation at all. Not a distinct tort, it is a theory that holds one person responsible for the misconduct of another because of the relationship between them. A species of strict liability because it requires no proof of personal wrongdoing on the part of the person who is subject to it. Provides a just and practical remedy to people who suffer harm as a consequence of wrongs perpetrated by an employee.  Fleming  Persons who employ others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.  Parents are not vicariously liable for their children‟s torts, under Parental Responsibility legislation, statute imposes a presumption in some circumstances that the parent negligently failed to control or supervise the child and is therefore personally liable.  Policy consideration underlying vicarious liability is deterrence of future harm as employers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision. Types of vicarious liability 1. Statutory  most common is related to motor vehicles. Not only is the driver of the car liable, but the owner of the car is liable when someone else drives the car unless there was no consent to the person having possession of the car. 2. Agency relationship  principal authorizes the agent to act on its behalf. A principal will be liable for the agent‟s torts. An agent may also be liable for the principal‟s torts. 3. Employment relationship  agent may also be an employee who and vicarious liability may result due to an employment relationship. a. Alternative liability – vicarious liability does not relive a tortfeasor of responsibility. Court may hold the employer vicariously liable and the employee personally liable. b. Right of indemnification – if the employer satisfies judgment under the doctrine of vicarious liability, he has the right to recover the amount from the employee. The burden falls on the actual tortfeasor. c. Third party protection – if the plaintiff and the employers were in a contract which included an exclusion clause that eliminated or reduced the defendant‟s employees as well. Benefit of an agreement is limited to parties that enjoy privity of contract. d. Vicarious and personal liability – employer may be held vicariously liable for its employee‟s tort. An employer may also be held personally liable for its own tort. Principle-agency relationship T.G. Bright & Co. v. Kerr (whether defendant wine dealer was vicariously liable for the negligence of its deliveryman) Deliveryman was an agent, but not an employee because the defendant had no control over the precise manner in which the task was performed. Not a rationale about guilt or fault but based on the notion that somebody who is benefiting from an act done by somebody else for himself Vicarious liability Page 76 of 92

Torts Summary should be responsible for whatever happens. Principal is liable to third persons in a civil suit for frauds, deceits, concealments, misrepresentations, torts, negligence etc. although the principal did not authorize or justify or participate in or know of such misconduct or even if he forbade the acts or disapproved of them. Principles of vicarious liability: 1. Respondant superior does not rest upon any notion of imputed guilt or fault 2. Principal having power of choice has selected the agent to perform in his place a class of acts. It is not unjust that he who has selected him and will have the benefits of his services should bear the risk of his negligence in matters incidental to the doing of the acts which had been delegated to him. 3. Principal is liable to third persons in a civil suit for frauds, deceits, concealments, misrepresentations, torts, negligences and omissions of duty of his agent in the course of his employment although the principal did not authorize or justify or participate in or know of such misconduct or even if he forbade the acts or disapproved of them. 4. Limitation is that the tort or negligence of his agent in any maters beyond the scope of the agency unless he has expressly authorized them to be done or has subsequently adopted them for his own use. There is no vicarious liability for matters beyond the scope of the agency where the agent is beyond the control of the principal. The limiting factor was whether it was within the course of his employment or not. Employer – Employee relationship (Master - servant relationship) Baxley v. Curry (plaintiff sexually assaulted in a foster care home, he sues he employer for vicarious liability) The employer is found vicariously liable for the sexual misconduct of its employee. If plaintiff establishes that the employee‟s act was done on the employer‟s premise during working hours and that it bears a close connection with the work that the employee was authorized to do, then the responsibility shifts to the employer to show that the act is one for which it was not responsible. It is difficult to distinguish between an unauthorized mode of performing an authorized act that attracts liability and an entirely independent act that does not. There are two categories: 1) acts authorized by the employer; 2) unauthorized acts that are so connected with acts authorized that they can be rightly regarded as modes. Salmand test 1. Determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability. In each of these cases, the employer‟s enterprise created the risk that produced the tortious act. a. Cases based on the rationale of furtherance of the employer‟s aims i. Rely on the agency rationale because the employee was acting in furtherance of the employer‟s aims. Has ostensible or implied authority to do the unauthorized act. This works for negligence but not for intentional torts. b. Cases based on the employer‟s creation of a situation of friction i. If employer‟s aims or enterprise incidentally create a situation of friction that may give rise to employees committing torts, the employee‟s

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Torts Summary intentional misconduct can be viewed as falling within the scope of employment and the employer is vicariously liable for ensuing harm. ii. Does not rest on ostensible or implied authority, it builds on the logic of risk and accident inherent in the cases imposing vicarious liability on the basis that the employee was acting to further the employer‟s aims. iii. Language of authority, whether actual or ostensible is inappropriate for intentional, fraudulent conduct like theft. iv. If it is part of the nature of the business then it‟s one of the risks that is part and parcel of the business, sometimes expected to happen because of the nature of the business and therefore holding the employer liable is appropriately justified as part of the cost of doing business. c. Dishonest employees i. Where an employee‟s conduce was a random act wholly unconnected with the nature of the enterprise and the employee‟s responsibility, the employer is not vicariously liable. d. Where the employee‟s conduct is closely tied to a risk that the employer‟s enterprise has placed in the community, the employer may justly be held vicariously liable. 2. If prior cases don‟t help, then need to determine whether vicarious liability should be imposed in light of broader policy rationales behind strict liability. a. Traditionally linked to compensation, deterrence and loss internalization. i. Court is sympathetic to the argument that those who employ others to advance their economic interest should be liable for the loss that incurs in the enterprise. The employer is the one who has put the enterprise in the community and the enterprise brings with it certain risks even when the employer didn‟t fall below the standard of care. b. Two concerns underlie imposition of vicarious liability i. Provision of a just and practical remedy for the harm ii. Deterrence of future harm c. Improves the chance that the victim can recover from a solvent defendant. Vicarious liability appropriate where there is a connection between the creation or enhancement of a risk and the wrong that accrues there from, even if unrelated to the employer‟s desires. In determining sufficiency of the connection between the employer‟s creation or enhancement of the risk and the wrong, subsidiary factors may be considered.  Opportunity that the enterprise afforded the employee to abuse his power  Extent to which the wrongful act may have furthered the employer‟s aims  Extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer‟s enterprise  Extent of power conferred on the employee in relation to the victim  Vulnerability of potential victims to wrongful exercise of the employee‟s power. In applying the general considerations to sexual abuse by employees, there must be a strong connection between what the employer was asking the employee to do and the wrongful act. Must be possible to say that the employer significantly increased the risk of harm by putting the employee in the position and requiring him to perform the assigned tasks. What is required is the material increase in the risk as a consequence of the employer’s enterprise and the duties entrusted to the employee, mindful of the policies behind Vicarious liability Page 78 of 92

Torts Summary vicarious liability. For sexual abuse, should focus on whether the employer’s enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm. Employer‟s enterprise created and fostered the risk that led to the ultimate harm. Test must not be applied mechanically but with a sensitive view to policy considerations that justify the imposition of vicarious liability. Fairness and the need for deterrence in the care of vulnerable children suggest that the employer created and managed the risk and should bear the loss. Jacobi v. Griffiths (sexual assault at a boys and girls club) There was an insufficiently strong connection between the type of risk created and the actual assault that occurred to warrant imposition of liability. Legal principles and precedents do not weigh in favour of attaching vicarious liability to a situation where employment had simply provided the opportunity to commit crimes. The strong connection test limits the ability of a court to reach into an employer‟s deep pockets simply because it is there. The club activities did not materially increase the risk of harm. This case is distinguished from Baxley because there was no vicarious liability found. In 2003 the Supreme Court of Canada heard 3 more cases dealing with vicarious liability and the general effect was to reduce the scope of the doctrine. B.(K.L.) v. British Columbia; B.(M.) v. British Columbia; G.(E.D.) v. Hammer – the plaintiffs were abused while living in foster homes. Courts held that vicarious liability would be appropriate only if the claimants had satisfied two conditions: 1) the relationship between the parties had to be sufficiently close or proximate to warrant the doctrines application; 2) wrongful conduct had to be sufficiently connected to the employee‟s assigned tasks so that the impugned conduct may be regarded as a materialization of the risks created by the enterprise. The conditions were not met on B.(K.L.) and B.(M.). Court feared that the imposition of a vicarious liability may deter the government from placing children in foster homes. John Doe v. Bennett – (2004) abuse by their priest. Court held the local diocese directly liable on the basis of their failure to act. On vicarious liability, found that the diocese closely controlled the priest and the priest‟s wrongs were closely connected to his assigned tasks. B.(E.) v. Order of the Oblates of Mary Immaculate in the Province of British Columbia – the claim was dismissed and stressed that there needed to be something more than the mere opportunity to commit a wrongful act. Presumes a strong connection between the assigned tasks and the wrongful conduct. Blackwater v. Plint – assault in a residential school. Held that dual responsibility would further the policy goals underlying vicarious liability and various members of a partnership may be held vicariously liable for the tort of an employee. The reasoning did not explore the conceptual difficulties of the prospect of dual vicarious liability. Also failed to mention the fact that there has been a strong presumption for over two centuries that vicarious liability may be imposed on only one employer. Even if a tort is committed by an employee, the employer will not be vicariously liable of the doctrine would not serve the underlying goal of compensation and deterrence (Shultz v. Miki) the argument being that it would become close to imposing absolute liability on employers for the intentional torts of their employees. Independent contractors Employer not vicariously liable for the torts committed by an independent contractor. Classification of a worker is important

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Torts Summary 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (seat covers sold to Canadian tire) A relationship between employer and independent contractor does not give rise to vicarious liability. If a worker is determined to be an employee as opposed to an independent contractor, the tortious conduct has to be committed by the employee in the course of employment. Difference between employee and independent contractor lies with the element of control that the employer has over the direct tortfeasor. If the employer does not control the activities of the worker, the policy justifications underlying vicarious liability will not be satisfied. Does not make sense to anchor liability on an employer for acts of an independent contractor who is someone who was in a business of his own. The employer does not have the same control over an independent contractor as over an employee to reduce accidents and intentional wrongs by efficient organization and supervision. Essential criterion of employer-employee relations is the right to give orders and instructions to the employee regarding the manner in which to carry out his work. Under a contract of employment, a man is employed as part of the business and his work is done as an integral part of the business whereas under a contract of service, his work is not integrated into the business but only accessory to it. Enterprise test which gives rise to an employer‟s vicarious liability: 1) he controls the activities of the worker; 2) he is in a position to reduce the risk of loss; 3) he benefits from the activities of the worker; 4) the true cost of the product ought to be borne by the enterprise offering it. Should look at the situation from the perspective of the employee; is the entity in business on its own account? Need to look to factors beyond the control test, you need to look to the whole relationship between the parties. The emphasis I on whether the person was engaged to perform services as engaged in business on their own account. ** Non-delegable duties **  Once employees and independent contractors have been distinguished, the general conclusion is that vicarious liability may attach to the torts of an employee but not to an independent contractor. This doesn‟t mean that liability is never imposed on a person who retained a contractor‟s services.  Liability against the party even if the party had done everything reasonable to take care.  There are exceptions to the rule that independent contractors do not subject their employers to vicarious liability o Where the employer was negligent in hiring a contractor – essentially the employer‟s direct liability for the failure to take care. o Where the employer was negligent in supervising the contractor o Where the employer hired the independent contractor to do something unlawful  Non-delegable duty rule  a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. A person is liable when he has a duty and can‟t delegate it to somebody else.  Person subject to an obligation can delegate performance but not responsibility. Despite being entitled to retain an independent contractor to execute the relevant task, the employer bears responsibility if anything goes tortiously wrong.  Difficulty concerns scope of liability. Historically courts have recognized various instances in which a person could not escape responsibility by delegating a task to an independent contractor.

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Torts Summary   Employer has a statutory or common law duty to take reasonable care, the non-delegable duty doctrine adds another obligation which is to ensure that the independent contractor also takes reasonable care. To determine whether a non-delegable duty is imposed, the court should examine the relationship between the parties and ask whether that relationship possesses elements that make it appropriate to hold the defendant liable for the negligence of its independent contractor. No reason in theory why non-delegable duty should not be extended to other actors outside of government. Can also apply where there is no statutory basis where the duty is owed.

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Lewis (Guardian ad litem of) v. British Columbia (Public authority under statute to maintain a highway) a non-delegable duty is a duty not only to take care but to ensure that care is taken. Was free to assign the task or delegate the work to an independent contractor. Held that the government of BC was under a non-delegable duty of care. It had to take reasonable care itself and had to ensure that reasonable care is taken by the contractor doing the work. Determining whether it’s a non-delegable duty depends on the nature and extent of the duty owed to the plaintiff. A non-delegable duty can be extended when: 1) it depends on the statutory provision and on the circumstances of the case; 2) province had to be careful in hiring and supervising; 3) province had to ensure that the independent contractor was not negligent. It is a powerful tool in the hands of the plaintiff because even if the government had done everything it could but the contractor had been negligent, it becomes absolute liability. Rationale for the ruling was that the stakes were high, the public had no choice but to use the highway. Since Lewis, the approach has been narrower and narrower.

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Torts Summary

TORT LAW: THEORIES, CRITICISMS AND ALTERNATIVES Feldthusen: Theories, criticisms and alternatives  Essential characteristic of a negligence claim is a fault based system for accident compensation.  Principles meant to punish, deter wrong doing and compensate victims, but this is done imperfectly and unconvincingly sometimes.  Three aims of the tort system o Compensate o Preventative measure o Corrective justice  Tendency has been to move away from the tort system and replace it with a no-fault system. This can be financed through savings from an alternative system.  Deterrence might be a general type or a market based system. o General deterrence  wrongdoing that gives rise to a tort claim.  True inadvertence in terms of deterrence will not likely have a lot of effect in terms of how people behave. o Liability of enterprises  business could be directly or vicariously liable. May be difficult to prove direct liability but for vicarious liability, the potential for employee negligence could affect firm liability but the incentive is to avoid paying damages, not the incentive to avoid the harm.  Negligence liability has no general deterrent effect. Slater Report  Slater sets out ends or goals the tort system is meant to achieve and whether it does or it doesn‟t - is critical of reliance of tort  Most injuries are dealt with outside the system (no fault system) - tort system is a small part of system of compensation  Modern system has transformed from one of deterrence to compensation o Why? Modern liability insurance – Defendant is not paying so punitive and deterrent effect is diminished  Success of modern liability insurance → inevitable failure of tort (tort can‟t deter or fully compensate)  Critical of straight jacket tort places judges in; criticized need to find fault; this threatened the integrity b/c of judges decision making – fit things into the box of fault; but when can‟t there is no compensation at all  Courts may find fault when one exists so that they can be adequately compensated by wealthier insurers of blameless defendants; compensation denied when fault can‟t be found  Tension between deterrence and insurance – compensation function should be separate from deterrent function  Deterrent function

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Torts Summary o Distinguishes between general deterrence and market deterrence (tort insures that cost of accidents is reflected in cost of activities/goods) – we will focus more on general o Could deter my other means - higher premium prices; penalty rating for insurance o Pessimistic that tort and negligent law will have any deterrent effect o With isolated acts unlikely that potential for negligent liability is going to affect how people act – instances of true inadvertence o Planned system of enterprise behaviour – not effective deterrent – rational actors making decisions on how to avoid financial liability – may be better ways/easier ways to increase profit other than devoting money to safety – why would they do this then? o Company liability might be direct or vicarious o Vicarious – potential that co. will be liable for employees – can effect how firm acts – but incentive is there to avoid paying damages, not there to avoid harm o No relationship between the severity of sanction and degree of fault o Most injured people don‟t sue o Rarely paid by individual wrongdoer (insurance) o Lengthy court battles – dilutes deterrent effect Most injuries are outside the system, and the tort system is only a small part of the system of compensation. Criticized the need to find fault before giving compensation because compensation is denied where fault can‟t be found. Distinguish between general deterrence and market deterrence. Compensation function o Only way to justify tort is compensation but it is not effective at this either. o Tort is unpredictable as a means of recovery ad too slow to be any sort of rational form of accident insurance. o Tort is too unpredictable a means of recovery and too slow to be any sort of rational form of accident insurance o Compensation is denied when fault can‟t be proved – many go uncompensated o Enormous delay o D assets/insurance may not be sufficient to cover loss o High costs of litigation Solution is non-tort accident compensation o Tort system shouldn‟t be relied on to deter or compensate - set out how to achieve both those objectives (through 2 separate systems – 1 for each) o Suggest a no-tort form of accident compensation can have other mechanisms to deter people (won‟t be tort system, but can hold them accountable for their wrongdoing) Recommendations: o In the short term – accident compensation scheme implemented by private industry o Medium term (Ideally) – universal accident compensation plan for all accidental injuries o Long-term – universal disability compensation program Distinguish no tort from no fault. Page 83 of 92

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Theories, Criticisms and Alternatives

Torts Summary o Fault or wrongdoing is still relevant when thinking about deterrence. Can achieve deterrence through more rigourous penalty ranking or professional regulation. There is no necessary requirement that you could only achieve some deterrent effect through the tort system. o With respect to motor vehicles, even if you went to no fault system – you could still leave it in the hands of the insurance company to carry it forward in a responsible way but you would allow the individual to purchase optional packages that were more generous. o Initially you could adopt this system and limit it to motor vehicle accidents. But there is no logical reason to limit it to motor vehicle accidents. It is possible to expand it to other types of accidents or where people have injuries or conditions where people would require some support. Limit to the motor vehicle accidents was only suggested as a first step to a much broader expansion. Osborne Report No to no fault (note this is only related to motor vehicle accidents)  Osborne report rejects proposal to move to no-fault/no-tort form of accident compensation. No to the no-tort system.  Recommend that existing tort system stay in place but existing no-fault compensation be expanding. (existing system in place) – no fault benefits would be deducted from any tort award
Why is no-fault rejected by Osborne?

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No fault benefits available was recommended to be substantially increased. If one could already recover in a no fault system, one does not have to sue in tort. Many changes in Ontario which make it easier for victims of motor vehicle accidents to make tort claims and receive increased awards; also we do have insurance with significant rewards Osborne is critical of cost-efficiency of no-fault because Slater merely compared administrative costs – there are other cost dimensions o What about the functions (such as deterrence) that will need to be replaced? Criminal law, safety regulations, etc. will have to take up the slack Goals and philosophy of tort system are different than those that underlie no-fault o a lot to be said for fault based system and for its deterrent effect, but also goes back to third goal of tort system – corrective justice Corrective system – link between wrongdoing and obligation/sense that it is right that they pay for the harm caused – it fits with public‟s sense of what is right o Idea of tort as a “civil theatre” o Underlies our values Tort system – fairness and justice o Public‟s sense of what is right requires that fault be taken into account in compensation o Unjust for system to compensate drunk driver and victim equally Admits delays but this is not b/c it is a fault based system, it is because of lump sum award (P have to wait till condition stabilizes and can be assessed) – we can get rid of this While liability insurance may weaken the deterrent effect, there is still the threat of increased premiums, danger of insurance company seeking indemnity from insured

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Torts Summary    2 responses to criticisms of the litigation process: an focus on improving and very little cases actually go to litigation The goals and philosophy of the no tort system is different than a no fault system. How to make real ones responsibility to other people in the community. The tort system accords with people‟s sense of fairness and justice. It would be unjust to compensate a drunk driver equally to the victim. Klar argues that even when people don‟t know what torts are, they appreciate what tort stands for.

Compensation for victims of crime  Shows the risks when you have a no fault system which is that you are no longer on the top of the priority list.  What‟s happened with the administration and funding of the system is a disgrace. It looks like a good system on paper but there has been tremendous under-funding for years.  Bottom line is that there are substantial and systemic problems. The systemic problems are not characteristic of a no fault system, but they are a danger. All of this is subject to manipulation and depends on it becoming politically front and centre. For many people who are claimants, that‟s one of the most difficult things to take forward. Palmer – NZ accident compensation scheme  NZ is the only Common law jurisdiction that has done away with personal injury tort system. NZ did away with the tort system in 1972. It‟s been a long time without a tort system. You can‟t bring a tort action for most personal injuries in NZ.  Tort system based on distributive justice – recognition that there are going to be injuries as a result of accidents in society and also a community responsibility to the statistical inevitable injuries that are provided for.  Principles that underlie the system o Community responsibility o Comprehensive entitlement o Complete rehabilitation o Real compensation o Administrative efficiency  Accident compensation system that was adopted, as long as one qualified for it, was really a comprehensive system and provided comprehensive support for rehabilitation services as well.  The system has as its goal more comprehensive coverage for more people without it being expensive, by getting rid of the expensive judgments handed down by tort claims. They only give out earnings related benefits for accident related injuries.  Don‟t receive common law damages; come may have secured more if they could, but not many  Arguments for abolishing common law action for accident compensation o Failure to compensate large number of accident victims o Waste – legal/administrative expenses o Delays in the delivery of benefits o Liability insurance has removed deterrent effect o Lump sum payment – speculation; guess work

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Torts Summary o Accident prevention was impeded Tactic: divert monies spent on compulsory liability insurance into the new scheme Purpose of scheme was to spread losses of personal injury among the community Note: exemplary damages survived the act Act excludes proceedings for damages arising directly or indirectly out of personal injury Distributive justice instead of corrective justice Allows many more people to claim for injuries than tort law alone did Benefits under scheme are reduced, while the right to sue remains unavailable – is that fair?? o Both schemes can‟t survive together – corrective justice & distributive

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Torts Summary
 ELEMENTS OF A NEGLIGENCE CLAIM DUTY OF CARE (P has burden of proof unless otherwise stated) Recognized category of duty? (see table of duty of care) General Test Donaghue v. Stevenson – take reasonable care to avoid acts or omission that can be reasonably foreseen as likely to injure my neighbour. Anns Test – 1) is there a sufficient relationship of proximity that the wrongdoer would reasonably contemplate that his carelessness may be likely to cause damage? 2) are there policy considerations which ought to negate that duty? Cooper v. Hobart – refines the Anns test and sets three branches: 1) is the harm reasonably foreseeable as affecting P if D acts negligently? 2) is there proximity between P and D? 3) Are there any policy reasons to deny a duty established under 1 and 2? Limits on whom a duty of care is imposed Moule v. N.B. Elec. Power Comm – if the D has taken measures to prevent the accident but one occurs because of other reasons that were not foreseeable, the D will not be liable. Palsgraf v. Long Island RY Co – Limits the duty of care to P who are among the category of people who are within the range of reasonable apprehension or within the risk of danger of the act. P must belong to a class of persons who are foreseeably at risk. Affirmative Action – No general duty to take affirmative action to benefit other people. Duty to rescue (Ostelind v. Hill) – no legal duty to take action. Matthews v. MacLaren – A special relationship between boat captain and invited guests imposes a legal duty to rescue. Good Samaritan Act – does not impose a legal duty to act but says if you have acted, there are situations where you might be relieved of liability. Duty to control the conduct of others Crocker v. Sundance Resorts – Duty to not place another person in a position where it is foreseeable that the person could suffer injury. Stewart v. Pettie; Jordan House v. Menow; Liquor License Act – commercial hosts owe a duty of care to patrons and third parties who may be injured by their intoxicated patron. Hunt v. Sutton Group Incentive Realty – Employer/employee special relationship where employer has to take positive steps to ensure that his employee gets home safely. John v. Flynn – Employer does NOT owe a duty of care to third parties for injuries caused by their intoxicated employee. Childs v. Desormeaux – Social hosts do NOT owe a duty of care to third parties who may be injured by the actions of their guests. Duty to prevent crime Jane Doe v. Metro Toronto Police – Police have a duty to warn the public of imminent danger and in the absence of a legitimate warning, have the duty to protect the public. Hill v. Chief Constable of West Yorkshire – Police do NOT owe a duty to victims of crime unless the offender commits the offence while in police custody. Tarasoff v. University of California – Confidentiality obligation of a psychiatrist to a patient ends where the peril to the public begins. A psychologist owes a duty to warn potential victims. Duty owed to rescuers Horsley v. MacLaren – when the D did not create the dangerous situation, he does not have the duty to help rescue somebody who tried to go in to rescue another. Videan v. British Transport Comm – D owes a duty to the rescuer, not the trespasser. Duty owed to the unborn Bovingdon v. Hergott – where a doctor negligently fails to communicate a material risk to a patient and the risk materializes, the doctor is liable. A doctor has the duty to warn pregnant women about potential risks to their babies. Montreal Tramways - third parties owe a duty to a fetus that is harmed if the mother is involved in an accident that the D negligently caused if the baby is born alive and with injuries. Dobson v. Dobson – A mother does NOT owe a duty of care to her unborn child for injuries suffered as a result of the mother’s negligence during pregnancy. Maternal Tort Liability Act – Allows a child to sue its mother for negligence if she is involved in a car accident and allows it to recover the insurance money. Nervous Shock Strong v. Moon – D did not owe a duty of care to the P even if she met the relational, temporal and locational proximity as a secondary victim because she was not a reasonably foreseeable plaintiff suffering from a reasonably foreseeable injury. Bechard v. Haliburton Estate – Duty owed to a rescuer responding to an emergency created by the D’s negligence. Mustapha v. Culigan Water – Test for existence of a duty of care where there is psychiatric harm is whether it is reasonably foreseeable that a person of normal fortitude or sensibilities is likely to suffer some type of psychiatric harm as a consequence of the D’s careless act. Negligent Misrepresentation Hedley Byrne Co v. Heller & Partners – duty of care arises with respect to careless statements that cause pure economic loss. Hercules Mgmt v. Ernst & Young – Auditors do NOT owe a duty of care for the careless misrepresentation of their financial reports even when the P detrimentally relied on them causing economic loss due to policy considerations and fear that D might be exposed to liability in an indeterminate amount for an indeterminate time to an indeterminate class. Deraps v. Coia – failure to divulge information is just as actionable as providing positively misleading advice. BC Checo v. BC Hydro – Parties may by contract limit the duty one owes to the other or waive the right to sue in tort, but the right to sue concurrently in tort or contract remains. Queen v. Cognos – D under a duty of care during pre-employment interview to exercise reasonable care and diligence in making representations about the job opportunity being offered. Pure Economic Loss Winnipeg Condo v. Bird Construction – Contractor or original builder has a duty to subsequent purchasers of the building to take reasonable care in constructing the building to ensure that the building contains no defects that pose foreseeable and substantial danger to occupants. Bow Valley Husky v. Saint John Shipbuilding – Third party does NOT owe a duty to another party for damage to property that results in lost profits. Martel Building v. Canada – Parties in pre-contractual negotiations do NOT owe a duty to the other party to negotiate in such a way as to avoid causing pure economic loss. Page 9 25 9 9 10 10

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STANDARD OF CARE (P has burden of proof unless otherwise stated) Probability of injury or risk United States v. Carroll Towing – Need to measure the magnitude and the probability of the loss and the burden of taking precautions (Liability = Burden < Probability of injury) Bolton v. Stone – Foreseeability of risk is not sufficient, a reasonable person considering the matter from the point of view of safety may think it right to refrain from taking steps to prevent foreseeable danger if the probability of that danger occurring is very small. Severity of injury Paris v. Stepney Borough Council – Gravity or severity of the injury is what matters. Private & Public Costs of avoiding risk Vaughn v. Halifax Dartmouth Bridge – Obligation to take all reasonable precautions to minimize damages. Where the cost of taking precautions is low and would have prevented the loss, the standard of care is breached. Law Estate v. Simice – If it comes down to a choice between a physician’s responsibility to patients and to the healthcare system, the patient should come first. Social Utility Watt v. Hertforshire County – Measuring due care must balance risk against the measures necessary to eliminate the risk. Saving lives justifies taking the risk. Reasonable Person Arland v. Taylor – imposes an objective standard of care of what the reasonable person would have done and not the subjective standard of what the D would have done. Standard of care assessed on what OUGHT to have been done. Special Standards of Care – Disabled  Fiala v. Cechmanek – People with disabilities are required to meet the standard of care of a reasonable person with similar disability; Children  Joyal v. Barsby – held to the standard of care of what another child of similar age, experience and intelligence EXCEPT where the child is engaging in an adult activity in which case they are judged by the adult standard; Professionals  White v. Turner – Professionals are held to a higher standard of care against what a reasonably prudent practitioner operating under similar circumstances would do. Judged against their peers. Custom  Ter Neuzen v. Korn – to determine the standard of practice, if the matter is highly complex, scientific or technical, the judge cannot make the judgment of standard practice and must rely on expert evidence. If the matter is understandable to the common person, the judge could decide if the behaviour is customary practice or not. Girard v. General Hospital of Port Arthur – Judge cannot reject the professional judgment of the expert evidence or the customary standard of care. Resurfice v. Hanke – Foreseeability depends on what a reasonable person would anticipate, not the seriousness of the injury. CAUSATION (P has burden of proof unless otherwise stated) But-for test Barnett v. Chelsea Kensington Hospital – Need to carefully analyze the relationship between the allegation of negligence and causation. The negligence action must be carefully drafted to ensure that the negligence was the cause of the P’s loss. Kauffman v. TTC – fundamental principle that the causal relationship between the negligence and the injury must be made on the basis of the factual cause of the injury. Material Contribution Athey v. Leonati – Does not have to be the only cause, just has to be beyond de minimus. But-for test may be relaxed as unworkable in cases where it is impossible to determine the precise cause of the injury and may be substituted with the material contribution test. Walker Estate v. York Finch General Hospital – Material contribution test applies when it leaves legitimate plaintiffs uncompensated. Court recognizes that the but-for test will not always be fair. Materially Increased Risk McGhee v. National Coal Board – if a D’s negligence materially increases the risk of a type of injury or harm and the P develops that exact type of injury or harm, then it will be deemed that the D caused the injury. Snell v. Farrell – USED IN CANADA – where the subject matter of the allegation lies only with the D’s knowledge there needs to be very little affirmative evidence on the P to justify drawing an inference of causation. The ultimate burden rests with the P to prove that the D’s negligence increased the risk to the extent that the negligence was more likely than not to have been the cause. Resurfice v. Hanke – P must establish a substantial connection between the D’s conduct and the P’s injury. 2 tests to use: 1) must be impossible for the P to satisfy the but-for test due to circumstances beyond the P’s control; 2) D must have breached a duty of care owed to the P by exposing P to an unreasonable risk of injury and P must have experienced that form of injury. Independent tortfeasor  only liable for the injury they caused Joint tortfeasor  when two or more independent actors cause INDIVISIBLE injury = jointly and severally liable. Multiple causes  P is injured by two or more tortfeasors in independent acts, P will have a separate cause of action for each D. Independent insufficient causes Athey v. Leonati – Not necessary for the P to establish that the D’s negligence was the sole cause of the injury, as long as the D is part of the cause of the injury, D is liable even though his act alone was not enough to create the injury. Nowlan v. Brunswick Construction – where there are independent torts which have contributed to the same damage, D will be held jointly and severally liable. Where there are concurrent torts both contributing to the same damage, whether or not the damage would have occurred in the absence of either cause, the liability is joint and several and either party causing or contributing to the damage is liable for the whole damage. Thin skull  pre-existing condition but P not doomed from the start. D is liable for all injuries caused. D takes his victim as he finds him. Crumbling skull  pre-existing condition and the P is doomed. D is liable for additional damage but not preexisting damage. Liable for speeding up the loss. Alternative causes of damage Dillon v. Twin State Gas and Elec – Where there is a tortious and non-tortious cause of one’s injury, one must look at the state the P would have been in but for the tortious act, taking into consideration the remaining presence of the non-tortious cause. 26 26

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Successive causes of parallel injury Penner v. Mitchell – P should not be awarded damages for non-tortious act that would have happened anyway b/c it would over-compensate the P. Where there is a tortious and non-tortious cause of injury, the non-tortious cause needs to be considered in assessing damages. Baker v. Willoughby – Where st there are two tortious acts, the 1 tortfeasor is responsible for all of the P’s losses that flowed from the first tort and nd nd the 2 tortfeasor is liable for only the additional harm that flowed. The 2 tortfeasor takes his victim as he finds him. Alternative causes Cottrell v. Gerrard – It is not sufficient to prove that adequate diagnosis would have afforded a chance of avoiding the loss unless that chance is greater than “more likely than not.” D is not liable for the loss after failing to meet the standard of care if the loss is less than 50% chance of being caused by his negligence. Multiple negligent defendants Cook v. Lewis – where there were 2 negligent D and P can’t prove which one caused the loss, the burden of proof shifts to the D to prove that they were not negligent. Because it is impossible to say who caused the loss, it would be unfair to leave the P uncompensated. Informed consent – Claim that a patient would not have gone ahead with surgery had he been properly informed must be shown on a modified objective test of whether a reasonable person in the patient’s position would have consented to the procedure had they been fully informed. (Hollis v. Dow Corning; Buchan v. Ortho; Hopp v. Lepp; Reible v. Hughes) Proof of negligence Wakelin v. London & South Western RY – P has to prove the loss was caused by some negligence of the D. Statutes shifting the burden of proof Highway Traffic Act (MacDonald v. Woodard) Burden shifts to the D to show that he wasn’t negligent. Onus shifts where there has been damage to a person by reason of a vehicle on a highway. Parental Responsibility Act (Shannon v. T.W.) Parents responsible for damage unless they satisfy the court that they were exercising reasonable supervision for the child at the time and that the loss was not an intentional tort. Onus of establishing the parent exercised reasonable supervision on the parent. Trespass Dahlberg v. Naydiuk – in a trespass action, the onus is on the D to prove that he wasn’t negligent and there was no intention to harm the P. In a negligence action, the onus is on the P to prove that the D was negligent. Res Ipsa Loquitor (Circumstantial evidence) Fontaine v. British Columbia – trier of fact will weigh circumstantial evidence along with other evidence to decide if it is enough to meet the burden of proof. If P doesn’t have strong and convincing circumstantial evidence which the D cannot poke holes in, the P has failed to show on the balance of probabilities that the inference drawn should point to D’s negligence. Novel approaches Sindell v. Abbott Laboratories – D liability will be approximately equal to the market share it had unless it can demonstrate that it could not have made the product which caused the P’s loss. Each manufacturer’s liability would approximate its responsibility for the injuries caused by its own products. Tobacco Damages and Health Care Costs Recovery Act – Modified market share liability approach done through legislation. D can be liable for the portion of damages based on length of time D was seller/manufacturer of tobacco and the market share it had, toxicity, promotion, advertising etc. REMOTENESS (P has burden of proof unless otherwise stated) Directness test Re Polemis and Furness – remoteness defined in terms of close temporal and spatial connection between the D’s breach and the P’s loss. P’s loss would not be too remote to be recoverable if it was the direct result of the D’s carelessness. Foreseeability test Wagon Mound (No. 1) – liable where you have done wrong and for the damages that are reasonably foreseeable, but not beyond that. Foreseeability becomes the effective test. The standard of foreseeability is used because if the acts were foreseeable (natural or necessary or probable) then the injurer could have done something to prevent it. Kind of injury Hughes v. Lords Advocate – D liable so long as he caused injuries to the P which were reasonably foreseeable in kind, even if they were not foreseeable in degree or in exactly how the damage occurred. You only have to foresee the injury, not the specific way it happens. Jolley v. Sutton London B.C. – broad view taken by H.L. Doughty v. Turner Mfg. Narrow view resulted in an unsuccessful case – said the injury was not foreseeable. Impact of Hughes depends on how broadly or narrowly one characterizes the kind of injury that the P suffered. Need to say that the ACCIDENT was reasonably foreseeable and not necessarily the type of damage that was reasonably foreseeable. Thin skulled plaintiff Smith v. Leach Brain & Co. – Once the type of injury is reasonably foreseeable, then you don’t need to establish that the actual injury is reasonably foreseeable, D is liable for all injuries even if P had any preexisting conditions. Marconato v. Franklin – Consequences suffered were unforeseeable but a tortfeasor should take his victim as he finds him. P was predisposed to suffer the consequences which she did, D is responsible for all consequences of the damages. Possibility of injury Wagon Mound (No. 2) –There does not have to be foreseeability of probable risk, only possible risk. A reasonable person would have taken steps to eliminate the risk of injury if there is no real risk, meaning that it is not far fetched, so long as the cost of prevention is not high. Assiniboine South School Division No. 3 v. Greater Winnipeg Gas – Enough to find liability if one could foresee in a general way the consequence. Foresight is the test for both duty and remoteness. Extent of the damage and its manner of incidence need not be foreseeable if physical damages of the kind that ensues is foreseeable. Intervening causes Whether or not the later occurrence is within the scope of the risk that was created by the tortious conduct. Bradford v. Kanellos – D will be liable if the consequence can fairly be regarded as within the risk created by the D’s negligence. If the intervening act was not reasonable on the part of the actor and therefore could not be reasonably anticipated by the original tortfeasor, it is not within the scope of the original risk, D not liable. 3435

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Price v. Millawski –Person committing a negligent act may be held liable for future damages arising in part from the subsequent negligent act of another and in part from his own negligence, where such subsequent negligence and consequent damage were reasonably foreseeable as a possible result of his own negligence. Block v. Martin – D liable for injuries that the P sustains while recovering. Original injury was a contributing cause of the second injury and the P’s conduct was not an intervening act. Janiak v. Ippolito; Bourgoin v. Leamington – Original tortfeasor may be held liable for additional losses a P suffers as a result of failing to undergo an operation. DEFENCES (D has burden of proof unless otherwise stated) Contributory negligence Walls v. Mussens – Test to be applied in an emergency situation is not whether the P exercised careful and prudent judgment in doing what he did but whether he did what an ordinary prudent man might reasonably do under the stress of the situation (Agony of the moment rule). Cannot hold somebody in an emergency situation that is not the result of their own negligence to the same standard of care as you would somebody who is not in an emergency situation. Gagnon v. Beaulieu – if P knew or ought to have known that wearing a seatbelt would reduce the possibility of being injured and at the time of the accident was not wearing a seatbelt and his injuries would have been less severe if he had been wearing a seatbelt, then P was contributorily negligent to the nature and extent of injuries. Negligence Act – courts shall apportion the damages in proportion to degree of fault against the parties respectively. Mortimer v. Cameron – Even if the P was contributorily negligent, if the incident that occurs was something that was beyond the scope of the risk of the negligence of the victim, D is liable. Chamberland v. Fleming; Snushall v. Fulsang – upper limit of 25% reduction for contributory negligence. If failure to wear a seatbelt made no difference, damages would not be reduced. If wearing a seatbelt would have made all the difference, then max reduction of 25% should be taken off the damages for contributory negligence. Voluntary Assumption of Risk Dube v. Labar – to constitute a defence, there must have been an express or implied bargain between the parties whereby the P gave up his right of action for negligence, only in circumstances where it is clear that P knew of certain risks of harm and bargained away his right to sue for injuries incurred as a result of any negligence on D’s part. Must be some active communication whereby P absolves D for liability for negligence. Not enough for P to be aware of the risk and undertake the activity. Criminal or immoral act Hall v. Hebert – Morality doctrine limited to when P seeks to profit from his illegal conduct or where the claimed compensation would amount to an evasion of criminal sanction. John Bead Corp. v. Soni – Defence does not apply merely because P was engaged in an illegal activity that was unrelated to the facts underlying the claim. Beljanski v. Smithwick – Court refused to base any part of the award on illegal income deceased would have made through criminal activity. DAMAGES Nominal – vindicate P’s rights in situations where he suffered no injuries. Compensatory – put the P in the position that he would have been in but for the tort Punitive – where D acted with high-handed, blatant disregard for P’s safety or interest. (Robitaille v. Vancouver Hockey Club; Kraft v. Oshawa General Hospital) Framework for quantifying general damages (Andrews v. Grand & Toy Alberta) Pecuniary loss Cost of future care – What P needs for future medical care. Based on projected life expectancy taking into account injuries and the reasonable level of care based upon the needs of P. Deductions for contingencies and inflation/interest adjustment. Need to calculate the amount that is needed to give as a lump sum that if properly invested would yield the amount to cover the person’s projected life. Lost earnings capacity – Need to take into account the level of earnings that he was making before the accident and the length of working life. Take into account contingencies which might affect future earnings (i.e. unemployment illness etc.) What P would have made over the course of his normal life expectancy had he not been injured. Relevant considerations – capitalization rate – the allowance for inflation and rate of return on investments and allowance for tax. Use present rate of return on long-term investments and make allowances for the effects of future inflation. Duplication – P cannot recover for the expense of providing basic necessities such as food, clothing and shelter. Give P an award for future care which makes no deduction for basic necessity of life then deduct that amount when computing award for loss of earnings. Non-pecuniary loss – Compensation for harms that are less easily quantified such as pain and suffering. Premise is giving money to allow you alternate pleasure that makes up for the lost pleasures of life due to tort. Capped at $300K for the most severe injuries. Difficulties in awarding damages (Jamie Cassels) Children – danger that biases and stereotypes will affect the award. Try to approximate child’s earning capacity based on level of education, parental SES. Gender – Females receive less compensation than males. Societal wage gap. Marriage contingency a negative for women but a positive for men. Courts of Justice Act – Periodic payments in medical malpractice cases for awards over $250K Survival of actions and dependants’ claims Survival of Actions Act; Trustee Act (ON) – survivor can maintain an action for torts or injuries in the same manner with the same rights that the deceased had. Fatal Accidents Legislation Fatal Injuries Act; Family Law Act (ON) – dependants claim for damages if person is injured or killed by another. Family members entitled to recover pecuniary loss resulting from injury or death. Death of family provider Keizer v. Hanna – a fair and adequate sum of award for damages is one that takes into account of contingencies but also allow P to reasonably expect to live as if there was no loss of primary earner.

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 INTENTIONAL TORTS Battery  look for intentional (non-negligent) physical contact. Bettle v. Yim  Test is whether D was guilty of deliberate, intentional and unlawful violence or threats of violence. If he was and more serious harm befalls P than was intended by D, he must still bear the responsibility of the unintended result. If physical contact was intended, fact that its magnitude exceeded all reasonable or intended expectations should make no difference. Norberg v. Wynrib  Defence of consent predicated assumption of individual autonomy and free will. No legally effective defence of consent to sexual assault where there is: 1) proof of inequality b/w parties which ordinary occur within the context of special power dependency relationships; 2) proof of exploitation Non-Marine Underwriters, Lloyds of London v. Scalera  P had no obligation to establish consent, burden was on D to assert and prove consent. Assault  look for whether D’s conduct was a reasonable apprehension of imminent harm where the reasonable person would have felt threatened. Holcombe v. Whitaker  Words alone may not constitute an assault but they may give meaning to an act and taken together may constitute an assault. A show of force accompanied by an unlawful or unjustifiable demand, compliance with which will avert the threatened battery is an assault. Question is not whether an overt act took place but whether D had the ability to carry out his threat. Police v. Greaves  D guilty of assault if there was a threat of violence exhibiting an intention to assault and present an ability to carry out the threat. A threat can amount to an assault because the threat to another that led him to believe that there was an ability to carry out the threat. Intentional infliction of nervous shock Wilkinson v. Downton  A person who makes a false statement intended to be acted on must make good on the damage that naturally arises from its being acted on. Tort requires: 1) an act or (false) statement; 2) calculated to produce harm; 3) harm was produced. Radovskis v. Tomm  In the absence of visible or provable injury or illness that arises due to the act in question, P cannot claim for intentional infliction of nervous shock. In order to have a cause, there needs to be visible and provable injury or illness. Samm v. Eccles  cause of action for severe emotional distress not accompanied by bodily impact or physical injury where the D intentionally engaged in some conduct toward P (a) with the purpose of inflicting emotional distress or (b) where any reasonable person would have known that such would result and his actions are of such a nature as to be considered outrageous and intolerable and they offend against the general accepted standards of decency and morality. Bell-Ginsberg v. Ginsberg  Liability could be attached to the claim of intentional infliction of emotional distress if D’s conduct were (a) direct and immediate (b) intended or foreseeable or a probable consequence. No common law tort of discrimination (Bhadauria v. Seneca College) Human rights code – lays out the rights and remedies for sexual harassment. New amendments coming into force June 2008. Informed Consent and a doctor’s duty of disclosure Marshall v. Curry  In cases of emergencies where it would be unreasonable to postpone a procedure it is a surgeon’s duty to act in order to save the life of the patient and that should not expose him to liability. Mallette v. Shulman  Doctrine of informed consent does not extend to informed refusal. Informed refusal that amounted to her instruction was binding on health care professionals and that refusal has to be honoured. Emergency exception does not apply when patient has explicitly refused consent. C. v. Wren  Parental right to determine whether or not their minor child will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him to understand fully what is proposed. Arndt v. Smith  Modified objective test used to determine whether a patient would have consented to a treatment if that treatment has gone wrong. Requires court to consider what the reasonable patient in the circumstances of the P would have done if faced with the same situation. Reasonable person must be taken to possess the patient’s reasonable beliefs, fears, expectations etc. Health Care Consent Act  common law rules regarding content to treatment now in statute. No minimum age of consent with respect to medical treatment. Consent valid if informed, and given voluntarily and not obtained through fraud or misrepresentation. Treatment can be given in an emergency situation where delay required to obtain consent will prolong the suffering of the person. PUBLIC AUTHORITIES R. In Right of Can v. Sask Wheat Pool  Civil consequences of breach of statute should be subsumed in the law of negligence. Proof of statutory breach causing damage may be evidence of negligence. First need damages that result in the breach of the statute then need to show that damages were caused as a result of that breach. Statutory Public Duty  enabling legislation requiring public authority to pursue a particular course of action. Public authority CANNOT be held liable for doing what was required. Liability may be imposed if the public authority performed its task carelessly but no liability for the course of action itself. Statutory Discretionary Power  Public authority has the power but not the obligation to act in a certain way. Hesitation with imposing liability for fear of the view that court is substituting their own opinion of what is reasonable, which is for the judgment of the Legislature. If public authority is not required to take a particular course of action or has discretion, then it is acting under a statutory power. Page 62 62

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Torts Summary
Just v. British Columbia  duty of care should apply to public authorities unless there is a valid basis of exclusion such as a policy decision. If the negligence is something done at the operational stage, then the negligence analysis is applied. Government may be exempt from duty of care in situations where it acting on a pure policy decision. Government agency exempt from duty of care if where: 1) explicit statutory exemption; 2) result of the nature of the decision made by the agency. Once the distinction has been made, there is no difference between a claim for physical damage or a claim for pure economic loss. Policy Decision (exempt)  made at a high level; budgetary limits and availability of personnel and resources; decisions to carry out tasks; (Swinamer v. Nova Scotia) Other examples: maintenance of municipal manhole covers; adoption of a particular system for clearing snow and ice from sidewalks; refusal to enter into an agreement with parents to provide for special needs children. Operational Decision (NOT exempt)  decisions on the details of how that task should be carried out. i.e. failure to erect higher median barriers on a highway; municipality decision to issue building permits and its failure to identify construction defects; crown’s failure to inspect and maintain highways; denial of a crabbing licences by ministry on account of an officer’s negligent measurement of P’s boat; failure to anticipate freeze-up and apply salt to highways. VICARIOUS LIABILITY Statutory  related to motor vehicles. Owner of vehicle liable even if he wasn’t driving as long as the car was not stolen. Agency relationship  principal authorizes agent to act on his behalf, either principal or agent can be liable for the other’s tort. T.G. Bright & Co. v. Kerr  Principal liable to third parties in a civil suit of his agent in the course of his employment although the principal did not authorize or justify or participate in the misconduct of the agent. There is no vicarious liability for matters beyond the scope of the agency where the agent is beyond the control of the principle. Limiting factor is whether it was within the course of his employment or not. Employer-Employee relationship Baxley v. Currie  VL appropriate where there is a connection between the creation or enhancement of a risk and the wrong that accrues from them, even if unrelated to the employer’s desires. To determine a sufficient connection between the employer’s creation or enhancement of risk and the wrong, could consider: 1) opportunity that the enterprise afforded the employee to abuse his power; 2) extent to which the wrongful act may have furthered the employer’s aims; 3) extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the enterprise; 4) extent of power conferred on the employee in relation to the victim; 5) vulnerability of potential victims to wrongful exercise of employee’s power. There must be a strong connection between what the employer was asking the employee to do and the wrongful act. Must be possible to say that the employer significantly increased the risk of harm by putting the employee in the position and requiring him to perform the assigned tasks. What is required is the material increase in the risk as a consequence of the employer’s enterprise and the duties entrusted to the employee. Jacobi v. Griffiths  there was an insufficiently strong connection between the type of risk created and the actual assault that occurred to warrant imposition of liability. Independent contractors 671122 Ontario Ltd. v. Sagaz Industries Canada  Difference between employee and independent contractor lies with the element of control that the employer has over the direct tortfeasor. Employee is a contract for SERVICE. Independent contractor is a contract for SERVICES. Enterprise test which gives rise to an employer’s VL: 1) he controls the activities of the worker; 2) he is in a position to reduce the risk of loss; 3) he benefits from the activities of the worker; 4) true cost of the product ought to be borne by the enterprise offering it. Non-delegable duties  exceptions to the rule that independent contractors are do not subject their employer to VL when: 1) employer was negligent in hiring the contractor; 2) employer was negligent in supervising the contractor; 3) employer hired an independent contractor to do something unlawful. A person is liable when he has a duty and cannot delegate it to somebody else. Person subject to an obligation can delegate performance but not responsibility. Employer has a statutory or common law duty to take reasonable care and non-delegable duty adds another obligation which is to ensure that the independent contractor also takes care. Lewis (Guardian ad litem) of v. British Columbia) BC government was under a non-delegable duty of care to take reasonable care of itself and ensure that reasonable care is taken by the contractor doing the work. Determining whether there is a non-delegable duty depends on the nature and extent of the duty owed to the P. Can be extended when: 1) depends on the statutory provision and circumstances of the case; 2) province had to be careful in hiring and supervising; 3) province had to ensure that independent contractor was not negligent. 7273 73

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Checklist for tort analysis

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