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1. THE BIG PICTURE: CONCEPTUAL MATRIX OF NEGLIGENCE Six core requirements: 1. duty of care owed from Δ to π 2. a negligent act by the Δ 3. damage to the π 4. causal link between Δ‟s act and π‟s harm 5. damage must not be too remote from Δ‟s actions 6. no other defence exists 1. Is there a duty of care owed from Δ to π? - is there a recognized duty existing? - do we extend the law to recognize a duty of care? (using Anns/Cooper) - what are the limits/qualifications of the duty? 2. In this particular case, has Δ breached the duty through a negligent act? - has Δ falled below the acceptable standard of conduct? - „breach of duty question‟ or „standard of care question‟ - „reasonable person test‟: conduct of reasonable person in the circumstances - higher standard for professionals: „reasonable cardiologist test‟ - lower standard for children, mental defectives 3. Did the π incur injury or damage? - personal injury - property damage - pure economic loss 4. Is there a causal link between Δ‟s breach and the harm to π? - „cause in fact‟ question - „but for test‟ or „material contribution test‟ - facts and evidence are important, and sometimes policy factors in hard cases 4. Is the π‟s damage too remote from the Δ‟s act, so it would be unfair to impose liability on Δ? - „legal cause‟ - generally this only comes up in cases with bizarre combinations of events - factors: reasonable foreseeability of harm; degree of potential harm; illegality; ease of avoidance - ie Wagon Mound: leaking oil gets under wharf, sparks from welding cause fire 5. Does the Δ have a defence? a. contributory negligence (lowers Δ liability if π contributed to his harm) b. voluntary assumption of risk c. illegality 2. HISTORICAL DEVELOPMENT - trespass vs case  direct vs indirect  intent vs negligence (fault NB) - fault becomes most important factor in liability in industrial revolution, to protect manufacturers/industries from undue liability from employees or customers - BUT we‟re still stuck with direct/indirect: if a negligent action causes harm directly, can sue in trespass - also, we have strict liability for some things like defamation, nuisance 19thC: fault was a limiting device, displacing strict liability in trespass actions 20thC: fault becomes a device for expansion of liability - Donoghue v Stevenson (1932) Lord Atkin‟s neighbour principle 3. DUTY OF CARE DEVELOPMENT: 1. Lord Atkin‟s Neighbour Test (Donoghue v Stevenson) - must take reasonable care to avoid acts or omissions which can reasonably be foreseen as likely to injure one‟s neighbour - Lord Macmillan: gives „reasonable man test,‟ says „the categories of negligence are never closed‟ 2. Presumption of proximity / neighbour: assumed duty (Home Office) - Lord Reid: we assume a duty and only deny or limit it for policy reasons 3. Anns Test to determine a duty (Lord Wilberforce) (Anns v Burrough of Merton) 1. was there proximity between the parties? - test: was the harm reasonably foreseeable? 2. are there policy reasons to deny or limit the scope of duty, or persons to whom duty is owed? - legislative duties - compensation - public safety - economic efficiency / loss absorption / insurance availability and efficiency - deterrence - floodgates / indeterminacy 4. Cooper v Hobart refinement of Anns Test (Cooper v Hobart) 1. (a) proximity: reasonable foreseeability (b) relational policy factors: reasonable expectations, representations made, reliance, property or other legal interests 2. residual policy considerations: - impact of a duty on other areas of law, the legal system, and society at large - does law provide another remedy? - floodgates? CASES: Hedley Byrne v Heller (HL 1964) - Facts: π relied upon Δ‟s financial statement, entered into k with 3rd party, lost mega bucks - held: for Δ (disclaimer) - DUTY: from professional advice givers to those who rely upon them, for negligent misrepresentations Home Office v Dorset Yacht Co. (HL 1970) - facts: juvinile delinquints at camp escape after guards asleep early; boys take boat, crash it, cause damage - held: for Δ - DUTY: public authorities have duty for operational negligence Anns v Burrough of Merton (HL 1978) - facts: Δ didn‟t follow own building inspection bylaws, future owners had problems that should have been caught - held: for π - DUTY: public authorities have duty for operational negligence Kamloops v Neilson - facts: city council allows a substandard housing development to proceed, causing property damage and financial loss to future owners - held: for π - DUTY: public authorities have duty for operational negligence; failure to execute statutory powers to protect public welfare; bad faith Cooper v Hobart (SCC 2002) - facts: registrar revoked licence of crooked mortgage company; shareholders say not soon enough, caused financial loss - held: for Δ: no duty from registrar to π‟s 1a. yes, reasonably foreseeable 1b. relational policy: registrar has duty to public, not individual investors 2. residual policy: this was a policy decision, not operational; registrar is quasi-judicial and you can‟t tort the courts DUTY OF CARE DUTIES OF AFFIRMATIVE ACTION: LIABILITY FOR FAILURE TO ACT (NONFEASANCE) GENERAL RULE: no liability for nonfeasance - moral obligation ≠ legal obligation - rugged individualism of the common law TRADITIONAL EXCEPTIONS: 1. fiduciary duty 2. contracts – party liable if they breach by failure to complete 3. ferriers, innkeepers, goods/person carriers in olde england 4. bailees (if fail to discharge responsibility to mind land/goods of others) 5. landowners: statutory obligations to mind roads, bridges, etc in olde england MODERN EXCEPTIONS: 1. commercial hosts and other relationships of economic benefit 2. social hosts (parties, employers allowing booze) 3. relations of control/supervision: parent-child, teacher-student, prison-inmate, hospital-patient 4. creation of danger 5. reliance relationships 6. statutory duties and administrative duties to protect NO DUTY TO RESCUE (Horsley v Maclaren “The Ogopogo”) - no duty to protect/assist another where that person is a stranger - captain has affirmative duty to rescue passengers USA: no duty to rescue - Osterland v Hill: had a smoke on the dock while a drunk person he‟d just rented a canoe to drowned shouting for help Civil Systems: affirmative duty to assist if it won‟t cause danger to self or others - criminal and/or civil liability for failure to assist - Quebec Charter of Rights and Freedoms: a right to be assisted, with a corollary duty to assist BC Good Samaritan Act - no obligation to rescue, but if you do go to aid, you‟re only liable if grossly negligent Benefits of having a general affirmative duty to rescue: - intevention of Δ may be the only help available - failure to intervene may cut off access to other sources of help (ie you don‟t call 911) - no huge limit on personal autonomy: only duty if no danger to self - community obligations, civic duty, sense of community, civic virtue, etc Drawbacks of having a general affirmative duty to rescue: - administrative problems: which is liable in a crowd of bystanders? What counts as an emergency? Causation? - against individual autonomy: rugged individualism of liberalism - what if assistance is really unwanted interference? Unwanted by „victim‟, police, etc - people freeze up in emergencies: not their fault! How can they be held liable? - modern dangers: fraud, lured into fake emergency, disease, etc DUTY OF CARE DUTIES OF AFFIRMATIVE ACTION: LIABILITY FOR FAILURE TO ACT (NONFEASANCE) EXCEPTION #1: COMMERCIAL HOST / RELATIONSHIP OF ECONOMIC BENEFIT RULE: affirmative duty of commerical hosts to drunk patrons, people they drive, and 3rd party road users (Stewart v Pettie) - this goes for visibly and constructively drunk patrons TEST: if host gets patron drunk, is it reasonably foreseeable that he‟ll be a danger to himself and others? (Stewart v Pettie) INDICATORS: - host has some degree of physical or supervisory control - relationship of financial benefit, invitor-invitee, bar operator-patron (Jordan House) - inherently dangerous activity (Crocker v Sundance) - host is aware of the patron‟s drinking problem (Jordan House) NO DUTY if the bar discharges the patron into the care of sober friends CASES: Jordan House v Menow and Honsberger (SCC 1976) - facts: staff got known alcoholic drunk, kicked him out, he was hit by a negligent driver as he was walking down the highway - held: for π - DUTY: arises from relationship of invitor-invitee, specifically bar operator-patron; also statutory duty not to serve drunks - breach: there were other ways to safely deal with situation; fell below the statutory standard of care Crocker v Sundance Resorts (SCC) - facts: drunk participant in tube-race severely injured - held: for π - DUTY: from relationship of economic benefit, host/guest, and inherently dangerous activity Stewart v Pettie (1995) - facts: 2 couples drive to dinner theatre, hubby1 drunk but not visible; drives home and crashes - held for Δ restaurant (Major J) - DUTY: affirmative duty of commerical hosts to drunk patrons, people they drive, and 3rd party road users - no breach: driver discharged into care of sober friends - no causal link: even if owner had urged him not to drive, no evidence that he would have let wife drive anyway DUTY OF CARE DUTIES OF AFFIRMATIVE ACTION: LIABILITY FOR FAILURE TO ACT (NONFEASANCE) EXCEPTION #2: SOCIAL HOST TRADITIONAL RULE: no duty - no economic benefit, not same control or expertise as commercial host, detrimental to social relations Link to Commercial Host: Adjin-Tettie - on reasonably foreseeable principle, no reason to distinguish between commercial and social host for duty - policy reasons favour duty: public safety, social responsibility, deterrence DUTY EXISTS: - if the host has assumed the duty on previous occasions (Prevost v Vetter) (remember, this was sent to re-trial) - if host supplies the booze and encourages drinking (Jacobsen v Nike) NO DUTY: - if the guests are uninvited, bring own alcohol (Baumaster v Drake) - drunk guests leave with sober guests, and later drive (Wince v Ball) - employer fails to stop a non-visibly drunk employee from driving out of work hours (John v Flynn) CASES: Baumaster v Drake (BCSC 1986) - facts: party crashers bring own booze, then leave drunk, host warns not to drink, but kids do anyway - held: for Δ - no duty: party crashers, not invited guests; recognizes difficulty for social host to control party Wince v Ball (AQB 1996) - facts: teen held party at parent's home, sober guest drives drunken guest to his car, drunk guest drives away, gets in an accident - held: for Δ - no duty: not reasonably foreseeable that Δ would drive and cause harm, because left house with sober driver Prevost v Vetter - facts: teen held party at parent‟s home, mom usually checks for drunk drivers, but not this time, drunk driver causes accident - held: for Δ - duty: mom had exercised duty on previous occasions, so assumed duty, and accident was reasonably foreseeable - breach: mom breached duty by failure to act on this occasion - causation: accident would not have occurred „but for‟ mom‟s failure to act - note: on appeal, sent to re-trial BUT didn‟t rule out possibility of a general duty for social hosts to take care Flynn v Boyle (aka John v Flynn) - facts: employee drunk at work but not visibly; left work, went home, went back out, had accident - employee was part of company program for alcoholics, which employer failed to enforce properly - held: for Δ - duty: employer‟s duty is for workplace safety, not for things happening off the job - causation: employee went home first, snapping the chain of causation - policy: don‟t want to hold Δ liable because of program, because don‟t want to discourage positive programs Jacobsen v Nike - facts: Nike provided booze for workers on the job, nobody stopped young hosed guy from driving - held: for π - duty: social host duty of care because supplied the booze and encouraged drinking - breach: employer didn‟t take care - causation: accident wouldn‟t have occurred but for employer‟s breach of duty of care DUTY OF CARE DUTIES OF AFFIRMATIVE ACTION: LIABILITY FOR FAILURE TO ACT (NONFEASANCE) EXCEPTION #3: RELATIONSHIPS OF CONTROL / SUPERVISION RULE: duty to those in your control in certain pre-existing relationships, and to 3rd parties harmed by your charge - parent-child, in loco parentis-child, teacher-student, prison-inmate, hospital-patient - factors: control, special responsibilities, reliance, dependence, power to control/protect/give assistance DUTY: - duty of parent to take care and protect kids, particularly in dangerous situations (LaPlante) - duty of in loco parentis to care and protect kids (Galaske) - duty of driver to ensure passengers are wearing seatbelt, particularly children, even if the parent is in the car (Galaske) - duty of prison officials to see that inmates do not imperil other inmates or members of the public (Clement) - duty of captain to rescue passenger, regardless of fault, as long as it won‟t put self or others at risk (Ogopogo) - duty of captain to rescue ultimate rescuers, regardless of whether you imperiled the party they are rescuing (Ogopogo) CASES: LaPlante v LaPlante (BCCA) - relationship: Parent – Child - facts: dad allows 16yr old retarded son to drive in dangerous icy conditions, accident kills 2 of his other kids in the car - held: for π - duty: duty of parent to take care and protect kids, especially in dangerous situations Galaske v Stauffer - relationship: in loco parentis – child, and driver – passenger - facts: driver has friend and friend‟s child in car, and kid isn‟t wearing seatbelt, is seriously injured in accident - held: for π - duty: duty of driver to ensure passengers are wearing seatbelt, particularly children, even if parent is in the car - policy: we want drivers to ensure passengers in their vehicles are safe S et al. v Clement et al. - relationship: prison authorities – inmates - facts: aggravated sex offender escapes, prison doesn‟t exercise discretionary power to call police, local woman assaulted - duty: duty from prison officials to see that inmates do not imperil other inmates or members of the public - breach and causation: if had warned police faster, could have prevented the attack - distinction made between policy and operational decisions, like in Home Office Horsley v McLaren “The Ogopogo” (SCC 1972) - emergency situation PLUS pre-existing relationship: skipper – passenger - facts: man overboard, captain uses wrong rescue procedure, 2 more rescuers go in; first 2 die of heart attacks on contact - existing duties: - no duty to assist unless you caused the harm - duty to a rescuer if you have imperiled the party they are trying to rescue - issue: can the recognized duty to rescue man overboard extend to this circumstance, where the 2nd rescuer gets involved because of the negligent rescuing of the Δ, even if Δ didn‟t imperil him? - held for Δ - DUTY: owner/master of pleasure craft owes a duty to rescue a passenger who falls overboard, regardless of whose fault it was or even if purely accidental, as long as can effect a rescue without injuring or putting self or others at risk - duty extends to an ultimate rescuer - reinforced by Canada Shipping Act: statutory obligation of captain to go to assistance of anyone found in the water - no breach: the bow-on rescue is a standard of expert perfection, not to be expected of ordinary mariner DUTY OF CARE DUTIES OF AFFIRMATIVE ACTION: LIABILITY FOR FAILURE TO ACT (NONFEASANCE) EXCEPTION #4: CREATION OF DANGER RULE: where one causes or creates a dangerous situation or injury, whether by negligence or purely by accident - duty to see the source of danger is remedied - duty to assist someone you‟ve caused harm to Oke v Weide Transport - facts: driver accidently bends traffic sign, clears debris, but doesn‟t report it - π, going other way, passes a car on the gravel shoulder, π hits bent traffic sign, and it spears thru car and spears and kills him - held: for Δ - no duty: not reasonably foreseeable that someone would do what π did and get harmed - dissent: duty of affirmative action because Δ created the danger, even if there was no negligence - this is only a dissent, but combined with the statutory duties in the Motor Vehicle Act, may combine in future as duty STATUTORY DUTIES: Motor Vehicle Act - statutory duty to stop, give contact information, and assist if involved in any way in an accident - this gives weight to a CL duty of care and liability - Jordan House, MacLaren, O’Rourke, Jane Doe, Oke: all CL duties arise from statutory duties Good Samaritan Act - bystanders have no duty to rescue, but if they do they are protected unless they are grossly negligent - about emergency medical services/aid rendered immediately at scene of emergency - doesn‟t apply to persons paid as a job to give assistance (ie paramedic) - doesn‟t apply to a doctor „with a view to gain‟ - medical pros are covered by this act when they are off duty, but have a different standard of „gross negligence‟ - unknown application to a party involved/causing harm: may not be able to opt not to assist DUTY OF CARE DUTIES OF AFFIRMATIVE ACTION: LIABILITY FOR FAILURE TO ACT (NONFEASANCE) EXCEPTION #5: RELIANCE RELATIONSHIPS RULE: duty if: - a party voluntarily undertakes action or creates a pattern of practice on which the other relies - a party stops others from assisting SITUATIONS: 1. Δ takes responsibility for what happened and π relies upon Δ to do it properly Zelenko v Gimbel Bros. - facts: woman collapses in store, employees do initial first aid, put her in back room for 6 hours - held: for π - DUTY: Δ undertook to help, and prevented other sources of help - therefore, Δ created a reliance relationship and assumed a duty 2. as a 3rd party, Δ voluntarily engages in a course of conduct and others rely upon Δ R v Nord-Deutsche (SCC 1971) - facts: government voluntarily operates navigation lights; negligently maintained; ships collide - held: for π - DUTY: by voluntarily undertaking navigation tasks, govt created a situation where mariners relied upon the lights - therefore, Δ created a reliance relationship and assumed a duty Mercer v. S.E. Railway - facts: railway always voluntarily locked wicket gate, but didn‟t on one occasion, π injured by a passing train - held: for π - DUTY: by voluntarily undertaking to always close the gate, railway created a situation where people relied upon gate - therefore, Δ created a reliance relationship and assumed a duty DUTY OF CARE DUTIES OF AFFIRMATIVE ACTION: LIABILITY FOR FAILURE TO ACT (NONFEASANCE) EXCEPTION #6: STATUTORY AND ADMINISTRATIVE DUTIES SITUATION: Δ has a legislative or administrative obligation to protect or go to the assistance of another - can provide the inspiration for a common law duty of care - some statutes have series of prescriptive provisions with fine penalty - some statutes create civil liability where it did not exist before - sone statutes detail the circumstances where civil liability applies DUTIES: - police duty to protect motorists (O‟Rourke) - police duty to protect public (O‟Rourke, Jane Doe) - police duty to either inform potential victims or to take steps to ensure potential victims are safe (Jane Doe) CASES: O’Rourke v Schacht (1973 OCA) - facts: police attend crash through barrier into excavation, don‟t replace barrier, π goes into the excavation - held: for π (police 50% liable) - DUTY: - police have statutory duty under Ontario Police Act and highways legislation to protect motorists - CL duty to protect public also exists by virtue of being a peace officer Jane Doe v Toronto Police (1998 OCA) - facts: police didn‟t warn targets of serial rapist: feared women would be hysterical, scare him, and thwart efforts to catch him - held: for π - discrimination between women and men under s.15 - violation of s. 7 right to security of the person - DUTY: - Police have duty to either inform potential victims or to take steps to ensure potential victims are safe - draws on O’Rourke to find police duty - Police Act: duty to protect public peace and order translates into CL duty - CL duty also by virtue of being a peace officer 4. IMMUNITY FROM NEGLIGENCE: MOTHERS AND THE UNBORN ISSUE: can there be a duty owed to a pregnant woman? TRADITIONAL RULE: no duty to pregnant woman, because not a reasonably foreseeable plaintiff Bourhill v Young (1943 HL) - facts: pregnant woman witnesses negligent motorcycle accident, suffers miscarriage and nervous shock - held: for Δ - NO DUTY: a pregnant woman in public place isn‟t a reasonably foreseeable plaintiff ISSUE: can there be a duty owed to a fetus? ACTION: a born-alive fetus can bring an action for damages sustained through negligence when it was a fetus Montreal Tramways v Leveille (1933 SCC) - facts: kid born with injuries inflicted to fetus because of negligence of Montreal Tramways - DUTY: in the Quebec Civil Code, a fetus is a reasonably foreseeable plaintiff, and duty is owed Duval v Seguin (1970s) - common law recognizes fetus rights to sue in negligence - child allowed action for injuries inflicted while a fetus ISSUE: does a pregnant mother-to-be owe a duty to the fetus? RULE: no, on policy factors: undue state interference with women‟s autonomy Winnipeg Child and Family Services v G (1997 SCC) - facts: WCFS wants pregnant woman in their care; she was a glue sniffer with 2 seriously disabled kids from it already - held: no action - policy: to put a pregnant woman in the care of the state would be an unacceptable intrusion on her autonomy - dissent: Major and Sopinka JJ would give fetus some rights Dobson v Dobson (1999 SCC) - issue: should there be a duty from mom to fetus, later born alive, with injuries sustained through negligence when they were a fetus - facts: mom‟s negligent driving causes injury to fetus - held: no action (Cory J) - NO DUTY: Anns Test: - proximity: yes - mom and fetus are not „one‟ but are definitly proximate - policy: - privacy and autonomy rights for women: special relationship between mom and fetus, mom would be scrutinized - impossible judicial standard for pregnant women: cannot divide „pregnancy functions‟ from „lifestyle functions‟ - hard to apply objective standards with different circumstances, like alcoholism, work, etc - psychological and family ramifications - this is a matter for legislation because so complex: doesn‟t follow uk or australia courts in creating the law here - dissent: Major J - proximity: yes - this is about rights of the born child, not the fetus, so clearly different person from mother - policy: - general duty owed to all persons not to drive negligently - therefore, this is different than WCFS because mom already has a duty - is there any reason to deny mom‟s duty applies to the child? - no logical difference between injuring fetus and injuring 2 day old baby 5. DETERMINING FAULT: STANDARD OF CARE UNREASONABLE RISK: π has burden to prove Δ took an unreasonable risk DEVELOPMENT: 1. Reasonably Foreseeable Risk Test (Bolton v Stone) - was risk of harm was great enough that a reasonable person would take precautions to prevent the danger - factors: degree of risk, seriousness of consequences, - burden of precautions is not a factor: if its too impractical to take remedial measures, shouldn‟t do activity at all Bolton v Stone - facts: woman beaned by cricket ball going over fence onto road - held: for : probability of risk was extremely small - RULE: Lord Reid gives the Reasonably Foreseeable Risk test 2. Judge Learned Hand Test: - probability x degree of damage < burden of precaution = liability - probability x degree of damage > burden of precaution ≠ liability Paris v Stepney Burrough Council (1951) - facts: one eyed metal worker not wearing goggles (industry custom), loses other eye when metal chip goes into it - held: for  - DUTY of employer to require and provide goggles for one-eyed workers - since he only had one eye, the degree of damage was so high that it created an unreasonable risk - RULE: Judge Learned Hand formula to calculate risk - problems with formula: - doesn‟t consider utility of conduct (ie what about stupid activities with high burden of precaution?) - not equitable justice - undermines deterrence – justifies high risk in some cases - all judges may not understand this complex economic cost-benefit analysis - Leslie Bender exerpt (p.167) critiques economic calculus approach - damage is abstracted from reality through efficiency and formulas and quantification 3. Modern Learned Hand Test: (Paris, modified in WagonMound #2) probability  seriousness of damage probability  seriousness of damage > burden of precautions  utility burden of precautions  utility = ≠ liability < liability Wagon Mound #2 (Australia – JCPC 1966) - facts: negligently spilled bunker oil causes an impossible fire, destroys wharf and boats - Wagonmound #1: wharf owner vs vessel: JCPC says chances of fire is too remote, so not reasonably foreseeable - held: for π - Learned Hand Test: - probability: scientific evidence said very low probability of this happening - seriousness of damage: potentially significant - burden: very easy to prevent this, by following proper oil handling procedures - NEW FACTOR: utility: no value to dumping oil in harbour; its probably illegal actually - DUTY: despite low probability, the other factors make this reasonably foreseeable enough for liability DETERMINING FAULT: STANDARD OF CARE EMERGENCY SITUATIONS SITUATION: emergency personelle, in doing their job, cause damage/injury to others ISSUE: does high utility outweigh high probability and high seriousness of potential damage? OLD RULE: emergency personelle were protected from liability in emergency situations CURRENT RULES: 1. question of negligence is central 2. evidence such as internal policy guidelines are used to assess negligence Moore v Fanning (1987) - facts: rogue driver stops on green, goes on red; police chase him through intersection and he kills bystanders - held: for Δ - no causation between police actions and harm - crucial that all procedures properly followed 3. courts can also assess the validity of the policy itself 4. Doern is rule for regular emergency situations: created an unreasonable risk, breached internal guidelines Doern v Phillips - car chase and crash; inadequate communication between officers and dispatcher; police lost sight but didn‟t disengage - held: for π (police 25% liable) - created an unreasonable risk: should have considered safer ways to continue the chase, or abandoning the chase - breach of internal guidelines by officers and dispatcher 5. Poupart is the rule for emergency situations involving use of force: (also from Priestman) 1. was the use of force justified under s.25(4)? 2. was the use of force negligent? Poupart v LaFortune (1973 SCC) - facts: bankrobber flees down hallway, cop shoots after him, hits an employee who wasn‟t with all the rest - held: for Δ - officer was justified in using force under s.25(4) - use of force was not negligent. It was an emergency, needed quick response, unlikely someone would be in hallway - RULE: this is now the standard 2 part test for “use of force in emergency” cases 1. was the use of force justified under Criminal Code s.25(4)? 2. was the use of force negligent? Priestman v Colamgelo (1959 SCC) - car chase, passenger officer fires out window at tires, bullet goes astray hits driver, driver crashes, killing bystanders - held: for Δ - Criminal Code s.25(4) Use of Force by Police Officers - was the use of force justified under s.25(4)? yes – couldn‟t stop car, headed for intersection - was officer negligent in use of firearms? This is irrelevant here - we must give up some personal security to allow police to work - dissent: police must use some degree of care, and balance crime-fighting with harm to citizens - s.25(4) is about relationship between police and suspect; can‟t be used to limit 3 rd party rights - issue is purely whether use of firearm was negligent: here, yes – was clear risk firing from moving cruiser - police should have considered option of disengaging the chase - overruled in obiter in Moore v Fanning DETERMINING FAULT: STANDARD OF CARE WHO IS THE REASONABLE PERSON?? - objective standard (Vaughan v Menlove) - source: objective bailee test (Cogs v Bernard) - “negligence is the omission to do something that an ordinary reasonable person would do in the circumstances, or doing something ordinary reasonable person wouldn‟t do” (Blyth v Birmingham Waterworks) - has minimum level of knowledge, experience, skill, intelligence - assumed to have basic knowledge of everyday risks - if we have particular knowledge based on our experiences, we‟ll be judged higher - ie doctors have medical knowledge - ie if I know my coffeemaker electrocutes people, I must mention this to my guests - ordinary person is not judged to have the knowledge/experience of pro‟s (ie first aid helper) - but, ordinary person must be reasonable about his own limits in knowledge and ability - assumed to be of normal temperament, not too timid or macho - Laidlaw J: ordinary prudence, not superman, not super stupid (p.178) - AP Herbert: reas person is devoid of all human weaknesses – standard of perfection - Bender: reasonable person has femine qualities: is careful, and takes care for others; has responsibilitiy, not just obligations - Donoghue v Stevenson: acknowledges caring for others - danger of reasonable woman standard: higher positive obligation to care for others? Lower than men in some cases? - sexual harassment in workplace – men must learn women‟s standard of acceptability - judges today are sensitive to female context, values, concerns: Scalera, Norberg, Dobson, Jane Doe - minority group arguments: - question the universality and sensitivity of standard - danger of fragmenting test along lines of identity Vaughan v Menlove (~1830, Common Pleas) - facts:  had a dangerous hayrick, neighbours warned him to beware fire, Δ said he‟d chance it, then it caught fire and spread - held: for π -  argued subjective individual standard applies, because he is stupid - court gives objective test: the reasonable person standard for negligence - a subjective test would mean there is no standard at all Blyth v Birmingham Waterworks Co. - facts: valve ruptures after 25 years, during a freakishly cold winter, causing π‟s house to flood - Δ installed fireplug valve according to best known system, and it worked fine for 25 years - valve is damaged - held: for  - severity of winter was beyond foreseeability of reasonable man - famous statement on the reasonable person standard: “negligence is the omission to do something that an ordinary reasonable person would do in the circumstances, or doing something ordinary reasonable person wouldn‟t do” DETERMINING FAULT: STANDARD OF CARE EXCEPTIONS TO THE REASONABLE PERSON STANDARD 1. CUSTOM - local standard of conduct for professions, trades, community - party seeking to rely on the custom must satisfy this test: TEST: (Waldick v Malcolm) 1. was there a custom? 2. did the Δ adhere to a customary standard of care? 3. is the customary standard of care itself too low, so as to be negligent? Waldick v Malcolm (1991 SCC) - facts:  falls on ‟s icy driveway,  alleged it was custom in the community not to salt driveways - held: for  - no evidence that it was custom not to salt driveways - even if it was the custom, it‟s a negligent standard 2. PHYSICAL DISABILITIES RULES: - duty of others to consider and ensure safety of persons with disabilities (Haley v LEB) - no liability for physical problems causing loss of control (Slattery v Haley) - involuntary and unconscious acts are exempt from liability (Slattery v Haley) - persons with disabilities must recognize their limitations and not take unreasonable risks (Chicken Palace) Haley v London Electricity Board -facts: blind man walking down street with cane, fell into excavation hole with a knee-height fence - held: for π - all people, regardless of ability, have right to access public spaces - duty of others to ensure safety of persons with disabilities (ie build a chest-height fence) Carroll v Chicken Palace (1955) - facts: 2 blind people come to restaurant, get special help from staff at first because of disability - when guests leave, they ask other guests but not staff don‟t ask for help, and one falls down a nearby flight of stairs - held: for  - persons with disabilities must recognize their limitations and not take unreasonable risks -  is author of own misfortune – should have asked for assistance - note: today, this would probably find for the plaintiff Slattery v Haley - facts: driver has an unanticipated heart attack, loses control of car, injures π - held: for Δ DETERMINING FAULT: STANDARD OF CARE EXCEPTIONS TO THE REASONABLE PERSON STANDARD 3. MENTAL DISABILITIES RULE: (Ontario: Buckley) No liability if the mental disability is of such a degree that the Δ cannot understand or appreciate the duty of care resting on him, or if the duty is appreciated but the Δ is prevented by delusions from carrying it out / observing it - no liability - maybe liability for mental problems causing loss of control (Slattery v Haley) ie. if Δ voluntarily stopped taking necessary medication TEST: Buckley 1. was Δ‟s mind sufficiently clouded/deranged that  couldn‟t appreciate that he had a duty of care? 2. even if he knew he had a duty, did his delusion prevented him from performing the duty? Buckley v Smith Tranport (Ont) - facts: Δ thought his car was being driven by remote control from the factory - held: for Δ - created test: see above Hutchings v Nevin (Ont) - facts: Δ thought he was on a mission from god - held: for Δ ALTERNATIVE: ALBERTA RULE: Even if the defendant cannot understand/appreciate or carry out their duty, the reasonable person test should still be applied, reflecting a concern to satisfy the compensatory objective which trumps concern for proving fault - if  can appreciate duty at outset of activity, its presumed to apply the whole way through (Wenden) Wenden v Trikha (Alta) - facts: Δ escaped from mental institution, suffering delusions, drives and injures other road users - held for  -  satisfied the Buckley test -  suffered greatly, needed compensation, torts is about  not  - why should  get nothing because  is mental? This is really an insurance case, anyway. - Δ should be assessed with the normal, reasonable driver standard – shouldn‟t drive if can‟t meet standard DETERMINING FAULT: STANDARD OF CARE EXCEPTIONS TO THE REASONABLE PERSON STANDARD 4. THE YOUNG GENERAL RULE: „objective‟ test of reasonable child of same age, knowledge, intelligence, experience (Heisler) TEST: McAllister v Etches (refined Heisler test) 1. can a child of this age possibly be negligent? - rules out kids under age 5-6-7 altogether 2. if #1 is yes, go to Heisler reasonable child of same age, knowledge, intelligence, experience test SUMMARY: 1. under age 7: not likely to face negligence liability 2. over age 7, involved in regular kid activity: reasonable child of same age, knowledge, intelligence, experience 3. over age 7, involved in adult activity (driving car, boat, plane): adult standard 4. as teens get older, standard gets closer and closer to adult standard INTERNATIONAL COMPARISON: - England and Australia: objective test of reasonable child of same age - problem: physical age doesn‟t always respresent kid‟s development FIREARMS and DANGEROUS SUBSTANCES: RULE: parent is liable if: 1) firearm is kept in an unlocked, unsecure place 2) Parent does not train child on how to use the gun 3) Child using gun, but parent doesn‟t give adequate supervision DETERMINING FAULT: STANDARD OF CARE EXCEPTIONS TO THE REASONABLE PERSON STANDARD 5. PROFESSIONAL NEGLIGENCE GENERAL RULE: - higher standard of care where a Δ possesses greater knowledge and skill than the norm, and her/his conduct is being evaluated in circumstances to which that knowledge and skill is relevant - how much higher the standard will be, depends on professional context, education, and training MEDICAL CONTEXT: Standards of care: - GPs: the reasonably competent, prudent, and diligent doctor (LaPointe, Ter Neuzen) - specialists: the reasonably competent, prudent, and diligent specialist in that field (Ter Neuzen: Ob/Gyn) - GP masquerading as a specialist: held to specialist standard (Bateman v Doiron) - interns: held to regular standard of reasonable doctor, but must realize own limitations (Challand, Miles v Judges) - maybe different for urban and rural (McCormick v Marcotte) Challand v Bell (1959) - facts: farm accident, π breaks arm, local GP cleans and sets it; Specialist later diagnosed gangrene and amputated forearm - held: for Δ - Δ met required standard of care: the reasonably the reasonably competent, prudent, and diligent doctor in the circumstances Ter Neuzen v. Korn - facts: π artificial inseminated, got HIV; Doctor did not screen donor, wasn‟t usual medical practice to do so - held: for Δ - Δ met required standard of care: prudent and diligent doctor – different standard for GPs and specialists SOCIAL WORKERS: RULE: negligent if bias obstructs a fair investigation B(D) v. Children’s Aid Society of Durham Region (1996 Ont) - facts: π cleared of sexual abuse charges brought by Δ, then sues them in negligence - held: for π - Δ failed to follow up with the children‟s doctor - Δ failed to interview DB early in the process - Δ failed to follow up with the police - Δ failed to consider the improbability of the allegations and motivation of the mother in the case - Δ failed to conduct a fair and balanced investigation, due to bias - Δ realized π was not guilty, but continued with trial because DB refused to waive his legal costs if they dropped case - lack of good faith in performance of statutory duties DETERMINING FAULT: STANDARD OF CARE EXCEPTIONS TO THE REASONABLE PERSON STANDARD 5. PROFESSIONAL NEGLIGENCE … cont’d LAWYERS: Standards of Care: - general: the reasonably competent, prudent, and diligent lawyer - may be higher „specialist‟ standards for lawyers who focus in one area of law - no lower standard for rookies: must realize own limitations, and seek advice or refer the matter to another lawyer - maybe different for urban and rural (Brenner v Gregory) - probably negligent if bias obstructs a fair investigation - Law Society requires lawyers to have Errors and Omissions Insurance - common types of negligence by lawyers: - missing limitations periods - drawing up documents incorrectly - causation is always an issue: would π have otherwise won? - England: sharp distinction between barrister and solicitor, with different negligence rules - barristers: can be negligent in the preparation of a case, but unclear about actual conduct of a trial Brenner v Gregory - facts: solicitor did not advise a survey on a land deal which had a boundary problem concerning overlap with municipality - Client was aware of problem, seemed prepared to deal with matter themselves - held: for Δ - TEST: reasonably competent and diligent solicitor - solicitors are only liable if they are grossly negligent (dodgy! Probably not good law) Central Trust v. Rafuse - TEST: reasonably prudent and competent lawyer - “must have sufficient knowledge of the fundamental rules or principles of law applicable to the particular work undertaken to enable him to perceive the need to ascertain the law on relevant points” - must “bring reasonable care, skill and knowledge to the performance of professional service which he has undertaken” Massoua v. Moody (BCSC) - facts: client brought a personal injury suit for a foot injury, and claimed $500,000 damages - held: for π, but with small monetary damages, and costs awarded against π - π suffered only minor injury – not entitled to anything but relatively minor damages - judge criticized lawyer‟s money demands, presentation, and lack of preparedness DETERMINING FAULT: STANDARD OF CARE EXCEPTIONS TO THE REASONABLE PERSON STANDARD 6. STATUTORY STANDARDS ISSUES: 1. are statutory standards relevant? - usually these are public safety statutes, written by experts and meant to impose a desirable standard of care - many have built-in penalties of fines, but most don‟t mention civil liability - do they create civil liability? What else can they do? 2. what is their legal effect? - often used as the basis for CL duties - ie. police: Jane Doe, O’Rourke (Police Act) - ie. commercial hosts: Jordan House (Liquor Act) - ie. mariners: Horsley v. McLaren (Canada Safety Act) - ie. environmental: WagonMound (Canada Shipping Act) 3. What is the significance of Δ complying with statutory standards? - what if the Δ complied with statutory standards, although greater care could have been taken? RULES: (Saskatchewan Wheat Pool) - statutory breach is evidence of negligence - statutory standard of care can be substituted for the reasonable person standard where it gives more specific standards - statute must have a purpose to protect public safety, security etc - statute must be related to the factual situation - the statutory breach must be the cause of the damage to the π - courts will not enforce statutory standards as strict liability, or an independent tort for breach of statutory standards RULE: defence of statutory authority is not available if greater care should have been taken (Ryan v Victoria) PROBLEM: BC Health Act: provisions for protecting food from contamination, with high obligations on food manufacturers, handlers, etc. - would raise such a strong presumption of negligence against the Δ that the burden of proof would really shift to the Δ - almost strict liability:absent a very strong defence, the Δ will be liable English approach: (rejected by SCC) - must find legislative intention to allow civil liability - often based on policy decisions: often „found‟ intent in industrial accident cases, but not in municipal liability cases American approach: (adopted by SCC in Saskatchewan Wheat Pool) 1. if π can prove Δ breached statutory standard and caused the accident, it raises presumption of Δ negligence - Δ then has onus to prove an excuse, why he‟s not at fault 2. breach of statutory standard can be merely evidence of negligence - uncertain how much weight evidence of breach caries, relative to other evidence R. in the Right of Canada v Saskatchewan Wheat Pool (1983 SCC) - facts: grain shipment infested with beetles, contrary to Canada Grain Act, costs Board to unload, fumigate, reload - π claims: breach of statutory duty, since Act prohibited delivery of infested grain - claimed that this breach provided the basis for a tort action - held: for Δ (Dickson CJC) - adopts American approach #2 - here: no evidence of fault, so no liability Ryan v. Victoria (City) (1999 SCC) - facts: motorcycle wheel caught in railway tracks; Δ had statutory authority for tracks - held: for π (Major J.) - must drop the special exemption for railways – just an anachronism from railway age CAUSATION: “CAUSE IN FACT” Cause in Fact: - is there a physical link between Δ and π? - based on facts – although courts will often give leeway to π‟s because of difficulty of proof - RULE: the causal relationship requires Δ to be a cause, doesn‟t have to be the sole cause (Athey v Leonati) Legal Cause / Remoteness - if there is a physical link, is it fair to impose liability on Δ in the (perhaps bizzare) circumstances? Cameron v Hamilton Auction Mart (1955 Scotland) - facts: frisky cow rampage, bizzare combination of events, eventually causes damage to π‟s stored goods - held: for Δ - Δ‟s negligence was a cause-in-fact of damage to π -- but damages are too remote to fairly impose liability RULES: different tests can be applied to determine causal relationship 1. „BUT FOR‟ TEST - but for the Δ‟s action/omission, would the π have suffered the injury? Was Δ‟s act a necessary cause? - for single necessary cause (Kauffman v TTC: „but for‟ poor handrails, injury would have occurred anyway) (Horsley v MacLaren: „but for‟ captain‟s negligence, passenger would have died anyway) - for multiple necessary causes (Assiniboine v Hoffer: no damage „but for‟ escaped snowmobile and exposed pipe) 2. „MATERIAL CONTRIBUTION‟ TEST - did the Δ‟s actions materially contribute to π‟s harm? - for multiple causes: if neither cause necessary, but each sufficient to cause the harm alone - Corey v Havener: spooks horse - applying the „but for‟ test would cancel each cause out - for multi cuplable and non-culpable causes (Snell v Farrell: blindness from cataract surgery) - burden remains on π - standard of proof: common sense (not scientific) - where the evidence lies within the special, superior knowledge of the Δ, he may be required to prove it - π can establish an „assumption‟ of causal relationship - if π raises assumption and Δ fails to show a non-culpable cause, court will find a causal relationship 3. „MATERIALLY INCREASES THE RISK‟ TEST (rejected: Wilshire v Essex Health Authority) - did Δ‟s actions materially increase the risk of harm to the π? - for multiple possible causes where some are culpable and some are non-culpable (McGee v NCB) - π proves Δ materially increased the risk, then burden shifts to Δ to prove not at fault c/ of a non-culpable cause CAUSATION: “CAUSE IN FACT” CASES … contd Horsley v MacLaren - no causal link: Matthews likely died on contact with the water, so „but for‟ MacLaren‟s negligence, Matthews would have died anyway Kauffman v Toronto Transit Commission - facts: old woman on escalator knocked over by rowdy kids; claims handrails were inadequate to prevent falls - held: for Δ - „but for‟ the allegedly poor handrails, this accident would have occurred anyway - nobody even tried to grab the handrails - there is no evidence that the particular style of handrail was inadequate School District Assiniboine v Hoffer (1971 Man. Ct. App) - facts: dad negligently lets son start snowmobile unsupervised; it took off, hit exposed gas pipe, caused explosion at school - held: for π - „but for‟ either cause, no damage would have occurred: both the escaped snowmobile and the exposed pipe are necessary causes-in-fact Corey v Havewer (1920) - facts: 2 negligent drivers pass horse carriage at same time, spook horse, throwing driver off - held: for π - the but for test doesn‟t work here: each driver would be absolved by the other, as neither is a necessary cause - material contribution test: did both Δ‟s materially contribute to the π‟s harm? YES Athey v Leonati (1996 SCC) - facts: π with back problems, aggravated by 2 car accidents, goes back to exercise on doc‟s advice and suffers herniated disc - potentially culpable causes: the driving accidents caused by the defendants - potentially non-culpable cause: the plaintiff‟s own previous back problems - held: for π - RULE: the causal relationship requires Δ to be a cause, doesn‟t have to be the sole cause Wilshire v Essex Health Authority (HL) - premature baby blinded, most likely because of negligently administered oxygen, but other non-culpable causes are possible - held: ordered back to new triak - wrong to use material increase of risk test, and shift the burden to Δ - RULE: apply the material contribution test, where burden remains with π - π has a low standard of proof: will effectively require Δ to submit a reasonable defence Snell v Farrell (1990 SCC) - facts: Δ didn‟t follow standard procedure on cataract surgery, π comes out blind; other non-culpable causes exist - held: for π - RULE: must use the material contribution test, π has burden - RULE: where the evidence lies within the special, superior knowledge of the Δ, he may be required to prove it - RULE: π must make common sense causal relationship; standard of proof isn‟t scientific - this standard is sufficient to raise an “inference” of causal relationship: more likely than not - if π establishes an inference and Δ fails to show a non-culpable cause, court will find a causal relationship McGee v National Coal Board (House of Lords) - facts: worker in dusty factory developed dermatitis; could have been the job itself, or employers failure to provide showers - held: for π - „but for‟ test doesn‟t work: could conclude that even without employer‟s negligence, the dermatitis could have occurred - caused a material increase in the risk, and the π suffered just the kind of injury that one would expect - Lord Wilberforce: burden on Δ to prove injury has non-culpable cause CAUSATION: LOSS OF A CHANCE ISSUE: can the π argue that without the Δ‟s negligence, he would have had a chance to avoid harm? RULE: no recovery in torts for loss of a chance (Laferriere) If the relationship can be characterized as contractual, may be able to recover on that basis (de la Giroday) - ie doctor – patient CASES: Seyfert v Burnaby Hospital (BCSC) - facts: doctor closes knife wound, but its deeper than he though, complications follow - held: Δ is liable for 25% of damages - there was ~25% chance that if doctor had done it right, there wouldn‟t have been complications Lawson v Laferriere (1991 SCC, from Quebec) - cancer patient not told about follow-up treatment to prevent recurrance, dies; only slim chance she would have lived anyway - held: for Δ - RULE: no recovery for loss of chance - must apply Material Contribution test de la Giroday v Brough (1997 BC CA) - facts: π diagnosed with flu, turns out to be flesh eating disease; sues for lost chance to recover due to false diagnosis - held: new trial - RULE: if the relationship can be characterized as contractual, Δ can sue for loss of chance in k CAUSATION: JOINT AND SEVERAL LIABILITY ISSUE: indeterminable division of damage between 2 or more defendants (Athey v Leonati: 2 car accidents) JOINT LIABILITY: π can go after any Δ for the full damages, then Δ‟s can go after each other SEVERAL LIABILITY: π must go after each Δ only for their share of fault BC Negligence Act (supp p.18) - applies only where it cannot be determined precisely which Δ cause which portion of the injury s.4 (1) if damage is caused by 2 or more Δ‟s, court must determine degree to which each is at fault (2) any Δ‟s found at fault are jointly and severally liable (3) Δ‟s can seek indemnification from each other to degree of fault ISSUE: Subsequent and Compounding Injuries (Athey v Leonati: exercise rehab injury following car accidents) RULE: Δ1 pays for damages he caused, up to and beyond time of accident with Δ2 Δ2 pays for damages inflicted by his act, factoring in the damage already existing due to Δ1 ISSUE: Thin Skull vs. Crumbling Skull (Athey v Leonati: π had pre-existing back condition is „thin skull‟) THIN SKULL: Δ is liable for full extent of damage CRUMBLING SKULL: Δ is not liable for full extent of damage because π would have suffered damage without Δ‟s act BURDEN OF PROOF PROBLEM: there is often no evidence, or only circumstantial / speculative evidence evidence RULES: 1. π must prove on balance of probabilities: - Δ was negligent - Δ‟s negligence was the cause of damage to the π 2. π must give sufficient direct evidence to at least raise an inference of Δ‟s negligence and causation (Wakelin) - if π raises inference, Δ will need to present an alternative non-culpable cause to escape liability 3. circumstantial evidence (formerly res ipsa loquitor) may raise an inference (Fontaine v ICBC) CASES Wakelin v. London and S.W. Bldg Co. (1886 HL) - facts: man‟s body found near railway; speculative evidence over which party was negligent! - held for Δ (non-suited) - insufficient evidence to raise an inference - RULE: π must give sufficient direct evidence to at least raise an inference of Δ‟s negligence and causation Byrne v Boadle (1863 Exchequer) - facts: π walking down street, squished by barrel falling out of upper floor window - held: for π - RULE: res ipsa loquitor: things speak for themselves Fontaine v. ICBC (1998 SCC) - facts: hunters‟ truck found down a river bed, both men dead; evidence of extreme bad weather: truck likely swept off road - held: for Δ - insufficient evidence to raise an inference - RULE: no more res ipsa loquitor: just acknowledge its just circumstantial evidence - if circumstantial evidence is strong enough to raise an inference, Δ will need to bring alternative non-culpable cause FOOD AND BEVERAGE CONTEXT: - problem: if π is injured from a manufactured product, they would have no way to prove evidence of factory negligence - courts draw a strong inferrence that the injury was caused by Δ‟s negligence - it may even amount to a presumption or strict liability Zeppa v Coca-Cola - facts: π injured by ingesting glass shards in a coke bottle - held: for π - strong circumstantial evidence that injury resulted from Δ‟s negligence  court drew a presumption, Δ couldn‟t rebut BURDEN OF PROOF: MULTIPLE POTENTIAL CULPABLE CAUSES ISSUE: injury has multiple potential culpable causes, and knowledge of true cause lies only with the defendants RULE: burden shifts to Δs to disprove causation if the evidence of causation lies only with them - Cook v Lewis: 2 hunters fire in same direction at same time, one of them hits the π - Beecham v Henderson: 2 workers throw sand at schoolbus, sand gets in a kid‟s eye - Ybarra v Spangard (USA): botched operation by a group of surgeons; burden shifted to each to disprove causation NOTE: this rule will only be applied in very similar factual situations CASES: Cook v Lewis (1951 SCC) - basis of canadian rule of direct/indirect: if π proves causation, burden shifts to Δ to disprove fault - facts: π shot by 2 negligent hunters, firing in same direction at same time, knowing others are in area - problem: π cannot prove which Δ shot him, and Δ‟s won‟t say - held: new trial ordered - RULE: where the evidence of causation lies only with the Δ‟s, can shift burden on causation to Δ‟s to exculpate themselves Beecham v Henderson - facts: 2 workers throwing sand at passing cars, sand gets in eyes of a kid on school bus - problem: only the Δ‟s have knowledge to prove who threw sand into π‟s eye - follows Cook v Lewis rule: similar facts Ybarra v Spangard (USA) - facts: group of surgeons botch operation, π comes out with a new complication - burden shifted to surgeons to disprove causation, or they will all be held liable - note: not applicable to canada because of different medical system LEGAL CAUSE / REMOTENESS ISSUE: despite duty, breach, and legal cause, is it fair to hold Δ liable in the circumstances? OLD RULE: liability for direct consequences (Polemis, Owens v Liverpool) AVOIDANCE: treat the issue as one of duty, not remoteness, bringing the test back to reasonable foreseeability Palsgraff v Long Island Railway (NY), Bourhill v Young (HL) TEST: was the damage reasonably foreseeable? (WagonMound #1) THIN SKULL: the type of damage must be foreseeable, not the extent Smith v Leechbrain: molten metal splashes on π‟s lip, burn flares up latent cancer CAUSATION: the type of damage must be foreseeable, not the causal chain leading to the damage Hughes v Lord Advocate: lantern causes fire and burns, but through unexpected chain of events LOW PROBABILITY: can be trumped by other factors: - seriousness of harm is foreseeable - burden of precautions - character / utility of Δ‟s operations WagonMound #2: low probability of bunker oil catching fire, but foreseeable harm is very serious, there is a low burden of precauctions by following proper procedure, and the activity has no utility and is illegal TOO REMOTE IF: - unforeseeable plaintiffs (Bourhill: pregnant woman in a public place isn‟t reasonably foreseeable) - chain of events between Δ and π is too extensive in time and space - Cameron v. Hamilton Auction Mart: frisky cow rampage - really freakish cases of unfortunate happenstance - Doughty: lid slips into vat, unknown chemical reaction causes explosion) CASES: Cameron v. Hamilton Auction Marts - rogue cow goes on rampage - no liability here because its too bizarre and remote: would be unfair to impose liability in the circumstances Re Polemis (1921 English C.A.) - facts: stevedor drops plank, hits metal piece, spark starts fire, burning whole ship - held: for π - RULE: Δ is liable if the unforeseeable result is a direct consequence of the event - problem: if the test of existence of duty is reasonable foreseeability, how can we use the more exacting „directness‟ test in remoteness, and allow recovery for unforeseeable results? LEGAL CAUSE / REMOTENESS CASES …. contd Owens v Liverpool Corp. (1937 English CA) - facts: funeral procession, hearse hit by negligently driven train, coffin and body launched onto the road - held: for π - Polemis applied: this isn‟t a reasonably foreseeable result, but it was a direct consequence Bourhill v Young (1943 HL) - facts: pregnant woman witnesses motorcycle accident; suffers miscarriage and nervous shock - held: for Δ - court avoids Polemis by calling this an issue of duty, not remoteness: “did this particular Δ have a duty to this particular π?” - brings the test back to reasonable foreseeability - this technique was borrowed from NY case: Palsgraff v Long Island Railway - NO DUTY: a pregnant woman in public place isn‟t a reas fors π Palsgraff v Long Island Railway (NY) - facts: woman injured in freak explosion which caused stampede, knocked over weigh scales, crushed her - court calls this a duty issue: no duty because π was not a reasonably foreseeable π Wagon Mound #1 (1961 Australia JCPC) - facts: dumped bunker oil catches fire, against all odds, and totals a wharf and some ships; wharf owner suing ship - note: at time, if π was at all contibutorily neg, he got $0 recovery, so couldn‟t lead full evidence - trial: held for π, on Polemis direct consequence test - JCPC Viscount Simonds: held for Δ - it was not reasonably foreseeable that their actions would cause a huge fire - RULE: test for remoteness is now reasonable foreseeability - overrules Polemis „direct consequences test‟ Smith v Leech Brain - facts: industrial accident: man gets molten liquid on his lip, causes burn, flares up his latent cancer, dies - held: for π - thin skull is an exception to WagonMound #1 rule of reasonable foreseeability - RULE: type of damage must be reasonably foreseeable, but extent of damage doesn‟t need to be reasonably foreseeable Hughes v Lord Advocate (HL) - employees leave lanterns near tent covering exposed manhole; kids climbs down, drops lantern, causes unlikely explosion - held: for π - exact chain of causation is not required for WagonMound #1 rule of reasonable foreseeability: - lantern could have burned boy itself - RULE: if the type of injury is reasonable foreseeable, the chain of events leading the injury need not be Doughty v Turner - facts: asbestos lid slips into vat, causing scientifically unknown chemical reaction and explosion, burns π - held: for Δ - RULE: just happenstance – such low order of probability, that not fair to impose burden on Δ Wagon Mound #2 - action: ship owners are suing the same negligent engineers because of damage to their ships - held: for π (Lord Reid) - RULE: foresight of a mere, slim possibility of damage is enough to impose liability if: - seriousness of harm that could result was reasonably foreseeable - low burden of precautions - character / utility of Δ‟s conduct - here: this test is easily satisfied REMOTENESS: AGGRAVATING ACTS *** test is not reasonable foreseeability!! *** ISSUES: Δ‟s negligence combines with negligence of a 3rd party (stranger, or the π) - is it fair for Δ to be liable for conduct of 3rd party? - does intervention and conduct of 3rd party snap the chain of causation? RULE: if π is injured and weakened by Δ‟s original negligent act, and is acting reasonably when he incurs further injury as a result of the weakness, then Δ is liable for the whole she-bang (Weiland: assisted down stairs) - TEST: did the π act reasonably in the circumstances? - Irresponsible or unreasonable conduct by the π will break the chain of causation (McKew: unassisted down stairs) - USA: Δ liable for aggravation sustained in π taking steps to obtain medical treatment for Δ‟s inflicted harm (Lucas) - NOTE: commentators suggest test should be “was π‟s injury within the risk created by Δ” - allows consideration of reasonable foreseeability and other factors CASES: Weiland v. Cyril Lord Carpets (1969 English QB) - facts: Δ injures π‟s neck, collar skews glasses; being assisted down stairs, lost balance, fell, aggravated injury - held: for π - RULE: Δ liable for full extent if π‟s aggravating injury occurs due to weakened state by Δ, and π was acting reasonably McKew v Holland (1969 HL) - facts: Δ injures π‟s leg; weakened leg gave out while going unassisted down stairs, π jumps and busts ankle - held: for Δ (Lord Reid) - TEST: did the π act reasonably in the circumstances? - RULE: irresponsible, or unreasonable conduct by the π will break the chain of causation Lucas v. Juneau (USA) - facts: π injured in car accident, ambulance driver has seizure and crashes, π sustains further injury - held: for π - RULE: Δ liable for aggravation sustained in π taking steps necessary to obtain medical treatment for Δ‟s neg harm - note: Canada has not followed this route of the USA REMOTENESS: INTERVENING ACTS ISSUE: Δ‟s negligence combines with negligence of a 3rd party (stranger, or the π) GENERAL RULE: Δ fully liable if the intervention of the 3rd party‟s negligence was reasonably foreseeable to the Δ 1. if responsible for care of the public, there are extra responsibilities to take care of those who cannot take care of themselves Harris v. Toronto Transit Commission and Miller: bus driver ought to have known kid might have arm out window 2. Δ is liable if Δ‟s negligence invites irresponsible acts from other parties CanPhoto v Aetna Roofing: Δ‟s left gas canisters unsecured in alleyway 3. Δ is liable if he creates the risk Stansbury v Troman: painter leaves house unlocked, house gets robbed 4. Δ is liable if he fails to take precautions against clear 3rd party risks Allison v Rank City Wall Canada: apartment manager should have secured underground parking lot from local rapist 5. whether or not a negligent Δ is liable for the stupidity of an intervening party may depend on the extent to which the circumstances are fraught with apparent danger, and the degree of stupidity Bradford v. Kanellos: employee‟s fire under control, but customer freaks at the extinguisher system and causes stampede CASES: Harris v. Toronto Transit Commission and Miller (SCC) - facts: bus pulling away from stop, too close, kid has arm out window despite knowing better, breaks arm on a pole -held: for π - RULE: reasonably foreseeable that kid might act stupidly, driver must take care - RULE: where one is responsible for care of the public, especially kids, there are extra responsibilities to take care of those who cannot take care of themselves CanPhoto v Aetna Roofing - facts: Δ left unsecured gas containers in alley, contrary to storage regulations, 3rd party tampers and causes explosion - held: for π - RULE: if Δ‟s negligence invites irresponsible acts from other parties, Δ is liable Stansbury v Troman (1948 England) - facts: π leaves Δ painter in her home while she goes out; Δ leaves without locking door; π gets robbed - held: for π - RULE: Δ liable if he creates the risk Allison v Rank City Wall Canada (1984) - facts: π assaulted in the „secure‟ underground parking garage of her apartment, by a serial attacker in the area - held: for π - RULE: Δ liable if he fails to take precautions against clear 3rd party risks Bradford v. Kanellos (1971 SCC) - facts: kitchen fire activated fire extinguisher system which made a hissing sound, patron freaked and caused stampede - held: for Δ (3-2 split) - RULE: whether or not a negligent Δ is liable for the stupidity of an intervening party may depend on the extent to which the circumstances are fraught with apparent danger and the degree of stupidity PSYCHIATRIC INJURY -- NERVOUS SHOCK OLD RULE: could only recover if you were physically injured and got nervous shock from Δ‟s negligence DEVELOPMENT: 1. where π not physically harmed, but had apprehension of harm to self 1902 case: horse and carriage through pub window, barmaid feared for life 2. TEST for nervous shock is reasonable foreseeability (Lord Denning) - issue is remoteness, not duty - strangers are not reasonably foreseeable plaintiffs Bourhill v Young: preganant women in public are not reasonably foreseeable plaintiffs Duval v Seguin (1972): fetus ought to be within the reasonable contemplation of drivers: preggers isn‟t that unusual 3. Where π is within sight and sound of an accident where a close relative is injured/killed or in danger of being injured/killed King v. Phillips (1950s engl) - facts: mom sees taxi back over a kid she thought was hers - Denning: mom was within sight and sound, and reas fors that she would get nervous shock from seeing this - held for Δ: not at fault because going slow, not reasonably foreseeable for kid to be there Hambrook v Stokes - facts: runaway lorry flying down hill, mom sees her kids injured by it - held for π: mom was within sight and sound, and reasonably foreseeable that nervous shock would result from seeing kids hit Abramzik v Brenner (1968 Sask Ct App) - facts: mom told her 2 kids killed due to negligent driver of the neighbour they were out with - held: for Δ: narrow application of „sight and sound‟, and reasonable foreseeability test 4. Where π sees immediate aftermath of accident injuring a close relative Marshall v. Lionel Enterprises - facts: wife sees immediate aftermath of hubby‟s snowmobile - held: for π: reas foreseeable that wife would suffer nervous shock from immediate aftermath of hubby‟s accident 5. Where stranger / member of public sees carnage of a mass disaster Chadwick v. British Rail - facts: π volunteered to help after major train crash, gets nervous shock from the carnage - held for π: reasonably foreseeable to suffer nervous shock from the horror caused by Brit Rail‟s negligence 6. Where π is told of the injury and goes to the hospital right away McLoughlin v. O’Brien (1982 HL) - facts: wife informed and goes to hospital right after dad and kids crash, killing some - held: for π - RULE: reasonable foreseeability is limited by proximity factors (Lord Wilberforce) - consider relationship of parties - consider physical proximity of π to accident - consider means by which shock was caused PSYCHIATRIC INJURY -- NERVOUS SHOCK 7. 1970’s onward: Nervous Shock liability is bogged down with attempts to explain PROXIMITY Jaensch v Coffey (Aust) - facts: wife told hubby in accident, goes to hospital, sees him gory, suffers nervous shock - held: for π - RULE: must consider reasonable foreseeability and proximity: - relational proximity - temporal proximity (find out soon after) - locational proximity (physical closeness to accident/aftermath) - causal proximity (link between accident and adverse mental state) - RULE: must be shock inflicted from seeing or learning about accident - cannot just be natural grief and sorrow, or development of latent mental state 8. Source of Mental Disturbance Beecham v Hughes - facts: couple in car accident, hubby mostly ok, wife severely injured and brain damaged, hubby depressed - held: for Δ - no causal proximity: not inflicted by initial shock, but because of stress of looking after wife and guilt that he‟s ok 9. Dealing with subsequent grief Rhodes v. CNR - facts: mom sends son on train, hears about a train disaster, flies to site to find out, they won‟t let her near the site, and bureaucratic bungling keeps her from finding out for a long time that her son is dead - held: for Δ: relational proximity trumped by lack of temporal/physical/causal proximity - Taylor J: relationship must be close and direct (Donoghue v Stevenson) so we look at proximity: - relational prox: mother and son, strong bond - physical and temporal prox: neither exist here - causal proximity: Nervous shock from remorse, not shock finding out about accident - Anderson J: adopts all 4 diff kinds of prox, says unclear what causal prox means - Southin J: test is whether circumstances would leave a scar on the mind of the reasonable person 10. Technology – seeing/hearing of injury on tv, radio, internet Alcock v. Chief Constable of South Yorkshire - facts: soccer stadium stampede, families of the injured who watched on TV and in the stadium sue in nervous shock - Held: for Δ - applies McLoughlin – reasonable foreseeability and proximity - no recovery to people live in stadium: did not prove loving and caring relationship required for relational proximity - no recovery to tv viewers: no physical proximity, not within sight and sound - notes that may be possible in very exceptional circumstances to grant recovery to tv viewers 11. must be risk of serious harm to injured party, and π must react reasonably Vanek v. Great Atlantic - facts: girl drank juice with something nasty in it, got a bit ill, but parents freaked and sustain serious stress injuries - held: for Δ: no risk of serious harm, π‟s shock was not reasonably foreseeable - RULE: reasonable foreseeability test must be: 1. was there risk of serious harm to the injured party 2. was the π‟s shock reasonable? PSYCHIATRIC INJURY -- NERVOUS SHOCK PROXIMITY SUMMARY 1. Personal relationship between the π and the imperiled 3rd party: a) nature: family  friends  co-worker  rescuer  complete stranger b) closeness of relationship in fact (even relatives can be sworn enemies) 2. Geographic and Temporal relationship on the scene  nearby  witness of immediate aftermath  more distant in time and space 3. Reality of Communication of shocking event personal observation  observation via media  communication by a 3rd party 4. Nature of the Accident mass disaster  gruesome  more conventional 5. Role of the π in the aftermath involved in accident  involved in dealing with aftermath  bystander / passive observer 6. Medical Evidence on the Source of the psychiatric injury accident itself  immediate aftermath  remorse  effect of caring for victim  psychiatric disposition 7. Nature of the Psychiatric / Emotional Deficit identifiable mental illness  mental shock with element of grief  grief and sorrow DEFENCES CONTRIBUTORY NEGLIGENCE DEFINITION: π fails to use reasonable care for his own safety, resulting in contibuting factor to damage incurred OLD RULE: contributory negligence was a complete defence: 1842 case: π left his donkey tied too close to highway, Δ driving carriage negligently, kills donkey - held for Δ because π was contributorily negligent RULES: Contributory negligence will be a total defence unless Δ has last clear chance to avoid harm (constructive last chance is also possible) LEGISLATION: BC Negligence Act - apportionment of liability in case of contributory negligence - „last clear chance‟ doctrine has no effect in BC, although may exist in other provs SEATBELT / MOTORCYCLE HELMET CASES - 1960s, BCCA: was π‟s failure to wear available seatbelt a contributing factor to worsening the damages? - held: π was author of his own misfortune; Damages reduced by 25% Galaske v. O’Donnell (1944 SCC) - facts: driver and parent and kid in car, kid not wearing seatbelt - held: for π - driver always has duty to ensure passengers are belted, even if parent is in the car Genik v. Ewanylo (1980 Manitoba) - rogue individualistic judge: shouldn‟t reduce damage if reasonable person in the circumstances wouldn‟t wear seatbelt DEFENCES VOLENTI NON FIT INJURIA DEFINITION: voluntary assumption of risk -  accepts physical and legal risks - must be expressed or implied agreement between  and  - no volenti where the employee merely continues to do a job for which he is aware of the risks (Hambley v Shepley) RULE CONTEXTS: - collusion between π and Δ in doing a dangerous act may qualify as acceptance of risks by π - involvement in or viewing of sports is strongly volenti CASES: Dick v. Manitoba Snowmobile Association - facts:  enters race for a fee, signed liability waiver, injured by ‟s negligence - held: for : the waiver was an express acceptance of risk by  Hambley v. Shepley - facts: police officer injured when he followed orders to use his cruiser as a roadblock in a high speed chase - held: for π - RULE: volenti doesn‟t apply where the employee merely continues to do a job for which he is aware of the risks ILLEGALITY RULE: only applicable where: 1. allowing recovery would bring disrepute of the justice system 2.  would benefit from crime 3. civil suit is a means to evade the criminal justice system DEFENCE MAY APPLY TO BLOCK RECOVERY IF: (Hall v Hebert) - bank robber sues partner for fraud or negligent misrep -  claims pecuniary damages for loss of earning capacity from illegal occupation -  seeks punitive damages for illegal activity (ie egregious fraud by bank robber partner) Hall v. Hebert (SCC) - facts: 2 drunk guys go off road, one pushes out of the ditch while the other steers, and crashes the car - held: for : illegality of conduct is not a defence here - Cory J would get rid of illegality and use contributory negligence PURE ECONOMIC LOSS: NEGLIGENT MISSTATEMENTS GENERAL RULES: - Can have a duty between  and  in absence of a k relationship (Hedley) - Cannot sue in tort if the term is part of a contract (Cognos, Rafuse) TO ESTABLISH A DUTY: 1) there must be a „special relationship‟ where π relies on Δ - employer / employee, solicitor / client, professional advice giver, or other relationship of reliance/knowledge Anns Test for duty: (Hercules Management v Ernst & Young) 1. proximity: 1. was it reasonably foreseeable that  would rely on the statement 2. was it reasonable for  to rely on the statement 2. policy factors 1. did  know identity of  or know group to which  belonged? 2. for what purpose was the statement made? Does the purpose embrace the ? TO ESTABLISH A BREACH OF DUTY: 2) ‟s representation must be untrue, inaccurate, or misleading 3)  must have been negligent in making the misrepresentation Factors: must apply a reasonable person test. - was what the occasion on which the advice was given? - what was the purpose for which the advice was given? - was it foreseeable that  would use and rely on advice and suffer loss? - status of the  advisor - level of competence of  in eyes of reasonable  TO ESTABLISH CAUSATION OF HARM: 4)  must have relied on the misrepresentation 5) reliance must have been detrimental (causing loss to the π) CASES: Hedley Byrne v. Heller (1964 HL) - facts: Δ bank tells π, with disclaimer, that 3rd party is financially sound;  k‟s with 3rd party, loses money, sues bank - held: for  (disclaimer clause) - RULE: created rules that were the basis of the Cognos rules Queen v. Cognos (1993 SCC) - facts:  hired for a long term project, told it had been approved, quit job, moved family, terminated on 1 month notice clause - held: for  (Iacobucci) - RULE: outlined the 5 big rules above Hercules Management v. Ernst and Young - facts:  shareholder relied upon ‟s annual report for making investments, lost big money - held: for  (LaForest) 1. proximity: yes - reasonably foreseeable that shareholders would rely on financial statements to make decisions - reasonable for shareholders to rely on financial statements to make decisions 2. policy: no -  was part of a group which  ought to know about and consider: shareholders - purpose was to determine performance of company management, not basis for investment (bullocks) PURE ECONOMIC LOSS: OVERLAP OF TORT AND CONTRACT - tort action: negligent misstatement - contract action: negligent misrepresentation - possible reasons to pick one over another: - expiration of limitation periods (plus, in tort can get extended periods starting from „knowledge‟ of event) - measure of damages RULES: - may bring a tort action even where there is an concurrent k relationship (BG Checo v BC Hydro) 1. if the k obligation is more demanding than the tort duty of care: - k standard applies - π can bring a tort action, based on the lower tort standard of care (ie if need limitation period extension) 2. if k obligation is less demanding than the tort duty of care: - the k obligation trumps the higher tort duty (Rafuse, Checo, Cognos) - court will not allow tort law to be used to evade contractual obligations and limitations 3. if k is silent - an obligation to reasonable care is implied with k law, making it the same standard as the tort action - either action is available 4. if k obligation is expressed in terms equivalent to, and not contradictory of, the tort obligation - either action is available - may bring a tort action without a k relationship if there is a „special relationship‟ of knowledge/reliance (Hedley, Cognos) - π will not recover if their reliance on the Δ was unreasonable: -info given casually, on a social occasion - Bosworth: developer relies on Mayor‟s informal telephone comments about zoning; mayor not even in charge - π is the relative expert, between the parties - Town of The Pas v. Porky Packers: π relies on muni employees about zoning bylaws, when he had more info - other questions to ask: - was what the occasion on which the advice was given? - what was the purpose for which the advice was given? - status of the  advisor - level of competence of  in eyes of reasonable  CASES: Central Eastern Trust v. Rafuse (1986 SCC) - facts: solicitor was negligent - RULES: existence of contract did not preclude concurrent or alternative liability in tort BG Checo International Ltd. v BC Hydro (1993 SCC) - facts: tender document promised Δ would clear right of way, but did not - issue: can pre-k representation which becomes a k term be the basis for tort liability in negligent misrepresentation? - held: for π - where k and tort obligation are equivalent, π can bring action in either tort or k PURE ECONOMIC LOSS: NEGLIGENT PROVISION OF SERVICES SITUATION: PROFESSIONAL SERVICES: LAWYERS vs. BENEFICIARIES OF WILLS TRADITIONAL RULE: no action by the heir against a negligent solicitor MODERN RULE: 3 theories for basis of solicitor liability: 1. Whittingham: Hedley Byrne reasonably foreseeable heir, reasonable expectation of reasonable care 2. Ross: Donogue v. Stevenson reasonable foreseeability 3. White: assumption of responsibility Whittingham v. Crease (1977 BCSC) - facts: solicitor had wife of heir sign the will as a witness, which is prohibited under Wills Act. Will void, heir loses money. - held: for π - RULE: reasonably foreseeable that heir would lose out as a result of Δ‟s negligence (based on Hedley Byrne) - RULE: heirs can reasonably expect solicitor will use reasonable care Ross v. Caunters (1980 HL) - facts: similar to Whittingham - held: for π - RULE: Δ liable if π should have been in reasonably contemplation of Δ when performing his services (based on D v S) White v. Jones (1995 HL) - facts: testator made changes to will, but solicitor didn‟t complete. Daughters were cut out of will against testator‟s intent. - held: for π - RULE: the solicitor‟s assumption of responsibility extends duty to testator and heirs SITUATION: BUSINESS SERVICES RULE: - there is a duty of care for negligently providing services, causing detrimental effects on 3rd parties - test is reasonable foreseeability of harm to the π (D v S) BDC v. Hofstrand Farms (1986 SCC) - facts: negligent courier doesn‟t deliever documents from government on time; π loses option to purchase land - held: for Δ (Estey) - DUTY: there is a duty of care for negligently providing services, causing detrimental effects on 3rd parties - RULE: was the damage to the 3rd party reasonably foreseeable? - here: Δ did not know contents of package, could not reasonably foresee harm to π - π at fault because he created the deadline - π did not have reasonable reliance on Δ - Wilson (concurring): - its artificial to use reliance here, since parties were unknown to each other - better to use Donoghue v Stevenson: π was not reasonably foreseeable to Δ PURE ECONOMIC LOSS: LIABILITY FOR DEFECTIVE PRODUCTS and STRUCTURES STRUCTURES: RULES: - no promises are made by the real estate vendor unless they are expressly contained in the contract - no implied warranties: must be express warranties - can recover for economic loss incurred in putting a dangerous structure right (Winnipeg Condo) - rationale: caveat emptor, buyer is in as good or better position than vendor to test quality PRODUCTS: Parts manuf  k  Manufacturer  k  wholesaler  k  retailer  k  consumer (and remote users) Contract between retailer and consumer: - governed by Sale of Goods Act - requires goods to be of mercantible quality: implied warranty of fitness for its purpose DUTY from manufacturer to consumer: - starting point is Donoghue v. Stevenson: based on the neighbour principle of foreseeability of harm - proximity: reasonable foreseeability that certain parties will be adversely affected by failure to take care - liable for dangerous external effects of defective products: safety - ie quality is fine (the coffeemaker makes coffee) but is unsafe (it also gives out electric shocks) - traditionally, no action from consumer to manufacturer except: - fraud (Langridge v Levy) - inherently dangerous products (Dixon v Bell) - tort action in „failure to warn of dangers‟ - Lambert v Lastoplex: paint not labelled as a fire hazard - Buchan v Ortho (1986 CA) (birth control pill) - Hollis v Dow Corning (1995 SCC) (breast implants) - tort action in economic loss incurred in putting a dangerous product / structure right - Winnipeg Condo: duty from contractor to purchasers for negligent defects with capacity to injure to life, limb, - Rivtow Marine: no recovery for putting a defective / dangerous crane right, but recovery for resulting loss of profit - Junior Books: recovery for fixing a shoddy floor (not followed in Canada, HL has even backpedalled) - Hasawaga v Pepsi: no recovery for non-hazardous mold in water bottles - Policy: - social responsibility of builders to avoid hazardous structures - caveat emptor no longer appropriate: buyers have reasonable reliance on seller/builder, esp with new buildings - no floodgates / indeterminacy problem: π‟s are people spending money to fix dangerous defects DEVELOPMENT of DUTY: - duty from servicers / repairers to consumer - duty extends beyond consumer to remote users - duty to warn consumers of inherent hazards of product (not purely negligently caused hazards) PURE ECONOMIC LOSS: 3rd PARTY RELATIONAL ECONOMIC LOSS SITUATION: Δ has k with 3rd party, is negligent, and causes adverse effects to π STARTING POINT: there can be tort recovery outside k relationship (Hedley) RULES: (Bow Valley Husky) 1. there is a general exclusionary rule against recovery of pure economic loss by 3rd parties 2. there are 3 recognized exceptions (Norsk), and these categories are not closed - property damage caused by Δ to π - general average (marine law of all parties splitting losses when cargo ships go down; can sue Δ causing sink) - genuine joint ventures 3. to find a new exception, must find a duty under Anns Test - policy factors: economic analysis of best loss spreader, indeterminacy, deterrence CASES: CNR v. Norsk - facts: ship ran into a federal govt bridge, making it unsuitable for use by CNR, the major user - held: for π (4-3 split) - court splits on how to approach these problems Bow Valley Husky (Bermuda) v St. John Shipbuilding (1997 SCC) -oil rig shut down due to negligently installed heat system; causes economic loss to parent companies; action in failure to warn - held: installer liable to oil rig company for some property damage; no recovery for economic loss to parent companies EARLIER DEVELOPMENTS: 1. TEST is NOT Reasonable foreseeability because it cast the net too widely Weller v Food and Mouth Disease Research Institute (1960 England) - foot and mouth disease gets loose in lab, leads to mass infection, slaughter, and economic loss for livestock auctioneers - held: for Δ - even though its reasonably foreseeable that this could impact livestock traders, it just casts net too wide 2. MAYBE can tack economic loss onto property damage losses to grant recovery (Denning: parasitic loss) Seeway Hotel v. Cragg (1959 Ont CA) - facts: Δ employees digging for something, cut a gas main, which cut off heat and electricity for Seeway Hotels - All the food in the fridge spoiled (property loss), hotel had to turn away guests (pure economic loss) - held: for π on property and pure economic loss Spartan Alloys v Martin & Co. (England) - facts: power shuts down, molten alloys harden, destroying product - held: π gets damages for loss of product but not economic loss of business/profit - policy: who can best suffer the damages (ie insurance) Caltex Oil v. Dredge Willemstad (Australia High Court) - facts: dredging ship busts underwater pipe supplying oil to π refinery; captain was aware of the pipe and had radar - held: for π - π‟s economic loss is rolled up in 3rd party pipe operator‟s property loss - joint venture, physical proximity, Δ‟s knowledge LIABILITY OF PUBLIC AUTHORITIES HISTORICAL RULE: “the king can do no wrong” Public Prerogative Writs - certiorari: body acted ultra vires its powers – court quashes decision - mandamus: body failed to fulfill its responsibilities – court forces action - these force the body to do right – they don‟t address the harm done LEGISLATION: Crown Proceedings Act of BC - s.2d: the Crown is subject to all those liabilities to which it would be liable if it were a person. - rationale: extent of regulatory state makes adverse impacts of govt actions likely (Cory J in Just v BC) - Charter s.24: possible constitutional tort LIABILITY LADDER (further down = less immunity) 1. Primary Legislation - no liability (except maybe s.24 constitutional tort) - parliamentary soveriegnty, freedom to act 2. Judicial Decisions - no liability - independent judiciary, system allows appeals to fix problems 3. Delegated Legislation - no liability for governmental/public functions, maybe liability for operational/business functions Wellbridge Holdings: making zoning bylaws is a governmental function, as is failing to properly make the bylaw 4. Quasi Judicial Acts - generally no liability (Wellbridge) - may be liability if acted in bad faith, with calculated willfullness Roncarelli v Duplessis: Δ revoked liquor licence c/ π was an active Jehovah‟s Witness; illegitimate use of power 5. Administrative Acts (a) Statutory Duties - breaching a statutory duty may be a basis for a CL action in negligence, but no statutory tort - Jane Doe, O’Rourke v. Schacht: statutory and CL obligations together provide basis for CL tort (b) Discretionary Statutory Power Stage 1. should the public authority exercise the power at all? - definition: discretionary decisions of choosing to act or not to act - no liability: this is a governmental / policy function, not operational - may be liability for bad faith - Anns, Kamloops: council opted against building inspections because of kickbacks or other personal profit Stage 2. How to exercise the power - definition: the bylaw is in place, and here the body designs a structure to administer it - generally no liability: this is a government / policy function, not operational Barrett v. North Vancouver: no liability for only filling in potholes every 2 weeks: policy decision - liability possible if the decision is more operational than policy - level of actors may be influential: higher = policy, lower = operational Just v BC: boulder brigade failed to prevent boulders from falling onto road and car: liable because policy - court may look to the system itself to determine whether it is adequate Swinnimer v NS: retreat from Just: - immunity for failure of pilot project to prevent rotten trees from falling onto road Brown v. BC : retreat from Just: - governmental decision not to have full winter crew on to prevent icy patches on road Stage 3. Actual Exercise - definition: assumed to be operational decisions, with lower level officials - Kamloops: still possible to be policy decision here: - governmental discretion not to prosecute (but liable on bad faith) MEDICAL MISADVENTURE THE RIGHT TO CONSENT OR REFUSE TREATMENT LIABLE IN BATTERY IF: (Reibl v Hughes) 1. medical treatment without consent (verbal or written communcation) Malette v Shulman: administered blood transfusion despite jehovah‟s witness card Nancy B v. Hotel Dieu De Quebec: right to refuse extended the right to have treatment withdrawn (respirator unplugged) Rodriguez v. BC: no right to euthanasia: active suicide assistance goes beyond withdrawal of treatment (5-4 split) Cialariello v Schacter: if consent revoked during procedure, doc must revisit info, new developments, and re-get consent 2. doctor goes beyond procedure for which consent was given Gerula v. Flores: faked 2nd operation to secretly fix 1st operation Mink v. U. Chicago: pregnant women didn‟t consent to a test drug, just because they checked in for birth 3. doctor deceives patient as to the nature of the operation Halushka v U Saskatchewan: π not told they were inserting a catheter to his heart 4. abuse of doctor patient relationship (not mentioned in Reibl) Norberg v. Wynrib: sex for drugs EXCEPTION: EMERGENCY SITUATIONS RULE: doctors have an emergency privilege to do necessary things without consent if it is an immediate, urgent danger to life/health Marshall v Curry: doctor not liable for taking a tumourous testicle during a hernia operation Murray v McMurchy: doctor liable for tying tubes during c-section c/ of tumor: „convenient and desireable” isn‟t enough LEGISLATION: Health Care Consent and Care Facility Admission Act (Health Care (Consent) Act) s.6: definition of consent for adults (over 19) (a) the consent relates to the health care (b) the consent is given voluntarily (c) the consent is not obtained by fraud or misrepresentation (d) the adult is capable of making a decision about whether to give or refuse consent to the proposed health care (e) the health care provider gives the adult the info a reas person would require to understand the proposed care and decide i) the condition for which the care is proposed ii) the nature of the proposed care iii) the risks and benefits of the proposed care that a reasonable person would expect to be told about iv) alternative courses of health care (f) the adult has an opportunity to ask questions and receive answers about the proposed health care ** unknown: could failure on (e) raise a case in negligence? ** MEDICAL MISADVENTURE THE RIGHT TO CONSENT OR REFUSE TREATMENT 1. MATURE MINORS RULE: - a mature minor can give consent (Ney, Infants Act s.17) - mature minor: can fully appreciate the nature and consequences of the medical procedure (Johnston v Wellesley) - power to consent includes power to refuse treatment - kid‟s consent trumps the parents (Ney) - BC: court can trump kid with parens patriae (Ney, Child, Family, Community Services Act s.29) - NB: Region 2 Hospital Corp v Walker: court can‟t trump a mature minor‟s refusal of treatment with parens patriae - Alberta: B(H) v Alberta: supports Ney: mature minor trumps parents, parens patriae trumps mature minor LEGISLATION: Infants Act of BC s.17(2) - infant may consent whether or not the care would, in absence of consent, constitute a battery - parental consent is not required (3) - infant may consent if health care provider has explained, and is satisfied that the infant understands, all the reasonably foreseeable risks and benefits, and the nature and consequences of the proposed care - health care provider must be satisfied that the health care is in the infant‟s best interest Child, Family, and Community Services Act of BC s.29 - government can seek and order to force a medical procedure where in the opinion of two independent health care providers, its necessary to save the patient‟s life, or to prevent serious permanent injury 2. IMMATURE CHILDREN RULE: parent/guardian has power of consent / refusal, subject to court‟s power of parens patriae and statutory powers SITUATIONS where the court will use parens patriae: - parents refuse treatment to prolong life of severely disabled child (Re Supt of Family and Child Services and Dawson) - presumption in favour of life; courts do not sanction termination of life except in extreme circumstances - not the place of a parent or court to judge the worth of another‟s life; must look from patient‟s point of view - parents misinform child as to nature, effects, and chances of success of treatment, and child refuses consent (Re TTD) - parents refuse consent to an operation to save the life of a premature infant (RB v CAS Metro Toronto: blood trans.) 3. UNBORN CHILDREN USA RULE: court can order treatment of mother who refuses, in order to save life of the baby Raleigh-Fitkin-Paul Morgan Memorial Hospital v Anderson: court orders blood trans to JW mom to save baby CANADA: would likely follow principles in Winnipeg Child and Family Services, and preserve women‟s autonomy 4. MENTAL INCOMPETANTS RULE: the treatment must be theraputic and in the best interests of the mentally incompetant child Eve v Mrs E (PEI): court uses parens patriae to prevent sterilization of girl; benefit was for mom, not daughter Re K and Public Trustee (BCCA): sterlization granted for best interests of girl: couldn‟t deal with menstruation RE EMH (Sask): parents justified in operation to prevent menstruation, but not justified in tubal ligation MEDICAL MISADVENTURE: NEGLIGENCE 1. Negligent communication of treatment plan and content, so consent wasn‟t „informed‟ (Reibl v Hughes) DUTY OF DISCLOSURE: - inform of all material or special risks – highly probable, or highly serious - inform of nature of operation – what and why - inform of gravity of the situation – can it wait? Reibl v Hughes: leading case on informed consent - patient not told of death/injury in 8 out of 70 operations - patient not told that surgery could wait a few years Cialariello v Schacter: if consent revoked during procedure, doc must revisit info, developments, and re-get consent Hankins v Papillon: must extra care to communicate in cosmetic surgery, as its elective and not urgent Halushka v U. Sask: higher obligation to disclose risks and treatment for experimental procedures Paling v Mander: theraputic need for treatment, but uninformed of experimental nature of the treatment used - doctor should have told the patient of his alternatives and given a choice Hollis, Buchan: duty of manufacturers to fully inform the learned intermediary, if product is distributed by doctors - for over the counter products, manufacturer must directly warn consumers of material risks EXCEPTION: on rare occasion, providing info to a psychologically or emotionally fragile patient will be damaging - in this case must go to Health Care (Consent) Act, to find substitute decision maker Meyer v Rogers: no theraputic privilege exists in canada; doctor cannot withhold info „in patient‟s best interest‟ TO ESTABLISH BREACH: - standard is the reasonable patient with this patient‟s particular concerns - must develop a balance between standard of medical judgement and the concerns of the patient Reibl v Hughes: patient was 1.5 years away from securing pension TO ESTABLISH CAUSATION: - reasonable patient test: would the  have consented or rejected the operation, had he been fully informed - modified reas patient test: incorporates patient‟s subjective reasonable beliefs, fears, desires, expectations (Arndt) - patient likely to win if: serious risks, high probability, elective surgery, cosmetic surgery, experimental procedure Reibl v Hughes: the reasonable patient in his circumstances would have rejected surgury (pension, elective) Rocha v Harris: patient not told of risk of paralysis for neck operation, and came out paralyzed - held for Δ: reasonable patient would likely have gone ahead with the operation (π was in great pain) Arndt v Smith: pregnant woman not told of risk of birth defects from her chicken pox; baby disabled - held for Δ: reasonable, informed woman would have had the baby anyway; this patient would have too Videto v. Kennedy (1981 OCA) TEXT PAGE 232 - clear point form list of elements of liability and obliagations MEDICAL MISADVENTURE: NEGLIGENCE 2. Negligent treatment, diagnosis, follow-up STANDARD OF CARE: - Doctor: the reasonably prudent, competant, diligent doctor in the same circumstances (LaPointe, Ter Neuzen) - Specialist: the reasonably prudent, competent, diligent specialist in the same field (Ter Neuzen: ob/gyn) - Intern: held to regular doctor standard; must be aware of own limitations (Challand, Miles v Judges, Jones v Manchester) - Doctor acting as Specialist: probably held to specialist standard - may depend on who‟s decision it was to have doc act as specialist Bateman v Doiron: held to doctor standard - hospital not liable because resource allocation decision to not have specialist on Law v Simcoe: hospital reprimanded in obiter for system discouraging doctors to requests CT scans for diagnosis - Urban standard may be higher than rural (McCormick v Marcotte) - Operating Teams: each held to the standard corresponding to his position: ie nurse, doctor, surgeon, supervisor OTHER RULES: - Errors of Judgement: negligent if the reasonably prudent doctor wouldn‟t have made the error - courts generally won‟t consider whether the standard practice itself is negligent Ter Neuzen: court considered whether the standard screening practice for HIV in sperm donors was negligent: no - expert evidence is required for issues requiring the opinion of a qualified professional - not required for „common‟ negligence: ie leaving sponges or forceps in a patient after surgery - no tort action in loss of a chance (LaFerriere) - but can bring action in k if there is a contractual relationship, like doctor-patient (de la Giroday) - hospital can be vicariously liable for anyone working in hospital (unknown: IK‟ers) - hospital may have some non-delegable duties MEDICAL MISADVENTURE: REMOTENESS NEWER CANADIAN RULE: (Kolesar v Jeffries, Joseph Brant Memorial Hospital v Koziol) (probably THE rule now) - an original Δ may be responsible for the later negligence of a doctor or hospital which aggravates the π‟s injuries, unless it is completely outside the normal range of experience - certain acts of medical malpractice might be within the realm of reasonable foreseeability, and therefore, compensable - other acts of medical malpractice will be gross and shocking, beyond the scope of reasonable foreseeability - one negligent doctor could be liable for the additional loss caused by another doctor‟s negligence (Price v Milawski) OLD RULE: (Mercer v Gray) (probably overruled) - If reasonable care is used to employ a competent physician or surgeon to treat personal injuries wrongly inflicted, the results of the treatment, even though by an error the treatment is unsuccessful, will be a proper head of damages  innocent error of judgement – can‟t sue doctor – damages are attributed to Δ - If the treatment is so negligent as to be actionable, it would be „novus actus interveniens‟ and the π would have his remedy against the physician or surgeon.  actionable mistakes in treatment – can sue doctor - onus on Δ to prove that the intervening medical error was negligent, if they are to escape liability for it (Papp v Leclerc) CRITIQUE: - this forces the π to conduct 2 different actions, when it is the Δ who set the whole thing in motion - preferable to hold the Δ liable for it all, and allow the Δ to then sue the doctor (like USA – Thompson v Fox) SUICIDE - if π committed suicide after being driven „insane‟ by the Δ‟s injuries, Δ can be liable - if the suicide was a deliberate act of a sane π, it is novus actus interveniens (Swami v Lo, Wright Estate v Davidson) - if π was pre-disposed to suicide (thin skull), Δ will be held partially liable (Costello v Blakeson: Δ 25% liable) - family of π who commits suicide cannot recover damages from Δ, on policy (Robson v Ashworth) MEDICAL MISADVENTURE: DUTY PROBLEMS WRONGFUL BIRTH - action brough by parents of a child born with birth defects who allege that their entitlement to make an informed choice regarding whether or not to proceed with a pregnancy was denied by the negligent conduct of a doctor - Cherry v Borsman: parents recovered damages for pain and suffering, and cost of raising a severely disabled child WRONGFUL LIFE - same action as wrongful birth, but brought on behalf of the child - these actions don‟t often succeed: repugnant to complain about the circumstances of one‟s conception - Arndt v Smith: no such action lies - Cherry v Borsman: kid recovers damages as well as parents WRONGFUL PREGNANCY - action by parents who allege that a particular act of negligence has resulted in an unplanned pregnancy - pre-conception negligence, not post-conception negligence - if kid is born healthy, damages can be awarded for the pregnancy and birth, but not the cost of raising the kid - Cryderman v Ringrose: failed sterilization - Doiron v Orr: this claim is grotesque - Suite v Cooke: court considered the emotional and financial benefits a child brings to a family - Kealey v Berezowski: no damages for costs, because existence of health child doesn‟t constitute a harm DUTY OF DISCLOSURE AND LEARNED INTERMEDIARY - duty on manufacturers to warn ultimate consumers of material risks of products - duty on manufacturers to disclose to health care provider where the product will be adminstered or recommended by HCP - in this case, the HCP is a „learned intermediary‟ - then manufacturer doesn‟t have a duty to warn the ultimate consumer directly - learned intermediary then has a duty to disclose to the patient - Hollis v Dow Corning: breast implants - Buchan v Ortho: birth control pill - unlike other prescription drugs, manufacturer has duty to warn HCP and ultimate consumers LOSS OF A CHANCE - no tort action for loss of a chance (Laferriere v Lawson) - actionable if it can be framed in contract, ie doctor-patient (de la Giroday) MEDICAL MISADVENTURE: VICARIOUS LIABILITY TRADITIONAL RULES: Yepremian v Scarborough General Hospital (1980 OCA) - the hospital may be VL for tortious conduct of staff, but not for tortious conduct of non-staff with hospital privileges (ie Indep K‟ers) - hospital does not have a non-delegable duty of positive action, to ensure care is taken NEW RULES (MAYBE!!) Jaman Estate v Hussain (2002 MCA) - suggests that Yepremian might be confined to its facts - hospital VL if it volunteers to be responsible for non-employees - hospital VL if patient had no choice of doctors (ie if hospital provides emergency care) - hospitals are meant to provide health care, and doctors are integral – whether staff or independent contractors - hospitals that offer a complete range of medical treatment assume a non-delegable duty to ensure careful treatment - policy: - patients are vulnerable vis-à-vis doctors and hospitals: - no way to know doctor status, choose doctors, or question treatment - hospital should have to sort it out and indemnify against the doctors, not the patient!