Damages _p 697_ - DOC by maclaren1

VIEWS: 149 PAGES: 126

									Index
  1. Pre-amble ...................................................................................................13
     1.1 What is tort? .........................................................................................13
     1.2 Role of courts. ......................................................................................13

  2. Damages .....................................................................................................13
     1.3 Summary ..............................................................................................13
     1.4 Posner: Economic Analysis .................................................................14
         1.4.1 Cases ........................................................................................14
             1.4.1.1 Andrews v. Grand & Toy Alberta Ltd. (1978) ..................14
             1.4.1.2 Arnold v . Teno (1978) ......................................................16
     1.5 Lump Sums ..........................................................................................16
         1.5.1 Cases ........................................................................................16
             1.5.1.1 Wilson v. Martinello (1995) ..............................................16
     1.6 Compensation and Deterrence .............................................................17
     1.7 Collective Benefits ...............................................................................17
         1.7.1 Cases ........................................................................................17
             1.7.1.1 Cunningham v. Wheeler (1994) .........................................17
             1.7.1.2 Bradburn v. Great Western Rail Co (1874) .......................18
     1.8 Subrogation ..........................................................................................19

  3. Negligence: Standard of Care ...................................................................20
     1.9 Summary ..............................................................................................20
     1.10 .................................................................................................... Determ
         ining Negligence ..................................................................................20
         1.10.1 The Objective Standard............................................................20
              1.10.1.1 .................................................................................... Holme
                         s: The common law text .....................................................21
              1.10.1.2 .................................................................................... Cases
                         ............................................................................................22
                    1.10.1.2.1 Vaughan v. Menlove (1837) ..................................22
                    1.10.1.2.2 Buckley v. Smith Transport Ltd., (1946) ...............22
                    1.10.1.2.3 Roberts v. Ramsbottom (1980) ..............................23
                    1.10.1.2.4 Mansfield v. Weetabix, (1998) ..............................23
                    1.10.1.2.5 McHale v. Watson, (1966) .....................................24
                    1.10.1.2.6 McErlean v. Sarel, (1987) ......................................24
         1.10.2 Reasonable Care.......................................................................25
              1.10.2.1 .................................................................................... Law
                         and Economics (Posner) ....................................................25
              1.10.2.2 .................................................................................... Critics
                         of an Economic Analysis ...................................................25
              1.10.2.3 .................................................................................... Cases
                         ............................................................................................26
                    1.10.2.3.1 Bolton v. Stone (1951) ...........................................26
                    1.10.2.3.2 Latimer v. AEC, (1953) .........................................27
                    1.10.2.3.3 Watt v. Hertfordshire County Council, (1954) ......27

                                                                                                                       1
               1.10.2.4 .................................................................................... Usage
                       of Custom ...........................................................................27
               1.10.2.5 .................................................................................... Cases
                       ............................................................................................28
                   1.10.2.5.1 Trimarco v. Klein, (1982) ......................................28
                   1.10.2.5.2 T.J. Hooper (1932) .................................................28
                   1.10.2.5.3 ter Neuzen v. Korn (1995) .....................................28



4. Duty of Care ...............................................................................................30
   1.11 .................................................................................................... Summ
       ary ........................................................................................................30
   1.12 .................................................................................................... Wright
       , Cases on the Law of Torts (Risk) ......................................................30
   1.13 .................................................................................................... Cases
       ..............................................................................................................30
       1.13.1 Winterbottom v. Wright (1842) ...............................................30
       1.13.2 Donoghue v. Stevenson (1932) ................................................31
       1.13.3 Deyong v. Shenburn, (1946) ....................................................33
       1.13.4 Watson v. Buckley (1940) .......................................................33
       1.13.5 Clay v. A.J. Crump & Sons Ltd., (1964) .................................33
       1.13.6 Palsgraf v. Long Island Railroad Co.,(1928) ...........................33
   1.14 .................................................................................................... Genera
       lity and Zone of Reason .......................................................................35
       1.14.1 Cases ........................................................................................35
             1.14.1.1 .................................................................................... Haynes
                         v. Harwood (1935) .............................................................35
             1.14.1.2 .................................................................................... Wagne
                         r v. International Railway Co. 1921 ..................................36
   1.15 .................................................................................................... Anns
       Test .......................................................................................................36
       1.15.1 History and Development of Anns ..........................................36
       1.15.2 Cases ........................................................................................37
             1.15.2.1 .................................................................................... Cooper
                         v. Hobart (2001) .................................................................37
             1.15.2.2 .................................................................................... Renslo
                         w v. Mennonite Hospital (1976) ........................................38
             1.15.2.3 .................................................................................... Urbans
                         ki v. Patel (1978) ................................................................38
             1.15.2.4 .................................................................................... Wellbr
                         idge Holdings v. Greater Winnipeg (1970)........................38
   1.16 .................................................................................................... Fetal
       Rights ...................................................................................................39
       1.16.1 Cases ........................................................................................39



                                                                                                                        2
             1.16.1.1 .................................................................................... Dobso
                         n v. Dobson (1999) ............................................................39
             1.16.1.2 .................................................................................... Duval
                         v. Seguin (1972) .................................................................41
5. Remoteness ................................................................................................42
   1.17 .................................................................................................... Provin
       g A Tort Action ....................................................................................42
   1.18 .................................................................................................... Defini
       ng Remotness .......................................................................................42
   1.19 .................................................................................................... Stare
       Decisis and Res Judicata ......................................................................42
   1.20 .................................................................................................... Cases
       ..............................................................................................................42
       1.20.1 Re: Polemis and Furness, Withy & Co (1921) ........................42
       1.20.2 Wagon Mound 1 (1961) ...........................................................43
       1.20.3 Wagon Mound 2 (1966) ...........................................................44
   1.21 .................................................................................................... The
       ―thin skull‖ rule ....................................................................................44
   1.22 .................................................................................................... Cases
       ..............................................................................................................45
       1.22.1 Smith v. Leech Brain & Co (1962) ..........................................45
       1.22.2 Doughty v. Turner Manufacturing (1964) ...............................45
       1.22.3 Stephenson v. Waite Tileman Limted (1973) ..........................46
       1.22.4 Hughs v. Lord Advocate (1963) ..............................................47
       1.22.5 Cotic v. Gray (1981) ................................................................47
   1.23 .................................................................................................... Summ
       ary ........................................................................................................48
   1.24 .................................................................................................... Novus
       Actus Interveniens ...............................................................................48
   1.25 .................................................................................................... Cases
       ..............................................................................................................48
       1.25.1 Bradford v. Kanellos (1973) ....................................................48
       1.25.2 Home Office v. Dorset Yacht Co. Ltd (1970) .........................49
       1.25.3 Lamb v. London Borough of Camden (1981)
6. Causation
   1.26 .................................................................................................... Steps
       to Prove a Tort Action..............................................................................
   1.27 .................................................................................................... Defini
       ng Causation.............................................................................................
   1.28 .................................................................................................... Factual
       Causation..................................................................................................
       1.28.1 But For .........................................................................................
             1.28.1.1 .................................................................................... Barnett
                         v. Chelsea(1968) ....................................................................
             1.28.1.2 .................................................................................... Blackst
                         ock v. Foster (1958) ...............................................................

                                                                                                                     3
       1.28.2 Not Sole or Predominant but Sufficient Cause ............................
            1.28.2.1 .................................................................................... Athey
                        v. Leonati (1996) ....................................................................
            1.28.2.2 .................................................................................... Walker
                        Estate v. York Finch Hospital, 2001 ......................................
       1.28.3 Material Contributuion.................................................................
            1.28.3.1 .................................................................................... McGhe
                        e v. National Coal Board Text (1972) ....................................
            1.28.3.2 .................................................................................... Wilshe
                        r v. Essex (1988) ..................................................................
            1.28.3.3 .................................................................................... Farrell
                        v. Snell (1990)........................................................................
            1.28.3.4 .................................................................................... Fairchi
                        ld v. Glenhaven Funeral (2002) .............................................
   1.29 .................................................................................................... Multip
       le Tortfeasors (Cases) ..............................................................................
       1.29.1 Cook and Lewis (1954) ................................................................
       1.29.2 Sidnell v. Abbott Laboratories (1980) .........................................
       1.29.3 Lambton and Mellish [1894] .......................................................
       1.29.4 Kingston v. Chicago and NW Ry (1927) .....................................
       1.29.5 Sunrise Co. Ltd. v. Ship ―Lake Winnipeg‖ (1991) ......................
       1.29.6 Baker v. Willoughby ....................................................................
       1.29.7 Jobling v. Associated Dairy .........................................................
       1.29.8 Saunders System Birmingham v. Adams (1928) .........................
   1.30 .................................................................................................... Loss of
       Chance......................................................................................................
       1.30.1 Hotson v. East Berkshire Area Health Authority.........................
       1.30.2 Lawson v Laferriere, 1991, Que. C.A. .........................................
7. Defenses .........................................................................................................
   1.31 .................................................................................................... Volunt
       ary Assumption of Risk ...........................................................................
       1.31.1 Lambert v. Lastoplex (1971) SCC ...............................................
       1.31.2 Dube v. Labar (1986) SCC ..........................................................
       1.31.3 Priestley v. Gilbert (1973)............................................................
       1.31.4 Birch v. Thomas ...........................................................................
   1.32 .................................................................................................... Illegali
       ty ..............................................................................................................
       1.32.1 Hall v. Hebert, SCC, 1993 ..........................................................
   1.33 .................................................................................................... Contri
       butory Negligence ....................................................................................
       1.33.1 Butterfield v. Forrester (1809) Text p.289 ...................................
       1.33.2 Froom v. Butcher (1975) text p 293.............................................
8. The Role of Statutes .......................................................................................
   1.34 .................................................................................................... Statute
       s as proof of Negligence ..........................................................................
       1.34.1 The Queen v. Saskatchewan Wheat Pool ....................................

                                                                                                                      4
        1.34.2 Ryan (1991) SCR 201 ..................................................................
    1.35 .................................................................................................... Charter
        Cases ........................................................................................................
        1.35.1 Bhaduria v. Seneca College ........................................................
9. Negligent Misrepresenation ...........................................................................
    1.36 .................................................................................................... Proble
        ms .............................................................................................................
    1.37 .................................................................................................... As it
        Currently Stands.......................................................................................
    1.38 .................................................................................................... Profess
        ional Services Implications ......................................................................
    1.39 .................................................................................................... Histori
        cal Tree.....................................................................................................
    1.40 .................................................................................................... Politic
        s ................................................................................................................
    1.41 .................................................................................................... Cases
        (Negligent Misrepresentation) .................................................................
        1.41.1 Candler v. Crane Christmas & Co.(1951) ...................................
        1.41.2 Hedley Bryne & Co. v. Heller [1964] .........................................
        1.41.3 Queen v. Cognos (1993) ..............................................................
        1.41.4 Spring v. Guardian Assurance [1994] ..........................................
        1.41.5 Haig v. Bamford, 1976, SCC .......................................................
        1.41.6 Caparo Industries v. Dickman (1990) ..........................................
        1.41.7 Hercules Management (1997) SCC .............................................
    1.42 .................................................................................................... Bridgi
        ng the gap between Torts, Contracts and Economic Loss .......................
        1.42.1 Nunes Diamond v. Dominion Electric Protection, 1972 .............
        1.42.2 Central Trust v. Rafuse (1986).....................................................
        1.42.3 BC Checo v. BC Hydro (1993) SCC ...........................................
10. Economic Loss
    1.43 Pure and Consequential Economic Loss
        1.43.1 Weller v. Foot and Mouth Disease Research Institute (1966) .....
        1.43.2 Spartan Steel v. Martin (1972) .....................................................
        1.43.3 Caltex Oil v. Willemstad (1976) ..................................................
        1.43.4 Canadian National Railway v. Norsk Pacific Steamship (1992) .
    1.44 Defective Chattels .............................................................................
        1.44.1 Junior Books (UK) (1982) ...........................................................
        1.44.2 Murphy (UK) 1990 ......................................................................
        1.44.3 Winnipeg Condominium v. Bird..................................................
    1.45 Exceptions to Non-Recovery .............................................................
    1.46 Reconsidering Weller and Spartan.....................................................
    1.47 Wills ...................................................................................................
        1.47.1 White v. Jones ..............................................................................
        1.47.2 Hill v Van Erp, Aust HC, 1997 (452) ..........................................
11. Psychiatric Harm
    1.48 McLauchlin v. Wilcox .......................................................................

                                                                                                                        5
    1.49 Alcock v. Chief Constable [1991] (HL) ............................................
    1.50 White v. Chief Constable [1999] (HL) .............................................
    1.51 Tame v. New South Whales; Annets v. Australian Station (2002) ...
    1.52 Greatorex v Greatorix [2000].............................................................
    1.53 Page v. Smith [1995] (HL)
    1.54 Primary vs. Secondary
12. Wrongful Life and Wrongful Birth ................................................................
    1.55 Exam Techniques ...............................................................................
    1.56 The Parties .........................................................................................
    1.57 Negligent Sterilizations......................................................................
    1.58 Cases
        1.58.1 MacKay v. Essex Area Health Authority [1982] .........................
        1.58.2 Kealey v. Berezowski (1996) .......................................................
        1.58.3 McFarlane v. Tayside Health Board [2000] ................................
        1.58.4 Parkinson v. St. James [2002] ......................................................
        1.58.5 Rees v. Darlington [2003] ............................................................
    1.59 Future Directions ...............................................................................
        1.59.1 Rees [2004] 1 AC 309 (HL).........................................................
        1.59.2 Cattanach v. Melcher [2003]........................................................
13. Intentional Torts and Informed Consent ........................................................
    1.60 Assault and Battery In Tort ................................................................
        1.60.1 Reibl v. Hughes (1980) ................................................................
        1.60.2 White v. Turner (1981) ................................................................
        1.60.3 Hollis v. Dow Corning (1995) .....................................................
14. Nonfeasance and Misfeasance .......................................................................
    1.61 Historically.........................................................................................
        1.61.1 Union Pacific v. Capier (1903) ....................................................
    1.62 Three Exceptions ...............................................................................
        1.62.1 Oke v. Weide Transport (1963) ...................................................
        1.62.2 Horsley v. MacLaren (1971) ........................................................
        1.62.3 Hargrave v. Goldman, Aust HC, 1967 .........................................
        1.62.4 Crocker v. Sundance Northwest Resorts (1988) ..........................
        1.62.5 Childs v. Desmoreaux ..................................................................
        1.62.6 Dupuis v. Flatley ..........................................................................
    1.63 Public and Private Responsibility ......................................................
        1.63.1 Just v. B.C. ...................................................................................




                                                                                                                  6
Topical

1. Intro

2. Damages
Calculation
Andrews v. Grand & Toy Alberta Ltd. (1978)                  [quadriplegic]          14
       - calculates value of human life
Arnold v . Teno (1978)                                      [injured child]         16
       - calculates value of child life with reference to parents income
Lump Sum
Wilson v. Martinello (1995)                                 [tim hortons]           16
       - lump sum versus periodic payment
Collective Benefits
Cunningham v. Wheeler (1994)                                [union benefits]        17
       - when to deduct collective benefits, role of insurance
Bradburn v. Great Western Rail Co (1874)                    [double recover]        18
       - precedent for non-deduction of insurance


3. Negligence
The Objective Standard
Vaughan v. Menlove (1837)                                   [burning haystack]      22
       - example application regardless of personal ability
Buckley v. Smith Transport Ltd., (1946)                     [syphilis trucker]      22
       - exception for individuals due to insanity
Roberts v. Ramsbottom (1980)                                [heart attack driver]   23
       - impairment not an exception
Mansfield v. Weetabix, (1998)                               [blood sugar trucker]   23
       - further unforeseeable insanity
McHale v. Watson, (1966)                                    [spike boy]             24
       - exception for children
McErlean v. Sarel, (1987)                                   [motorcycle children]   24
       - children in adult activities held to standard objective
Reasonable Care
Bolton v. Stone (1951)                                      [cricket field]         26
       - economic analysis with probability and limits of reasonable
Latimer v. AEC, (1953)                                      [flooded factory]       27
       - limits of reasonable care (economic)
Watt v. Hertfordshire County Council, (1954)                [fireman]               27
       - reasonable or not he put himself in harms way
Usage of Custom
Trimarco v. Klein, (1982)                                   [glass shower]          28
       - using custom to avoid negligence
T.J. Hooper (1932)                                          [sinking barge]         28
       - limits of custom when custom itself is negligent

                                                                                         7
ter Neuzen v. Korn (1995)                                 [AI HIV]              28
       - examines limits of custom when there is self definition by expert groups

4. Duty of Care
Winterbottom v. Wright (1842)                                [postal carriage]      30
       - examines the early concept of duty and its limit to only formal contracts
Atkins Test
Donoghue v. Stevenson (1932)                                 [ginger beer snail]    31
       - precedent setting extension of duty beyond contracts
Atkins Applications
Deyong v. Shenburn, (1946)                                   [actor looses clothes] 33
       - application of Atkin principle, courts reluctant to extend idea of Donoghue
Watson v. Buckley (1940)                                     [hair dye]             33
       - extension of Donoghue to distributors of goods
Clay v. A.J. Crump & Sons Ltd., (1964)                       [falling wall]         33
       - chain of causation
Limits of Atkins
Palsgraf v. Long Island Railroad Co.,(1928)                  [train fireworks]      33
       - struggling with idea of duty of care and how far it extends
Zone of Reason
Haynes v. Harwood (1935)                                     [delivery horses]      35
       - examines the level of generality of events when applying Atkin test and rescue
Wagner v. International Railway Co. (1921)                   [rescue]               36
       - danger invites rescue and law recognizes this duty to rescuer
Anns Test
Cooper v. Hobart (2001)                                      [mortgage investors] 37
       - reaffirms the SCC commitment to the Anns Test, scope of proximity
Renslow v. Mennonite Hospital (1976)                         [blood transfusion] 38
       - court recognizes chain of events over time holding doctors responsible
Urbanski v. Patel (1978)                                     [father kidney]        38
       - father donates kidney to daughter, has right to damages
Wellbridge Holdings v. Greater Winnipeg (1970)               [non-existent firm] 38
       - a non-existent firm at the time is not owed a duty of care
Fetal Rights (and Anns Test)
Dobson v. Dobson (1999)                                      [baby sues mother] 39
       - court grapples with concept of children suing mothers
Duval v. Seguin (1972)                                       [baby sues driver]     41
       - court allows suing of other parties by born alive fetus

5. Remoteness
Direct and Indirect Causes
Re: Polemis and Furness, Withy & Co (1921)                    [exploding ship]        42
       - the court is trying to distinguish direct/indirect causes in order to limit liability
Reasonable Foreseeability and Damages
Overseas Tankship (UK) v. Morts Dock (1961)                   [burning dockyard] 43



                                                                                             8
       -   AKA Wagon Mound 1, courts move beyond direct/indirect to reasonable
           foreseeability
Overseas Tankship v. Miller Steamship (1966)                [burning ship at dock] 44
       - AKA Wagon Mound 2, courts uphold concept of reasonable foreseeability
Kind versus Extent
Smith v. Leech Brain (1962)                                 [burnt cancer lip]     45
       - the court addresses the problem of kind v. extent of damages (think skull rule)
Doughty v. Turner Manufacturing (1964)                      [exploding lid]        45
       - example of non-foreseeable damages
Stephenson v. Waite Tileman Limted (1973)                   [infected hand]        46
       - application of wagon mound foreseeability to personal injury and extent
Kind versus Circumstances
Hughs v. Lord Advocate (1963)                               [exploding manhole] 47
       - application of foreseeability to personal injury and circumstances
The end of Remoteness
Cotic v. Gray (1981)                                        [suicide accident]     47
       - the concept of remoteness is extended too far
Novus Actus Interveniens
Bradford v. Kanellos (1973)                                 [grill fire]           48
       - intervening act is unforeseeable, intervening act defense upheld
Home Office v. Dorset Yacht Co. Ltd (1970)                  [boys crash yacht]     49
       - intervening act is foreseeable, intervening act defense struck down
Lamb v. London Borough of Camden (1981)                     [vandalized house]
       - squatters are an intervening act that was not foreseeable, no recovery

6. Causation
Cause in Fact (but for test)
Barnett v. Chelsea(1968)                                    [arsenic tea]
        - introduces ―but for‖ test of causation
Factual Uncertainty
Blackstock v. Foster (1958) Text p 244                      [steering wheel]
        - proof of factual certainty lies with plaintiff
Preexisting Condition
Athey v. Leonati (1996)                                     [double accident]
        - two accidents and one causes a herniated disk
Walker Estate v. York Finch Hospital, 2001                  [aids blood]
        - rather than the ―but for‖ we require sufficient conditions to attach liability
Material Contribution
McGhee v. National Coal Board Text (1972)                   [kiln dust]
        - introduces the notion that material contribution to risk is enough to warrant
            liability
Wilsher v. Essex (1988)                                     [premature child]
        - limits McGhee, and introduces multiple causations
Farrell v. Snell (1990)                                     [eye surgery]
        - SCC accepts material contribution to risk, but no revering onus
Fairchild v. Glenhaven Funeral (2002) HL                    [asbestos tumor]

                                                                                           9
       -    two possible contributors to risk so will the SCC accept this and how far do
            we let this go
Multiple Tortfeasors
Alternative (or Joint)
Cook and Lewis (1954)                                         [two hunters shoot]
        - both could be the cause of harm, apportion liability between them
Sidnell v. Abbott Laboratories (1980)                         [utero drug child]
        - many parties could be responsible, apportion liability according to market
            share
Indivisible
Concurrent Indivisible
Lambton and Mellish [1894]                                    [organ griders]
        - any contributor is responsible to the whole
Kingston v. Chicago and NW Ry (1927)                          [merging fires]
        - a plaintiff should not have to prove actual cause if some cause is evident
Sequential Indivisible
Sunrise Co. Ltd. v. Ship ―Lake Winnipeg‖ (1991)               [crashing boats]
        - responsibility for sequential events falls on the first tortfeasor
Baker v. Willoughby                                           [crushed shot leg]
        - defendant responsible despite intervening act
Jobling v. Associated Dairy                                   [disease and injury]
        - lifetime of plaintiff reduced in calculating injury reward
Saunders System Birmingham v. Adams (1928)                    [defect brakes]
        - brakes could not have saved plaintiff even if they were effective
Loss of Chance
Hotson v. East Berkshire Area Health Authority                [child suffers brain damage]
        - loss of chance is not available and causation is not proven
Lawson v Laferriere, 1991, Que. C.A.                          [cancer not told]
        - loss of chance is not given as there is no proof she would have lived if told

7. Defenses
Voluntary Assumption of Risk
Lambert v. Lastoplex (1971) SCC                           [paint fumes ignite]
        - company held responsible for risk due to bad labels
Dube v. Labar (1986) SCC                                  [drunk buddy lets other drive]
        - voluntary assumption defense not allowed, contributory negligence used
Priestley v. Gilbert (1973)                               [drunk crash, passenger sues]
        - both were drunk, voluntary defense allowed due to joint venture (of drinking)
Birch v. Thomas                                           [no insurance]
        - defendant successfully uses voluntary assumption as he was careful in alerting
            passenger to risks
Illegality
Hall v. Hebert, SCC, 1993                                 [drinking drives car off cliff]
        - denial of this defensive argument in torts
Contributory Negligence
Butterfield v. Forrester (1809) Text p.289                [Horse hits roadblock]

                                                                                         10
       -  no recovery at all due to contributory negligence in riding too fast and
          drinking
Froom v. Butcher (1975) text p 293                         [Man not wearing seatbelt]
      - no laws regarding seatbelts yet, he is found 25% contributory negligent


8. The Role of Statutes
Statutes as evidence of Negligence
The Queen v. Saskatchewan Wheat Pool                         [bad wheat in ship]
        - the statute is a guideline that was followed, there was no negligence or fault
Ryan (1991) SCR 201                                          [statute followed]
        - the statute was followed but negligence existed
Charter Cases
Bhaduria v. Seneca College                                   [job discrimination]
        - the charter can be used only when government is involved, success is
            unknown

9. Negligent Misrepresentation
Candler v. Crane Christmas & Co.(1951)                      [negligent auditors]
       - no recovery yet, the law of torts is not prepared, no way to deal with
           indeterminacy
Hedley Bryne & Co. v. Heller [1964]                         [bank load goes bad]
       - ―special relationship‖ developed, negligent statements become recognized
Queen v. Cognos (1993)                                      [bad interview]
       - example of special relationship and knowledge
Spring v. Guardian Assurance [1994]                         [bad reference]
       - reasonable reliance of Hedley can be relaxed in certain cases
Haig v. Bamford, 1976, SCC                                  [negligent auditor pt 2]
       - the modern Candler, but this time we allow recovery
Caparo Industries v. Dickman (1990)                         [statutory audit relied on]
       - HL wants to reign in negligent statements
Hercules Management (1997) SCC                              [investors want protection]
       - SCC decides to move away from HL and goes with Anns test for negligent
           statements
Contract and Tort
Nunes Diamond v. Dominion Electric Protection               [diamond safe]
       - contracts are paramount to general tort duties
Central Trust v. Rafuse (1986)                              [bad mortgage]
       - can elect to pursue under tort or contract, as long as tort is not an escape route
           from contract
BC Checo v. BC Hydro (1993) SCC                             [hydro cut]
       - precedence is being given to torts over contract (the return of a social view)

10. Economic Loss
Pure and Consequential
Weller v. Foot and Mouth                                     [dead cows]

                                                                                           11
        - historical non-recovery for pure or consequential economic loss
Spartan Steel v. Martin                                    [metal smelter power loss]
        - distinguishes pure from consequential and allows recover for consequential
Caltex Oil v. Willemstad                                   [service pipe cut]
        - 3rd party recovery for consequential economic loss
Canadian National Railway v. Norsk                         [train, bridge, damage]
                                    rd
        - leading Canadian case, 3 party recovery for consequential
Defective Chattels
Junior Books                                               [slanted floor]
        - the high water mark for pure economic loss
Murphy (UK) 1990                                           [bad foundations]
        - the UK backs away from Junior Books
Winnipeg Condominium v. Bird                               [defective cladding]
        - SCC digresses from UK and accepts Anns at least for defective items
Wills
White v. Jones                                             [dies before new will]
        - intended beneficiary recovers (3rd party)
Hill v Van Erp, Aust HC                                    [bad signature]
        - solicitor found negligent

11. Psychiatric Harm
McLauchlin v. Wilcox                                       [mom sees carnage, hospital]
       - the high water mark for psychiatric harm
Alcock v. Chief Constable                                  [soccer riot, victims]
       - no recovery due to new test for psychiatric harm being developed
White v. Chief Constable                                   [soccer riot, police officers]
       - no recovery, due to policy problems from Alcock if they allowed it
Tame v. New South Whales                                   [boy lost in desert]
       - Australia takes a much more liberal stance and allows recovery
Greatorex v Greatorix                                      [father responds to accident]
       - no recovery due to relationship of father/son, echoes of Dobson
Page v. Smith [1995]                                       [slow speed collision]
       - no more remoteness


12. Wrongful Life, Wrongful Birth
MacKay v. Essex Area Health Authority                     [German Measles]
       - Child claims for wrongful birth not allowed
Kealey v. Berezowski                                      [Healthy Child, Tubal]
       - Mother claims; recovery only for the actual birth, not the support of the child
McFarlane v. Tayside Health Board                         [Healthy Child, Sterilized]
       - Mother and Father claim; recover for birth only
Parkinson v. St. James                                    [Autistic Child, Tubal]
       - Mother brings claim; recovery for birth an support as child is challenged
Rees v. Darlington                                        [Blind Mother]
       - Healthy child recovers due to situation of mother.

                                                                                        12
Future Directions
Rees                                                      [Blind goes to HL]
       - Reversed, recovery only for birth, not support of child.
Cattanach v. Melcher                                      [Australia, Healthy Child]
       - Allowed full recovery

13. Intentional Torts and Informed Consent
Reibl v. Hughes (1980)                                   [Blood Clot, Stroke]
        - Examines how far the doctor must tailor advice
White v. Turner (1981)
        - Battery is no longer in use
Hollis v. Dow Corning                                    [Leaking Breast Implant]
        - Leading Canadian Case


14. Nonfeasance
Traditional View
Union Pacific v. Capier                                   [Boy run over by train]
       - The standard of no recovery for nonfeasance
Exceptions
Oke v. Weide Transport (1963)                             [Hits sign, leaves stump]
       - The act must be negligent
Horsley v. MacLaren (1971)                                [Botched boat rescue]
       - There must be a breach of the duty that is substantial
Hargrave v. Goldman, Aust HC, 1967                        [Fire spreads to neighbor]
       - Classic application of Atkins to neighbor principle in real space
Crocker v. Sundance Northwest Resorts (1988)              [Drunk Snow Tuber]
       - Commercial special relationship
Childs v. Desmoreaux                                      [Social Host Liability]
       - No liability for social hosts (compare with commercial hosts)
Public and Private Responsibility




                                                                                       13
Alphabetical

Alcock v. Chief Constable .........................................................................................
Andrews v. Grand & Toy Alberta Ltd. (1978) ..........................................................14
Arnold v . Teno (1978) ..............................................................................................16
Athey v. Leonati (1996) .............................................................................................
Baker v. Willoughby ..................................................................................................
Barnett v. Chelsea(1968) ...........................................................................................
BC Checo v. BC Hydro (1993) SCC .........................................................................
Bhaduria v. Seneca College .......................................................................................
Birch v. Thomas .........................................................................................................
Blackstock v. Foster (1958) .......................................................................................
Bolton v. Stone (1951) ...............................................................................................26
Bradburn v Great Western Rail Co (1874) ................................................................18
Bradford v. Kanellos (1973) ......................................................................................48
Buckley v. Smith Transport Ltd., (1946) ...................................................................22
Caltex Oil v. Willemstad............................................................................................
Candler v. Crane Christmas & Co.(1951) ..................................................................
Caparo Industries v. Dickman (1990) ........................................................................
Cattanach v. Melcher .................................................................................................
Central Trust v. Rafuse (1986)...................................................................................
Childs v. Desmoreaux ................................................................................................
Clay v. A.J. Crump & Sons Ltd., (1964) ...................................................................33
Cook and Lewis (1954) ..............................................................................................
Cooper v. Hobart (2001) ............................................................................................37
Cotic v. Gray (1981) ..................................................................................................47
Cunningham v. Wheeler (1994) .................................................................................17
Deyong v. Shenburn, (1946) ......................................................................................33
Dobson v. Dobson (1999) ..........................................................................................38
Donoghue v. Stevenson (1932) ..................................................................................31
Doughty v. Turner Manufacturing (1964) .................................................................45
Dupuis v. Flatley ........................................................................................................
Fairchild v. Glenhaven Funeral (2002) ......................................................................
Farrell v. Snell (1990) ................................................................................................
Greatorex v Greatorix ................................................................................................
Haig v. Bamford, 1976, SCC .....................................................................................
Hall v. Hebert, SCC, 1993 ........................................................................................
Hargrave v. Goldman, Aust HC, 1967 .......................................................................
Haynes v. Harwood (1935) ........................................................................................35
Hedley Bryne & Co. v. Heller [1964] ........................................................................
Hill v Van Erp ............................................................................................................
Horsley v. MacLaren (1971) ......................................................................................
Hotson v. East Berkshire Area Health Authority.......................................................
Jobling v. Associated Dairy .......................................................................................
Junior Books ..............................................................................................................
Kingston v. Chicago and NW Ry (1927) ...................................................................

                                                                                                                              14
Latimer v. AEC, (1953) .............................................................................................27
Lamb v. London Borough of Camden (1981) ...........................................................
Lambert v. Lastoplex (1971) SCC .............................................................................
Lambton and Mellish [1894] ....................................................................................
Lawson v Laferriere, 1991, Que. C.A. .......................................................................
MacKay v. Essex Area Health Authority ..................................................................
Mansfield v. Weetabix, (1998) ..................................................................................23
McErlean v. Sarel, (1987) ..........................................................................................24
McGhee v. National Coal Board Text (1972) ............................................................
McHale v. Watson, (1966) .........................................................................................24
McLauchlin v. Wilcox ...............................................................................................
McFarlane v. Tayside Health Board ..........................................................................
Murphy.......................................................................................................................
Nunes Diamond v. Dominion Electric Protection ....................................................
Oke v. Weide Transport .............................................................................................
Overseas Tankship v. Miller Steamship aka Wagon Mound 2 (1966) ......................44
Overseas Tankship (UK) v. Morts Dock aka Wagon Mound 1 (1961) .....................43
Page v. Smith [1995]..................................................................................................
Palsgraf v. Long Island Railroad Co.,(1928) .............................................................33
Parkinson v. St. James ...............................................................................................
Polemis and Furness, Withy & Co (1921) .................................................................42
The Queen v. Saskatchewan Wheat Pool ..................................................................
Rees v. Darlington .....................................................................................................
Reibl v. Hughes ..........................................................................................................
Renslow v. Mennonite Hospital, (1976) ....................................................................38
Roberts v. Ramsbottom, (1980) .................................................................................23
Ryan (1991) SCR 201 ................................................................................................
Saunders System Birmingham v. Adams (1928) .......................................................
Smith v. Leech Brain & Co (1962) ............................................................................45
Spartan Steel v. Martin ..............................................................................................
Stephenson v. Waite Tileman Limted (1973) ............................................................46
Sunrise Co. Ltd. v. Ship ―Lake Winnipeg‖ (1991) ....................................................
Tame v. New South Whales.......................................................................................
ter Neuzen v. Korn, (1995) ........................................................................................28
T.J. Hooper (1932) .....................................................................................................28
Trimarco v. Klein (1982) ...........................................................................................28
Union Pacific v. Capier ..............................................................................................
Urbanski v. Patel (1978) ............................................................................................38
Vaughan v. Menlove (1837) ......................................................................................22
Wagner v. International Railway Co. (1921) ............................................................36
Watson v. Buckley (1940) .........................................................................................33
Watt v. Hertfordshire County Council, (1954) ..........................................................27
Wellbridge Holdings v. Greater Winnipeg (1970) ....................................................38
Weller v. Foot and Mouth ..........................................................................................
White v. Chief Constable ...........................................................................................
White v. Jones ............................................................................................................

                                                                                                                                15
White v. Turner ..........................................................................................................
Wilsher v. Essex (1988) .............................................................................................
Wilson v. Martinello (1995) ......................................................................................16
Winnipeg Condominium v. Bird................................................................................
Winterbottom v. Wright (1842) .................................................................................30




                                                                                                                             16
1. Pre-Amble
1.1 What is Tort:
How many people will die or be mutilated in order to get what we want and what is the
tradeoff?
The basis of Torts is the market. Almost all trades are part of the market. The people
responsible are almost anonymous. They are judges. They abstract these decisions and
hopefully we'll learn to deconstruct their language. Why are they imbued with this ability
and how are they prepared for this? Is their a bias in the system?


1.2 Role of Courts:
This is a sensitive issue because the judges are not elected members. It raises a
legitimacy question about the position they hold and how they came to hold it.
What impact does color/race/age/gender/personality/religion of the judges have on the
goals and orientation of the courts and how is that reflected in the law?
        There are 2 general views on the subject:
        1. The law precedes judges. Judges simply act as a mouthpiece for the law and
            apply it to the situation at hand.
        2. The law is simply what judges say at any given time. In essence it is simply
            the words of the judges. As a result who they are becomes important, and we
            can see the law simply as ―the rule of 5‖ (5 being a majority on the Supreme
            Court)
        Note: Option 2 is clearly where Hutch‘s views come from.



2. Damages (p 697)
2.1 Summary:
       The purpose of damages is to restore the plaintiff to the position, so much as
        money can do, they would have been in had the wrong not occurred.
       The goal is not to punish the defendant but to compensate the injured party.
       Commodify human life (all human life has a finite financial value)
       Tort law implies that you do not have to make a safe product, indeed you can
        make any product as long as your profits are sufficient to pay for the losers
       Money provides a division that we like and allows us to divorce ourselves
        from the issue as soon as possible and forget about the results
       What about a more equitable system based on redistribution, under such a
        system the poor would be lifted up and the rich would be just fine?

Hutch: clearly feels we should be working towards a more social and equitable system

“A cynic is one who knows the price of everything and the value of nothing”
                                                                      - Oscar Wilde



                                                                                       17
2.2 Posner: Economic Analysis of Law (p 697)
        General Damages: Damages in the future
        Special Damages: Damages incurred up to the trial

    Economic Consequences for Victim (heads of loss):
         Pecuniary Losses
             1. medical expenses
                         cost of future care
                         one time costs
             2. loss of earning capacity
                         (lost wages) x (years worked) x (probability of living) x
                            (discount)
                         discount is for inflation, mitigating factors and other issues
                            such as preventing unjust enrichment
         Non-Pecuniary Losses
             3. pain and suffering
                         maximum of $100,000 in 1978 dollars

   Problems:
       hard to give value to pain and suffering or to calculate a persons value
       judgments favor defendant
       no ability to revisit if calculations are incorrect
       male centric view of losses in only economic terms
       value is often based on current level of success and/or parental success
       at best an inaccurate guess


2.2.1 Cases:
2.2.1.1 Andrews v. Grand & Toy Alberta Ltd. (1978), 83 DLR (3d) 456 (SCC).
  Text p. 700
         leading case in damages for Canada
         at the end the SCC has a way to calculate the value of human life
         must question how Andrews fairs in this calculation

FACTS:
         Negligence action for personal injury.
         Andrews is a 25 year old, unmarried, incomplete quadriplegic, mobile w/ use
          of chair but requiring permanent care for hygiene, dressing, feeding, etc.
ISSUES: Court is asked to establish the correct principles of law in assessing damages
where a young adult faces a lifetime of dependency due to his/her injuries.
DECISION:
        The court(s) do not have a standard answer.
        The trial, appeal and supreme court all have differing opinions as to the value
          of Andrews life.
        Award proceeds according to Posner with a 25% deduction for Andrews
          liability in the accident.

                                                                                      18
CALCULATIONS:
1. Pecuniary Loss
       1.1 Future Care
              1.1.1 Standard of Care
              Issue: What standard of Care is reasonable given the plaintiff‘s position?
              Ratio: Home care is the most applicable.
              Reason: Andrews is cognoscente and wants to lead as normal a life as
              possible. However, this clearly comes with increased costs for the
              defendant/insurance/society.
              1.1.2 Life Expectancy
               Determined using a calculation based on the expected life of someone
              Andrews age and post-injury physical situation.
              1.1.3 Contingencies:
              Events in life that would reduce Andrews earnings such as illness carried
              into this section illogically. Assessed at 20%
              Prof: This amounts to an insult to suggest that 1 in 5 days he would be so
              sick that his earnings/care are not the responsibility of the defendant.
       1.2 Prospective Lost Earnings
              1.2.1 Level of Earnings
              Based on current earnings and projection of mediocre to low performance
              in job.
              1.2.2 Length of Working Life
              Based on expected retirement age and calculated using a non-injured life
              expectancy.
              1.2.3 Contingencies
              Assessed at 20%. This was the initial area for contingency creation but
              then also moved to above, in effect doubling the reduction.
              1.2.4 Duplication of Costs
              Reduction of earnings because future care takes into account living
              expenses which he would have paid for with his income.
              1.2.5 Capitalization Rate
              The amount calculated based on projected inflation and interest rates, and
              used to reduce/adjust the total award.

2. Non-Pecuniary Loss
Issue: monetary evaluation of NPL is more a philosophical and policy exercise than a
legal one, the award is to be fair and reasonable; and yet is arbitrary, as there is no
objective measure to translate pain, suffering, loss of amenities into monetary terms.
Ratio: Everyone in Canada is entitled to a more-or-less equal measure of compensation
for similar NPL, w/ variation made for what particular individual has lost as per
amenities and enjoyment of life. The award for NPL should continue to be one figure for
all such losses (pain and suffering and loss of amen./enjoyment all count as one) and can
not exceed $100,000.
IMPLICATIONS: In considering Andrews position (quadriplegic) we have to admit that
the court favored the defendant and insurance companies for no clear reason. At best
Andrews was under-compensated for no clear reason (contingencies).

                                                                                       19
2.2.1.2 Arnold v . Teno (1978) 83 DLR (3d) 609 (SCC)
   Text, p. 722
FACTS: 4 year old Diane Teno rendered fully disabled
ISSUE: What is the appropriate method for determining the prospective loss of earnings
of a child?
DECISION: $6,000 for every wage-earning year from 20-65 years old, less the 7%
discount rate.
RATIO: Future earnings of a child who has been near/or totally disabled should be
assessed in accordance with the earnings of the parents then averaged with the poverty
rate. This amount can be taken as the net annual income from which a contingencies
deduction of 20% and discount rate of 7% can be applied to determine total annual loss of
income.

2.3 Lump Sums:
        Damages are normally paid in a lump sum which is calculated as the value
          necessary to purchase an annuity that yield the periodic payment for the
          expected duration of the disability, AND NO MORE
        Reduces administration costs
        Avoids disincentive to stay sick
        Gives advantage to defendant and insurance who can calculate rates
        Allows issue to be dealt with once and society moves on

2.3.1 Cases
2.3.1.1 Wilson v. Martinello (1995), 125 DLR (4th) 240 (Ont., CA)
   Text p 729
FACTS:
         Plaintiff wants a lump sum and gross up for taxes instead of periodic
           payments.
         Plaintiffs wife and daughter were killing in accident.
         Defendant wants to pay periodically as they are entitled to do so under s116 of
           Family Law Act.
         Defendant takes loophole in law and by not asking for gross the law says they
           must give it to him.
         s116 of the Family Law act
              o court can choose lump sum or periodic payments; must take into
                  account plaintiff‘s best interest
              o court given power to impose a structured award upon a plaintiff for
                  future pecuniary damages where the plaintiff seeks to include in the
                  award an amount to offset any liability for income tax on income from
                  the investment of the award.

          Martinello tried to avoid this at trial by stating he was not requesting gross-up
          But s116(5) states if structured settlements are not paid, gross-up must be
           awarded


                                                                                          20
               o In essence saying we are not requesting it, but you must give it to us –
                 clearly the act is drafted very badly

ISSUES:
         Does a lump sum put the plaintiff back in the position they were prior to the
            event.
         The subtext of the case asks what is the point/goal of torts?
         If we give him a lump sum does it answer the fundamental goals of torts and if
            not what does it answer?
         What are we doing when we compensate someone?
DECISION: Structured payments do not meet the needs of the plaintiff, the lump sum
was allowed.
RATIO: Once structure put forward by defendant is not in the plaintiff‘s best interests,
the plaintiff is legally entitled to a lump sum.




2.4 Compensation and Deterrence
        Tort law is primarily concerned with compensation. The goal of deterrence being
to provide a message that warns others to behave and act carefully.
        A problem with torts is that they only give one answer to the question of
compensation and deterrence, that of monetary reimbursement. The compensation of the
injured party is in effect a form of deterrence. Any further punitive measures may
increase this payment but the answer is still the same. In having only one response we
have, at this early stage, a limited system as we don‘t wish to overcompensate.


2.5 Collective Benefits
       There are two basic types of collective benefits
       1. Private
           - these are paid for in some manner by the individual
           - they include such things as pensions, insurance, union benefits
       2. Public
           - these are benefits that everyone in our society has as a basic source
           - these include OHIP and Social Security

2.5.1 Cases:
2.5.1.1 Cunningham v. Wheeler (1994), 113 DLR (4th) 1 (SCC)
Text p. 735
FACTS:
         an injured person had benefits through a collective bargaining agreement
         they are arguing that the benefits should not be deduction from their tort claim
           as they paid for these benefits through lower wages
ISSUE: Should collective benefits be deducted from the torfeasors claim for losses
APPLICATION:

                                                                                       21
       2 choices:
              I. Deduct the Benefits
                   under this situation the plaintiff is returned to a position they were
                     in prior to the accident, however the defendant does not have to
                     pay and there is no deterrence aspect to the tort
                   furthermore the plaintiff is in some ways penalized for their own
                     prudence in obtaining benefits
              II. Do not deduct the Benefits
               under such a case the plaintiff does in a sense have ―double recovery‖
               however they are also not penalized for their prudence in obtaining the
                  benefits
               the defendant is also forced to pay forming a deterrence
       4 arguments arise as a result of these 2 choices:
              I. The Substitute Loss Argument
                            The plaintiff losses out on the payment he contributed to the
                                collateral benefits plan when it is deducted from his damages
                                award.
              II. The deterrence Argument
                            Requiring the tortfeasor to pay more will increase the deterrent
                                effect of tort actions and reduce negligent conduct.
              III. ‗Tortfeasor should Bear the Loss‘ Argument
                            Between the prudent employee and the negligent tortfeasor, the
                                latter should bear the loss.
              IV. Subrogation
                             The tortfeasor who pays damages for wage losses already
                              indemnified by others succeeds only if the employer or insurer
                              who pays the disability benefit seeks to recover the lost wages by
                              way of subrogation. In this instance only there is no double
                              recovery.

    Bradburn v Great Western Rail Co (1874), where plaintiff received both
     insurance money and damages from railway company, because there would be no
     justice in setting off an amount the plaintiff had entitled himself to, prudently
     purchasing insurance
   Causal reasoning: accident is not what causes the payment directly; an accident
     must occur, but it is his contract which causes him to receive the money
   Later cases determined also that the plaintiff paid for the insurance, and did not
     pay for it to benefit the defendant
   Makes no sense for wrongdoer to benefit from the private act of forethought and
     sacrifice of the victim\
DECISION:
   In the case of public benefits the answer is clear, these must be deducted from the
     tort claim as they were never a cost associated with the event. In the case of
     private insurance the issue is less clear. Is the double recovery issue more or less
     important than deterrence and the impact deductions would have on the prudence
     of normal men.



                                                                                             22
       In this case the court had a 4/3 decision in favor of the plaintiff and not deducting
        the benefits.
RATIO: As is already the common law with private insurance policies, disability benefits
collected as part of the collateral benefits from both unionized and non-unionized
agreements with employers will be not deducted from the lost wages claims so long as
proof of payment into such benefits can be shown.
OBITER: In dissenting McLauchlin J noted that the law of torts is not served by allowing
double recovery. The only exit to this is subrogation. Subrogation occurs when an
insurance company who has paid a claim, is allowed on behalf of the plaintiff to recover
costs from the tortfeasor.


2.6 Subrogation
     To substitute a person for another regarding a legal right to claim
     usually plaintiff sues defendant
                   plaintiff needs to ask ―what will I get if I win?‖, ―does defendant
                      have this money?‖
                   therefore defendants tend be institutions and corporations unless
                      individuals have insurance
     often both parties have insurance, so litigation is between two insurers
     insurers take over your rights/responsibilities; they subrogate your claims
                   as plaintiff: insurer can pay, then they can choose whether to sue
                      the defendant
                   as defendant: insurer may choose to settle, event though you don‘t
                      want to
                   insurance allows you to walk away from trouble




                                                                                          23
3. NEGLIGENCE: The Standard of Care
3.1 Summary
       “Losses lie where they fall”
                                      - Oliver Wendall Holmes

    Subject to some exceptions, one is liable for the harms caused by one‘s own
     negligence
          o Negligence = creation of unreasonable risk = when you don‘t meet the
             standard of care
          o Acting negligently alone does not lead to a legal action
                  Only if you injure someone does action arise
                  Tort law doesn‘t care about risk (in terms of deterrence); it only
                     comes into effect when the risk lead to an injury
    Accidents happen and they are just that, accidents.
    The loser bears the loss. Unless, there is another party involved who is to blame
     for the losses in which case there is a possible tort action.
    The onus is upon the plaintiff to prove that his/her injuries, the loss, should not
     fall upon him/her, and should instead be shifted to someone else by way of
     compensation.
    The rule is not neutral; it favors the defendant who is, usually, a large corporation
     or personal party backed by insurance (otherwise bringing the tort is irrelevant)
    The question in tort is who pays, the plaintiff or defendant, as damage has
     occurred. In what cases are the defendants able to sidestep liability and have the
     damages fall on the plaintiff?

3.2 Determining Negligence
     The standard of care is an ―objective‖ goal that must be observed in our
       interactions with others
     This can easily be seen as a moral or subjective area
     In order to assess the boundary between a defendants freedom to act and a
       plaintiff‘s interest in security we use three principles:
          I. The Objective Standard
         II. Reasonable Care
        III. Proof of Negligence (not covered)

3.2.1 The Objective Standard

―the man on the Clapham omnibus‖
                               -Charles Bowen

Defn: a descriptive formulation of a reasonably educated and intelligent but non-specialist
person — a reasonable man; a hypothetical person against whom a defendant's conduct
might be judged


                                                                                        24
The objective standard is built around the ―man of ordinary prudence‖:
            the is not the average, the average is not prudent or careful
            free from over apprehension and from overconfidence
            able to perceive and appreciate the risks involved in activities
            is there a difference as well between a man and a woman?
            what about now when most defendants are corporations, are we to apply
               the same standards of a ―man‖ of a company?
            the law has an idea of objective, but it is awkward to apply
            at what point are we allowed to increase or decrease this standard
               objective?
            what characteristics allow us to move up and down a scale of standards?
            how we build this man reflects our societal views, for example do we take
               into account religion? Is the reasonable person religious or not?
            how does wealth play into our ability to act reasonably?

There are accepted exceptions (subjective factors) to the reasonable man based on
characteristics:
       Professionals/Experts – are held to a higher standard, but it is hard to determine
       how far to take this and how much we can depend on it
       Beginners – are held to a higher standard, that of the norm
       Age – children are generally held to a sliding scale based on age unless they are
       engaged in adult activities, are we prepared to lower it for older persons? The
       exception again here is unless the child is participating in an adult activity in
       which case they are held to the normal objective standard.
       Physical/Emotional/Intellectual – people with disabilities in these areas are
       generally treated like people in their group, but may be expected to take
       precautions to avoid specific situations
       Mental health – a burden of proof lies on the party to prove infirmity

Note: Although we turn to groups and divide reasonable care we quickly get into
problems regarding how far to divide groups and what reasonable for a specific group
means especially when that groups capabilities are defined by it‘s members which creates
a self interest in keeping the skill set low (ie. doctors).

The objective standard is qualified: negligence determined by comparison with what a
reasonable person would do in similar or same circumstances as the defendant was in at
the time of the incident.

3.2.1.1 Holmes: The common law text p 51
Holmes iterates the basic tenants of the objective standard in tort law as we know them
today along with their exceptions.

“an act that ordinary human care and foresight are unable to guard against, is but
the misfortune of the sufferer”
                                  - Oliver Wendall Holmes

                                                                                            25
    determine if there is a bottom to liability
    is there a general conduct that every one may expect from each other in society
    the condition of liability must be a result of a choice to act outside this basic realm
     of conduct
    there are exceptions to the rule (as iterated above)
    the law considers what would be blameworthy in the average man, the man of ordinary
       intelligence, and determines liability by that standard


3.2.1.2 Case(s)
3.2.1.2.1 Vaughan v. Menlove (1837), 132 ER 490 (CP)
   Text p 48
Basic application of the objective standard.
FACTS:
     a man has a haystack and is warned that it will spontaneously combust, he
        basically ignores the warnings, it does burn and it burns a large part of the
        neighborhood.
     the judge looks to consider the issue based on the definition of ―a man of ordinary
        prudence‖
     even though the man may have done his best, the objective standard is higher than
        his actions dictate
     appeal is asking whether the objective standard for a man is really objective or if
        it is too vague (as used by trial judge and jury)
ISSUE: Is the standard of care based on objective criteria, such as that of the reasonable
caution of a prudent man; or a subjective standard such that the defendant acted within
the best of his own ability.
RATIO: We ought to adhere to the rule requiring in all cases a regard to caution such as a
man of ordinary prudence would observe.
IMPLICATIONS: Under what circumstances and situations would we apply a different
standard?

3.2.1.2 .2 Buckley v. Smith Transport Ltd., (1946) OR 789 (CA)
   Text p 49
Example of a case in which the objective standard is set aside to take individual
circumstances into account (insanity).
FACTS:
     streetcar operated by plaintiff was hit by a truck owned by defendant
     driver of the truck suddenly came under a bout of insanity caused by syphilis and
        ceased to control the vehicle
     the driver died of the disease one month after the accident.
ISSUES: Should the objective measure of reasonable caution (maintaining control of
your car) be set aside to account for the circumstances in this case (sudden onset of
insanity caused by syphilis)?
DECISION: The court held no vicarious liability attached to the employee of the driver.
REASON: At the time of the collision, the driver‘s mind was so affected by the disease
that he neither understood nor was able to discharge the duty to take care.

                                                                                         26
RATIO: In order to be found negligent, an individual must have had the physical ability
to understand and discharge a duty of care.
IMPLICATIONS: Should the plaintiff have to bear the cost here? Should the transport
company have been unaware of medical conditions of their drivers which could cause
injury to others?

3.2.1.2 .3 Roberts v. Ramsbottom, [1980] 1 All ER 7 (QBD)
   Text, p49
Example examining the line for impairment exceptions.
FACTS:
     plaintiff was getting out of car when hit by car driven by defendant
     shortly before, defendant had hit another van and knocked a boy off his bike
     defendant had had a stroke, at which point his consciousness was impaired
ISSUES: Does the defendant‘s impaired sense of consciousness due to a stroke provide a
defense for his negligence in causing this accident?
DECISION: Defendant was found guilty as he continued to drive after being aware of a
change in his condition.
RESONS:
     defendant not aware that he was unfit to drive, so no moral blame can be attached
     while std of care for driving is independent of drive (ie learner, infirm, drunk, all
        have same level of duty), driver may be able to rebut case of negligence by
        demonstrating sudden affliction rendered him incapable of driving
     driver will escape liability if he is unconscious (automatism)
     if he retains some control, his position is the same as driver who is old or infirm –
        he is liable
     defendant should have stopped driving
RATIO: Persons who maintain control, even if imperfect, over a vehicle are bound to
stop and are otherwise responsible for their actions.
IMPLICATIONS:
     Impairment of judgement is not a defence
     Morality is irrelevant to liability

3.2.1.2.4 Mansfield v. Weetabix, (1998) 1 WLR 1263 (CA)
  Text p 51
Example introducing medical impairment and lack of prior awareness.
FACTS:
     defendant‘s employee, Tarleton, caused a series of accidents while driving his
        truck
     defendant had a condition that caused his brain to malfunction when his blood
        sugar was low.
     neither the defendant nor the employee were aware of the condition
ISSUES: Did the drivers actions fall below the standard of care when he drove after
having little to eat?
DECISION: Tarleton was not found negligent, the defendant is therefore not liable.



                                                                                         27
REASONS: Contrary to Roberts, the defendant was not liable for damages because of the
impaired degree of consciousness caused by his condition, since he was unaware the
condition existed.
RATIO: In cases where an accident results from an individual who is in an impaired
state of consciousness due to a medical condition that could not have been avoided, the
defendant is not liable for damages caused.

3.2.1.2 .5 McHale v. Watson, 1966
Example introducing the sliding scale of ability/prudence for children.
FACTS:
     plaintiff and defendant were playing in a small yard
     defendant throws a sharpened spike at a fence
     spike bounces back and hits plaintiff in the eye
     plaintiff is blinded permanently in one eye
ISSUES:
Is a 12 year old boy to be held to the same standard as the ―ordinary man‖?
DECISION: Defendant was not responsible for his actions.
REASONS:
     to be found liable we have to assume that the boy, Watson, could have the
        foresight and prudence to consider the consequences of his actions
     the judge found that a boy of 12 would not have such a capacity
     no hard and fast rule regarding children is laid down, only that age is a clear
        consideration in objective standard
RATIO: In determining liability, age is a factor in deciding whether or not the foresight
and prudence of a reasonable man should be expected or whether the defendant‘s age is
such that experience has not yet afford these two qualities.
IMPLICATIONS: Where does this ruling leave the defendant? Blinded by this
‗reasonable‘ boy, does she not deserve any compensation for her injury? What about the
responsibility of parents in this matter both for the plaintiff, and defendant.

3.2.1.2.6 McErlean v. Sarel, (1987), 61 OR 386 (CA)
   Text p 62
Example introduces the notion that children participating in adult activities will be held to
an adults objective standard.
FACTS:
a collision b/w 2 trail bikes driven by teenagers:
ISSUE: What reasonable standard of care should be expected of children participating in
adult activities?
DECISION: Children held responsible.
REASON: The reasonable standard of care expected by a child should answer whether
the child ―exercised the care expected from a child of like age, intelligence, and
experience‖. However, when a child engages in adult activities, he or she cannot be
awarded special treatment; the minor will be held to the same standard as any adult
engaged in the same activity.
RATIO: Children participating in adult activities will be held to an objective standard
that matches that of the common man.

                                                                                          28
3.2.2 Reasonable Care
In essence law tells us that we have to exercise ―reasonable care‖ in our dealing with
others. It does not tell us that we can‘t do anything, merely that if we are careless we
may have to pay. This, in theory, acts as a barrier to performing the action.

“negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something that a prudent and reasonable man would not do.”
                                      - Alderson B in Blyth v., Birmingham Waterworks Co.

3.2.2.1 Law and Economics (Posner) text p 68
Components of an economic analysis.
        1. Accident Costs
            - personal injury
            - property damage
        2. Prevention costs
            - costs required to prevent the accidents

There will be a point at which prevention costs will exceed the accident costs.

The Learned Hand Formula
Losses lie where they fall unless the prevention costs are less than the accident costs.
PC < AC
Prevention costs are fairly easy to calculate.
Accident costs are more subjective and have a probability.
AC = (P x L) where P = probability of accident, L = liability costs

The argument of Learned Hand is that it is socially best to prevent accidents to a point
but after that it is economically better to allow them to happen after a certain threshold.

In essence we ask for a reasonable level of care. It would be impossible to ask for perfect
care. So the balance point conceptually is PC < AC. We tend to think in this way and
make these calculations.

3.2.2.2 Critics of Economic Analysis

Bender, “A Lawyer’s Theory on Feminist Theory and Tort” (text p 73)
    suggests that we move beyond a comodification of people and their measurement
      by way of formulas and instead assess behaviour by its promotion of human
      safety and welfare.

   1. The commodification argument:
         This supports what we‘ve seen that people are commodities, and we factor
         them into equations. It reinforces the idea that we take more care for people


                                                                                              29
         that are worth more (a person worth more increases the value of L). This
         institutionalizes, to an extent, class barriers.
   2. The democratic argument:
         We are all exposed risk, but by this formula the controller of the risk is not the
         person exposed to the risk, but the creator of the risk. Thus, in general, the
         manufacturers are setting the risk, which poses problems in a democratic
         society where we are supposed to have independent choice. This raises even
         more problems when we don‘t have the choice (example riding the subway
         must be done, but the manufacturing company controls the risk of doing this).




3.2.2.3 Cases
3.2.2.3 .1 Bolton v. Stone (1951), AC 850 (HL)
   Text p 75
Introduces the limit to reasonable care.
FACTS:
     a cricket field verges on a little used road
     a cricket ball is hit into the road and hits a woman
     this has happened 6 times in 30 years
ISSUES:
     Does the field owe a duty of care to the woman?
     What is the nature and extent of the duty one owes to another when engaging in
        activities which may cause injury?
     Is it that one must not carry out any activity which may cause injury, no matter
        how slight that risk may be?
     Is one only bound to take into account risks which a reasonable person, careful of
        the safety of a neighbour, would guard against?
DECISION: The field was not found to have a duty of care to the woman.
REASONING:
     very economically bound and plays to the Learned Hand formula
     4 factors interplay according to the judge
    1. risk of the event
             found to be low, 6 times in 30 years
             the chance it would hit someone is even more remote
             this is P(probability) in the formula
    2. the harm
             the potential harm that may result if the event did occur
             this impacts the precautions we would take as it implies costs
             this is L(liability) in the formula
    3. the precautions
             how large is the measure that would be required to avoid this
             even if the risk and/or harm are low the precaution may be justified
             this is PC(prevention costs)
    4. nature of activity / social utility

                                                                                        30
            courts are sympathetic to causes that are socially just and useful
            cricket is a special case in England and the court is sympathetic
RATIO: Negligence requires that there be a reasonable likelihood of damage to others in
order for one to be found liable for injury.

3.2.2.3.2 Latimer v. AEC, (1953), AC 643 (HL)
  Text p 80
An uncommon employment case further examining the limits of reasonable care.
FACTS:
     factory is flooded and gets slippery
     factory tries to clean up, but doesn‘t have enough sawdust to clean up all areas
ISSUES: Does the factory owe a duty of care to shut down a factory when the conditions, even
after attempted clean up, are unsafe?
DECSION: AEC found not negligent.
REASONS:
    closing the factory would have been too expensive
    it could be argued that they should have had more sawdust to continue
    this reveals an economic bent (according to Learned Hand) to the decision
    no other employee either fell or experienced any difficulty
    no other employee saw reason to close the factory
RATIO: Remedial steps not being possible, an employer need not close down a factory
and instead risk harm to an employee if a reasonably prudent employer would so do.


3.2.2.3.3 Watt v. Hertfordshire County Council, (1954) 1 WLR 835 (CA)
  Text p 82
Examines the concept of reasonable care during emergencies and when the lives of others
is threatened.
FACTS:
      fireman are called to an emergency
      equipment had to be held in place as the right truck was not available
      the driver stops short and the equipment hurts one of the people holding it
      the plaintiff claims that his employer is responsible
ISSUES: Was the city negligent in allowing the unsafe transport of the jack?
DECSION: Appeal made by P against trial decision for the D is dismissed, D not neg.
RATIO: When an individual incurs risk to save the life of another, he should not add to
this risk by operating an unsafe vehicle; and if he injures himself as a result, he alone is at
fault.

3.2.2.4 Usage of Custom Defense
Defendants may claim as first line defense that they were ―following customary practice‖
in order to avoid a tort. The danger here lies in establishing what is custom, especially in
cases where the customs of a group are complicated and hard to determine (ie medicine).



                                                                                            31
There is the danger that a group will act in self interest and lower the standard of care that
should actually be required.

Procedure (bias towards those claiming customary practice):
   1) onus on party relying on custom to prove the custom (usually the defendant).
   2) Non-compliance with the custom is prima facie (a working standard) evidence of
      negligence.
   3) If you’ve complied with the standard, then prima facie there is no negligence…
   There will be:
   4) Onus on other party to show that the custom itself is negligent (not reasonable).



3.2.2.5 Cases
3.2.2.5.1 Trimarco v. Klein, (1982), 436 NE 2d 502 (NY CA)
Introduces the idea of custom to avoid negligence.
FACTS:
     a resident of an apartment steps through a glass shower and injures himself
     at this point there was a ―custom‖ to have replaced glass showers with
        unbreakable ones
     the statute said that unbreakable doors were to be used after 1973, but this was
        after the injury an conflict began
     a judgement of $240,000 was given at trial
     questions regarding the bias of the jury and its use of a statue that was not in
        power come to the fore
ISSUES: Was the matter of custom sufficient to have found the defendant guilty of
negligence, without statutes supporting the decision?
RATIO: Custom and usage will be an appropriate standard by which to judge whether an
action is negligent, so long as the custom/usage is in itself reasonable

3.2.2.5.2 T.J. Hooper (1932) 60 F2d 737 (1932)
   Text p 85
Introduces limitations to customs as a defense.
FACTS:
     dealt with case where barges towed by tugs were caught in a storm and then sank
     tugs did not carry radios to receive weather information
     radios were cheap
RATIO: there are precautions so imperative that even their universal disregard will not
excuse their omission (ie the purchase of radios should have been effected even if it is not
custom; the custom itself is negligent based on a Learned Hand formula)

3.2.2.5.3 ter Neuzen v. Korn (1995), 127 DRL (4th) 577 (SCC)
  Text p 86
Examines the difficulties with creating divisions of ―reasonable‖ people and assessing
their customs or practices when they themselves are responsible for the definition.
FACTS:

                                                                                           32
        a doctor performing artificial insemination (AI) infects someone with HIV
        doctor claims he was following customary practice at the time (1985)
        plaintiff argues that there was enough information out there to suggest that more
         care should have been taken by the doctor (journals, other countries with
         information)
ISSUES:
     What should the doctor have known and what precautions should have been
         taken?
     What is the appropriate standard of care?
DECISION: Defendant (doctor) not liable.
REASONING: It is difficult to prove that a standard practice of a select group of people
is not reasonable. In such cases courts usually side with the definition of the standard
practice given by the experts. In this case the information available to suggest that the
practice was negligent was not sufficient.
RATIO: As a general rule, where a procedure involves difficult or uncertain questions of
medial treatment beyond the ordinary experience of a judge/jury, it will not be open to
find a standard medical practice negligent.
As an exception to this rule, if a standard practice fails to adopt obvious and reasonable
precautions which are readily apparent to an ordinary finder of fact, then it is no excuse
for a practioner to claim that he was merely conforming to such a negligent common
practice.




                                                                                        33
4. Duty of Care (p 111)

4.1 Summary
      A successful tort claim must have the following features:
      1. defendants risks causing harm were unreasonable  negligent. However,
          even if standard of care is breached, it must be shown that:
      2. defendant owed a duty of care to plaintiff, such that the duty to not cause this
          particular person harm was breached.
      If no duty exists, then defendant cannot be held liable.

   “if we go one step beyond that there is no reason we should not go fifty”
          - Lord Buckmaster (Winterbottom v. Wright)

      We owe a basic duty of care to people as a very result of living in a society where
       we share space. This doesn‘t say that we can‘t do something, we just owe a duty
       and may have to pay. This is a huge leap forward in recognizing social duties.
      Tort is now clearly differentiated from contracts. Contracts are very
       individualistic, tort now has a social basis to refer to.
      This decision also places definite limits on liability as it must be reasonably
       foreseeable.
      However, how are we going to draw a line in a principled manner? Is there a
       good tool to divide the deserving from the undeserving?


4.2 Wright, Cases on the Law of Torts (Risk)
         The cases in this section can be seen as the development of Tort law to be both
more expansive, as the idea of tort begins to apply to more situations, and also a
restriction of tort law as we introduce the concept of a ―duty of care‖ which limits the
situations in which negligence can be applied.
         Determining when risk is unreasonable involves a balance between the gravity of
risk involved and the social utility of conduct (Bolton v. Stone). Traditionally this
balance was left to the jury. Concepts such as remoteness of damage, proximate cause
and duty of care are introduced as ways to measure the distance of relationships for the
benefit of juries. In essence to give create a way for liability to be determined according
to risk.

4.3 Cases
4.3.1 Winterbottom v. Wright (1842), 152 ER 402
   Text p 112
Establishes the precedent that still haunts us today regarding the limitations of tort and
how far these should extend: ―if one step then why not fifty‖
FACTS:
        - company contracted to provide coaches for the postmaster general
        - they are to keep the coach in good condition
        - they do not and the coach driver hired by postmaster is injured
        - he wished to sue the coach company for not keeping a fit coach

                                                                                             34
       -   however he has not contract with the coach company
       -   at this point in history the only people that can sue in contracts are the parties
           to the contracts but this is a torts
       - he wants to establish that there is an independent right to sue outside the
           contract in ―torts‖
       - it is easy today to draw a connection between the parties but this connection
           was not yet accepted
ISSUES: Can the manufacturer of a product be sued for negligence by an individual who
has no contract with the manufacturer if the product is found to be faulty?
DECISION: Manufacturer is not responsible.
REASONING:
        if we take one step outside contracts then there is no limit to how far we could
           go
        this haunts us today, where do we stop tort action?
        general concept is very early 19th century: we owe nothing to each other by
           nature of the fact that we share a society, and the idea that if we don‘t have a
           contract with someone we have no claim is a very individualistic notion
RATIO: The only safe rule is to confine the right to recover to those who enter into the
contract.

4.3.2 Donoghue v. Stevenson (1932) AC 562
  Text p 115
Establishes for the first time in history the existence of a duty of care that goes beyond
contracts.
FACTS:
        - lady finds a snail in a ginger beer and feels she has a tort against the
           manufacturer
        - the ginger beer is bought for her by her friend
        - this has clearly happened before
        - she gets gastrointestinal trouble
        - Stevenson is a small ginger beer manufacturer
        - Donoghue has no contract with anyone
        - In fact she has not even paid (given value) for the item
        - Lachman and Donoghue meet, and he sees an opportunity to campaign
        - This says a lot about the common law, in that it is very reactive, it does not go
           out looking for issues, it sits and waits for issues to be brought
        - this doesn‘t even go to trial, it goes to the HL just in pleadings on this action
ISSUES:
        - can someone who does not give value for an item make a tort
        - assuming the facts occurred, if proved, is there a cause of action
DECISION: House of Lorts ruled for plaintiff, Donoghue may sue Stevenson.
REASONING:
         Lord Buchmaster
               o Has a very conservative view of the law
               o Similar to the case in Winterbottom he says no contract, no right
               o If one step why not fifty

                                                                                          35
          Lord Atkin (the famous decision and basis of this course)
              o The liability for negligence is based on a moral wrong doing
              o There is a connection between law, society and morality
              o ―The liability for negligence, whether you style it such or treat is as in
                 other system as a species of ―culpa‖, is no doubt based upon a general
                 public sentiment of moral wrong doing for which the offender must
                 pay‖
              o Tries to situate his judgment in a safe place
              o ―You must take reasonable care to avoid acts or omissions which you
                 can reasonably foresee would be likely to injure your neighbor‖
              o He does not go so far as to describe what this reasonable foreseeable
                 entails, but Mrs. Donoghue clearly fell within that boundary

LEGAL RELATIONSHIP:



                           Retailer
                                                              Manufacturer



     Buyer

                                                        Right to sue




                        Inactionable
                        Person



RATIO:
         (Original) Manufacturers of products destined for human consumption have
          an implied duty of care to those customers regardless of whether they were the
          purchaser of the product in question.
        (Modern) Possible risks resulting in actual injury are the result of negligent
          actions when they fall w/in the sphere of a duty of care; and any person who
          can reasonably be directly related to another person owes that person a
          particular duty of care.
IMPLICATIONS:
The ATKIN PRINCIPLE: You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbor: persons who


                                                                                        36
are so closely and directly affected by your actions that you ought to have them in
contemplation as being affected.

Note: the following 3 cases are applications of the Atkin Principle and we can see that
how it is applied depends on the user.

4.3.3 Deyong v. Shenburn, (1946) KB 227 (CA)
   Text p 123
Application of Atkin Principle
FACTS:
     plaintiff was an actor that lefts clothes in his dressing room
     claims that manager should have been responsible for clothes
DECISION: Manager was under no duty of care to protect clothing.
REASONING: This falls, at least in part, from the date of the decision. The courts are
very reluctant here to make masters of a house responsible to their
staff/servants/employees. Even in a post Donoghue system the judges are wary to extend
the principle.


4.3.4 Watson v. Buckley and Osborne, Garrett and Co. Ltd, (1940) 1 ALL ER 174 (KB)
   Text p 124
FACTS:
     Salon buys hair dye that is supposed to be mild ph
     Hair dye turns out to be very damaging to customer(s)
     Salon wants to make a claim against the distributor
DECISION: Distributor is liable for bad product.
REASONING: Extends Donoghue and Atkins test from manufacturer to distributor.

4.3.5 Clay v. A.J. Crump & Sons Ltd., (1964) 1 QB 533 (CA)
   Text p 125
FACTS:
     Architect and demolition teams are hired to work on a property
     Teams are requested to leave a wall standing on the property
     The wall in its state is unsafe and falls on a worker (Clay)
     Lack of communication between parties has lead to the accident
DECISION: Demolition and contractors are responsible to worker.
REASONING:
     A more recent extension of Atkins test.
     Re-interprets Donoghue in that wall was inspected (ginger beer couldn‘t be), but
       that chain of causation holds them responsible.
     it was within contemplation of both architect and demolition contractors that
       builders would go onto the site, where they would be endangered

4.3.6 Palsgraf v. Long Island Railroad Co. 162 NE 99 (NY CA 1928)
  Text p 126


                                                                                          37
Examines the boundary between people and when foreseeability and duty of care
coincide to produce what can be deemed a negligent act worth of tort.
FACTS:
        a train conductor helps a person to get onto a train
        in the process a bag is knocked loose and it explodes as it contains fireworks
        the explosion causes some scales to hit Palsgraf
        she was standing on the platform but 30ft away
        Palsgraf sues the train company for negligence of it‘s employee
ISSUES:
        was Mrs Palsgraf entitled to be standing where she was?
        was the railway employee negligent?
        is a duty of care owed to Palsgraf by the railway?
DECISION: The train station does not owe Mrs Palsgraf a duty of care.
REASONING:
        Andrews (Minority)
               o can‘t deny that the explosion caused the injury
               o chain of causation is clear
               o due care is a duty imposed on each one of us to protect society from
                  unnecessary danger, not to protect only a, b, or c.
               o it does not matter that consequences are unusual or unforeseen
               o compare to Atkin‘s principle of duty of care to those who could
                  reasonably be harmed by our negligent actions.
        Cardozo (Majority)
               o we can‘t owe a duty to the world
               o there is an implicit bargain, we we‘ll make someone liable, but only if
                  it‘s reasonable
               o action of guard may have been negligent, but not towards plaintiff
               o nothing in situation to suggest package was in any way dangerous at
                  first
               o negligence, like risk, is a term of relation; negligence in the abstract is
                  not a tort; negligence is a tort if it results in the commission of a
                  wrong, and the commission imports the violation of a right
               o proving harm is insufficient; must prove that the act had such a strong
                  possibility of danger to entitle him to be protected, even though the
                  harm was unintended
               o only foreseeable risk is negligent
               o compare to Buckmasters view in Donoghue: ―is one step why not
                  fifty‖
               o thinking is the paradigmatic example of the notion that the defendant‘s
                  duty is to be construed as correlative to the plaintiff‘s right
                        because defendant‘s conduct was not wrong toward the
                           plaintiff, he was not held to be under a duty with respect to the
                           plaintiff‘s loss
                        the plaintiff, to be victorious, would have to be within the class
                           of persons whose rights were forseeably affected by the
                           defendant‘s unreasonable creation of risk

                                                                                         38
4.4 Generality and Zone of Reason

Note that the Atkins test is highly related to the detail of the event. On a high level we
could ask ―are railway employees responsible to customers on the tracks?‖ If we ask it in
more detail then it seems less likely ―are employees standing 30ft down the track likely to
be hit by a scale knocked loose by fireworks dropped from a package by a boarding
customer on another train…‖. But the test(s) don‘t tell us what level of generality to
apply them. This will depend on who and how they are applied. In short, the Atkins test
does not answer much.




                Plaintiff                                     Defendant




Zone of Reasonability (subjective – depending on generality)

4.4.1 Case(s)
4.4.1.1 Haynes v. Harwood (1935) 1 KB 146 (CA)
        Text p 143
Examines the level of generality at which the Atkins Test is applied, as well as rescue.
FACTS:
         an employee of the defendant (Harwood) left his horse cart on a busy street
         two boys come along and startle the horses
         the horses take off and threaten people on the street
         a police officer tries to stop them and is injured
         compare to Donoghue v. Stevenson the defendant would argue that the chain
            of events is not reasonably foreseeable. This all depends at what level of
            generality you ask the question:
                a) If you leave horses on a busy street is it reasonable they may get away
                   (class of accident level) – easy to see that this is tortuous
                b) If you leave a horse on a street will boys throw stones at it and then
                   will it run away and will a policeman try to stop the horses (specific
                   instance of incident)
DECISION: the defendant is liable for the damages to the police officer
REASONING:
     ―It is not necessary to show that this particular accident and this particular damage
        were probable; it is sufficient if the accident is of a class that might well be
        anticipated as one of the reasonable and probable results of the wrongful act‖

                                                                                        39
       A busy street carries the reasonably foreseeable risk of mischievous children and
        a crowd to which horse could run into and harm; and it ism reasonably
        foreseeable that someone would try to help and get hurt doing so.  duty of care.
       Novus Actus Intervenus Defense: because the intervening act (kids throwing
        rocks) was reasonably foreseeable, this defense fails.
       Principle of Volenti Non Fit Injuria Defense: No injury done to a consenting
        party. Not a matter of consenting to harm, so much as doing his duty as both a
        social being and job as police to prevent injury to others.

4.4.1.2 Wagner v. International Railway Co. 1921, (146)
        Text p 146
Classic Case re. Liability of the Rescuer: the wrong-doer is as liable to the rescuer as to the
rescued. *Echoed in Horsley v. MacLaren

                         “Danger invites rescue.”
                                                - Cardozo J


4.5 Anns (Kamaloops) Test
A two stage test developed in Anns v. Merton London Borough, 1977 (164)
1. Divided into two components (in revisions)
    1.1. Is the damage reasonably foreseeable as a result of the actions?
    1.2. Is there a sufficient relationship of proximity between the wrongdoer and the one
         who suffered damage?
    1.1 and 1.2 implies a prima facie duty of care
2. If the first stage of the test is answered in the affirmative, then are there overriding
    policy conditions which ought to negate or reduce the limit and scope of liability?

4.5.1 History and Development of Anns
1932 – Donoghue v. Stevenson: neighbor principle is iterated as it applies to consumers
and manufacturers.
1950 – Many cases have come forward and we start to extend it beyond the
consumer/mfg relationship
1977 – Anns v. Merton: we have moved on so far and there are many applications of
Donoghue v. Stevenson, the more cases we see, the more cases extend the neighbor
principle. A limitation of the rule is clearly necessary. Lord Wilberforce iterates the 2
stage Anns Test
1984 – Kamloops v. Nielsen: the Anns test is affirmed in Canadian law
1990 – Caparo Industries v. Dickman: House of lords have some reservations about the
two stage Anns Test. Lord Bridge of Harwich suggests that we need a more focused
approach, and we‘re going to rely on precedent and categorization. The House of Lords
is throwing out the Anns Test for a more conservative approach involving existing heads
of tort to avoid the continuing expansion of Anns.
2001 – Cooper v. Hobart: Supreme court of Canada reaffirms it‘s reliance on the Anns
Test (modification to 3 parts). Of course, we also admit that we will rely on precedent
and categorization, but not exclusively like the House of Lords.


                                                                                                  40
4.5.2 Cases
4.5.2.1 Cooper v. Hobart (2001), 206 DLR 193 (SCC)
        Text p 167
Leading case in relation to the Anns Test and how Canada sees its application and role of
tort law. Problematic in that it lends no clearer view to what the test constitutes and what
factors are involved.
FACTS:
     A lawyer has his hand in the till and is acting negligently
     The mortgage broker had a duty to investigate the negligence
     It has been accepted that the mortgage broker has been negligent, otherwise things
        would not have gone wrong
ISSUES:
     Even though the mortgage brokers were negligent do the mortgage brokers have a
        duty of care to the investors?
     compare to Donoghue v. Stevenson, the limitation of liability to several people
        (those who could drink the bottle of ginger beer) the liability here is huge. It
        could potentially apply to a virtually unlimited number of people.
DECISION: The mortgage society is not liable for their actions.
REASONING:
             We are sticking with the Anns Test (reaffirmation over the HL decision in
                1990)
             Adjusts Anns Test as comprised of 2 stages, where stage one is 2 steps
                (foreseeable and proximate).
             The problem is that foreseeable and proximate are ideas that require policy
                considerations so what are we examining in the second stage that is about
                policy?
             After this case we‘re no better off, the judgment collapses on itself. The
                fully admit that the whole thing is a crap shoot in determining what
                foreseeable/proximate are and what factors are involved in this calculation
                of proximity.
             The effort here is to divorce the personal opinions of Major and
                McLachlin from ―the law‖
             The test does not give the court the answer, it depends heavily on who
                uses the test, and in this case they agree that there is no liability but this is
                only marginally related on the Anns Test.
             They find foreseeability but not proximity in the first stage. So already the
                Anns test fails.
             They go on to examine the second stage just to be comprehensive, and for
                policy reasons strike it down.
             The reason is never really given, they pull back from the ―spectre of
                indeterminate liability‖.
             Clearly the court is reluctant to let the reigns off the horse here and
                Buckmasters words echo again ―if one step why not fifty‖



                                                                                              41
              We leave the case with no better understanding. We‘re running around
               the rabbit hole. Proximity is no easier to apply.

4.5.2.2 Renslow v. Mennonite Hospital (1976) 351 NE 2d 870 (Ill. CA)
        Text p 161
FACTS:
     a teenage girl has an incorrect blood transfusion
     there is no adverse effect to the individual
     years later she has a child that has a major blood problem as a direct result of this
     the child is suing the hospital for negligence
DESCISION: The plaintiff can recover for damages, but the court notes on the case in
1979 many implications of such liability and its extension.
REASONING: (with relation to Cooper v. Hobart)
     clearly there is foreseeability
     we accept as a fact that the doctor was negligent
     in terms of proximity there is many questions here if the unborn child is
        proximate to the event
     does proximate just have a sense of time
     how would it change if the doctor warned the person that she would have
        problems having children?
           o she should still be able to claim
           o it falls naturally from the negligence
     is the child any less deserving than Donoghue?
     is the doctor any less liable than Stevenson?

4.5.2.3 Urbanski v. Patel (1978)
        Text p 147
FACTS:
Daughter has tubal ligation, part of kidney removed negligently.
Plaintiff put on dialysis waiting for new kidney.
Father offers his kidney and suffers loss of lifestyle.
DECISION: the father has a right to damages as his ―rescue‖ should be foreseen.
RATIO: It is entirely foreseeable that a member of a plaintiffs family will donate an
organ to help in a medical emergency.

4.5.2.4 Wellbridge Holdings v. Greater Winnipeg (1970)
        Text p 161
FACTS:
A bylaw is passed by a municipality.
After the bylaw a company takes interest in the lands to which the bylaw applies.
Sues municipality for losses incurred as they related to the bylaw.
DECISION: The municipality does not owe a duty to companies not yet in existence.
REASON: The ―neighbor principle‖ does not extend to those who are not yet in
existence.



                                                                                         42
4.6 Fetal Rights
In most cases a ―born alive‖ fetus can bring a case against almost any person for
negligence except their mother.

Hutch: This being the case, why shouldn‘t a child be allowed to bring a lawsuit against
its mother for negligence if this enables access to insurance money or otherwise, and as
long as inter-family issues and retaliatory methods are not in play. That is, when the
family agrees to the lawsuit as a good course of action to access insurance.


4.6.1 Cases
4.6.1.1 Dobson v. Dobson (1999) 174 DLR (4th) 1 (SCC)
       Text p 147
The major point of this case is gaining access to insurance.
FACTS:
     a pregnant woman is negligent while driving a car and ends up in an accident
     the foetus is damaged while in utero
     infant child is bringing an action against his mother for damages
     no suggestion that this in bad faith
     the mother is fully on side with the action (as an effort to get insurance)
     an amount of money was given by the insurance company win or lose, as the
       insurance company wanted it to go to Supreme Court
DECISION: The child can get no recovery.
ISSUE: Can a foetus, born alive, sue its own mother?
REASONING:
     Based on all the other types of foetal cases they can recover
     Why should the negligent party gain from their own negligence?
     This could be agreement between the parties to sue to gain access to insurance
     Equally they could be between disaffected parties to go after the woman
     We don‘t need to give men a way to control women through the law
Majority
     Essentially put forward a slippery slope argument based on Anns that shows such
       a case would take things too far
     Applied Anns test:
       Stage 1: A duty of care exists
           o First test can be satisfied if it is assumed that pregnant mother and foetus
              are separate legal entities
           o but this goes against McLachlin J in Winnipeg, ―the law has always treated
              mother and child as one‖
           o but, in this case, it is appropriate to assume, without deciding, that they
              can be treated as separate legal entities
           o clearly they are as close as 2 people can be
           o forseeability: it is obvious that any careless act or omission on part of
              mother could lead to damage of child
       Stage 2: Although a duty of care toward child may exist, it should not be imposed
       on pregnant women for reasons of public policy

                                                                                           43
           o Matters of public policy are concerned w/ sensitive issues w/ far-reaching
               and unpredictable implications for Canadian society
           o The legislature is a more appropriate forum for their resolution
Policy Issues:
   1. The privacy and autonomy rights of women
           o imposition of duty of care on pregnant woman would result in extensive
               and unacceptable intrusions into the bodily integrity, privacy and
               autonomy rights of women
           o although born-alive child can sue negligent 3rd party, we must recognise
               particularly unique relationship between mother and unborn child
                    there is no other relationship in human existence that can serve as
                       basis for comparison
                    imposition of tort liability on 3rd party advances interests of both
                       mother and child, but does not significantly impair the right of 3rd
                       parties to control their own lives
                    if woman held liable, the most mundane decisions in her daily life
                       could be subject to scrutiny of the courts
                    there is no rational or principled limit to the types of claims which
                       may be brought about if such a tortious duty of care were imposed
           o tort liability would also carry psychological repercussions, potentially
               damaging the future relationship between mother and child, and even child
               and family
                    yet family harmony is particularly important to create caring and
                       nurturing environment for the injured child
                    therefore neither best interest of child or mother are served
                       through liability
                    we don‘t want to allow for exploitation by disaffected parties
           o purpose of tort law is to provide compensation to victim and deterrence to
               the tortfeasor
                    but in ordinary course of events, imposition of tort on mother
                       would provide neither compensation nor deterrence
                    societal issue at heart of this appeal is lack of financial support
                       available for the care of children w/ special needs
   2. The difficulties in creating judicial standard of conduct for pregnant women
           o if a duty of care is to be imposed on pregnant women, a judicially defined
               standard of conduct would have to be met
                    by what objective std could a jury be guided in determining a
                       woman did all that was necessary to not breach a legal duty to not
                       interfere with her foetus‘ separate and independent right to be born
                       whole
           o Reasonable Pregnant Woman Standard
                    inappropriate because it raises spectre of judicial scrutiny of
                       lifestyle choices
                    a ―reasonable woman‖ std would permit triers of fact to dictate
                       manner in which pregnant woman should behave throughout
                       pregnancy

                                                                                        44
                    disparities in finances, ethnic background would lead to unfair
                     application of uniform legal std
                  pregnancy does not come only to those women who have within
                     their means all that is necessary to ensure the best possible prenatal
                     environment
                  tort law is concerned only with application of objective stds of
                     reasonable behaviour to impugned conduct; cannot address public
                     policy implications raised by this appeal
           o Lifestyle Choices Peculiar to Parenthood
                  some say there is a dividing line between general duty of care
                     toward public (therefore including the foetus), and those activities
                     that are peculiar to parenthood (which hold no duty)
                  a general duty of care to the public does not exist – it is only
                     toward a foreseeable plaintiff
                  almost everything can be construed as a lifestyle choice
           o Insurance-dependant Rationale
                  judicial creation of motor-vehicle exception would rely on
                     existence of mandatory insurance regime for automobile
                     negligence
                  this means liability would be imposed on mother‘s ability to satisfy
                     a judgement by means of insurance coverage
                  tort law is not result-oriented towards insurance in this manner
                  Hutch: this is ridiculous – tort law is driven by insuracnce see
                     Cunningham v. Wheeler
Minority:
    We can‘t bring a tort for ―lifestyle choices‖ but this is not a choice, it is a situation
       in which there already was a duty of care
    Slippery slope argument of majority is flawed as we can limit the causes
    Sure there will be a problem on the border but that‘s not a new idea
    We‘ll define the tort narrowly, in this case to situations where a duty of care is
       already owed to other drivers

4.6.1.2 Duval v. Seguin (1972), 26 DLR (3d) 418
        Text p 159
Defendant negligently injured a pregnant woman driving; fetus, now the P, injured as
result of accident. Judge ruled that it is reasonably foreseeable that pregnant woman are
also drivers, that reckless driving may injure both the woman and her fetus, and therefore
there is duty of care to the fetus as to the woman driving.
CONSIDER: third party may be sued by person injured as fetus; but not the mother
carrying the child? Is there not a greater duty of care flowing from proximity and
reasonable foreseeability of harm b/w mother & unborn child than b/w mother and
stranger?




                                                                                           45
5. Remoteness

5.1 Proving a Tort Action
    A. STANDARD OF CARE:
       Did the D breach a standard of care such that the risks they created which caused
       P‘s harms unreasonable? If standard of care breached, D said to be NEGLIGENT.
    B. DUTY OF CARE:
       Even if standard of care was unreasonable, it must be shown that the D had a duty
       of care. This is generally performed through either case law or application of the
       Anns test and the concepts of REASONALBE FORSEEABILITY (of the
       accident) and PROXIMITY (to the parties involved). The Anns test tries to draw
       a limit around ones duty to others. However it is not sufficient as we have seen.
    C. REMOTENESS:
       Once it has been shown that D was negligent (breached standard of care) and s/he
       had a duty of care to the P, it must be shown that the actual injuries are not too
       remote, such that the damage caused was not totally unforeseeable in considering
       the negligent act.

5.2 Defining Remoteness
     Remoteness, is akin to the reasonable foreseeability of an action causing an
       accident, but in this case is the reasonable foreseeability of the damaged caused.
     Damage which is not reasonably foreseeable it too remote.
     Once a duty and relationship between the parties has been established it must be
       shown that the damage caused is not too remote.

5.3 Stare Decisis and Res Judicata
Stare Decisis
     let the decision stand; precedent
     a rule between A and B will bind later cases
     this is a law
Res Judicata
     the facts have been decided
     the facts only bind the parties to the action
     a rule between A and B will not bind



5.4 Cases
5.4.1 Re: Polemis and Furness, Withy & Co (1921)
       Text p 176
The court is trying to determine what limits will be placed on the concept of negligence
and duty of care. This early case has them defining direct/indirect results of an act.
FACTS:
       - a ship loaded with petrol is being unloaded
       - a worker accidentally knocks a plank of wood into the hold
       - the plank causes a spark which results in the ship exploding

                                                                                           46
       - the whole ship is destroyed
ISSUE: Is the damage too remote to be considered as a result of the action?
DECISION: The workers are liable for the damage, it is not too remote.
REASONING: The workers were negligent in unloading the ship, which caused the
plank to fall. The falling plank was a direct cause of the fire and therefore, not too
remote from the negligent act.
RATIO: When an act is performed and is found to be negligent if the resulting damage
can be seen as a direct consequence of the action then liability is unavoidable.
COMPARE: This decision agrees with Andrews position in Palsgraf. Another early
decision leaning towards direct consequences.

5.4.2  Overseas Tankship (UK) v. Morts Dock [Wagon Mound 1] (1961)
      Text p 180
FACTS:
    The wagon mound ship leaks oil into a harbour
    The crew of the wagon makes not attempt to alert or clean up
    Wagon mound leaves without making any attempt to clean up or warn others
    Morts Dock is fixing and welding a ship across the harbor
    They pause work to consult with the oil company (Caltex) where leak occurred
    They are told the oil on the water is very unlikely to light
    Work at the shipping yard is restarted in view of this information
    A piece of wood lights on fire and the fire spreads on the oil
    Morts Dock burns along with a ship they are working on
    Morts Dock brings a case against the Wagon Mound for damages to the dock
ISSUE: Is the Wagon Mound responsible for the damages or are they too remote?
DECISION: The damages are too remote. The Wagon mound is not responsible.
REASONING:
    Overseas (Wagon Mound) admits a duty of care for things such as: oil damaging
      dock, workers slipping on oil.
    Dock clearly wants recovery, and agues based on ―direct consequence‖ of actions
    Court moves away from direct consequence as good law and introduce concept of
      reasonably foreseeable and apply it to the damages
    They do not find that the resultant damages were reasonably foreseeable
Simonds:
    If there was damage due to the oil then it would be recoverable.
    The court wants to apply ―reasonable foreseeable‖ to the concept of damage.
    This is different from the ―reasonable foreseeable‖ aspect of the act, which the
      Wagon Mound agrees to.
    They are trying to differentiate from ―direct/indirect‖ in Polemis as the test for
      ―directness‖ is no longer good law

“the actor should not be liable for all consequences, however unforeseeable and
however grave, so long as they can be said to be direct”
                                                         - Simonds


                                                                                         47
RATIO: The essential test in determining liability is whether the damage is of such a kind
that the reasonable man should have foreseen. That is, it is not necessary that the exact
damage, insofar as full extent and precise circumstances, be RF; but that the kind of
damage must be reasonably foreseeable as resulting from the negligent action.
IMPLICATIONS: How fair is it that the little dock yard has to pay for the damage caused
by international oil shipping companies when they were provided with bad information
(and with no information at all by the Wagon Mound)?

5.4.3   Overseas Tankship (UK) v. The Miller Steamship [Wagon Mound 2] (1966)
        Text p 183
A clear indication that the concept of remoteness is not easily, universally, or equitably
applied.
FACTS: same as above (5.3.1.2) [Wagon Mound 1]
ISSUE: Is the Wagon Mound responsible to the owners of the ship that was destroyed in
the dock fire.
DECISION: Yes, to add insult to injury in Wagon Mound 1, the courts found that the
results were not remote in this instance.
REASONING:
     In wagon mound 1, it was argued that the fire was a direct result of the spill and
        this was overturned as no longer a good test in law
     Given the reasonably foreseeable test introduced in Wagon Mound 1, this case is
        argued Based on the legal principle of STARE DECISIS  Stand by past
        decisions, previous cases.
     So, test used here was of reasonable foreseeability as per Wagon Mound 1, which
        was shown to exist between the spill and fire
     Unfortunately for Wagon Mound 1, the principle of RES JUDICATA  facts of a
        case cannot be interpreted differently in a subsequent case with the same parties, dictates
        that the case cannot be retried
RATIO: The findings in Wagon Mound 1 are upheld via Stare Decisis. The concept of
reasonably foreseeable will be applied to the extent of damages in tort cases.

5.5 The “thin skull” Rule
We take a victim as you find them. If they are weak or infirm, or strong and virile it
doesn‘t matter. The kind of damage should be examined, not the extent or exact
circumstances. That is, if the kind of damage inflicted is reasonably foreseeable the
defendant is liable for the damage no matter how extreme or unreasonable the extent or
circumstances leading to the event may seem.
The thin skull rule faces problems in light of the Wagon Mound decisions to limit cases
based on foreseeability of the damage. This is where the courts differentiate between the
kind of injury, the extent and circumstances.
Kind v. Extend
        - one only has to reasonably foresee the kind
        - this falls from the ―thin skull rule‖; take your victims as you find them
        - Smith v. Leech Brain
        - Stephenson v. Wait Tileman
Kind v. Circumstances

                                                                                                 48
       -   on does not have see the specific set of circumstances that lead to accident
           only the kind of accident
       -   Hughes v. Lord Advocate

5.6 Cases
5.6.1 Smith v. Leech Brain & Co (1962)
        Text p 184
The court examines the kind versus extent of damages in a case and decides that extent is
unimportant as long as an accident of a kind can be iterated.
FACTS:
     A worker in a metal plant is provided insufficient protection by his employer
     He is hit by some molten metal and burned on the lip
     The burn turns cancerous and he dies
ISSUE: Are the kind and extent of damages reasonably foreseeable?
DECISION: Yes the kind of incident is reasonably foreseeable, the extent of damages
should not be considered. However, due to pre-existing conditions the award is reduced.
REASONING:
     The courts finds that the defendant was negligent in providing adequate protection
     Court finds that since there was nothing wrong with his lip before burn, the burn
        was the ―promoting agency‖ to the cancer
     Thin Skull rule is applied and tortfeasor must take vitem as they found him
     The ―thin skull rule‖ trumps the concept of reasonable foreseeability with respect
        to the extent of damages
RATIO: The question is not the extent of damages, but the kind. We will ask whether
the kind of accident was reasonably foreseeable, and the extent of damages will depend
on the nature of the victim.
IMPLICATIONS: The judge still reduced the award based on pre-existing conditions,
which is not really in line with the concept of the ―thin skull‖ rule.


5.6.2 Doughty v. Turner Manufacturing (1964)
       Text p 193
The kind of accident here is differentiated and not found to be in keeping with what is
reasonably foreseeable.
FACTS:
A metal working plant has cauldrons covered by asbestos covers.
A cover slips in near a worker, but the worker is not splashed.
The cover then explodes, in an unknown reaction with the heat.
The explosion results in the worker being hurt.
ISSUE: Is the damage as a result of the exploding cover too remote?
DECISION: Yes the damage is too remote.
REASONING:
     Two possible risks:
           o Cover slips in and splashes someone
                    This was seen as reasonably foreseeable.
           o Cover slips in and explodes.

                                                                                          49
                      The company did not have enough information to foresee this.
     Even though the injury is the same, the accident is not.
     The D had a duty of care to not allow the cover to fall in and cause a splash that
        would burn someone
     The defendant did not have a duty to prevent the explosion and resulting injury
        that in fact occurred.
RATIO: When the cause of an accident is not reasonably foreseeable the defendant will
not be held liable for the consequences.
IMPLICATIONS: The level of generality at which the accident is viewed clearly decides
the outcome here. The accident is essentially the same; the cover slipped into the
cauldron. This should not have happened and an injury resulted. Not holding the
company responsible is very conservative.

5.6.3 Stephenson v. Waite Tileman Limted (1973)
        Text p 187
Attempts to apply the foreseeability test of Wagon Mound to a personal injury case. The
necessity of a direct relationship between the injury and results is iterated and the extent
of an injury is disregarded.
FACTS:
     Worker on a construction site is hit by a frayed cable
     The wound becomes severely infected.
     Worker becomes chronically ill suffering a list of physiological complications.
     One doctor claims an infection entered his hand through cut and caused damage
        to central nervous system
     Another doc claims plaintiff developed a nervous disorder while in hospital for
        the infection. Question of fact whether the nervous condition was a result of the
        infection or triggered by it.
ISSUE:
     Is the damage caused by the frayed cord too remote?
     How can the court correctly apply the Wagon Mound test of remoteness to a personal
       injury claim?
DECISION: The defendant is liable for all results of the injury.
REASONING:
The cut to the hand is clearly the responsibility of the defendant.
The events that flowed from that, whether they were infection, or nervous disorder flow
from the cut, and would not have occurred otherwise.
Since we have established the responsibility and a direct relationship between the injury
and results we can hold the defendant liable.
RATIO:
Three Considerations re. Remoteness:
   1. Thin skulled rule is upheld, such that damages which flow from the pre-existing
       susceptibility and/or any new risks created by the initial injury may be recovered.
   2. The test of reasonable foreseeablity is limited to the initial injury, and to the type,
       kind, or character.



                                                                                           50
   3. Once the initial injury is established as reasonably foreseeable, the ultimate
        consequences which result may be proved as a matter of cause and effect; that is,
        establishes an adequate relationship of cause and effect
IMPLICATIONS:
A cause and effect relationship between and injury that is foreseeable, and the effects of
that injury is necessary in order to hold a defendant liable for all of the resulting damages.


5.6.4 Hughs v. Lord Advocate (1963)
         Text p 190
The court examines the circumstances versus the kind of an accident and finds that as
long as the accident is of a kind, the exact events leading to it are not relevant.
FACTS:
Men working on a sewer go on tea break
As a safety precaution they leave behind some burning lanterns (note no electric ones
available at this time in history)
Some boys come along and in playing around the hole knock a lantern down the shaft and
fall in.
The lantern causes and explosion and one boy is badly burned before he gets out of the
hole.
ISSUE: Are the burns too remote?
DECISION: No, the defendant is liable.
REASONING: It is decided that an accident involving the lanterns and fire is reasonably
foreseeable and that resulting burns would be possible. The degree of burns resulting is
matter of extent and is irrelevant.
RATIO: Where there is a duty of care that has been breached according to a reasonable
standard there may be recovery when the injuries of a kind that was reasonably
foreseeable. The exact set of circumstances leading to the accident are irrelevant.
IMPLICATIONS: The concept in Wagon Mound is being followed in terms of
foreseeability, but the exact circumstances leading to an accident are not important.


5.6.5 Cotic v. Gray (1981)
        Text p 190
The concept of remoteness is voided. We have a situation now in law where remoteness
as a concept is really on the wane.
FACTS:
     A man has an accident in a car
     Prior to the accident he was susceptible to depression
     After the accident he became much worse and committed suicide
ISSUE: What can the widow recover?
DECISION: Recovery for accident and suicide (mental suffering)
REASONING:
     Causal argument: the defendants admit that they caused the accident, but argue
        that the suicide is not caused by the accident; they are willing to pay the accident
        damages

                                                                                           51
    Reasonably foreseeable: the defendants argue that this is not foreseeable
    Court argues that as a result of ―thin-skull‖ the suicide flows from accident and
     the plaintiff can recover.
IMPLICATIONS:
    This opens things in tort right up in that as long as ―something occurs‖ then you
     can recover for the full trail of implications.
    The concept of remoteness is gone.
    Example: what if there is an accident, where no one is hurt, but someone is
     shaken up and are mentally pushed over the edge and they commit suicide. Can
     they recover?

5.7 Summary
     There are two directions for remoteness one for personal injury (thin-skull) and
      one for non-personal injury
     Remoteness in non-personal injury cases is relatively narrow
     Comparatively personal injury remoteness is judged based on the kind of
      accident, not the circumstances or extent of damage
     Remoteness is supposed to be a barrier to recovery, but the courts have backed
      away from this as a result of over-expansion of the principle



5.8 Novus Actus Interveniens (as a concept for remoteness)
Defn: New Act Intervenes
             someone or something breaks the chain of causation between one person‘s
                negligent act and another‘s injuries.
An intervening act is only an excuse for negligence when the intervening act itself is no
reasonably foreseeable. If the intervening act is reasonably foreseeable one cannot
escape liability.
Example:
             If one causes X and X brings about a non-foreseeable intervening act Y
                and Y causes your injury, one is not liable
             If the intervention by Y is a reasonably foreseeable result of X, then one is
                still liable
When there is an intervening act, should the initially negligent person be responsible?
This question usually arises when the intervening party is unavailable (unable to pay).
As a result the victim goes looking for the first available party.


5.9 Cases
5.9.1 Bradford v. Kanellos (1973)
        Text p 203
Intervening act is seen as unforeseeable and the defense of Novus Actus Interveniens
stands.
FACTS:
     Fire in restaurant

                                                                                         52
     Put out by carbon-dioxide fire extinguisher
     The sound of the safety equipment is like rushing gas
     A customer yells ―gas leak‖ and panic ensues
     The plaintiff is trampled
ISSUE:
     Can the plaintiff gain recovery from the restaurant?
     Was the intervening act reasonably foreseeable?
DECISION: The plaintiff can not recover, the intervening act could not have been
foreseen.
REASONING:
Majority: it was not reasonably foreseeable that the ―idiotic‖ person would insight panic
(the intervening act is not reasonably foreseeable, so the defense of intervening act
succeeds and the plaintiff cannot recover)
Minority: it was ―utterly‖ and ―naturally‖ and ―inevitable‖ result of the fact that the fire
extinguisher uses CO2 that sounds like gas, and thus could reasonably be foreseen as a
cause of other problems (like the panic)
     The kind of injury is not the kind that causes the injury the plaintiff has suffered.
     The plaintiff is clearly deserving.
     However, the restaurant is clearly following procedures.
     This is a theoretical tie
IMPLICATIONS:
Hutch: As between a negligent defendant and an injured plaintiff, the tie should go to
the plaintiff. Without the negligence, whether it was direct/indirect/remote, the fact is
without it the situation of the fire the injury would not have occurred. This is why
insurance exists.

5.9.2 Home Office v. Dorset Yacht Co. Ltd (1970)
         Text p 206
Intervening act is seen as foreseeable and the defense of Novus Actus Interveniens is
struck down. The test for an intervening act to be foreseeable is tightened to ―very
likely‖.
FACTS:
     Some young offender boys are on a reform trip doing work on an island
     Their guards all go to sleep
     The boys take a yacht and crash it into another yacht
     They board the other yacht and further damage it
     The damaged yacht owners bring suit against Home office
ISSUE:
     Can the yacht owners recover their losses from the home office?
     Is he intervening act defense negated by the fact that the act was reasonably
         foreseeable?
DECISION: A slim majority says that the home office is liable.
REASONING:




                                                                                           53
        Compared to other remoteness cases thus far the defendant is a governmental
         agency. The fact that they are not making a profit and have a public interest in
         reform as it comes with the territory
     They are trying to do a job that no one else wants to do
     They could just lock everybody up.
     The event that the guards were supposed to be guarding against is exactly what
         occurs
Lord Reid (majority):
Question is really one of remoteness
Novus Actus Interveniens can relieve a defendant of responsibility.
Believes that foreseeability is not enough to diffuse NAI, there must be a high probability
for the NAI to be dismissed as a defense.
In this case it was very clearly probable that the criminal boys, on an island, would try to
make an escape with a boat, so NAI is dismissed. The intervening act is found to be
reasonable, and home office should have taken more caution to prevent the act from
occurring.
Lord Diplock (majority):
Slightly different line of reasoning, but the end is the same
He finds a duty of care between the parties due to proximity
Oliver LJ (minority):
No real argument, he relies on policy and says that‘s up to the courts.
His view of policy is that they should not be held responsible.
RATIO:
For a defense of intervening acts to be struck down the intervening act must be something
that is very likely to occur, not just foreseeable. This has the effect of tightening the test
for intervening acts.
IMPLICATIONS:
Hutch: it seems there should be some difference in analysis when we are dealing with a
government institution when compared with a corporation or commercial enterprise as
they can add it to the cost of doing business.

5.9.3 Lamb v. London Borough of Camden (1981)
      Text p 218
FACTS:
     Plaintiff is away from home for an extended period
      She rents the home while away
     A public employee breaks a water main during work on sewers
     The house subsides as a result of damage and the renter moves out
     The home is empty, and to fix it she removes all the furniture
     The totally vacant home is then invaded by squatters (interveners)
     Plaintiff sues for damage done to home which she sees as flowing from the water
      main damage.
ISSUE:
     Is the squatters damage too remote?
     Are the intervening acts reasonably foreseeable?
DECISION: The city is not liable for the damage.

                                                                                           54
REASONING:
    The city admits that they were negligent, and they owe for the damage to the
      foundation.
    The city argues that they are not responsible for the intervening 3rd party damage
      as it is too remote.
    To diffuse the NAI the plaintiff must show that they were a highly probable result
      of the Home Offices negligence when fixing the water main.
Lord Denning (for majority):
“The truth is that duty, remoteness, and causation are all devices of the court used to limit
the range of liability for negligence. Not every wrongful act can be the subject of
compensation, the line has to be drawn somewhere. Sometimes it is done by limiting the
range of persons to whom a duty is owed. Sometimes it is done by saying that there is a
break in the chain of causation. Other times, the damage is said to be too remote. All of
these devices are useful. BUT ULTIMATELY, IT IS A QUESTION OF POLICY FOR
THE JUDGES TO DECIDE.”
      He essentially says that all these rules are just a cover for policy.
      Forget the charade lets get to the policy that underlies this.
      Lets look to insurance (compare this with Dobson v. Dobson where they think the
       court should not look at insurance), better for the individual to insure this damage
      Denning has blown the lid off of law here
      No liability
Oliver
     No liability
     Just not reasonably foreseeable that ―the puncturing of a water main would fill the
       plaintiff‘s house with uninvited guests in 1974‖
     No only does an intervening act have to be probable it has to be almost inevitable
       to turn away the defense of NIA
     Clearly this was not inevitable
Watkins
     Basically gives up on the enterprise, and says ―I have an instinct‖
     This is certainly not of any comfort to litigants or defendants to say that the
       outcome of ―remoteness‖ depends on a judges ―instincts‖
     In this case it is reasonably foreseeable, but it is too remote
     We are left with no idea where to go

Hutch: dislikes this position greatly, how is this law? How does it help us in future
cases?




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6. Causation

6.1 Steps to Prove a Tort Action

   1. STANDARD OF CARE breached by D
   2. Even if standard of care was unreasonable, did D have a DUTY OF CARE.
   3. Once it has been shown that D was negligent and s/he had a duty of care to the P,
      it must be shown that the actual injuries are not TOO REMOTE, such that the
      damage caused was not totally unforeseeable in considering the negligent act.
   4. It must then be shown that it was the P‘s risks which resulted in the D‘s injuries;
      thus, analysis of the materialization of risk into injury is required to prove negl.
      using the concept of CAUSE IN FACT.

6.2 Defining Causation

In considering causation we rapidly slide into a discussion of responsibility. Thought the
court say we have to separate them it is impossible.

Causation                                            Responsibility
       - Fact                                               - Values

In causation are we looking for ―A‖ cause or ―THE‖ cause?

Because there are almost always many causes that lead up to an event, to get from a cause
to the cause we have to go through responsibility. We have to decide if there is a
sufficient condition between the defendants actions and the plaintiffs harm that is worthy
of shifting the burden from the plaintiff back to the defendant who cased the harm.

Not all facts collapse into values. But it is impossible in law to talk about facts without
considering values. This sets up a counter-factual world. We assume there are no
accidents, and that when one arises there is a deviation from normal due to negligence.
So how do we find the responsible party?

Hutch: we are not interested in finding the case, we are just interested in making a policy
decisions that reflect our values/morals. As lawyers we are not in the game of science
and logic (facts) but we are in the game of policy and morals.

Tort law distinguishes between 2 meanings of ―cause‖
   1. proximate cause (remoteness) connects negligent act and injury by looking at
       whether injury suffered is within reason for regarding defendant‘s actions as
       wrongful
            does the unreasonable risk created by defendant encompass the injury?
            Often boils down to a policy judgement
   2. causal act (cause in fact) connects negligent act and injury simply by asking
       whether former produced latter
            factual inquiry resolved by production of evidence

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              can cause 2 kinds of difficulty
               A. conceptual difficulty about causation
                       std approach is ―but for‖ test; but this may be inadequate in
                          certain cases of multiple causation (in this case courts may
                          refer to ―substantial factor‖ or ―material contribution‖)
               B. certain situations of causal uncertainty be make it hard for plaintiff to
                  prove causal connection, yet burden of proof falls on plaintiff

HUTCH: Determining proximate cause (remoteness) is based on fact. Determining
Cause in Fact (CIF) requires a normative evaluation because it marks out
responsibility/liability. When a court rules X did Y and Y was the cause in fact of injury,
than X is liable for the damages. The Court considers this prior to examining cause in
fact, so even this ―purely factual analysis‖ is one of policy.


6.3 Cause in Fact

6.3.1 “but for”
Standard approach to causation is to ask if P‘s injuries would not have occurred ―but for‖
the D‘s act. If the injury would have occurred regardless, then the suit fails. The burden
of proof is on the P.

6.3.1.1. Barnett v. Chelsea(1968) Text p 226
Establishes the ―but for‖ test for cause in fact.
―but for‖ is used to establish a unique cause.
FACTS:
      A man drinking tea with some others from a flask gets sick.
      He tries to go to the hospital.
      Without seeing the patients the doctor dismisses them and tells them to go home
          and go to bed.
      The man goes home and gets far worse.
      Later the next day he dies of arsenic poisoning.
      The widow brings a suit against the doctor and hospital.
      The doctors defense is that the guy didn‘t have a chance, they would not have
          found out what was wrong with
ISSUE: ―BUT FOR‖ the defendants negligence would the harm have arose.
DECISION: The defendant (doctor) is not responsible for the death as but for his actions
it still would have occurred.
REASONING:
Hutch: this is a very difficult case; is there sufficient responsibility to shift the blame to
the doctor? Yes but it‘s certainly a policy/value choice, not a fact/causation issue.
      This is another case where someone is already in a bad way, and their activities
          fail to correct the situation.
      Doctors are often faced with a situation where their action exacerbates an existing
          condition that was caused by someone else‘s negligence.
      There are huge problems with the ―but for‖ test as it is a very blunt instrument.

                                                                                           57
6.3.1.2. Blackstock v. Foster (1958) Text p 244
Raises the question of probability/factual uncertainty with causation and where we‘ll
draw the line
FACTS:
     A man sitting in car is hit from behind and injured in the chest when he hit the
        steering wheel.
     After the accident he develops a malignant growth in the same region.
     Medical science at the time cannot definitively say if the malignant growth
        resulted from the injury.
     Doctors say that the connection between the blow and the growth were
        improbable but possible.
ISSUE: Was the whole of the harm resulting caused as a result of the defendants actions,
or ―but for‖ the actions would some still have occurred.
DECISION: Due to the lack of medical evidence and the inability of the plaintiff to show
a causal connection between the blow and the growth the defendant is not guilty.
REASONING:
     The difficulty is that we don‘t know, so what do we do?
     The court says if we don‘t know, and the result is less probable than not, then the
        defendant is not responsible.
     Does this imply that the plaintiff must prove that the event is 50% or more
        probable.
     The courts are unclear on this matter.
     Note that if we make the defendant liable for events below 100% liable is that
        they are paying for things they didn‘t cause.
     If we make the plaintiff liable for events above 0% they are paying for things they
        didn‘t cause.
     A solution would be to have the defendant cover costs in proportion to their
        degree of causation, but the UK and Canadian courts have not gone this route.

6.3.2 Not Sole or Predominant but Sufficient Cause

6.3.2.1 Athey v. Leonati (1996) Text p 238
Example of actual material contribution on the facts alone.
FACTS:
     A man is hit in two car accidents.
     He develops a disc hernia in his back.
     It is debated if the hernia was the result of a pre-existing condition or was caused
        by the accidents.
DECISION:
REASONING:
     The court is going by the rule that: if the defendant is responsible for any aspect
        of the damages, then they are responsible for the whole.
     It is not necessary to show that they are the sole contributing factor.

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      There are two potential outcomes here for multiple contribution
           o where other causes are also negligent and there are defendants and other
                tortuous causes arise, in which case we can apportion the damages to each
                defendant
           o where the other actions are not tortuous and do not involve negligence (for
                example natural acts) then should a person who is only partly responsible
                be responsible for the whole?
      In this case:
           o Multiple Torts  No, only one. There is only apportionment available.
      Divisible Injuries:
           o Can the harm be uniquely defined and apportioned? No, the result of both
                accidents is the same. It can‘t be divided.
           o Adjustments for Contingencies 
           o Independent Intervening Events 
           o Thin Skull / Crumbling Skull  the person had a pre-existing condition,
                but this was not substantial enough for the respondent to side-step liability
           o Loss of Chance  rejected, we do not apportion amounts based on
                chance, there is either sufficient causation or there is not
      KEY: But-for the accident, disk would be fine; accidents were a causation factor
       beyond de minimis range.

6.3.2.2 Walker Estate v. York Finch Hospital, 2001 text p. 279
FACTS: P is the estate of a person who died of AIDS after contracting it from a blood
transfusion at York Finch Hospital
RATIO: The test here is not the but-for but whether the conduct was a sufficient
condition of the injuries, as the but-for-test is unworkable in some situations, esp. where
multiple independent causes may bring about a single harm
KEY: Sufficient condition to attach liability as opposed to the but-for-test


6.3.3. Material Contribution (Cases)
If someone increases another‘s risk of being injured, does this amount to a material
contribution?

6.3.3.1 McGhee v. National Coal Board Text (1972) p. 256
Introduces material contribution to risk is material contribution to cause.
 If someone increases another‘s risk of being injured, does this amt to a material
contribution?
FACTS:
      McGhee works in a brick kiln factory and is exposed to dust.
      The factory has no showers and he is covered in dust all the time and must bike
         home covered in this dust.
      He ends up getting dermatitis as probable/possible result of the
DECISION: The coal board is liable.
REASONING:
It is rare to get medical evidence that says ―this did this for sure‖.

                                                                                          59
These cases arise when there is uncertainty about the facts and causation.
Reid
        ―the legal concept of causation is not based on logic or philosophy. It is based on
the practical way in which the ordinary man‘s mind works‖

      Subtle shift in that not only is a material contribution sufficient, a material
       contribution to the risk will be sufficient.
Wilberforce
    This is the important judgment as it goes a step further than Reid
    Basic rule prior to this is that the plaintiff has to show the cause.
    However, if the plaintiff can show that the defendant was negligent and caused a
       risk, and that risk could be a cause of the harm, then the burden shifts to the
       defendant. The defendant must show that they aren‘t liable by showing another
       cause.
    ―where a person has, by a breach of duty of care, created a risk, and injury occurs
       within the area of that risk, the loss should be borne by him unless he shows that it
       had some other cause‖ text p 258
    Essentially, as between a non negligent plaintiff and a negligent defendant they
       defendant should be held liable.
    In this case it moves the above principle into the zone of risk.
    Medical knowledge says we can never be sure in these cases, so it is very hard for
       the plaintiff to prove so we move the burned off the plaintiff
    In cases of uncertainty we will put burden on the defendant.
    Proposed test:
               D creates risk
               D creates risk b/c negl.
               P develops injury consistent w/ risk in 1 and 2
                onus shifts to D to prove risk did not materially contribute to P‘s injury
RATIO:
No substantial difference in saying ―defendants materially increased risk of injury‖ or
―what defendants did made material contribution to injury‖.
Furthermore, if a risk has been shown the burden shifts to the defendant to show that the
risk was not the cause. Given the facts in all of these cases it will be very hard to prove
this as the facts are uncertain at best.
IMPLICATIONS:
Wilberforces very liberal decision continues to have implications for how we decide
liability due to causation.


6.3.3.2. Wilsher v. Essex (1988) p 262
FACTS:
     A baby is born premature and in the process of being aided goes blind.
     The cause is one of 5 possible causes.
     The 4 other causes are non-negligent.

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    The cause they are suing under was the erroneous application of oxygen.
ISSUE: Can the hospital be held responsible for the child‘s blindness.
DECSISION: The health board is not responsible.
REASONING:
    There is a 20% chance that the hospital is negligent.
    By introducing the hospital they increased the risk by 25%
    It is more likely that it is not the negligence in this case (compare to McGhee
      where it was at least 50/50 if not more).
    The analysis Wilberforce would give (as per McGhee) would be:
    Caused a risk by breach of duty  yes
    Risk could cause the injury  yes
    Thus the defendant must show that they did not cause the issue.
    20% is certainly not ―de minimus‖
    Liability in McGhee is clear, but Wilberforce went too far.
IMPLICATIONS:
    We don‘t need to create reverse onus on defendant to prove these cases.
    The burden lies with the plaintiff to prove causation


6.3.3.3. Farrell v. Snell (1990) text p 274
Leading case in Canada. McGhee is right, but the Wilberforce view is too far.
FACTS:
Snell is an old lady with a difficulty with her sight.
She can‘t afford to go up against the doctors, she can‘t afford it.
The doctors fund both sides of this, as they want an answer.
The lawyer for Snell is not committed, and doesn‘t have time.
She decides to have corrective surgery.
The doctor is negligent during surgery and she looses sight.
The doctors argument is that she would have gone blind anyway and there was always a
chance, even if there way no negligence, could have gone blind.
ISSUE: Was the negligence of the doctor
DECISION: The doctor is negligent.
REASON:
This is not a hard case, but we have to decide in Canada if we are going to follow the
Wilberforce in McGhee route, or will we go with Sidnell?
Sopinka
Going with Wilberforce is too far.
Reversing the burden will not be followed.
Instead, if the plaintiff can bring forward information that the injury is within the zone of
risk that the defendant caused, and the defendant has nothing to say about this, then they
will be guilty. That is once there is evidence the onus will shift, but not a burden to
disprove.
There needs to be a substantial connection between the actions of the defendant and the
harm causes.
IMPLICATIONS:


                                                                                           61
We accept the idea of material contribution of risk being the same as material
contribution but we do not like reversing the burden of proof to the defendant.


6.3.3.4. Fairchild v. Glenhaven Funeral (2002) HL
FACTS:
     A worker in asbestos gets a tumor.
     Asbestos is linked to such tumors.
     However the work was working for 2 different employers and can‘t locate the
        damage within the risk either one created.
     Working with asbestos increases the incidence of risk by 1000 times
ISSUE: Which employer A or B should be responsible? Or should both be responsible?
DECISION: The employers should be responsible.
REASONING:
     We need to reconcile Wilshire and McGhee
     When science can‘t provide an answer the court essentially goes back to
        Wilberforce in McGhee.
IMPLICATIONS:
     At some point the SCC will have to decide if we will go with Fairchild, or
        Sopika‘s previous decision in Farrell
     This is to say that Sopinka says the plaintiff must prove the cause. In this case the
        cause is not proven, it is just 50% probable.

               Wilshire               McGhee
               Non-recover           recovery

Lord Hoffman:
    In these circumstances (duty exists, breached, injury, unestablishable exact
      causation), a rule requiring proof of a link between defendant‘s asbestos and
      claimant‘s disease, with obvious exception of single-employer cases, would
      empty duty of content
    If liability depended upon such proof, it could not exist
    Is increasing risk the same as proving causation?
    Yes, defendant should bear the burden
    Particular in employer-employee relationship
    Would be inconsistent w/ law and morally wrong to impose causal requirements
      which exclude liability
    McGhee is powerful support for saying law should treat material increase in risk
      as sufficient to satisfy causal requirements for liability
    Wilsher shows dangers of over-generalisation
    If we followed Wilsher, there would be no liability in this case
    Rule should only be applied where 5 factors exist (p269)
Lord Rodger:
    Parallels with McGhee are striking


                                                                                        62
      Cases diverge w/ number of possible wrongdoers (McGhee – only 1, this case –
       2)
    Certain conditions are necessary for applying the McGhee principle:
    Claimant must prove all he can, but state of science leaves uncertainty over
       exactly how injury was caused
    Defendant‘s conduct created material risk of injury to the claimant himself, not
       just a class of persons
    Defendant‘s conduct must have been capable of causing the injury
    Claimant must prove injury was caused by eventuation of kind of risk created by
       defendant‘s wrongdoing
    Claimant must prove injury was caused by agency that operated in same way as
       defendant‘s wrongdoing
    Other possible cause is similar wrongful act or omission of another person
Key to Case:
    Impossible to prove on a balance of probabilities that injuries were the cause of
       the D‘s wrongdoing, science has not yet advanced to be able to prove such things.
       So, since identical in this regard to McGhee, same law applies and Fairchild
       recovers.


6.4 Multiple Tortfeasors (Cases)
If two parties are guilty of negligence, P is able to recover 100% from either D but that D
has the right to obtain contribution from the other parties. If D1 is 75% liable and D2
25%, but D2 has more money, P can go after D2 and if found to be liable will be forced
to pay P 100% of damages and go after D1 himself. Policy Argument: Courts rationale
is that between the negligent party and the victim, the negligent party should carry the
costs.

Alternative:
In an alternative tortfeasor situation there are multiple negligent parties but only one
guilty party. In this case the normal solution is to divide the negligence evenly between
all parties as it cannot be apportioned, but they were all negligent. To be pardoned one
must give a valid reason, ie non-negligence. This can lead to problems of fact when guilt
or possible guilt of the parties is hard to determine. Such as people shooting in the same
general direction, but no one remembers where they shot exactly.

6.4.1 Cook and Lewis (1954) text p 245
Engages the questions of alternative v. joint tortfeasors.
FACTS:
     Some men are out hunting.
     Another party while they are hunting is hurt when they shoot into a bush full of
       grouse.
     Two parties shoot, and they hit the victim, but we don‘t know who shot the
       victim.
     We do know it was one of the two.
ISSUE: Who is responsible and if that can‘t be determined how do we proceed?

                                                                                         63
DECISION: The case is sent back to trial.
     REASONING:
         We assume that both are negligent, as we know they were doing something they
         shouldn‘t have.
     There is not ―joint enterprise‖ in this case; if there is a joint enterprise people can
         be negligent without being involved.
     If there is no joint enterprise so how can the plaintiff recover?
     The courts turn to Summers v. Tice; if the parties are both negligent then liability
         will be shared be between them and both should be found liable.
     In this case the shots cannot be segregated, as a result since both were involved, to
         extricate oneself there has to be a reason.
RATIO: Where two or more people act negl and cause harm to another, where it is
unknown which was the direct cause of the harm, both will be liable to the P and the onus
is shifted to them to prove which one is not liable.

6.4.2 Sindell v. Abbott Laboratories (1980) text p 250
FACTS:
     The plaintiff was, while in utero, exposed to a drug her mother took a drug DES.
     10-20 years later this results in a fast spreading disease.
     There are 1000‘s of such cases.
     There are 200 manufacturers of DES
     This is a signature injury, it was caused by DES, but we can‘t identify the exact
        supplier.
ISSUE: Will we allow the fact that we can‘t identify the actor to defeat these claims?
DECISION: Producers of DES are responsible.
REASONING:
     The normal application of a 1-1 correspondence between plaintiff and defendant
        won‘t work.
     We can‘t allow the supplier to get off, when they are clearly liable.
     We equally can‘t allow the plaintiff to pick their targets.
     Thus we assign the risk and damages to the market share.
     All the plaintiffs here are negligent, and had the benefits of the drug sales.
     Note that this is a class action suit that, was not available until recently in Canada
        (10 years)
IMPLICATIONS:
     Manufacturers will be responsible, in the modern world, where they can‘t be
        identified specifically, according to their market share.




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Joint:
In joint tortfeasors situations due to ones connection with another party you are
responsible for their actions as well.
Example: Cook v. Lewis

Indivisible:
Two (not necessarily negligent) parties indivisibly contribute to harm caused to P. Who should
be held responsible?

Peaslee, ―Multiple Causation & Damage‖, 1934, text 231
    when one cause of damage is innocent, and one culpable in origin, must negligent
       actor pay whole loss?
    As long as innocent cause is on operation before wrongful act becomes efficient,
       the wrongful act cannot be considered cause of loss
    Causation is a matter of fact
    If one concern is innocent, the tortfeasor is responsible only for his own wrong
       and its results: ground which joint tortfeasor is held for all the damage does not
       exist where one of the causes is innocent

Wright, ―Causation in Tort Law‖, 1985, text 231
    necessary element of a sufficient set (NESS) test of cause of fact
    particular condition is cause of specific consequence if it was necessary element
       of a set of antecedent actual conditions that was sufficient for the occurrence of
       the consequence
    means that if each of the causes is by itself insufficient to cause the injury, the
       defendant can still be found liable if, when combined with others, they cause the
       injury
    sufficiency of small causes also not affected if one cause is so large as to be
       sufficient alone

Concurrent Indivisible
6.4.3. Lambton and Mellish [1894] text p 228
Simple case showing indivisible causation.
FACTS:
     Two competing organ grinders create noise.
     Only when combined with the other organ grinders it creates a maddening noise.
     This is a Cook & Lewis situation.
DECISION: Each contribute to the noise, and there is no problem with causation.
REASONING:
     Each man adds his quantum to the total; each is separately liable (presuming they
        were both negligent)
           o Impossible for plaintiff to demonstrate what share each defendant has;
               unnecessary to prove
     if acts of two persons, each being aware of what the other is doing, amount in
        aggregate to an actionable wrong, each is liable for the whole


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6.4.4. Kingston v. Chicago and NW Ry (1927), text 230
FACTS:
     sparks from defendant‘s locomotive started fire, which merged w/ another fire of
        unknown origin, which then destroyed plaintiff‘s property
     fires were of comparatively equal strength, burden is on defendant to show that
        his own fire was not proximate cause of damage
     impossible to apportion damage or say that either perpetrated any distinct injury
        that can be separated from the whole
DECISION: Plaintiff can recover from locomotive
REASONING:
     plaintiff should not be under burden to specifically determine origin of both fires
        in order to recover damages for which either or both fires are responsible

Sequential Indivisible
6.4.5 Sunrise Co. Ltd. v. Ship “Lake Winnipeg” (1991) text p. 233
FACTS:
     Two ships, Sunrise‘s ―Kalliopi‖ and Lake Winnipeg collide as a result of LW‘s
        negl.
     Kalliopi went to anchor at a dock, tip again and suffered more damage; this
        accident was no fault of LW‘s.
     Time in dry dock to fix both damages was 27 days.
     The damage caused by Sunrise would haven taken 27 days to fix; the second set
        of damages 13 days.
ISSUE: For how many days in dry dock is LW responsible for compensating the lost
profits for Sunrise?
DECISION: LW is responsible for all 27 deays.
REASONING:
L’Heureux-Dube for Majority
     Kalliopi L met but did not collide with Lake Winnipeg on St. Lawrence
     Immediately after meeting, the Kalliopi L ran aground
     Trial judge found Lake Winnipeg entirely responsible for grounding (negligent)
     In anchorage area, Kalliopi L went aground again, but not through fault of Lake
        Winnipeg (no negligence in 2nd act); 2nd incident unrelated to 1st
     Time in dry dock for repairs was 27 days; 27 days attributed to 1st grounding
        alone, 14 to second if they were carried out separately
     Who is responsible for loss of profits for 27 day period?
     No causal link between 2nd incident and loss of profit suffered by Kalliopi L, such
        damage being coincidental
     Lake Winnipeg must bear responsibility for full 27 days
McLachlin J (dissenting in part)
     If an event occurs after the tort and independently of the tort and diminishes the
        loss caused by the tort, that dimunition must be reflected in award of damages
     How to measure that? 2 possibilities
        1) to extent that loss is caused by a cause other than the tort, it is not compensable


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           o in this case it would mean plaintiffs would receive compensation for only
               13 days (27 days minus the 14 it would have been out of commission for
               anyway)
           o problem: if 2nd event causes greater damage than 1st, plaintiff may not be
               able to recover for 1st
           o to avoid this, we must introduce a factor other than pure causation
           o a rule is required that says: (a) one of the two causes of concurrent loss is
               responsible or (b) the concurrent delay should be apportioned between two
               causes of concurrent loss
       2) pro rata apportionment
           o two causes for detention of ship: 13 days solely due to defendant‘s act and
               14 days were due both to tortious act and 2nd act
           o fairness says the losses flowing from 14-day period should be divided
               equally between the 2 causes
           o this conforms w/ principle of placing plaintiffs in same position as they
               would have been had tort not occurred
           o it accords w/ modern philosophy of apportioning damages between
               successive causes of loss
           o liability should be in proportion to degree of fault; where fault cannot be
               established, liability shall be apportioned equally
           o 2nd choice is clearly superior


6.4.6 Baker v. Willoughby text p.236
     Plaintiff suffered severe leg injury due to defendant‘s negligent driving
     Sued for income lost
     Subsequently, but before trial, he was shot, inflicted such damage leg had to
       amputated
     Defendant argued he was not liable to plaintiff for lost income after date of
       robbery
     HoL rejected this argument, holding that actions of defendant and robber were
       concurrent cases of loss of income, and therefore defendant had to compensate
       plaintiff for the losses he had caused

6.4.7 Jobling v. Associated Dairy
FACTS:
     Defendant‘s negligence caused plaintiff to suffer back injury that incapacitated
        him for anything but light work
     Subsequently, but before trial, plaintiff was found to be suffering from spinal
        disease unrelated to the accident, which would have rendered him disabled
        anyway
ISSUE: Whether defendant is liable for loss of earnings on basis of partial incapacity
continuing through period which in absence of spinal disease would have represented
balance of defendant‘s normal working life, or whether liability ltd to loss of earning up
to point that disease resulted in total incapacity


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DECISION: Damages were reduced accordingly, based on life expectation, etc (2nd
choice).
REASONING:
    Intervening event of spinal disease changed ―original‖ situation (which we are
       trying to return victim to), not ―injured‖ situation
    Distinction between situation w/ 2 tortious events vs 1 tortious and 1 non-tortious
    While logical to say that original tort and supervening event are concurrent causes
       of incapacity, it does not necessarily provide best solution
    Given that illness would have overtaken plaintiff anyway, we must take into
       consideration
    Additional considerations come into play when dealing w/ problems arising from
       2 or more successive and independent tortious acts
    Necessary to ensure plaintiff is fully compensated for aggregate effects of all his
       injuries
    Would be highly unreasonable if aggregate of both awards were less than total
       loss
    And unjust to reduce damages awarded for first tort because of occurrence of 2nd
       tort
    But, award against 2nd tortfeasor cannot in fairness fail to recognise that plaintiff
       was already incapacitated
    Should deduct 2nd amount from total loss suffered by victim and award the
       balance against 1st tortfeasor
    Therefore, in proceedings against 1st tortfeasor, occurrence of 2nd tort cannot be
       relied upon by defendant to reduce the damages he must pay

6.4.8 Saunders System Birmingham v. Adams (1928) text p.238
     Green rented a car w/ defective brakes, hit Adams through negligent driving
     Adams sued rental company
     Jury instructed that Adams cannot receive damages from company if Green was
       travelling so fast and used brake so late that even a perfect brake would not have
       stopped Green‘s car in time



6.5 Loss of Chance
Alternative to full recovery: Is P able to recover for losses 100%; if not, then loss of
chance? Consider decision in Barnett (watchman‘s tea poisoned) shouldn‘t his widow
have tried to recovery for loss of chance to live, had the Doctor gone to see her husband?

NOTE: Loss of Chance is NOT available as compensation in a Tort Action currently.

6.5.1 Hotson v. East Berkshire Area Health Authority text p.280
FACTS:
     A child falls off a rope and hurts himself.
     He goes to the hospital and they do not look carefully.

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       He goes back and they take a different X-Ray and find major damage, which can
        not be reversed at this late stage.
     75% chance injury would have followed the same course.
     25% chance it would have recovered if he had been treated correctly.
ISSUE: Did the late diagnosis reduce his chances of recovery due to missing
(note: this is very like Barnette v. Chelsea Hospital for arsenic poisioning)
DECISION: The doctor is not laible.
     REASONING:
        We must ask if the doctors actions contributed to the
     If we start making doctors liable here, they are in difficult position as they are
        backing up torts by other people.
     On the other hand doctors could be relieved of liability when they did something
        wrong.
     First we must determine if there is causation.
     The test is ―but for‖. However, when we apply this, we get no answer. At 25%,
        we just don‘t know.
     From Fairchild, Sidnell, McGhee, Athey we have a line of reasoning that we say
        there must be a sufficient increase of risk beyond the deminimus range.
     Compare to McGhee: Are the injuries consistent with the negligence caused by
        the defendant; as a result Wilberforce would say it‘s up to the doctor to disprove
        that they are not causal. Reid says was the risk increased. Which in this case is a
        resounding yes.
     Compare with Wishire: There were 3 other factors that could be to blame. This is
        the 75% we have here, and the initial act
Majority:
     Causation is not proved, so there is no recovery. There is not a sufficient
        connection.
Minority:
     Donaldson wants to give him an apportionment of 25%
IMPLICATIONS:
     Today there is a fair argument that this we can say Hotson should be decided in
        favor of the plaintiff. The argument against this by the doctors is that they‘re
        paying for cases ¾ of the time that they are not responsible.
     Maybe we can get out of this is per McLauchlin in Sunrise and make them
        responsible for 25% of the damages?
     100% or nothing is not a great argument.
NOTE: in this area of this area you try to draw connections and a pattern between the
cases. Concentrate on facts of Hotson and how would we analyze it today.


6.5.2 Lawson v Laferriere, 1991, Que. C.A. (285)
FACTS: Dr. removes a cancerous lump in Lawson but fails to tell her its cancerous. She
discovers she has cancer 4 years later and dies 3 years later.
ISSUE: Was the doctor negligent in failing to tell her the lump was caner, so as to
deprive her of the loss of chance to treat it?

                                                                                         69
DECISION: No proof she would have lived if told immediately; proven on bal of prob.
RATIO: It is necessary that a probability of success, or at least the possibility, exist that
would translate into a concrete benefit for the patient which was lost as a result of the
doctor‘s negligence.




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7. Defenses
In defences we have a plaintiff who has gone through all the hoops and the defendant is
100% liable. A defence allows the defendant to escape some or all of the liability due to
circumstances surrounding the plaintiffs behavior that will excuse the defendant in
situations where the defendant is clearly negligent.

Hutch: If we know the defendant was negligent and 100% liable there had better be a
strong reason to deprive plaintiffs of recovery based on their own actions. This is clearly
a windfall for the defendant / insurance company. The plaintiff will be penalized

A absolute defense means the plaintiff is completely deprived, and gets no recovery.
A partial defense means we can reduce the plaintiffs recovery, at least in part.

Partial: Contributory Negligence
Absolute: Voluntary Assumption, Illegality

7.1 Voluntary Assumption of Risk
This is complete defence. That is, that the defendant will escape 100% of their liability
when we know, they are already 100% liable.

Has two requirements:
   1. Knowledge – awareness of the risk
   2. Consent – this is not just knowledge, and it is not just consent to the physical risk,
      it is to the legal risk; that is you are giving up your legal right to damages.

For example, in skydiving there is implicit risk which one consents to. One agrees to
certain risks. However, this does not mean that one wishes to incur the risk that is
attributed to negligence.

When would a person reasonably waive their legal rights? Barely ever. Especially in
cases where there is insurance in the background. You would have to be crazy to waive a
legal right in such cases.

7.1.1 Lambert v. Lastoplex (1971) SCC text p302
 very strict limitations on volenti in end user cases
FACTS:
     Plaintiff is lacquering his basement floor with a flammable product.
     The warning on the can says keep away from open flames.
     However, the plaintiff, a mechanical engineer, forgets about a pilot light.
     The fumes of the rapidly drying lacquer causes an explosion in his basement.
     Negligence goes to the warning on the product.
ISSUE: Are the warnings adequate?
DECISION: The warnings are not adequate. Competitors have better warnings and this
company was not meeting that standard, or a reasonable standard.
REASONING:
     There is a duty to warn about unlikely or unforeseeable outcomes.

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      The defense wants to say that he should get no recovery because he assumed the
       risk voluntarily.
      He had knowledge, maybe, of the risk.
      However there is no evidence that he consented to the risk.
      The fact that he was an engineer, means he might have known of the risk but he
       certainly didn‘t consent and it can‘t be stretched that far
      There may be an argument for contributory negligence, but certainly not on the
       basis of assumption of risk.

7.1.2 Dube v. Labar (1986) SCC text p305
 in most drunk driving cases volenti will not be permitted
In almost every modern act of negligence, where this defence has been raised it has failed
FACTS:
     Two buddies are out drinking then driving.
     The one buddy asks to drive, and his friend says ―are you ok to drive‖ and he
       responds ―yeah I‘m fine‖
     Just after this the driver who said he was fine crashes the car.
     The passenger now wants to sue the drunk driver for damages.
ISSUE: Did the passenger waive his rights and voluntarily assume the risk?
DECISION: The defense of volenti is not allowed, but contributory negligence is.
REASONING:
     Does the passenger have a claim against the drunk driver? Yes
     There is no question that there is obvious and 100% liability to the passenger.
     However, the argument is that the passenger voluntarily assumed the risk and
       cannot recover anything.
     Hutch: there may be cases in which we would deny the recovery, but not for the
       reasons given by the SCC.
     How does the SCC explain there decision?
     Bilateral exchange in terms governing the activity. In other words there must be
       an explicit contract between the parties.
     In this case, the SCC feels that there has been a bilateral exchange.
     This is an incredible surreal idea to ask of two drunk people if there was a
       contract.
IMPLICATIONS:
     This means the defendant is not liable and relieved of responsible.
     We‘re saying to the driver that even though they breached all the
     The message of this case is ―don‘t be a passenger in a car with a drunk driver‖,
       when the messenger should be ―don‘t drink and drive‖.
     Hutch: this case seems to be going in the wrong direction, the driver is allowed to
       walk away without

7.1.3 Priestley v. Gilbert (1973) text p307
 an exception to the general drunk rule allowing volenti in cases where there is joint
venture
A clear problem distinguishing between knowledge and consent.

                                                                                          72
FACTS:
     Two buddies are out drinking all day.
     An intoxicated driver goes on the wrong side of the road and causes an accident.
     The passenger in the car was injured, along with 2 dead in another car.
     The passenger is suing for damages.
ISSUE: Was the drinking of the friends prior to the accident considered volenti?
DECISION: Yes, the defence of volenti is available and the defendant is not liable as a
result of the joint venture.
REASONING:
     The language of Cook v. Lewis and a joint venture.
     Because they had both set out on a drinking escapade, they could not blame each
        other for the damage.
     However, they continue on to say that they voluntarily assumed the risk, but there
        is no evidence of this.
     Hutch: There is an argument for negligence, but not volenti.


7.1.4 Birch v. Thomas text p. 309
FACTS:
19 year old has not passenger insurance.
He creates a sign on his dashboard that alerts passengers to this fact.
He points out the sign to passengers as they enter.
An accident occurs and the passenger is suing the driver for negligence.
ISSUE: Does the sign mean passengers have assumed voluntary risk?
DECISION: Yes
REASONING:
He has adequately alerted passengers to their choices, and they could choose not to enter
the car.

7.2 Illegality
P involved in illegal activity; no claim to Tort action
Policy Debate: Why can‘t a criminal be entitled to damages when harmed by a negligent
act

7.2.1 Hall v. Hebert, SCC, 1993 (310)
 Generally the defense of illegality does not exist.
FACTS: P and D out drinking; D lets P drive his souped-up car; P drives it off a small
cliff. At trial, D raises Illegality defence, claiming that both had been in a joint enterprise
in a criminal activity: drinking in a public place
DECISION: The defense of illegality will not stand.
REASONING:
CORY, J:
      Gives a quick analysis before concluding that the defence should not exist in Tort
        cases; that it is best left up to be worked out as a matter of policy:
      *Anns/Cooper v. Hobbart Test: deny recovery under second (policy) branch,
        which would deny the existence of a duty

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       Decision: ―To permit him to recover would not offend or shock the conscience of
        reasonable right minded members of the community fully aware of the facts‖
             o Policy judged on Obj. standard, linked to moral consensus of community.
McLACHLIN J:
    Courts should be able to bar recovery based on immoral/illegal conduct but only
        in limited situations:
             1. Where to allow recovery allows the P to $-profit from his or her wrong
             2. Where the claim for damages under the head of loss of future earnings are
                based on a P‘s illegal occupation
             3. Exemplary damages, aka punitive damages, awarded to P for purpose of
                punishing and deterring a D for acting violently or uncaringly. Ex.
                Criminal breaks into your house, you stab him in defence, he cannot sue
                you in Torts
    McLachlin dismisses Cory J‘s analysis re. Anns Test for several reasons, outlined
        on pg 317, though all agree that these limits should apply and that the P in the
        case at bar should be able to recover; the illegality defence cannot eliminate his
        right to recover in Tort, though contributory negl will operate so as to reduce his
        award of damages.
IMPLCIATIONS: The law as a whole must be a unified system, one branch cannot
contradict what the other attempts to enforce by allowing an individual to profit from a
Tort claim while violating Crim laws.


7.3 Contributory Negligence
This started as an absolute defense. However, over time it was moved into a partial
defense and recovery was not deprived but reduced.

7.3.1 Butterfield v. Forrester (1809) Text p.289
FACTS:
     A man riding from the pub on his horse rides into a blockade on the road.
     The blockade was placed on the road by the defendant to do some work.
ISSUE: Should there be recovery?
DECISION: No recovery as he contributed to the injury (note that at this stage
Contributory Negligence is an absolute defense)
REASONING:
     Butterfield was negligent in riding fast (and after the pub).
     Without him there wouldn‘t be an accident.
     But equally there wouldn‘t be an accident without the blockade.
IMPLICATIONS:
     The injured parties are injured. Isn‘t that deterrence enough?
     If it‘s not, we could take them to criminal court for other items.
     Why do we reduce the damages? There seems to be a sense of individualism, and
       we are responsible for themselves. However, are we willing to penalize them for
       making a mistake? Everyone makes mistake.

7.3.2 Froom v. Butcher (1975) text p 293

                                                                                        74
FACTS:
    A guy is driving along with family.
    Through no fault of his own he gets in an accident.
    He is not wearing a seatbelt because he doesn‘t think it helps.
    He is injured and wants recovery.
ISSUE: Did his actions of not wearing a seatbelt
DECISION: Reduction of damages by 25% due to contribution.
REASONING:
    He may not have caused the accident, but he contributed to the extent.
    If he had been wearing the seat belt there would have been reduced harm.
    There is a presumption of negligence here based on a reasonable standard. The
      reasonable person would have worn a seatbelt.
    Compare with Butterfield: This is about extent of damage, but not the cause of the
      damage like in Butterfield.




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8. The Role of Statutes
Recall that in torts we have the standard of care, the duty of care, then negligence. There
is a difference between negligence and strict liability. In strict liability one performs an
action that breaks the duty of care then one is guilty.

Tort law, and law itself is now substantially controlled by statutes that impose strict
liability. Thus if someone breaches a statute are they civilly liable?

Sometimes the statute contemplates a breach of the statute and talks about civil liability.
The statute may say that civil liability is void, or the statute may impose strict liability.
Most of the time statutes are silent on the subject of civil liability.
There are two ways to argue this.
       1. The statute didn‘t mention civil liability, so it didn‘t intend it.
       2. The statute didn‘t exclude civil liability, so it could exist.

So we arrive at the court having to decide what to do. Recall that the in Tort we have
always followed reasonableness, and fault. No liability without fault. The problem is the
founding of actions on statutes. The argument from someone founding an action is that
the breach of a statute imposes a strict liability.

The Canadian courts want to avoid torts based on strict liability, they want to have a fault
requirement.

8.1 Statues as proof of negligence
In general compliance with a statute will simply be evidence that you were not negligent,
and furthermore non-compliance will only be evidence that you may have been negligent.
There is a non-absolute connection between statutes and negligence.

8.1.1 The Queen v. Saskatchewan Wheat Pool
 Introduces the difficult position on statutes in Canada which is virtually non-coherent.
Statutes are an infringement on the edges, and this defies reality as they lay down a great
many rules about how we should act.
 Abiding by the statute is essentially proof of non-negligence.
FACTS:
     The Canadian Wheat board takes on some grain from the Wheat Pool
     The grain turns out to be infested and must be fumigated on the boat at a great
        cost.
     There is no negligence in passing the Wheat as the Pool did all they could.
ISSUE:
DECISION:
REASONING:
     This is a purely economic loss.
     There is no personal injury or property damage. The product was always
        damaged.
     This is not a typical injury case.
     The courts are much less sympathetic to economic loss tort cases.

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      Both parties are large public bodies that can both carry the losses.
      There is no negligence on the part of the Wheat Pool.
      As such the Board cannot proceed with a negligence tort.
      Instead they proceed on the basis that the statute say the Wheat Pool will not
      The court is nervous from the start due to the lack of negligence, the nature of the
       parties, and the fact that it is purely economic loss.
Dixon
    Summarizes the English and American Positions
        o English: Have recognized that a breach of a statute can give rise to a civil
          action in an absolute sense. This is known as a statutory tort. Though this
          is greatly criticized.
        o American: Have tied a breach of statute to the common law notion of
          negligence. A breach of statute is presumed to be negligence. This can be
          rebutted by the defense.
        o Canadian: The worst of two worlds. The breach of a statute can be
          ―evidence‖ of negligence in the common law. It in itself is not negligent
          (American), nor is it a tort (English). It is merely a factor to be taken into
          account when looking at the standard of care.

8.1.2 Ryan (1991) SCR 201
 Abiding by the statute is proof towards non-negligence, but not complete
 The defendant in this case had followed all the regulations to a T.
 Compliance with all regulations does not mean you will escape liability.
 This is the reverse of Saskatchewan Wheat Pool. In that case a breach of statute
    would not necessarily mean negligence. On the other hand, abiding by all statutes
    does not mean you weren‘t negligent. In both cases it will be used as evidence of
    your negligence or lack thereof.

8.2 Charter Cases
     Why can‘t we just bring tort actions based on the Charter?
     The constitution is all about public power, and public law.
     The Charter does not apply generally to interactions between private individuals.
     In Contract, Torts there won‘t be an interplay with the Charter.
     However, if there is a government party involved can the Charter be grafted on.
     For example, in discrimination with a government body, can one bring a Tort
      based on the Charter.
     The jury is out on this.

8.2.1 Bhaduria v. Seneca College text p 354
FACTS:
     Bhaduria has tried to apply for a job many times but is never chosen.
     She has all the qualifications.
     She believes her color/religion are to blame and that the college is discriminating
ISSUE:
     Bhaduria didn‘t want to just bring a charge under the Human Rights Commission.

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      She wanted to bring a charge directly along tort lines, in that there was a breach of
       the human rights.
DECISION: Non-justiciable in the courts, this is an issue for the HRC
REASONING:
Bertha (in Trial)
    Believes that now is the time to recognize a new tort action.
    The common law is not static. We should add the tort of discrimination.
SCC
    Because the Ontario Human Rights code is so comprehensive, and that human
       rights complaints can be fully dealt with in that tribunal, that Bhaduria has no
       claim under the common law.
    The SCC pulls back, and are not ready.
    Statues in themselves.
    Should this subject be brought again. Is it now the time with the Charter behind
       us to perhaps recognize these torts?




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9. Negligent Misrepresenation
Problematic, since the wrongdoing amts to WORDS, not ACTS.

Words cannot be so easily limited in scope, who is the end consumer?

9.1 Problems
Recognizing negligent statements as the equal of negligent acts has some problems.
   Proximity: Statements can travel quickly to an indeterminate group of people with
   indeterminate results.
   Actor: In negligent statements, P must act on the words  contributes to the injury.
   Loss: Negligent statements usually result in economic loss versus physical loss in
   negligent acts.

Professionals are the likely target, why do we want to protect them? Especially when we
don‘t extend this protection to other groups. Because we are ourselves professionals?

We have 3 options
  1. Decline to provide advice.
  2. Provide advice.
  3. Provide advice with a disclaimer.

Why would we protect people who mouth off, when they have options to protect
themselves?

HUTCH: Courts do not want to make people responsible for the advice they give b/c this
effects the group of people tha judges belong to: professionals.


9.2 As it currently Stands
The regime:
    Do we apply Donoghue v. Stevenson directly? No
    We will allow negligent misrepresentation but we need a more restrictive test due
       to the problems of recognizing all negligent statement.
The impact:
    What is the interplay between contracts and torts? We are still dealing with this
       issue.
    Furthermore, how do we assess the losses, when in many situations these claims
       are about the future?




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9.3 Professional Services Implications
Lawsuit
Passing of Service (information)

                  Professional
                  Service
                                                                3rd Party




                                      Company


Example: If a company gets professional services then what options do the professional
services company have to limit their liability under the contract for work? They can
write in some form of disclaimer. However, if that information is now passed to a third
party is that contract still in effect? Under contracts it should not be active as the 3rd
party was not party to the contract for work. The disclaimer would have to say that the
information was only for the parties that contracted the work, or something to that effect.


9.4 Historical Tree

               Cooper (SCC)
                                                             Cognos (special knowledge)

Murphy(HL)             Anns v. Merton         Hedley Byrne (reconsiders)

                                              Candler Craine (No)           Spring(rely)
       Donoghue v. Stevenson

                                              Negligent Statements



9.5 Politics
Law is both party in and of itself a pursuit. However, we cannot ignore the impact of
socio-political history. So consider, what is it that caused the HL to leave behind the
decision in Anns (late 70‘s) and to get rid of the Anns test? What is the socio-political
change in the 80‘s and 90‘s? Thatcher happens. There was a move towards a broader
sense of social well being, but this rapidly turns right with Thatcher, Regan, Mulroney.
There is a turn towards market economics. This concept fits much better with contracts.
This likely is the cause of recession from Hedley Byrne in the 80‘s and 90‘s.

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9.6 Cases (Negligent Misrepresentation)
9.6.1 Candler v. Crane Christmas & Co.(1951) text p. 365
FACTS:
     A mining company is seeking investments.
     A person comes forward and is looking to invest $2000
     The mining company asks the accountants to prepare a balance sheet of the
       company for the investor.
     NOTE: It is important to note that the accountants knows the balance sheet is for
       a specific possible investor. Though it could equally be that the accountants
       didn‘t know who they were preparing it for, that is for general distribution. (see
       diagram below)
ISSUE: Will we extend the concept of torts to statements?
DECISION: No liability.
REASONING:
Denning (dissent):
     As per Donoghue, duty of care exists despite K.
     D argues no precedent exists to award negl statements. Denning quotes from D v.
       S.: the categories of torts are never closed.
     D argues no phys damage = no tort. Denning says the nature of the damage
       should not limit liability where a duty is owed
     Accountants were under K-obligation to D; P cannot interfere AND w/out K to P,
       no duty owed by accountants. Denning says this claim was shot down in D.v.S
     A duty of care exists in preparing statements:
            o who is under this duty? when the person making the statements is a
                profession whose business it is to prepare such statements. Duty is in both
                in actual report and research
            o who is the duty owed to? whomever they are contracted with, and anyone
                they show or the third party to the contract. A contracts w/ B to prepare
                report to show C; B owes a duty to both A and C.
            o what transactions does the duty extend to? those which the party
                preparing the statements were aware of
     In a US case, Cardozza ruled out such a duty on the basis that it would ―create
       liability in an indeterminate amt for an indeterminate time to an indeterminate
       class of people‖. Denning argues, saying limits as cited above.
Asquith (majority)
     Doesn‘t even try to apply proximity. He uses the alternate floodgates example
       and suggests it would all fall apart.
     This is, from our view now, simply wrong. It wouldn‘t cause things to fall apart it
       will merely cause the professionals to increase their prices to protect themselves
       depending on the liability required.
IMPLICATIONS:
The law of tort has not yet embraced the idea of negligent misrepresentation.



                                                                                        81
9.6.2 Hedley Bryne & Co. v. Heller [1964] text p. 373
 Attempts to restrict how the far a statement will extend.
 This is the Donoghue of statements
 A ―special‖ relationship + reasonable reliance implies a duty of care.
FACTS:
     Hedley Byrne are advertisers with a contract with Easipower.
     They are going to extend credit to Easipower for advertisements.
     Hedley wants to know if Easipower is good for the money so they call their bank.
     The bank calls the bank of Easipower, Heller.
     Heller issues a statement, under confidence and without responsibility, that
       Easipower was in good standing (a disclaimer on the information)
     This information is transmitted back to Hedley Bryne and they loose money when
       Easipower can‘t pay.
     Clearly Hedley has a suit against Easipower but that is exhausted as they have no
       money.
     Compared to Candler v. Crane Christmas there is less of a specific and proximate
       relationship.

                             Discl. Info
        Heller                                     Bank




        Easipower                                  Hedley                Advertising
                                                   Byrne



ISSUE: Should Heller be responsible for the losses that Hedley has suffered?
DECISION: No recovery as there was a disclaimer. But principles of applicable
relationships are examined carefully.
REASONING:
Reid
     Candler v. Crane Christmas is wrong. We should be imposing a duty of care.
        However we need to be careful when we impose a duty.
     We will impose a duty when there is a ―special‖ relationship between the parties.
     Reid wants it to be an objective standard and a ―special‖ relationship has to be:
            1. A professional relationship (special relationship)
            2. Must be given in circumstances where they know it will be relied on
            3. It must be in circumstances in which it is reasonable for the receiving
                party to rely on information.
     Though the above might be true in this case, there was a disclaimer. So no
        recovery.

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      What we have is the bank trying to define a tighter version of the ―neighbor
       principle‖ and/or a restricted version of Donoghue v. Stevenson.
      NOTE: What if the information from Heller with the disclaimer was given to
       Hedley‘s bank, but the bank doesn‘t pass on the disclaimer and thus never reaches
       Heldey? What is the impact. Could Hedley‘s bank be held responsible? Does
       the disclaimer add some
Pearce
     Although a contract is not required, we clearly need a restriction on how this is
        applied, and how we‘ll define proximity.
Devlin
     There must be a contractual or quasi-contractual relationship.
RATIO: In certain situations/circumstances a duty of care may exist in respect of words
as well as deeds. That is statements may be held to be worth of tort recovery just as acts
are, but this is limited to situations where there is a “special” relationship and
reasonable reliance.


9.6.3 Queen v. Cognos (1993) text p. 380
 Classic example in which a negligent statement is a direct statement to one person,
and as such Cardozo‘s concern about indeterminacy is unwarranted.
FACTS:
     During an interview a potential employer is given negligent information about
        funding.
     Based on this the employer quits another job, and moves across the country to the
        new job.
     Shortly thereafter the funding of the job falls through and he looses the new job.
DECISION: They were negligent.
REASONING:
     ―The respondents were under a duty of care during pre-employment interview to
        exercise reasonable care and diligence in making representations as to the
        employment opportunity being offered.‖
     it was foreseeable that the plaintiff would suffer damages should the
        representation be false
     there was a relationship of proximity between the parties at all times
     it would be unreasonable in this case not to impose a duty of care
     confining duty of care to professionals (Hedley Byrne) is simplistic
RATIO: Where there is special knowledge by a party it should be disclosed, otherwise
decisions based on incomplete information may be negligent misrepresentations of fact.


9.6.4 Spring v. Guardian Assurance [1994] text p. 318
 Reasonable reliance can be relaxed
FACTS: An employee asks for a reference and is negligently given a bad one by a
previous employer.
IMPLICATIONS:
     Even in cases where there isn‘t reliance, it may be waived.

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      That is the third part of Reid‘s test in Hedley can be optional/relaxed depending
       on the circumstances.


9.6.5 Haig v. Bamford, 1976, SCC text p. 391
 Hedley Byrne meets Denning‘s dissent in Candler
 Candler is overturned.
FACTS:
     Same as in Candler (the modern Candler)
     Negligent statements prepared by accountant
     Shown to potential investors who would rely on the statements to invest in the
      company.
     Differences:
          o More investors involved than in Candler
          o Defendant accounting firm knew that the reports were to draw in future
              investors.
ISSUE: Was a duty of care owed to the P?
DECISION: A duty of care was owed.
REASONING:
     The test for duty to use here is: was there actual knowledge on the part of D to
      the limited class of persons that would rely on the statements?
     As per Candler, court uses Denning‘s formula: duty is owed to the client or
      employer and to any third party to whom it would be known that the reports
      would be shown to and relied on by. Test of proximity: did D know that P would
      see and use the reports?
     As per Hedley Byrne, D need not know the actual investors, it is sufficient that
      they knew the reports were prepared to show investors the financial condition of
      the company.
     Basically: Hedley Byrne test meets Denning‘s dissent in Candler (Donoghue):
          1. Hedley Byrne requires ‗special relationship‘ needed between parties. In
              Haig, SCC uses the first branch of the Anns test as a guide: Reasonable
              Foreseeability and Proximity, which is closer to Donoghue neighbor test
              that Denning argued for in Candler
          2. Hedley requires ‗reliance‘; easily established on the facts in Haig.


9.6.6 Caparo Industries v. Dickman (1990) text p.395
 The HL are determined to limit liability but they are having problems doing this.
 The courts here are caught between where they were (with Anns) and to hold down on
liability and emphasise contracts. However they want to make it look seemless, and that it
is part of a natural current.
FACTS:
     A set of an accountants prepare reports for the public under a statutory duty.
     The investors became part owners, then bought out the company based on these
         reports.


                                                                                           84
       The difference here is that these accountants did not prepare the accounts for a
        specific group of people, nor for investment.
     The accountants didn‘t know the investors.
     However, using a foreseeability test, it is foreseeable that an investor may rely on
        the public audit of a company.
     Early on there is no requirement that a company must reveal its information to
        private audits.
     The argument of the investor is what else could they have done?
ISSUE: Should the investor, then later owner, be able to sue the accountants. Noting that
the investor could have been a member of a huge public class of persons.
DECISION: The auditors are not liable. There is no duty, and even if there is there is no
duty to general investors.
REASONING:
     It is absolutely clear that the HL want to limit liability.
Lord Bridge
     Is this a duty or remoteness question?
     As non-shareholders there is no duty owed unless there is special knowledge.
     As they become a shareholder is there a duty owed then?
     No, there is a duty to the shareholders so that they can discipline and review the
        management, however, with respect to future investments the shareholders are
        members of the general public and no duty is owed to them.
Lord Oliver
     There may be a duty owed to investors who loose money when selling shares.
     Adds on to foreseeability a concept of proximity.
     There is no duty of proximity between the auditors and the investing public.
IMPLICATIONS:
     The HL wants to limit liability to quasi-contractual relationships.
     There is an argument that the shareholders are in a quasi-contractual relationships
     HUTCH: Think of this more in terms of policy: investors of the general public
        should be able to rely on the audits which legislation requires the company to
        endure? The scope of duty here extends too far for the courts to feel comfortable
        with
     Also: what has the plaintiff here really lost that he should recover for? Lost
        profits that not even guaranteed to materialize; so the chance of lost profits? To
        Hutch this is very different from what Torts should award: to put P in position
        prior to the Tort. Leave lost profits in the realm of contract law: put P in position
        he would be in future if the contract was performed.

9.6.7 Hercules Management (1997) SCC text p. 402
 The SCC must decide what to do following Caparo and the HL on
 Canada will use the Anns Test for Negligent Misrepresentation Cases
FACTS:
     Non-shareholders start to invest based on an auditors report.
     The company goes bust.
ISSUE: Can the investors recover from the shareholders?

                                                                                           85
DECISION: First stage of Anns was passed but negated by policy concerns. No
recovery.
REASONING:
La Forest
     We are going to apply the Anns test. Foreseeable, Proximate and then policy.
     Deterrence of negligent conduct is an important policy, however, it is outweighed
       by the socially undesirable consequences (increase costs, unavailability of
       accounting services).
     Note that Cooper v. Hobart means nothing.
     We can use the Anns test to open or narrow liability. It is merely an orientation.
IMPLICATIONS:
     Aren‘t the impacts of increased liability on accountants the same as
       manufacturers. Increased costs? So why are we favoring professionals? Is it
       because the loss is mostly purely economic.
     The result of this is that we have pledged our allegiance to the Anns test, but that
       there will be limited liability due to proximity/policy in such cases.


9.7 Bridging the gap between Torts, Contracts and Economic Loss
 negligent misrepresentation in contract settings but that warrant tort remedies

There are many things in this world that are both Contract and Tort. How do we
distinguish or differentiate them? Why does it matter? Is there something that hangs on
this decision? Is there an advantage to go one way or the other?

Differences
Primary Goal: The goal of contracts is to ―put a person in the position they would have
been in if the contract HAD been performed‖. The goal
Remedies: There are different remedies, such as specific performance in contracts that
may be of use to the plaintiff.
Limitation periods: When does the 2 years start to run. In contract it generally runs from
the date of the breach of the contract. In tort it runs from the beach of tort, but when does
that occur? Does it run from the time of the negligent act? No it is two years from
discovery. Overall it tends to run longer in Torts. Limitation periods are pretty brutal.
No recovery if you don‘t perform the action.

Remember that the whole reasons we got Donoghue v. Stevenson arose is due to an
absence of contract. It seems we‘ve come around the other way. Where it used to be all
about contracts (1932). Now we have a world in which liability is primarily Torts and
contracts are used to limit liability. We now have a world of Torts, and how will we
allow contracts to intercede.




                                                                                          86
9.7.1 Nunes Diamond v. Dominion Electric Protection, 1972, SCC text p. 382
FACTS:
     P contracts with D for an alarm system.
     After another jewelry with same system robbed, P requests someone from D‘s co.
       check system, told that ―even their own engineers couldn‘t break in without
       tripping alarm‖
     Provided P with letters to insurance companies saying that the alarm had not been
       circumvented in the robbery of the other jewelry store.
     Investigation concluded that either the alarm was circumvented or an employee of
       the alarm system or the store complied with the robbery; this was NOT
       communicated to either the insurance co. or plaintiff.
     Two year later, Nunes Diamond robbed when alarm system circumvented.
     Nunes sues Dominion for negligent misrepresentation for the assurance of the
       employee and the letters to insurance companies
     Contract has special terms; alarm system was being rented by P from D at set
       price; the D was not an insurer, and liability for breach of K set at $50 cap.
ISSUE: How should we treat post contractual negligent statements causing damages
worthy of a tort, when a limitation clause exists so to impede upon tort award?
DECISION: The contract will be held as paramount.
REASONING:
     The contract clause sets up a special relationship. But if contract is respected
       enough to be used as evidence in support of this, then shouldn‘t the limitation
       clause also be respected?
MAJORITY:
     The contract was never altered, even by the negligent statements, so to make
       Dominion the insurer to Nunes; no terms of K changed at any time.
           1. The limitation clause clearly states Dominion is not the insurer.
           2. The tort does not exist independently of the contract. If an employee of
               Dominion were to rape a Nune‘s employee, the K won‘t limit a Tort action
               resulting; but a tort stemming from the alarm system goes to the root of
               the K and therefore is governed by the K, including limitation clause.
           3. Since the K must be respected, and the tort is within the framework of the
               K, then the limitation clause must also be respected.
DISSENT:
     The contract establishes that a special relationship exists which gives rise to a
       duty of care. The negligent misrepresentation occurring after the K was entered
       and which is being brought up as a tort must be considered as such.
IMPLCACTIONS: The mere existence of a contract cannot foreclose tort liability under
the Hedley Byrne principle (Special relation + Reliance = Duty)


9.7.2 Central Trust v. Rafuse (1986) text p. 385
 Post Anns
 Concurrency between Torts and Contracts is allowed as long as the concurrency does
not allow a plaintiff to circumvent an express term of a contract.
FACTS:

                                                                                     87
    Solicitors screw up a mortgage.
    This leads, 9 years later to a loss.
    There is a contractual relationship.
DECISION:
REASONING:
    Statute of limitations is gone. You can‘t sue under contract.
    However, if we can frame this in tort we can go forward because the limitation in
     tort only goes from when you discover the harm.
    According to Nunes, this is not an independent tort, and there would be no
     recovery.
    However, now that we are post Anns, we are looking more generally.
    Instead we will use Anns, and the idea of foreseeability and proximity.
    The fact that there is a contract makes these both pretty clear.
    ―there is nothing flowing from contractual intention which should preclude
     reliance on a concurrent or alternative liability in tort‖.
    If the common law duty of care exists outside of the expressed terms of the
     contract, but even if it arises from an implied term, then the contract should not
     preclude a tort action. But, if the tort is grounded on an express term of the
     contract then there exists no duty without the contractual obligations and a tort
     action fails.
   
IMPLICATIONS:
    This sets up the right to sue under both Tort and Contracts. There may be
     preference for one or the other due to their natural properties.
    Liability in tort will not be allowed if it allows one of the contracting parties to
     circumvent or escape a contractual term; if in granting the tort, a party is
     breaching its contractual duties, then no tort liability can be found.

9.7.3 BC Checo v. BC Hydro (1993) SCC text p. 386
 precedence is being given to tort law
FACTS:
     Checo says they will provide the foundations for transmission towers, subject to
       the clearing of land.
     Checo would do the clearing, but they would have charged more.
     The clearing does not get done, and caused Checo delays.
     Checos profits are reduced, and incur additional costs to perform the work.
ISSUE:
     What is the effect of this clearing clause?
     Did the contract supersede the tort?
     Does it eclipse their right in tort and force them into the contract?
     That is, if Tort and Contract would deal with the same issue, which will prevail?
DECISION: Checo is entitled to it‘s additional costs, sent back to lower courts for
addressing of the appropriate amount.
REASONING:


                                                                                       88
Note: this is not Donoghue v. Stevenson, they are huge commercial entities that are well
informed.
Iacobucci (dissent):
     Feels that the law of contract should prevail if there is a specific term.
     This is clearly a legitimate bargain, and should take precedence over the general
       rules of tort law.
     If there was an inequality of bargaining power there may be reason to shift to tort.
     This does not suit the parties.
Majority
     The parties may by their contract limit their duties.
     However the right to pursue in Torts or Contracts is available unless there is a
       specific waver or limitation to that effect.
IMPLICATIONS:
     In business dealings, anyone that makes a contract that should govern in all
       conditions, they must expressly limit or wave liability in torts.
     Tort and Contracts can be pursed unless explicitly stated otherwise in a contract.
     The courts are clearly giving precedence to tort law, which governs us all.




                                                                                        89
10. Economic Loss

Acts  Donoghue v. Stevenson                        Statements  Hedley Byrne




                                                Grey Area
1. Personal Injury    2. Property Damage                           4. Economic Loss


The Natural Problem
Now we‘re faced with a problem. We have allowed economic loss for statements, so
what type of acts, as per Donoghue, will we allow recovery for pure economic loss.
Furthermore, what happens in the grey area where there is some personal or property
damage and also economic loss.
Maybe we need something like for statements where we need a tighter concept of
proximity?

Definitions
We develop two corresponding notions of Economic Loss:
Pure Economic Loss  The loss is no based on any physical harm or consequential act
(Winnipeg Condo)
Consequential Economic Loss  The loss is based on a physical consequence to the
party (Spartan Steel), or in some cases a close 3rd party (Norsk)

The Rule:
No Recovery for Economic Loss Unless:
   1. The loss is consequential to damage suffered by the plaintiff.
   2. The loss is suffered to a closely related 3rd party
   3. The loss is as a result of a dangerous defect.

10.1 Pure and Consequential Economic Loss

10.1.1 Weller v. Foot and Mouth Disease Research Institute (1966) text p 404
 following from Hedley Byrne (which was in 1964) what about economic loss that
flows from an act.
 loss must be consequential to physical damage to the plaintiff
FACTS:
     The defendant own a research lab in a village.
     It was found that foot and mouth disease had infected cattle in the area.
     The cattle are culled and can‘t be sold.
     The defendants own an auction house, and have no business.
     The make a claim for economic loss as a result.
     There is no causality problems here. There is a relationship between the foot and
        mouth and the loss of business.

                                                                                      90
     Research center agrees to pay for damage to property. Cattle are property.
     But in a sense, the cattle owners price their cattle at the price they would have
      gotten, so they are making profit.
ISSUE:
DECSION: The research institute is not liable to the auction house.
REASONING:
    The auctioneer can meet the same tests that the cattle owners can meet, but they
      have only economic loss. That is proximity, foreseeability.
    Donoghue v. Stevenson stands for damage to property or person. But in this case
      there is no damage to the auctioneers property or person. So they can‘t recover.
    There is an underlying insurance concern. The auction house could cover their
      losses using insurance quite easily.
    However that argument also works for the farmers as well and things fall apart.
IMPLICATIONS:
    There is property damage in this case, but not to the owners.
    In Hedley Byrne is pure economic loss, and they recovered. In this case there is
      physical damage, but not to the parties. So aren‘t we close to Donoghue in that
      there is physical harm?
RATIO:
    There is no recovery for economic loss even if directly caused by a negligent act,
      unless the person suffers personal injury or loss to property.


10.1.2 Spartan Steel v. Martin (1972)
 With Weller in the background.
 Distinguishes between pure and consequential types of economic loss
 Recovery for Consequential Economic Loss is let in the door, with some troubling
implications.
FACTS:
     Martin was a contractor that negligently dug up a public power line.
     Spartan steel is running a 24hr operation.
     The power goes off in mid-melt and they must abandon a melt and it can‘t be
       recovered.
     They could have then performed 4 more melts in the time the power was out.
ISSUE: What, if any, pure economic loss can be recovered?
DECSION: The mid-melt can be recovered (due to property damage). The other 4 melts
cannot be recovered.
REASONING:
Note: compared to Weller there is some property damage to the defendant.
Denning:
―At the bottom I think the question of recovering economic loss is one policy…‖
     This is wonderfully candid, but he‘s completely let the cat out of the bag. That is
       that law is somehow a body of rules. He‘s saying that‘s a joke the concepts of
       duty and remoteness and so forth are just a screen for policy. This is not just a
       challenge to torts, but it‘s challenge to law itself.
     Since he considers all the other tests too mushy, he turns to policy.
                                                                                       91
    However it turns out the policy matters are just as mushy.
Examines 5 possible policies:
   1. Legislation does not force the electricity boards to be held liable for pel, courts
      should not impose this policy on contractors working for the board
   2. Nature of the hazard: Electricity lines cut. Happens often; people either have a
      backup supply or they improvise but they do not go running to their lawyer
   3. How can there be a limit to such claims? How can one check the validity of them,
      would the machines have been in use if the power was on? Did the p try to
      mitigate by working overtime the next day?
   4. If this P recovers, the whole community should be able to recover: unlimited
      number of plaintiffs, and all are RF in contemplation of the harm caused
   5. Conseq eco loss can be recovered; where there is phys damage, torts will award
      damages, thus properly putting a cap on the extent of eco loss which can be
      recovered and who can claim it.
    Notice that Denning and some of the SCC list arguments like this, then stage the
      judgment
    Davies (dissent):
    Doesn‘t really understand why we‘re treating economic loss differently.
    If we can establish foreseeability and proximity
    You can run Denning‘s five arguments against him as equally as for him.
    Economic loss is secondary to personal.
    He distinguishes between ‗consequential‘ and ‗pure‘ economic loss to the
      plaintiff.
           o Consequential – if there is property damage or personal damage to the
               plaintiff then you can recover for this
           o Pure – only economic loss to the plaintiff, like in Hedley Byrne would
               lead to no recovery.
    This fits with Weller to some degree, in that Weller had not suffered
      consequential damage to its own property or person.
    If this had followed Hedley Byrne then they would have allowed recovery for
      everything.
    The decision in Weller might also suggest, why would we let the steel company
      recover at all?
IMPLICATIONS:
    This results in rather unfair results in other situations: Imagine a Taxi company
      that looses power and phone as a result of the same action. Since they have no
      physical damage they can‘t recover. Why shouldn‘t they also get partial
      recovery? If we‘re following Hedley Byrne they should recover, or it would seem
      so by not much of a stretch.
    We‘re not going to say no recovery, but there must be consequential loss.


10.1.3 Caltex Oil v. Willemstad (1976)
 introduces close 3rd party damage as sufficient to ground consequential economic loss
FACTS:


                                                                                      92
       A pipe that links PEF to the plaintiff Caltex is cut by Willemstead who is
        dredging the bay.
     This prevents the supply of oil from PEF to Caltex and it causes them damage.
     This is essentially the same facts as Spartan Steel, but the problem is the plaintiffs
        have suffered no property damage. In that way it is the same as Weller.
ISSUE: Can damage to a close 3rd party ground liability?
DECSION: Caltex can get recovery.
REASONING:
     By proxy the pipeline from PEF to Caltex, though owned by PEF is so directly
        related that it is seen as Caltex‘s.
     The damage that flowed from the accident is VERY foreseeable and VERY
        proximate.
     It is clear to the negligent party that such an accident would impact Caltex.
     They are plowing the same ground as Hedley Byrne. We can‘t just follow
        Donoghue as a neighbor, there must be a ‗special relationship‘.
RATIO:
Pure economic loss can be recovered under a test of Proximity and Duty of Care when
the eco loss flows directly from the damage caused by the negligent act.
IMPLICATIONS:
     This is simply Anns, or Donoghue and utilizes the concepts of Duty, Remoteness,
        Proximity to establish liability when the loss flows directly from some physical
        damage.
     In this way it can be seen as reversal of Weller.
     Problem for Laforet in Norsk, as in this case the damage to a 3rd party can be
        sufficient for recovery. CN in Norsk is even closer as they are leasing the bridge.
        Caltex is not renting the pipeline.


10.1.4 Canadian National Railway v. Norsk Pacific Steamship (1992)
 unlike in Weller and Spartan Steel there is a contract at play in this case
 the damage again is not to CN but to a bridge the rent, which is similar to Caltex
FACTS:
     Norsk has a tug boat that negligently hits a bridge owned by the Canadian
       Government.
     The Government rents the bridge to users. CN is the prime user at 85%.
     CN further has contracts to move goods around.
     They incur additional costs to move the goods, and they may be liable for the
       contracts that
     One of the provisions of the contract is that they can‘t claim losses against the
       government. That is, an exclusion clause.
     The obvious person to sue is the government, and the government could then pass
       the loss onto Norsk through ‗consequential‘ economic losses under the nature of
       Spartan. But the contract precludes this method.
     This suggests that CN should have been aware that they insured. Much like in
       Nunes Diamond.

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ISSUE: Can CN recover even though it is precluded by the contract? This is the reverse
of Donoghue instead of not having a contract we have one. What is paramount, the
contract or the tort? Can the existence of a contract bar tort? In Donoghue we say that
when there isn‘t a contract it‘s not a limit.
DECSION: CN can recover as their property is so close to that of their own that it can be
viewed as their property (similar to Spartan).
REASONING:
McLauchlin (majority)
     Sees tort as paramount.
     Wants to define proximity and foreseeability.
     We are groping to find the space. We think that the exclusion rule is bad. But we
       need some restrictive test like in Cognos and Hurecules.
     She applies a fairly Anns like test to the situation p. 419
     After this the concept of proximity is still not clear. We are still groping for test.
     While proximity is required it is necessary but not sufficient.
     We need to look at policy as well.
     Concludes that there is no policy to negate the recovery here. There is no
       floodgate problem.
     There is a sufficient relationship between CN and the
     In short, there needs to be an EXTREMELY close relationship between
     Is she saying there has to be damage? Or is she just saying that there is proximity,
       regardless of damage and is approaching it from Hedley Byrne.
     She sees proximity as doing the necessary limiting work (in conjunction with
       policy)
LaForest (dissenting)
     Sees contracts as paramount.
     He feels the contract should bar recovery.
     The parties made the contract and excluded the
     Insurance is a major factor in this decision as the parties could have taken care.
       This is the reverse of Doboson that they said it was not a factor.
     CN is clearly in a better position to estimate the losses.
IMPLICATIONS:
     What if the other 14% of the users had applied for loss. They aren‘t as invested as
       CN. Can they claim?
     Imagine further that a bridge for cars is taken out. Now 1000‘s of people are
       impacted. People can‘t go to work. Can they recover?
     If it is based on numbers is that a fair way to develop the law?
RATIO: The rule is no recovery unless there is a special relationship or situation.


10.2 Defective Chattels
Most of the damages from negligent statements are purely economic loss so it is
inevitable that we would ask what recovery for economic loss will be allowed when there
is physical damage involved instead of simply statements?


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None  Historically this is where we started.
To those suffering loss to property  Weller, Spartan Steel
To those so closely related that it is like their property  Norsk

The new problem we come up against is in the negligent production of a chattel. In
Spartan steel we have the fact that economic loss consequential to damage is recoverable.
However, there is no damage here. The chattel is not damaged, but defective.

10.2.1 Junior Books (UK) (1982)
 the high water mark for pure economic loss
 see paper ―Recovery of Pure Economic Loss In Tort‖ by Robyn Martin
FACTS:
    A subcontractor is hired to put in a floor.
    The floor is defective.
    The main contractors go out of business.
    This is very analogous to Donoghue v. Stevenson
    The plaintiff Junior Bucks has no contract with the sub-contractors.
DECISION: Recovery for loss allowed.
REAONING:
Majority
    This is classified as pure economic loss as the chattle has not been damaged.
    Recovery is allowed as the plaintiff owed a duty.
    The lack of contract is not reason to bar recovery, nor will a bad contract.
    There is an extremely close relationship between the parties, and using the Anns
        test they can recover (foreseeable, proximate, no remoteness, no policy)
Dissent
    You are putting a transmissible warranty on the goods.
IMPLICATIONS:
    The doors to economic recovery have been thrown wide open in the UK.
    They are shortly thereafter closed.

10.2.2 Murphy (UK) 1990
 about face, UK will not allow recovery for pure economic loss even if it is dangerous
 in the UK today it stands that consequential economic loss is recoverable, pure
economic loss is not recoverable
FACTS:
    A houses foundation is inspected and approved by the borough council.
    The foundation is negligently inspected and it turns out it is faulty.
    The plaintiff could fix the foundation or sell at a loss, which they do.
    This is pure economic loss as there is no damage or danger (at the time).
DECISION: No recovery for pure economic loss at all, even when it‘s dangerous.
REASONING:
    This is influenced by the fact that the inspector is a public body and the political
       spectrum at the moment (Thatcherism)



                                                                                        95
       They do an about face and decide it is hard to decide what the special
        requirements and standard will be.
     There is no conceptual difference between dangerous and non-dangerous. The
        loss either way is pure economic loss.
     If manufacturer produces are sells chattel that is merely defective in quality, the
        manufacturer‘s liability at common law arises only under and by reference to
        terms of any contract to which he is a party in relation to the chattel
            o Only liable if injury is caused
            o If no injury occurs, loss sustained is purely economic, and is recoverable
                only against parties who owe plaintiff a contractual duty
            o Economic losses are recoverable if they flow from breach of a contract,
                but in absence of special relationship of proximity they are not recoverable
                in tort
     Exception from Winnipeg case: if defect in house is potential source of injury to
        persons or property on adjacent land, owner ought to be entitled to recover from
        builder cost of remedying defect, so as to protect himself form potential liability
        to 3rd parties
            o HL disagrees w/ this exception
            o problems of requiring imminent danger as ingredient of cause of action:
                      what is the owner to do when advised that he can choose to spend
                        £1000 now to fix a problem, or wait until it becomes dangerous
                        and he then has a cause of action to recover cost?
                             No answer!
                      What if defect is not discovered and leads to complete collapse of
                        building, but no-one is injured and no other property is harmed?
                        Now there is no imminent danger – seems silly to say that owner
                        should be w/o remedy if would have had full remedy had he
                        discovered the defect before collapse
IMPLICATIONS: But aren‘t we allowing recovery for pure economic loss under
statements? So how can it make sense that we disallow it for acts? The answer seems to
lie with contract. Contract is being held as supreme over tort and tort will not be allowed
to intercede.

10.2.3 Winnipeg Condominium v. Bird
 SCC is seen taking a moderately liberal view of economic loss, at least compared to
the UK‘s no recovery stronghold
FACTS:
     A contractor subcontracts the cladding of a building.
     The cladding cracks and appears defective.
     The condo group examines it with the architects.
     The cladding is found safe.
     Following this a large piece falls off the building.
     More contractors are hired to inspect and it is found to be unsafe.
     The cladding is dangerous and is fully replaced.
ISSUE: The loss is purely economic. Can it be recovered?
DECISION: The condo group can recover for the dangerous pure economic loss.

                                                                                         96
REASONING:
     If the cladding had fallen on someone then there would be recovery against the
        building due to negligence, and by indemnity against the subcontractors.
     The UK would say that there would be no recovery as the loss is purely economic
        loss.
     The SCC wants to distinguish.
La Forest:
     Recall that La Forest was the dissent in Norsk saying there should not be
        recovery, yet he is allowing it here.
     The general rule is that there is no recovery for pure economic loss.
     This is subject to the exception that if the negligence results in ―real and
        substantial‖ danger then pure economic loss is recoverable.
     We can read in something else here, it must be more than just dangerous. It must
        be something dangerous that we can‘t simple get rid of.
     He wants to distinguish this from cases where the quality of workmanship and fit
        for purpose are issues which tort will not cover.
     The only cost recoverable should be to make things safe again. Which many not
        be the same as full replacement.
     The indeterminate class issues do not arise in the case of a dangerous defect as it
        will only be dangerous to a small group of persons (or none).
Policy Concerns:
     In negligent construction of building, there is a foreseeable danger threatening the
        owner, inhabitants, and people below. If someone walking below was hit by the
        stone, they, presumably, could recover. Why should W carry the costs when in
        redoing the stonework it mitigated the possibility of real injury and added costs
        occurring: mitigation of danger. Further, this provides incentives for plaintiffs to
        mitigate such losses and for builders to be less careless.
     Limitation Principle: Allowed for recovery is only the reasonable costs of putting
        the building into a non-dangerous state; poor quality cannot be recovered so long
        as it is not dangerous
1. Overlap b/w Torts and K-law:
     Consider Rafuse, unless there is an explicit k-term excluding tort liability, tort
        actions are not trump by the existence of a K.
     The fact that there is not a K b/w the P and D is of no matter, since the principle
        relates to ‗dangerous‘ defects, not simply substandard quality. Also, no threat of
        indeterminate liability b/c the class of persons is limited, the costs are limited to
        the repairs, and the time is limited since as building gets older, certain damage
        will appear as naturally occurring
2. Caveat Emptor Concern
     (Not defined in text, but seems to be that the buyers of homes/buildings should
        insure they are fit for their purposes, and not the builder or seller; and the buyer
        should bear the risks.) SCC here rejects this for several reasons outlined on pg.
        438.
RATIO: Contractors who take part in the design and construction of a building now owe
a duty of care in tort to subsequent purchasers of the building if it can be shown that it is
foreseeable that the failure to take reasonable care would create defects that pose a
                                                                                          97
substantial danger to the health and safety of the occupants. Where such defects and
negligence are establish, but before any damage to persons to property occurs, the
contractors will be liable for the cost of the repairs to put the building into a non-
dangerous state.


10.3 Exceptions to Non-Recovery
We are now building a series of exceptions to non-recovery for Economic Loss
Negligent Statements  (Hedley Byrne) when the statement is made negligent when
there was reasonable reliance by the plaintiff on the special knowledge of the defendant
and the reliance results in the loss. This is more than mere neighbors, it is a special
relationship.
Consequential Loss  (Spartan) If there is physical damage and resulting economic loss
as well.
Special Proximity  (Norsk) Where there is damage to 3rd party that is sufficiently
proximate to the damaged party. This is a ―special‖ relationship, the analog in acts to
Hedley Byrne in statements. This is akin to saying ―joint venture‖.
Dangerous  (Winnipeg) Exceptional circumstances that cause a

10.4 Reconsidering Weller and Spartan
So what happens now if Weller or Spartan came before the SCC came up today with the
SCC?
These cases had pure economic loss.
Weller: We can maybe extend the concept of Special Proximity. They could be
considered to be in a joint venture with the farmers in auctioning all the cattle.
Spartan: What about the 4 melts they didn‘t do. We have to make an argument under
Norsk to say there was sufficient proximity between the electric system and the steel
makers.

10.4 Wills

10.5.1 White v. Jones
 Extends Hedley Byrne liability to a proximate third party
FACTS:
    Man has a will, but has a falling out with them.
    He changes his will, but subsequently is reconciled.
    He asks the lawyer, under contract, to add the siblings back to the will.
    The lawyer negligently doesn‘t add them in a reasonable time. They would not be
       automatically negligent, but given the testators health condition they were.
    The testator dies.




                                                                                         98
                                  Contract
       A
                                                    B




                                3rd Party Suing




                           C




ISSUE: Can the plaintiffs, the beneficiary‘s, recover for the negligence? If so what are
they claiming for? Did the beneficiary suffer a loss?
REASONING:
     The problem is that the person who can make a claim (the testator) has not loss
        anything. The people who can‘t make a claim (the beneficiary) have lost
        something.
     The plaintiff is making a claim for ―the promise of an expected benefit‖.
     Compare this to others. In Christmas they had lost the investment. In Weller they
        had lost expected profits. In Spartan we have a claim for lost profits.
     The beneficiary‘s knew what was going on. However, how do we reconcile this
        with people that don‘t know?
Standards
Contracts: Put yourself in the position if the contracts was performed, so it‘s included
expected benefits.
Tort:Put people in the position they would have been in if the event had not occurred.

      We‘re getting a long way from where Torts started.
      But the problem is that we have all these exceptions. We have many groups of
       people who are being held liable such as accountants. Surely this fits into that
       scheme.
      This goes 3:2 in favor of the plaintiff and the lawyers are liable.
      The dissent is concerned that the door to pure economic loss has been kicked wide
       open.
      How are we going to control this when we come back to these other cases.
      The majority feels they can do this by extending Hedley Byrne, but the problem is
       there is no indication of reasonable reliance.



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      What the dissent is concerned about is that the wider principle says is that people
       who are not party to a contract can make a claim.
    This has led to a just result. However, we have to hem that in. We need to
       restrict that very carefully.
IMPLICATIONS: The implications of the beneficiary‘s winning is huge. Now people
who are not party to a contract can sue under the goal of those contracts if they were
beneficiaries. This has major ramifications for the world of contracts.


10.5.2 Hill v Van Erp, Aust HC, 1997 (452)
FACTS: D was a solicitor who negl had the plaintiff‘s husband sign his will as an
attesting witness, rendering the will null and void.
ISSUES: Does the solicitor owe a duty of care to the beneficiary of the will?
DECISION: 5:1, the court found for the plaintiff, though each had a different
justification for liability
NOTE: Was on previous exams, examine all 5 positions closely.




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11. Psychiatric Harm
Do we even want separate rules for psychiatric harm?
     To make a claim there must be a recognizable condition. Which means that we
       need a medical expert. As the cases suggest, grief is not enough, though grief can
       become medically recognizable.
     There is an overarching concern is that psychiatric harm is very subjective. There
       is, for the most part, no evidence. As a result we are worried about fakers or
       malingerers. This is debatable as a matter of evidence, but once we have proven
       as best we can that the harm exists why should we have further special rules?
     There is a causation issue at play as well. It is very difficult to prove or disprove
       that something has caused psychiatric harm.
     There are also problems with remoteness, and the kind of damage that has been
       suffered. That is, does it flow from the nature of the injury?
     For all these reasons having a separate rule seems to make sense as it is a sensitive
       area that requires special treatment.
     However, in all these cases people have met the hurdles of a recognizable
       condition so should the courts then be holding them back for what amount to
       poorly iterated policy concerns? Why don‘t we include them with physical
       harms? Would this mean an end to remoteness in accidents because it would
       include physical and mental harms?

NOTE: Recall Cotic v. Grey from above.

11.1 McLauchnin v. Wilcox
 the high water mark for psychiatric harm opening up
 prior to this the standards were ―direct experience‖ or ―actual fear for yourself‖
 there is an aspect that this is because Mrs. McLauchlin is a woman and the judges can
use their sexist stereotypes to say that
FACTS:
     Takes kids out for the morning and gets in a very serious accident.
     The accident is very close to home.
     One child dies.
     Mrs McLauchlin knows nothing about this until a police officer comes by.
     She goes to see them in various states of injury and death.
     She suffers serious psychiatric harm.
     They sue the truck driver.
     The truck company admits liability but only for physical injuries.
     Mrs. McLauchlin falls into the group of ―secondary victims‖
ISSUE: Can Mrs. McLauchlin recover.
DECISION: McLauchlin can recover.
REASOING:
     The fact that she had saw part of the aftermath by going to the hospital seems to
        play a role in this. The question is why
There are three parts to the test for psychiatric harm:
        1. Class of persons whose claim should be recognized.

                                                                                       101
                   hard to trump that she is a mother and wife
       2. Proximity
                   she got very close to it even after the event, though it was 2 hours
       3. The means by which the shock was caused
                   she apprehended the shock herself at the hospital
    The court is clearly concerned about opening up psychiatric harm.
Remember these cases are all about people that have cleared the hurdles of:
       a) a recognizable psychiatric harm
       b) the question of causation
IMPLICATIONS:
HUTCH: These categories are not well-defined; they arose as many questions as they
answer:
       1. Class of Persons: where is the cut-off pt.? Husband-Wife, Common Law
          Spouse, Boyfriend-Girlfriend, Boyfriend-Boyfriend, Just Friends??? Where
          should the limit by set, such that anyone in the vicinity of the incident who
          may have known what happened but did not see/hear/know the people
          involved would be prevented from recovering?
       2. Spatio-Temporal Proximity to Incident/Accident: what if the mother just
          heard about the accident on the news, and never went to the hospital?
       3. Means of Shock: Is the shock any less severe if someone hears about their
          loved ones‘ death of the news than in real life? Was it harder to watch from
          the street than on live TV the people jump from the Twin Towers?

11.2 Alcock v. Chief Constable [1991] (HL) text p. 460
 this clearly looks at the spectre of indeterminate liability, there are hundreds of dead,
viewers and related parties.
 they are worried about being fair to the tortfeasors as well as the plaintiffs
FACTS:
     The police at a soccer match know there are riot problems at the time, and that
        there are many counterfeit tickets in circulation.
     People are packed into basically cages.
     The police decide that they simply have to let people in otherwise there will be a
        riot.
     Nevertheless a riot breaks out as people get squished against the cages.
     The riot results in 95 deaths and 400 injuries.
     It is televised live nation wide.
     As a result of the deaths 16 claims for psychiatric harm are brought forward.
     There is a sense that class impacts this greatly, that soccer fans are not worth
        protecting. The political situation and class/type of persons involved seem to
        influence the courts.
ISSUE: What limitations apply to liability with respect to psychiatric harm?
DECISION: No one can recover.
REASONING:
Remember we assume that these 16 persons have cleared the hurdle
Iteration of a 2 stage test for claims of shock
            1. Can be made by someone who has not suffered physical harm.

                                                                                         102
            2. a. When the injury was to the plaintiff‘s spouse or child and
                b. The shock has come about from the sight or hearing of the event in it‘s
                immediate aftermath.
Iteration of a 5 stage limiting test for recovery in psychiatric harm:
            1. No recovery unless brought about by shock.
            2. Mere knowledge of the event is not enough, direct perception must be
                present.
            3. There must be physical injury to occasion shock in a perceiver.
            4. No liability as of yet to third parties for shock induced by an accident you
                cause by negligence or otherwise.
            5. Shock means sudden appreciation.
Examines the 3 test areas for Psychiatric Harm
        1. Class of persons whose claim should be recognized. (extremely close
            relationship akin to parental)
             This will be done on a case by case basis but the love and affection must
                be based around the ―reasonable parents love‖. This is a very hard line, it
                excludes many loving/caring relationships that could lead to trauma.
        2. Proximity (immediate proximity)
             They determine that essentially persons had to be there. Proximity must
                be in both time and space, and for all the claimants there was neither.
        3. The means by which the shock was caused. (immediate perception)
             The shock can be perceived via television, but in this case the TV did not
                show truly shocking material. It showed crowd shots with no specific
                suffering as per their ethical mandate. As such this is not considered
                shocking, as the intent it to not be shocking. Though they allow room
      An underlying part of this is that the claimants are looking for some sort of
        recognition or vindication.
      There is, as usual, result based reasoning.
      This could all be framed under Anns, but they are going to great lengths not to do
        this.
      Hutch: Anns as we recall does nothing it‘s just a site to start from and it can do
        anything we want through the use of policy.
IMPLICATIONS: Those claiming psychiatric shock must meet a significant and
somewhat arbitrary set of hurdles in order to recover. Compared with physical injury this
is a severe limitation with echoes of the debate regarding negligent statements.

11.3 White v. Chief Constable [1999] (HL) text p 467
 this decisions seems to flow from the unfortunate decision in Alcock. In reality both
groups should probably recovered
 this decision has to run contrary to accepted recover of those that put themselves, in
the line of duty, in harms way
 rejection of American Fireman Rule, but yet it implicitly accepts the position of non-
recovery for endangered workers.
FACTS: The plaintiffs are police officers that suffered harm in the same riot as in
Alcock.


                                                                                       103
ISSUE: Can officers or other ‗rescuers‘ recover for psychiatric harm because of their
special role?
DECISION: The officers cannot recover.
REASONING:
    The police in comparison to the families are directly proximate so they are in a
        better situation, but this is hugely politically and socially problematic.
    We‘re back to Lamb in a sense as the judges are admitting that there is nothing
        underlying the decision other than a ‗gut feeling‘ as per Hoffman in that we‘ve
        given up on principle.
    A position that allows rescuers to recover might call to action those that would
        otherwise not act and this would be a good social policy reason.
    However, psychiatric harm is to be limited very strictly by arbitrary conditions.
    Such a decision would create a discrepancy. A police officer could recover but a
        bereaved wife or close friend could not.
    Identifying a class of people who have better rights to a tort is seen as
        problematic.


11.4 Tame v. New South Whales; Annets v. Australian Station (2002) (AUS.) text p.469
FACTS:
     One of the plaintiffs had a boy that went to work on a farm.
     They were told that he would never be sent out alone.
     He was sent far into the desert on his own and became lost.
     They searched for him and it took a long time.
     He died out in the desert of dehydration and exhaustion.
ISSUE: Can the plaintiffs claim psychiatric loss brought on by shock even though they
did not see the event and it was not sudden?
DECISION: Yes recovery is allowed.
REASONING:
     In comparing this with Alcock it is clear that the situation lacks some of the
        factors that would exclude it in the UK
     First the shock is not sudden.
     Second the plaintiffs are not proximate in time nor space to the event.
     However, in Australia the court is more expansive in their definition and goals.
        They see the fundamental goal of torts negligence as ―the promotion of reasonable
        conduct that averts foreseeable harm‖
     They want to use Anns (foreseeability, proximity, remoteness)
     We could fold into proximity the notion of ones relationship
     The farm owner under such a definition is negligent.
     The protracted harm resulting is easily just as mentally stressing if not more than
        a sudden shock.
IMPLICATIONS:
Hutch: faced w/ Alcock, they would probably allow recovery for some, but would likely
resort to some control mechanism due to the numbers involved


                                                                                     104
                     likely would use ―strangers‖ as limiting mechanism… easy to
                      decide this case because of bond between parent/child
                     relationship seems key


11.5 Greatorex v Greatorix [2000] text p. 473
FACTS:
     Defendant is injured in a car accident caused by his own negligence.
     His father, a firefighter responds.
     After seeing the scene the father suffers from sever long-term post-traumatic
        stress disorder.
     He sues the son for negligently inflicting psychiatric harm.
ISSUE: Is a person who is self-negligent responsible to a rescuer to psychiatric harm.
DECISION: The father cannot recover. Further, a rescuer can‘t recover.
REASONING:
     This door was left open in Alcock in the barrier tests to recovery. So it was
        inevitable that the question would come up.
     The decision has shades of Dobson in that the court is finding that allowing such a
        recovery would impact the family and personal freedoms too much and that
        policy suggest that inter-family disputes of this nature should be avoided
        especially during trying times like after an accident.
     Clearly hutch will raise the insurance issue.
IMPLICATIONS:
What if this accident had been a 3rd party? Then it is likely they could have recovered as
the restrictions here are related to the family issues and freedom issues related to the
victim.
HUTCH: sees this is a very strange decision that doesn‘t fit with jurisprudence, the
relationship between parents and children has never acted as a barrier to recovery before.


11.6 Page v. Smith [1995] (HL) text p. 477
 seems to blow a hole in remoteness as there is no difference between psychiatric and
physical harm
 examines the issue of remoteness, that is the kind of injury must be foreseen then
extent does not matter, but can psychiatric connected
 definite connection to Cotic v. Grey in which there was recovery under thin skull, that
is provided you can see some injury then it‘s fine, but then remoteness is doing nothing
 differentiation is that in Cotic he suffered physical harm, and Page did not
 differentiation between primary and secondary victims
FACTS:
     A man suffering from CFS or PVFS (post-viral fatigue syndrome) is cut off by
        another car and a moderate car accident ensues.
     No one in any of the cars is physically injured.
     However, as result of the accident the plaintiff claims that his CFS has become
        chronic and he can no longer work.
     Initially a judgment in favor of the plaintiff.

                                                                                      105
    Overturned by the court of appeal, no on appeal to the house of lords.
DECISION: The driver can recover.
REASONING:
Dissent
    There is a strong dissent suggesting that the defendant could not possibly have
       foreseen that a moderate accident would cause such psychiatric harm.
    The dissent relies on the argument that foreseeability in cases of physical injury
       and proof of causation are required. This is not proven in such psychiatric cases.
       It‘s impossible.
    Even if they would admit to the possibility it should only arise in extreme cases
       and this is not an extreme case.
Majority
    Apply the thin-skull principle and therefore the fact that the CFS recurred is
       foreseeable.
    Primary victims are in a different class, where there is a secondary victim
    In a primary case there is no difference between physical and psychiatric injury


11.7 Primary vs. Secondary
There seems to be an attempt, must like in economic loss, to divide the classes and apply
different rules to those that are ―less proximate‖.
Primary  Consequential Economic Loss  Recovery
Secondary  Pure Economic Loss  No Recovery.

There seems to be an attempt to create shades of liability and degrees of tests. That is we
are comfortable with a certain range of liability and beyond that we start to want to hem
things in. We want to introduce multiple levels to accord with our feelings.


                                                             Increasing Discomfort




                                                                    Increasing Tests




                                                                                       106
Indeterminacy
Clearly we don‘t want to allow bad claims, but just because a decision would result in
lots of claims doesn‘t mean they are bad. However the courts seem interested in
protecting the interests of defendants. Why are we defending them when they are most
often insurance companies and large groups.




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12. Wrongful Life and Wrongful Birth

12.1 Exam Techniques
 these are a great set of problems to test knowledge in a wide area of the course

If this is on the exam, follow these steps to analyze the problem:
Set up categories of liability:
              Phys. Injury (DvS, Cooper);
              Negl. Statements (Hedley Byrne, Hercules);
              Eco loss from Phys Acts (Spartan Steel, Norsk, etc.)
Argue recovery based on the act or harm:
              Based on the Tortious Act: Phys. Act; Negl. Statement; Omission
                 (Nonfeas.)
              Based on Harm caused: Phys. Injury; Psych Injury; Eco loss

Wrongful Life/Birth:
Key: Dr. is not causing phys. injury to the mother or child. If the child was hurt, the
parent could sue under DOBSON  Child hurt in womb can recover unless it is the
mother who caused the harm.
     The injury being sued for here is the eco loss due to the pregnancy and birth of a
        child who, arguably, ‗shouldn‘t‘ have been conceived in the first place OR where
        parent should have been informed of a disease & would have aborted.
     This is Pure Eco Loss which Courts do not want to allow recovery for unless there
        are very special reasons for it.
     BUT: How can a negl doctor be allowed to go w/out penalty, leaving two people
        to tend to a child they didn‘t want. Law requires that they provide the necessities
        of life; these are expensive.
     POLICY Concern: Treating pregnancy as a phys. injury as serious social redress
     CAUSATION Issues: Novus Actus Intervenus: Should abortion/adoption be
        considered an intervening act which breaks the chain of causation b/w the dr. and
        the parents? Is it true that but-for the dr.‘s negl the child would not have been
        born? But-for the parents not aborting a child would not have been born; what
        about Contributory Negl.? Very Loaded Policy Debate

Applying Legal Doctrine To These Cases:
1. Standard of Care:
     Show it was breached; Dr.‘s standards to not negl. perform an operation, or to
       fully inform a patient of the condition
2. Duty of Care:
     Show it was owed; hard not to in patient-doctor relationship
3. Reasonable Foreseeability:
     Easy to prove here; if Dr. had performed the tubal ligation/vesect. properly, no
       pregnancy would have resulted
4. Proximity:



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     Debatable; the doctor has a duty to Patient, but what about to Spouse of Patient or
      to Child; Worse if patient is a man who impregnates his wife who has a child that
      is the P since there are three degrees of separation b/w P and D.
5. Damages
     This is very difficult: how do you award a wrongful birth?! Consider, Tort puts P
      in position as if no Tort occurred, so, what is the value of non-life compared to the
      value of life? POLICY DEBATE: INSURANCE – Doctors are insured up the
      ass, shouldn‘t their plans be able to cover the cost of raising the child born of the
      Dr.‘s negligent?

HUTCH:
 If on the Exam: It is necessary to discuss the policy issues, including Insurance.
 These issues relate to serious discussions about abortion, disability
 Courts agenda has 2 parts regarding torts
                  o Compensating victim
                  o Deterring defendants
 At some level, these are all cases of medical malpractice, which fall under rubric of
  DvS
 Had these cases led to physical injuries (ie during a vasectomy), they would not be
  hard to resolve
 These cases have, rather, a secondary claim which does not involve injury as such to
  a 3rd party
                  o Doctor does not cause injury to anyone, but people‘s lives are
                     heavily affected by doctor‘s negligence
 Driving policy concern of courts regarding proportionality, therefore issue is pure
  economic loss
 Do we treat these cases same as other pure economic loss cases (ie Norsk)?
                  o Hutch – distinction is that these are about people‘s lives
 Must also distinguish between claims by children and claims by parents


12.2 The Parties
There are generally 3 parties that can make a claim in these cases, and depending on the
claimant, their health, their wealth seem to influence the cases.

       Healthy
                              Mother
       Unhealthy                                     Present
                              Father
       Healthy                                       Not Present
                              Child
       Unhealthy
                                                     Diagnostic
                              Doctor
                                                     Negligent Surgeries


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An underlying problem to all of this is the loss is purely economic loss. This has more
relation to Weller and economic loss than the text suggests.
The other problem is that the claims are counter-factual. They often claim the ―if you
told me‖ but that is easy to say in hindsight.

12.3 Negligent Sterilizations
    As a result of these being based on economic loss our basis for examining them is
       the modified Anns test and Hedley Byrne.
    Compare this to the pure economic loss cases. For example in Norsk we allow
       CN to recover, but we don‘t allow these parents to recover in many cases?
    A genuine issue here is that there is a risk to these surgeries. However negligence
       can increase the risk of these. There is a causation problem, but if we can
       overcome that hurdle we still find that the courts are unwilling to hold the doctors
       liable.
    The courts seem willing to reward the families for the costs of birth and/or
       autonomy issues, but not for the cost of raising the children.
    The modified Anns test clearly passes on proximity and foreseeability in these
       cases, so it must be the policy stage where we are sweeping up these cases, but the
       arguments should be extremely strong, and they don‘t seem to be.
    These people have chosen NOT to have children and they have.
    HUTCH: Why are we bending backwards for these doctors? Why are we
       protecting them when there are clearly deserving cases. If we are going to start
       pulling back on liability why are we doing it here, and not with investors (Haig v.
       Bamford).

12.4 Cases
12.4.1 MacKay v. Essex Area Health Authority [1982] text p 482
 The child does not have a claim, and certainly has no right to non-life.
FACTS:
     Mother, while pregnant contracts German measles
     A doctor negligently does not discover the measles
     The mother claims, that had she been advised of the measles she would have
       aborted the child.
     The child is born deformed.
     The child‘s claim is not for the deformities, but for damages against the defendant
       due to the failure to diagnose which resulted in her being born. That is they are
       claiming that they never should have been born.
ISSUE: Can their be a duty to take away life?
DECISION: No duty is owed to the child, though there may have been a duty owed to
the mother but this was not argued.
REASONING:
     This is interesting as there is clearly proximity and foreseeability with the child.
       So how are we getting out from under this?
     We are running up against Dobson. We are sanctifying birth and parenting that
       we can‘t trivialize it. But the problem is the person that suffers is the child.
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      The court finds that the defendant has not broken any duty to take reasonable care
       towards the child.
      The court feels they can‘t assess what it means not to be born? But this doesn‘t
       seem any different from what we have pronounced on before.
      The child was already injured. The only option was to be born injured or not be
       born. There can‘t be a duty to non-life.
      The injuries and deformities were not the result of any act or omission by the
       defendant doctor(s), the only result for which they are responsible is her birth.
      LEGAL CONCERNS: How do you award the injury of ―birth‖?! How do you
       measure this? Impossible to quantify; there is no price for being born. But: what
       is the price of a finger; Courts can determine this one?
      DUTY: Just b/c a doctor has the legal ability to do to a fetus what he cannot do to
       a person already born (deprive it of life) does not mean there is a legal obligation
       to the fetus to do this
      PROXIMITY: Doctor had a duty to the mother to give her the opportunity to
       terminate the pregnancy, but there was no such duty owed to the child, and P is
       child. So, case fails on DvS: Child is not a neighbour in this regard. NOTE: In
       Norsk: CN Rail was shown to be sufficiently close to Public Works to consider
       their use of the bridge a joint venture; wasn‘t the mom‘s body like the bridge,
       mom owned it but child was using it in such a way that it was pretty much a joint
       venture?
      POLICY: Attitudes about abortion, adoption, and disabilities factor in huge.
       Court: to award ―would mean regarding the life of a handicapped child…[as] so
       much less valuable that it would not be worth preserving [as compared to a
       normal child]…‖ (484)
      DAMAGES: The loss to be compensated would be the difference b/w its
       condition as a result of being born and injured and its condition if it had been
       aborted…How can a court evaluate the worth of non-life?
      HOW CAN THE NEGL. DR. NOT BE FORCED TO COMPENSATE? Because
       to do so would greatly offend public policy.


12.4.2 Kealey v. Berezowski (1996) text p. 489
 note that the judgment is by Lax a woman
 limited damages for the birth itself, but not for child rearing, subject to considerations
for
FACTS:
     Defendant doctor negligently performed a tubal litigation.
     Mother became pregnant and had a healthy child.
ISSUE: What measure of damages is appropriate for the negligence?
DECISION: Limited Damages will be applied to the birth itself but not the child‘s life.
REASONING:
     There are three basic measure of damages that could be used:
           1. Total Recovery – for all costs
           2. Offset/Benefits – consequential costs, but offset with benefit of children


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            3. Limited Damages – recovery for the unplanned pregnancy but not for the
                child rearing.
     There is a very middle/upper class vision of what having a child means.
     In light of the minor surgery that was performed and the benefit, as well as
        detriment, a child can cause to a family the recovery should only be allowed for
        the wrong of birth itself.
     The application of normal tort principles causes a lot of problems.
     Rearing a child entails many burdens as well as benefits. These are seen to cancel
        out one another.
     This avoids the complexity that for many families the burden may easily outweigh
        the benefits.
     The family made a choice to stop having children.
     The negligent tubal litigation runs counter to this choice.
     However, to allow a family that has decided to keep a child to recover for all its
        costs is not intuitive. They made just as much of an independent choice to the
        child.
     She might reconsider this if the child or mother was disabled. She might consider
        those different.
IMPLICATIONS:
     As a general rule one gets limited damages, that is those associated with the birth,
        but not the child rearing. A caveat to this may be if there is an disability of the
        mother or child.
     Problem: religion and choice?
CONSIDER: Contributory Negligence: Reduce damages accordingly as opposed to
Novus Actus Intervenus: No recovery. Also, Sequential Causation: Dr. causes the
injury due to negl., parents not negl dec‘n to keep kid furthers the injury. Problem:
viewing the ‗welcomed‘ child as an injury.

12.4.3 McFarlane v. Tayside Health Board [2000] test p. 492
 key case around which most of the jurisprudence on this subject revolves
 note the supreme court has never really dealt with this case
FACTS:
    Husband undergoes a vasectomy.
    He is told it is successful after sperm count tests.
    His wife becomes pregnant and a healthy girl is born, the 5th child in the family.
    The child is accepted and loved
    They are claiming 10,000UK for her wrongful birth, and 100,000UK for her
       maintenance.
    Both Mother and Father bring a claim.
ISSUE:
DECISION: The family will be allowed to recover for her birth, but not her maintenance.
REASONING:
Majority
    It is not enough to say that the loss is foreseeable, it clearly is, but the loss is
       purely economic.

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      In such cases, as we have seen, there must be more than simple foreseeability,
       there must be a ―special relationship‖
    The court does not feel that a ―special relationship‖, at least economically, exists
       with a doctor.
    The mother faces an extra hurdle in that she is not the patient. This raises the
       question of proximity. However this is generally allowed.
    The father wants to bring the costs of rearing the child, but the court relies on the
       classic though not convincing arguments
           o pure economic loss like in Caparo (for audit, but not for investing) they
               are splitting the pregnancy (audit) from the parenting (investing). This is a
               stretch, there is more invested/involved here than just money.
           o the offset argument that there are benefits to the family and these offset
               the losses
           o proportionality between the simple surgery and the drastic outcome
           o deference to public opinion and they theorize that the public wouldn‘t like
               this concept, but this seems arbitrary
Minority
    The advantages and disadvantages of parenthood go hand in hand.
    This leads to an invalidation of both claims.
    The family is entitled to general damages for their suffering and loss of personal
       autonomy and loss of choice to the value of 5000UK.
IMPLICATIONS:
Foreseeability as a tool is failing again under the economic wing.
HUTCH: Consider: why does the emotional benefits of having a child cancel out the
economic costs of raising it?


12.4.4 Parkinson v. St. James [2002] text p. 502
 again we have a female (Hale) view in the court
 in this case the child is also disabled, and the view is that that is different than a
regular child and there should be more recovery under the ―offset/benefit‖ analysis.
FACTS:
     Negligent sterilization procedure.
     Plaintiff becomes pregnant with 5th child.
     The family resources cannot take the strain.
     The strain has catastrophic impacts on the family.
     The father leaves, and the child is born with autism.
     The plaintiff is claiming not for the disability but for the regular maintenance.
ISSUE: Does the economic position of the parents impact recovery? Does the health of
the child impact recovery?
DECISION: The mother of a deformed child, due to the negligence of a doctor, should be
able to recover not only for the wrongful birth, but wrongful life. The economic position
is glossed over.
REASONING:
Hale (for the majority)


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      First and foremost the right to bodily integrity was breached, for which she should
       recover the loss of childbirth.
    Such childbirth entails major personal sacrifices, lifestyle changes, physical and
       psychological changes, all which must admittedly be recoverable.
    At the root of other cases was that to recover for a healthy child‘s life would be to
       go to far, but a disabled child requires extra needs and incurs extra costs. Adds
       additional strains. As such they are not the equal in the ―benefit‖ analysis of a
       healthy child.
    It is right therefore that the parent that bears these extra costs should have a claim.
    Can‘t see why there wouldn‘t be recovery.
IMPLICATIONS:
HUTCH: In Kealey, no recovery for child-rearing; why here? Why should doc pay
when he is just as responsible for this child‘s birth as was the doc in Kealey; neither did
anything different: both negligently performed tubal ligation.


12.4.5 Rees v. Darlington [2003] text p. 508
 we see the court willing to allow recovery for the disability of the mother as again it
impacts the ―offset/benefit‖ analysis
 Hale is back on the court as in Parkinson
FACTS:
    A woman with a genetic sight problem decides to be sterilized as raising a child
       would be very difficult.
    The sterilization does not work and she becomes pregnant.
    She claims for the costs of raising the healthy child.
ISSUE: Does the health and ability of the mother to care for the child come into
consideration in recover?
DECISION: Yes, the mother can recover for her additional costs related to disabilities
because she has additional hurdles in raising the healthy child.
REASONING:
Majority
    Allow recovery as she has an additional hurdle compared to the normal persons,
       so allowing recovery for those hurdles is justified.
    Doesn‘t want to give recovery for the healthy child but for the disability of
       mother.
    Suggests that if allowing the disabled mother recover allows normal mother to
       recover so be it, but believes this should be allowed
Dissent
    The position of recovery leads to absurdities. That a disabled person can recover,
       yet the economically impoverished cannot.
    McFarlane suggests that a healthy child should not be able to recover, and there is
       no recovery for such children.
    Sees problem with allowing a disabled mother to recover but not an economically
       impoverished or normal mother



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12.5 Future Directions (Cases)

12.5.1 Rees [2004] 1 AC 309 (HL) not in text
 the Rees case goes to the House of Lords
ISSUE: Should we follow McFarlane and see the issue as that of the birth of a healthy
child, or as something else and the mothers disability.
DECISION: No recovery for the child, however, recovery for the autonomy issue.
REASONING:
Goes 4/3 against Rees, and she is given 15,000UK for her loss of dignity.

12.5.2 Cattanach v. Melcher [2003] 215 LCR 1 (Australia)
 healthy mother and healthy child are given recovery
IMPLICATIONS:
    Australia has rejected UK jurisprudence.
    If doctors injure children during birth, then they are resoponsible
    They are not different in this case, if they do their duties incorrectly they are
       responsible.
    They do not examine the joys and benefits issue. It is simply a mixed blessing.
    This leaves us to question what the SCC will do. We are strongly influenced by
       the HL, but maybe we‘ll find comfort from Cattanach as we have gone down the
       route of Anns which the HL has not.
    We are left, with our allegiance to Anns, that we would have to rely on policy to
       bar recovery. However those arguments need to be pretty strong, and it‘s not
       clear what they would be.




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13. Intentional Torts and Informed Consent

13.1 Assault and Battery in Tort
Assault is making physical contact with a person without their consent. This can hold
even if there is no injury in Tort. There mere interference itself is the tort. This is very
relevant in medical situations because in many cases people can be better off after a
medical procedure.

Consent is used to avoid assault. By giving permission through consent one assents to
the physical contact. The question is what is consent, and if consent is required what
impact does that have?

To proceed on an informed consent case we must first prove that there was causation
between the injury and the procedure.

Three questions that arise in Consent:
Medical Emergency
     The question of consent raises serious questions of emergency. This puts doctors
        between a rock and a hard place. If they wait for consent they may breach the
        duty of care they owe the patient in an emergency.
Standard Medical Negligence
     The second question is when there is consent to the procedure but there is
        malpractice. Causation (Snell) and Standard of Care (What Standard, doctor, new
        doctor, general) are raised under standard malpractice suits.
Informed Consent
In informed consent tort cases there are three key elements.
           1. There is consent to the procedure
           2. There is damage to the patient
           3. There is no negligence. If there was we‘d be back into the previous
                section.

In informed consent the problem is that the doctor has no adequately informed the patient
of the risks involved.
This leads us to a counter-factual. ―If you had been told, would you have gone ahead?‖
The problem is that the patient, who is injured, has a vested interest in answering that in
the affirmative as the risks have now arisen.

13.1.1 Reibl v. Hughes (1980) SCC text p. 559
 how much does the doctor need to tailor the information the given patient
 the standard of care is ―qualified objective‖ for the doctor
 the counter-factual test for the patient is also based on a ―qualified objective‖ or
reasonable person similarly placed would decide
FACTS:
     Plaintiff underwent surgery to remove a clot in his artery.
     A small piece of the clot broke off in surgery and caused a stroke.
     The plaintiff disputes that he was not adequately informed of the risks.

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     Trial judge awarded $225,000, the CA ordered a new trial.
ISSUE: Is the consent vitiated by the lack of information? Can this be qualified as
assault/battery?
DECISION: The reasonable person would have waited, and thus the plaintiff is entitled
to the trial judges award and costs.
REASONING:
     Causation is an issue, as there must be a link between the surgery and the stroke.
     Establishes that the qualified objective standard of care and the qualified
         reasonable person test will be applied to medical negligence cases
     A doctor must inform a patient of the procedure itself and any attendant material
         risks of a substantial nature (that are either common, or adverse)
     A material risk is one that is either likely even if the outcome is mild, and/or if the
         risk is low but the outcome is adverse.
     The court does not like the idea of allowing this to vitiate consent. The consent
         was given, just not on the full facts. To say the doctor didn‘t care and lump him
         into an abusive context such as battery is not correct.
     The failure to disclose the attendant risks was negligent, and should be viewed as
         such, not in the light of consent.
     Therefore, did the doctors negligence lead the plaintiff to undertake a surgery they
         otherwise would not have?
     Is there then a causal connection between the failure to provide information and
         the patients decision to go ahead with the operation.
     This question will be judge according to what ―the reasonable person in the
         plaintiffs particular position, would agree to or not agree to, if all the material and
         special risks were made known to him‖.
     The problem here is that the doctor was not aware of the pension issues that the
         plaintiff was considering, that is he was close to getting a pension. This is why
         the qualified objective is embraced as the persons situation and the circumstances
         need to be considered.
IMPLICATIONS:
     The use of the qualified objective test in informed consent cases.
     The theory behind the supreme court decision is that it is likely to be disseminated
         to doctors and that processes would change. But this is a missing link regarding
         the social impacts of law.
     Research was done, and in the end only 6% of doctors were aware and made
         correct changes in response to Reibl and informed consent.


13.1.2 White v. Turner (1981) text p.566
REASONING:
    The law of battery is to be used not longer in cases involving adequacy of
       information and risks.
    The future use of battery will be limited to cases in which there was a real lack of
       consent.



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      The matter of disclosure of risks by a doctor may be viewed as not entirely unlike
       the manufacturers duty to warn customers of dangerous products.
      Endorses the qualified objective test for informed consent.
      Certain normal risks are assumed knowledge of everyone (cut, scar, bleeding,
       infection)
      There must be a qualified objective cause-in-fact relationship between the
       plaintiffs unwillingness to go forward and the unknown risks.


13.1.3 Hollis v. Dow Corning (1995) SCC text p.574
 leading Canadian case
FACTS:
     A woman is given a silicone breast implant and shortly thereafter it leaks.
     She is subject to 7 years of surgeries, lasting scars, lost work, suffering.
     Dow never warned the doctor of the risks.
     The doctor never warned the patient of risks.
     There is no negligence on behalf of Dow for manufacturing
     There is no negligence on behalf of the doctor for the surgery
     The problem is that even with everything done correctly there was a risk.
ISSUE: Can a patient hold a manufacturer liable for injuries when the manufacturer has
failed to give adequate warning to the patient or the doctor?
DECISION: Yes, they manufacturer is liable.
REASONING:
     Introduces the concept of ―learned intermediary‖. That is a person, who can be
        warned instead of the end user, when the product will be used in conjunction with
        the learned intermediary.
     A manufacturer must inform the consumer of material risks subject to the
        limitation of learned intermediary.
     In short, in some cases warning an intermediary will limit the liability of the
        manufacturer as it is the duty of the intermediary to warn the end user.
     The learned intermediary must be someone who will facilitate the use of the
        product under their supervision and they are learned.
     There is most certainly a duty of the manufacturer to warn either the end user or
        an intermediary if that is an option. Dow did neither.
     Would she have consented anyway?
            o In Reibl the patients consent was based on the qualified objective, the
                SCC decides here that it should be based on the subjective standard.
            o This pushes further towards autonomy of individuals. If the information is
                not provided the company should be held laible.
            o The qualified objective test is used to decide if the plaintiff, given all the
                information, would have proceeded or not. It is found that she would not
                have proceeded.
     Would the doctor have told her?
     Dow argues that even if they had told the doctor he would not have told the
        patient and the patient must prove causation.

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      The majority holds that this is not true, Dow deprived the plaintiff of ever getting
       the proper information and that is enough. Otherwise the patient is put
Sopinka (in dissent)
    The qualified objective tests protects doctors from the 20/20 vision of post
       operative subjectivity. All patients harmed will say they wouldn‘t consent after
       the fact. So an objective test is necessary.
    Under Snell we have to show increased likelihood.
IMPLICATIONS:
    Recall Contracts, that we are very optimistic people. When using an objective
       test we will be quite inclined to believe things will work out when we are in the
       situation, and inclined to believe we are better when asked to evaluate a situation
       later. We need to consider this closely.
    A consideration: asking the court to pronounce on issues of objective/subjectivity
       such as this without knowing the facts of the case, but rather based on the
       information available to the plaintiff.
    A better argument by the court (Hutches response to Sopinka):
           o Manufacturers must pass information to the end consumer
           o As an exception you can use a learned intermediary. However, if you
               know the intermediary is not passing the information on to the consumer
               then that is no excuse, it simply means you can‘t rely on the intermediary.
           o In short, by going with an intermediary the manufacturer takes the risk.
           o The primary duty is to the end user.




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14. Nonfeasance and Misfeasance

Nonfeasance  the failure to act
Misfeasance  an error in action

The basic duty however, is that you do no have a duty to rescue someone.

14.1 Historically
Donoghue v. Stevenson:
―you must take reasonable care act or omissions that you can reasonably foresee will
injure your neighbor‖
                                                    - Lord Atkin

Why do we seem to have general rule that says there is no obligation to act? According
to Atkin there is a duty so why is there no duty to rescue?
The text argues that we are all strongly individualistic and autonomous position. This is a
hugely political ideological debate. Yet tort law is often willing to take a more social
view so why are we so conservative here.

Is there anything reasonably wrong with having ―easy rescue‖ be a part of the law? For
example calling for help, throwing someone a life vest.

In general we tend to identify with the rescuer instead of the rescuee.
The difference in many instances seems to be that in manufacturing one creates the
situation (misfeasance). In misfeasance cases

An omission can be either nonfeasance or misfeasance. Omissions will only be legally
culpable if the omission is not part of an ongoing relationship and creates nonfeasance.
        Example:
                Failure to brake in a car  misfeasance as we are already under a duty to
                drive with everything that goes with it.
                Failure to rescue a drowning person  nonfeasance as there was no
                existing duty.
We will discover that it is difficult to determine the line between misfeasance and
nonfeasance. If we whittle away at nonfeasance too far there will be no safe haven for
the standard arguments of non-action and in fact we may actually impeach on individual
freedom.
                                                                                    Neg. Risk

     Misfeasance                                          Nonfeasance
                                                                                   Assumed R.

                               Omissions
                                                                                   Spec. Rel.




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14.1.1 Union Pacific v. Capier (1903) text p. 587
 historically no duty to rescue
FACTS:
    A train runs over a boy and he arm and leg are cut off.
    They did cause the accident but were not negligent, therefore there is no liability.
ISSUE: Having caused it did they then incur a duty?
DECISION: The railway owes no duty.
REASONING:
    There was no existing duty to the boy.
    Without negligence there can be no imposition of a further duty.
IMPLICATIONS:
    Today this would likely be much different. The boy was on the land of the
       railway and occupiers of land owe duties to those on their land today. However,
       the general duty remains. Not duty to save a person.
    General Argument: If I am not the creator of the harm than No causal connection
       thus
    I can stand by and do nothing and not be liable.


14.2 Three Exceptions
There are three basic exceptions to the rule of non-recovery.
   1. If you Create the Risk due to negligence you have a duty to rescue (Oke)
   2. Assumed responsibility; once you big to rescue you must continue reasonably
   3. Special Relationship; between the rescuer and the rescuee which then introduces a
       duty to rescue (ie. Parent-Child). The key question is what constitutes a special
       relationship (Goldman).

In these questions we also get the question whether a rescuer owes a duty. They do, but
the level of this duty will be very low as we want to encourage rescue.

14.2.1 Oke v. Weide Transport (1963) text p. 599
 creation of peril, but a duty to rescue before someone exists
 there is no negligent creation of the risk
FACTS:
    Truck driver non-negligently hits a sign.
    He stops and removes the debris.
    A post sticks out of the ground by about 2 feet.
    He does not report this.
    Another car later drives off the road and hits the post and is impaled.
ISSUE: Is he supposed to take steps to rescue before a
DECISION: This was no foreseeable so no duty and no liability. No negligence
involved in the creation of risk.
REASONING:
    They decide this largely based on the non-negligence of the driver.
    However this could be argued differently in saying that he was negligent in no
       doing something.
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    The court argues that he was not negligent in not doing anything.
    To conceptualize this case within the existing rules is difficult.
    The risk was not increased by a negligent act, so it fails to fall under the
     exceptions as defined.
IMPLICATIONS: The three exceptions do not seem to be addressing the real problem.


14.2.2 Horsley v. MacLaren (1971) SCC text p. 602
 example of a special relationship
 the more we extend the idea of this the more we cut down nonfeasance
FACTS:
    A boat owner has some guests on his boat our drinking in May.
    A guest falls overboard and McLaren attempts to effect a rescuer.
    Horsley is so frustrated by McLarens attempts that he decides to dive in.
    Horsley is recovered from the water but is dead.
    Mathews, the guests the fell over, is never recovered.
ISSUE: Can either Mathews or Horsley proceed with an action?
DECISION: There is a duty owed by McLaren. However he did not breach that duty.
REASONING:
Majority:
    It was a reasonable rescue attempt of Matthews so no duty to Mathews (who fell
       in).
    Moreover, because he was not negligent, he was not negligent in creating the risk
       that caused Horsley to dive in the water. So no duty to Horsley.
Minority:
    There was a breach of the rescue. It was a badly performed rescue. However
       Mathews can‘t recover because even if McLaren had performed a reasonable
       rescue it would have taken too long and Mathews would have been dead (like
       Barnette).
    However, there would be liability to Horsley as he was negligent and created a
       further situation of peril which causes
IMPLICATIONS:
    If there is a special relationship then one must act and there is a duty, and the duty
       must be performed reasonably.
    If the duty is not performed reasonably you may be responsible to others.


14.2.3 Hargrave v. Goldman, Aust HC, 1967
 Illustrates Special Relationship
Owner of a farm had a duty to take reasonable steps to stop a fire started by lightning
from spreading to neighbour‘s property b/c a) it is fair and efficient to impose such a
duty; b) not an indeterminate class. Standard by which to judge is Subjective. Lower
than usual Standard of Care, flags the difference between causing a harm by acting negl
and failing to stop the spread of a harm you did not cause.



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14.2.4 Crocker v. Sundance Northwest Resorts (1988) SCC text p. 603
FACTS:
     There is a tubing competition at a ski resort.
     All competitors had to sign a disclaimer saying that Sundance is not responsible.
     However he claims that he didn‘t know it was a disclaimer
     Crocker is drinking before and during the competition by himself and the ski
        resort.
     He wins in the first round.
     In the second round someone suggests he is too drunk but he says no he‘s fine.
ISSUE: Is this misfeasance? Nonfeasance?
DECISION: The resort owed a duty of care that it breached.
REASONING:
     The court sees this as nonfeasance but with a duty that they breached.
     As part of this duty they were responsible to prevent him from tubing.
     They are implying a positive action on the management.
     Crocker may have been getting angry but there were many things they could have
        done to restrain him from tubing (ie. not retrieving his tube when it slid away on
        him).
     Note that this involves a commercial enterprise that was making money off this
        endeavor.
     This seems to have a significant implication, and Wilson can be seen to be
        imposing a serious duty on commercial enterprises.
IMPLICATIONS:
Consider Jordan House v. Menow p. 344, under Duty of Care: Menow was drinking at
JH‘s tavern, got drunk, was thrown out, got hit by a car on wayb home. Tavern found
negligent, owed Menow a duty of care to get home safe if throwing him out. The same
really applies here.


14.2.5 Childs v. Desmoreaux
 an odd decision in light of the developing law regarding drinking for commercial
establishements
 Hutch sees perhaps the decision as acceptable, but the reasoning is just terrible; he
would have found the Desmoreaux‘s liable clearly.
FACTS:
     Desmoreaux holds a party and a guest brings some beer and gets drunk.
     The guest has a history of drinking and driving.
     The guest drives home after, in passing is asked is ok, hits a 3rd party Zoe Childs.
     The insurance of the parties is exhausted.
DECISION: No recovery; No Duty
REASONING:
     The SCC relies on the Anns Test.
     They fail it on the first branch, foreseeability.
     This seems to make the concept of foreseeability worthless.


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      It would be much more likely to say that the standard of care was not breached, or
       that there was some policy reasons.
      Childs also has an immense amount to do with insurance.


14.2.6 Dupuis v. Flatley
An example that looks at all 3 exceptions.
FACTS:
A cattle trader is at a house to inspect some cattle that are going in for trade.
The barn is to dark so he asks to stay the night.
The owners decline.
They invite him in for dinner.
DECISION: Sent back for a new trial.
REASONING:
      We have to decide if this is misfeasance or non-feasance.
      There is an aspect to this of misfeasance; consider if he had been hurt by a rusty
         nail in barn. He is on their property as an occupier.
      However, the fact that they didn‘t let him stay is nonfeasance.
      Is there really a duty to accommodate guests in that realm.
      However, though it starts in nonfeasance
Negligence Creation of Risk
      The food has made him sick (shades of Donoghue)
      Responsible for putting him on the horse.
Assumed Responsibility
      When he becomes clearly sick can they just leave him, can they set him on his
         horse and send him off. A duty arises, did they meet this duty.
      If they could have put him up without any major inconvenience should they have?
Special Relationship
      They have a business relationship, and later he is an invited guest (as per
         Horsley).
IMPLICATIONS:
Note that these tests are based on values, there has been a shift in those values since
Dupuis.
We could also compare this to Childs; in that case there was no duty but in this case there
is a clear relationship.
Further we can imagine if a passerby had seen the poor man on his horse and asked him if
he was ok. Assume he responds ―yeah I‘m fine‖ but in that way that implies he is not.
Look at Oke; we are very hesitant to impose liability on strangers and passers-by.


14.3 Public and Private Responsibility
If one of the reasons we impose liability on commercial enterprises is because they are
making a profit. If a manufacturer goes out of business due to tort liability it‘s not a
major problem. Tort law is working if it makes unsafe manufacturers go out of business.



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Imposing a liability on a public body/municipality can be seen differently. Their goal is
to make things, esoterically, safer. If we impose liability on them they may cease to
perform their duties.

There is also a difference between the exercise of public and private power.
Manufacturers are not obligated to live up to the same levels of review, if any, that public
bodies must live up to. We can go after public bodies much more readily through the
process of judicial review (public law). Though it is questionable if these review
processes are accessible (as per Jane Doe).


14.3.1 Just v. B.C.
FACTS:
    A father and his daughter are driving up to Whistler.
    While on the small road a large bolder lands on their car.
    The daughter is killed.
    There is a rock inspection team, and the area was known to be a problem area.
DECISION: No liability.
REASON:
Cory
    Generally uses a modified Anns test.
    Proximity - Yes
    Reasonable Foreseeable – Yes
    There is an assumption of duty, however this can be negated by two sources.
           1. Legislation
               o In looking to this we are looking for an exception of civil liability.
               o They cannot find an exception in the legislation.
           2. Policy
               o Have policies been enacted that vary the level of duty owed.
               o A major consideration here is the availability of resources.
               o If the government can show that they made a policy decision to limit
                  the resources they will not be held liable in Tort law. They can be
                  reviewed under Judicial Review.
               o The question is what counts a Policy decision. This is very vague.
    The problem with not holding them liable is that any municipality could say,
       through legislation or policy, that they have no duty to do anything. Therefore
       anything they do is seen as beyond the call of duty and they can‘t be held liable.
    Cory finds that there is a duty but it is bound by Policy.
    Any duty will be analyzed in terms of the resources available; thereby allowing
       public bodies to plead lack of resources.


14.3.2 Jane Doe v. Police
FACTS:
    A serial rapist is on the loose in Toronto.
    He is narrowly focused to a specific area and to specific targets.

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    The police know about these factors but do not alert the public in that area.
    The police decide that they do not want to give out this information because it
     would impact their ability to catch the criminal.
   Jane Doe finds there are very few ways to get at and ask for reform from the
     police force, as a last resort she brings a Tort action to try an effect change.
DECISION: The police owe not general duty of care for negligent investigation.
REASONING:
   There was evidence that the police could have done something. They could have
     distributed flyers to the likely victims, they could have added patrols.
   There is the possibility of seeing an omission. The question is whether this is
     misfeasance or nonfeasance.


14.4 Vicarious Liability
    Employers are strictly liable/responsible for the Torts of their employees,
       provided that
               1. The torts occur in the course of employment.
               2. The person is actually an employment.
    Though this is normally as a result of negligence on the part of the employee, then
       by direct reference the employer will be liable without any negligence on behalf
       of the employer.
    One way employers try to get around this is by having ―independent contractors‖.
    If you have control over the way someone performs their job then you will be
       responsible.
    Classically this is argued that a Chauffeur is under control, a Taxi driver is not;
       though this is a crude argument.
    If you are paying someone to do work is not enough.
    For the purposes of an exam we can assume vicarious liability.




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