Duty of Care 1 Duty of Care This is the element of negligence

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Duty of Care 1 Duty of Care This is the element of negligence Powered By Docstoc
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Duty of Care
   -      This is the element of negligence most concerned with legal policy (question
          of law)
   -      Plaint burden
   -      Categories of duty or Anns test
   -

GENERAL
  -
  -   Cooper + Anns/ Kamloops test
      o Does the case fall w/in or is it analogous to a category of cases in which a
           DoC has previously been recognized? If not:
      o Stage I: do the circumstances disclose reasonably foreseeable harm &
           proximity sufficient to establish a prima facie duty of care? [ burden is on
           plaint ] If so , are there any policy considerations relating to the
           relationship to negative recognizing tort liability?
      o Stage II: residual policy reasons that require duty to be refused [ burden is
           on defendant ]
  -
  -    Donoghue v. Stevenson
  -   HL, 1932
  -   Duty of care is defined by proximity of relationship & foreseeability of harm,
      not confined to set categories of relationship, can be extended
  -   FACTS: snail in bottle of gingerbeer, sued manufacturer
  -   RULE: DoC is owed by manufacturer of products which he sells in such a
      way that he intends them to reach the ultimate consumer in the form in which
      they left him w/ no reasonable possibility of intermediate examination, and
      with the knowledge that the absence of reasonable care in the preparation of
      putting up of the products will result in an inj to the consumer owes a duty to
      the consumer to take that reasonable care.
  -   REASONING: Neighbourly principle : those closely & directly affected by
      my act that I ought reasonably to have them in contemplation as being so
      affected when I am directing my mind to the acts or omissions which are
      called in question (proximity) +
  -   OBITER: general duty, owed to class of persons, not necessarily individuals
      (ie to drivers on the highway, not specifically John Doe in his car that day)
  -
  -   BOTTOM LINE: manufacturer owes DoC to consumer = must take
      reasonable care to protect consumer against reasonably foreseeable harm


   -       Cooper v. Hobart
   -      SCC, 2001
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-   FACTS: mortgage company went under, had been governed by the Mortgage
    Brokers Act , which endowed the def, Registrar of Mortgage Brokers to
    investigate complaints, freeze, funds, suspend licenses.
-   DECISION: not a sufficienly close & direct relationship btwn – if there was, it
    would have had to arise fr/ the statute; statute does impose DoC, but it is not
    to individ investors, but rather to public @ large. Moreover, there would be
    policy considerations in imposing DoC upon Registrar.
-   RULE:
    o Defining relationship may involve looking at expectations,
        representations, reliance, and the property or other interests involved
    o Can look first to pre-established categories of proximity before Anns test
        applied:
             When def‟s act foreseeably causes physical harm to plaint or her
                property
             Negligent misstatement
             Misfeasance in public office
             Duty to warn of the risk of danger
             Municipality to prosepective purchasers of realestate to inspect
                housing developments w/out negligence
             Govt authorities who have undertaken policty or road
                maintencance
             Relational economic loss related to contract performance
                (sometimes , e.g. when claimant has possessory/ propriety interest
                in the property)
-
-   BOTTOM LINE: narrowed & modified Anns test (added policy
    considerations at SI; look 1st to see if novel category of duty, outlined
    categories of established duty)


-    Odhavji v. Woodhouse
-   SCC, 2003
-   FACTS: Estate of man who was killed by police when escaping, claim
    officers involved breached statutory obligation to coop in SIU invest
-   DECISION: DoC exists btwn family of deceased & Police Chief (1 step
    removed as direct supervisor, it‟s just & fair) , but not Police Board or the
    Province
-
-   BOTTOM LINE: example of application of Anns w/ Cooper enhancements;
    establishes new category of DoC btwn police chief & family of deceased


-    Bella v. Young
-   SCC, 2006
-   FACTS: student submitted an essay w/ an appendix, forgot to footnote it,
    sounded like first person confession of child abuse; her professor reported to
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       CAS, after 2 years they began an investigation in the meantime she was
       placed on a blacklist & was unable to go into a career as social worker
-      DECISION: there is a Duty owed by prof & university to their students
-
-      BOTTOM LINE: example of application of Anns w/ Cooper enhancements;
       establishes new category of DoC btwn student & university / profs



FORESEEABILITY OF RISK
-   At this stage relates to need for foreseeability of harm to plaintiff
-
-    Moule v. NB Elec Power Comm
-   1960, SCC
-   FACTS: tree adjacent to a power pole had been limbed, but there were boards
    connected this tree to another one which was easy to climb, a boy does this &
    falls from a rotten branch of limbed tree onto a power line & is burned
-   DECISION: no duty owed to cut down unlimbed tree = risk of harm not
    reasonably foreseeably
-   REASONING: it had a duty of care to take reasonable precautions, but only
    against foreseeable consequenes; they had taken reasonable precautions & the
    sequence of events which was so fortuitous as to be beyond the range of
    foreseeable results
-
-   BOTTOM LINE: risk of harm to plaintiff must be reasonably foreseeable
-

THE FORESEEABLE PLAINTIFF TEST
-    This is a way to limit the possibly very wide scope of liability
-
-     Palsgraff v. Long Island RY Co
-    1928, NYCA
-    FACTS: passenger running to catch a train is pushed on board & pulled inside
     by guards, his package falls, which contained fireworks (though didn‟t look
     like fireworks), and this causes an explosion, which disrupts a scale @ the end
     of the platform , this falls & injures plaint.
-    DECISION: no hazard was apparent to the eye of ordinary appearance (eg not
     reasonably foreseeable) that knocking the package down would have harmed
     her
-    DISSENT: harm is the natural result of the act, everyone who is injured has a
     valid complaint  unreasonable risk was taken its consequences are not
     confined to those who might probably be hurt
-
-    BOTTOM LINE: Scope of DoC is limited & is owed to class of ppl who
     could reasonably have expected to have been harmed ; adopted by Canadian
     courts
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-
-   CRITICISMS OF PALSGRAF:
-   didn‟t consider general risks of injury involved in running railway
-   Many policy considerations – who should bear the risks? It is part of the cost
    of doing business? How do you define a reasonable plaintiff?
-   What are the historical/ social issues/ details feeding into them? How would
    things have turned out if the judges had considered the individual esp. her
    financial means?
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Nonfeasance: duties of affirmative action
  -    Common law tends to shy away from assigning liability to nonfeasance
  -    Needs to be something more btwn plaint & def  courts don’t tend to tie the
       moral obligation to help thy neighbour to legal duty
  -    one of the few instances where the general CL rule that doesn’t impose duty to
       act is applied so readily
  -    When should the law impose affirmative duties of care?
       o Policy considerations play a significant part in the analysis
       o It’s not enough to establish that there is a reasonably sufficiently
           proximate relationship when imposing DoC  prior question of whether
           or not the def has to do anything to help/ protect the plaint at all

DUTY TO RESCUE

  -     Osterlind v. Hill
  -    1928, Mass SC
  -    FACTS: def rented canoe to drunk plaint, it tipped, they clung for life for
       approx ½ hr before drowning. Def heard their cries & did nothing
  -    DECISION: No duty to refrain fr/ renting canoes to drunk patrons & no legal
       duty to rescue
  -
  -    BOTTOM LINE: Unlikely that this would be the outcome today, some
       situations there is DoC to rescue:
       o If create plait‟s perilous situation (Oke v. Weide Transport, Man CA)
       o If deny plaint other opportunities for aid or induce plaint to rely upon them
           to plait‟s detriment


  -      Matthews v. MacLaren (see also Horsley)
  -    1969, OntHC
  -    FACTS: plaint fell off def‟s boat (no fault), def botched rescue, another guest
       jumped in. Plaint & guest died (court found d/t cold).
  -    DECISION: there is a DoC to rescue as a master of a ship; SoC was breached
       by botched rescue attempt; however no causation – plaint would have died
       anyway
  -    RULE: DoC: there is a duty by master of ship to attempt to rescue passenger
       gone overboard, similar to certain analogous special relations:
       o Employer & employee
       o Carrier & passenger
       o Occupier & his lawful visitors
  -    SoC: look to what a reasonable boat operator would do in similar
       circumstances
  -    Causation: couldn‟t conclude that the negligent rescue attempt caused or
       contributed to his death , he would have died from the cold of the water
       anyway
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-
-      BOTTOM LINE: Sits in contrast w/ Osterlind; there is a affirmative DoC to
       rescue in certain special relationships; In establishing SoC for rescue, look to
       what a reasonable boat operator in similar circumstances would do
-
-
-
-      Good Samaritan Act
-      Did not arise d/t a need from CL  rescue suits were not at all commonplace,
       likely a response to the fact that such acts exist in many US jurisdictions
-      Protects people from liability resulting from negligence in acting or failing to
       act while providing emergency HC services
-      P 322 of Textbook
-
-

DUTY TO CONTROL THE CONDUCT OF OTHERS
Common law is a jealous guardian over individual autonomy (Childs)

-       Crocker v. Sundance Northwest Resort
-      SCC 1988
-      FACTS: ski resort = def, plaint got drunk & entered into a resort-sanctioned
       tubing race. Plaint was in part drunk from bars on the resort. He signed but
       didn‟t read a waiver several days in advance. He was asked twice by the def if
       he should continue. He insisted that he would. He even fell off one tube at the
       top of the hill & they got him another. He ended up breaking his neck.
-      DECISION: ski resort would owe a DoC to a visablly drunk patron b/c
       catastrophe would foreseeably result.
-      REASONING: generally when smb is injured in a sporting event, no one else
       is held liable. But def hoped to profit from this dangerous event. They knew
       he was drunk. Looked to Jordan House v. Menow (tavern sent drunk patron
       out on the street, knowing he was drunk & he was struck by a car), Court had
       determined there was a DoC
-      RULE: one is under a duty to not place a person in a situation when it is
       reasonably foreseeable that they will be injured
-      It‟s not ok to encourage incapacitated patrons to participate in dangerous
       activity
-      Voluntary assumption of risk: not found; waiver did not absolve the def of
       all legal duty. Decided that b/c he was drunk he was not in a position to assess
       the risk.
-      Waivers: Sometimes waiver defenses work, def must take reasonable steps to
       ensure that the plaint understands the waiver & the risk
-      Contrib Negligent: Plaint was 25% CN b/c he got so drunk, took so little care
       of himself
-
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-   BOTTOM LINE: Commercial host owes DoC not to place person in situation
    when it is reasonably foreseeable that they‟ll be injured
-
-
-
-    Stewart v. Pettie
-   1995, SCC
-   FACTS: plaint at dinner theatre, brother served a lot of alcohol by 1 waitress,
    she didn‟t drink; def did not try to stop them or question who‟d drive; brother
    drove home carefully but roads were bad & he was drunk, so crashed & she
    was paralyzed
-   DECISION: DoC est, SoC not breached, no causation
-   RULE: commercial host owes duty of care to its patrons who become
    inebriated – this is logically extended to 3rd party
-   REASONING: DoC: this is a logical extension of an existing category of care
-   SoC: def did not breach, as there was no reasonably foreseeable risk of harm
    compelling them to positively act to prevent brother from driving; mere
    existence of special relationship doesn‟t compel positive obligation to act
-   Causation: Plaint could also not prove if the theatre had intervened they
    wouldn‟t have driven home as they did
-
-   BOTTOM LINE: commercial host owes DoC to patrons & 3rd parties injured
    by inebriated patrons, however there must be reasonably foreseeable harm to
    compel positive obligation to act to est SoC breached; backlash against
    widening scope of Duty of Care
-
-
-   Liquor Licence ACT RSO
-   If smb injures kills self/others after purchasing liquor from a licenced
    purveyor, they can be held responsible
-
-
-    Childs v. Desormeaux
-   2006, SCC
-   FACTS: plaint inj when drunken guest of def‟s house party crashed into her
-   DECISION: no DoC owed
-   RULE: without something more, social hosts of parties where alcohol served
    don‟t owe DoC to 3rd parties injured by intoxicated guests
-   3 categories where positive duty to act imposed (common thread is the def
    material contribution to the creation or control of the risk) :
    o where def intentional attracts & invites plaint to activities s/he controls
        that is inherently & obviously risky e.g. boat operator-guest
    o where there are paternalistic relations of control e.g. parent-child; teacher-
        student
    o where def exercises a public function or engage in commercial exercise
        which imply a duty to public e.g. commercial host-3rd party highway users
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-   Law doesn‟t impose duty to eliminate risk, & doesn‟t impose need to engage
    in risky behaviour to rescue or intervene unless there is a special relationship
    btwn them or they are materially contributing or creating the risk (p118)
-   REASONING: this is a novel category of DoC: no paternalistic relationship
    btwn guests & social hosts; house party where alcohol is served is not an
    inherently risky behaviour;
-
-   BOTTOM LINE: no DoC btwn social hosts & 3rd parties injured by drunken
    guests; 3 categories of relationship which impose positive duty to act;
    Evolution of social / commercial host liability
-
-
-    Jane Doe v. Metro Toronto commissioners of Police
-   1998, Ont GD Court
-   FACTS: plaint raped by serial rapist; police knew of risk & didn‟t warn those
    who fit the profile like her (thought the women would become hysterical)
-   DECISION: positive duty to warn owed by police to public viz. foreseeable
    harm
-   REASONING: proximity of relationship est‟d thru CL & legislation; harm
    was reasonably foreseeable
-   SoC: reason for not warning not good enough to negative duty to act
-   Causation: plaint would have taken steps to protect herself had she known
-
-   BOTTOM LINE: police owe a duty to warn public (positive act) when there
    is reasonable foreseeability that they will be harmed
-
-
-
-    Hill v Chief Constable of West Yorkshire UK [note 3 on p 339]
-   Parents of girl murdered by serial killer : if police acted reasonably they;d
    have caught him b4 her murder
-   opposite approach (narrower) on DoC re: police & private individuals
-   no DoC unless offender commits crime while in police custody
-
-    Tarasoff v. Regents of the University of California [note 13 on p 342]
-   Duty to protect extended to HCPs those who might be endangered by their
    patients
-   Psychologist sued when his patient murders his g/f. He had confided this to
    him, psych passed info onto police. Vic‟s parents sued
-   Burden only partially d/c‟d by advising police, presumably
-   Courts rejects confidentiality argument (as required by prof code of conduct)
-   no Cdn example, though Tarasoff has been referred to approvingly (Cdn
    courts may similarly recognize such DoC)
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Special Duties of Care:
  DUTY OF CARE OWED TO RESCUERS
  Courts seem to be generous towards rescuers, hesitant to assign liability.

  -       Horsley v. MacLaren
  -      1972, SCC
  -      FACTS: Estate of rescuer who died during rescue attempt (see under
         nonfeasance)
  -      DECISION: no duty of care owed
  -      RULE: look to Videan v. British Transport “if a person by his fault creates a
         situation of peril, he must answer for it to any person who attempts rescue”
  -      REASONING: Captain did not cause a situ of peril so grave so as to induce
         Horsely to attempt rescue – would only be the case if rescue of Mathews so
         aggrevated by def‟s actions as to induce Horsely to attempt rescue
  -      Look to SoC in rescue of Mathews: may not have been the best in the situ ,
         but there is not a standard of perfection to be imposed – error in judgement at
         most, Mathews would have died anyway
  -      DISSENT: Liability to rescuer stems from independent duty of negligent
         person
  -      Someone who puts himself at risk can be held liable to his rescuer if his
         rescuer is injured
  -      A non-negligent first recuer is not liable to subsequent resucer
  -      Horsley‟s actions was a probable & foreseeable outcome of the negligent
         resuce attempt by Mac, despite the fact that Mathews would not have lived
  -
  -      BOTTOM LINE: if a person by his fault creates a situation of peril, he must
         answer for it to any person who attempts rescue, otherwise no liability;
         DISSENT says plaint‟s rescue attempt was probable & foreseeable outcome
         of def‟s negligent rescue attempt
  -

  -       Videan v. british transport commission
  -      1963, UK, CA
  -      FACTS: child wanders onto tracks, stationmaster/father attempts rescue.
         Trolleydriver is not properly paying attn, so hits them, killing father, injuring
         son
  -      DECISION: liability for father‟s death, not son‟s injury, not reasonably
         foreseeable that child would wonder onto track (was trespassing), but it was
         reasonably foreseeable that an emergency of some kind could arise
         necessitating a rescuer to be on the tracks (?)
  -
  -
  -
  DUTIES OWED FOR INJURIES PRIOR TO BIRTH
  An area of law still in development
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-   A) pre-conception wrongs
-   Theoretically possible tort, but generally very difficult causation issues
-
-   B) wrongful birth & wrongful life
-   Claims by mother (wrongful birth) or child (wrongful life)
-   E.g. Dr failure to warn of likelihood of child being born w/ major disability –
    turns on a failure to warn her & thereby provide her w/ the option of aborting
-   Wrongful birth: Mother has to prove that she would have acted differently had
    she known
-   Wrongful life: chrysalises only upon birth of child
-
-    Paxton v. Ramji
-   2008, ONCA
-   FACTS: mom prescribed Acutane prescription; dr warned of effects, but dad
    had a vasectomy; child was born w/ disabilities d/t medication & sued dr for
    wrongful life
-   DECISION : no DoC owed by dr to fetus to terminate its existence or offer
    mom chance to do so
-   REASONING: fails on SI of Anns (relationship not reasonably proximate) &
    there are nevertheless policy considerations if did pass
-   Court concern over conflict of interest (woman, who is patient, vs fetus)
-
-   BOTTOM LINE: No DoC owed by Dr to fetus; Most often wrongful life
    claims are dismissed (here, US, UK)
-
-
-   C) wrongful pregnancy
-   E.g. failed sterilization, abortion
-   Courts will often allow for damage costs (emotional damages), not usually for
    cost of raising the child (though this is changing)
-   Courts will often allow for addnl cost if child born disabled
-
-
-   D) Pre-natal injuries
-   When fetus sustains injury & is born alive
-   There is a right of recovery angst 3rd P (incl father) assuming negligence
    est’d; angst mom is trickier
-
-    Dobson v. Dobson
-   1999, SCC
-   FACTS: mother at fault in car accident, injures fetus who is born alive, child
    sues
-   DECISION: no DoC owed by mom to fetus
-   REASONING: Court applies same DoC analysis as in Anns/ Cooper
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-      Stage I: relationship is reasonably proximate & risk of harm foreseeable, but
       there are policy considerations, so fails there (intrusion upon rights/freedoms
       of pregnant women)
-      Notes that would only be able to justify compensation if insurance is avail and
       they determine that the existence of insurance is not an appropriate enough
       reason to allow this, if this is desired, should be done through legislation
-      STRONG DISSENT: would have attached liability, don‟t see extending DoC
       to pregnant women who are driving is too extreme (DoC btwn drivers on the
       road already exists) could extend even to include other activities where there
       is a DoC owed to 3rd parties already
-
-      BOTTOM LINE: no DoC owed by mom to fetus, though door is open for
       legislation
-
-
-      Materal Tort Liability Act [Alberta]
-      limited to instances of driving & only if there is insurance
-      Settlement in Rewanga case in Alta after this act was passed
-
-

NERVOUS SHOCK
No physical injury to person who is the plaintiff;
POLICY issue: Courts tend to limit claims in these kinds of cases (floodgates, easy to
feign, hx tendency to say psych injury is not as severe as physical inj)
Tend to not be very generous.
Usually an indirect result of injury to smb else
Plaint needs to prove NS manifested as physical, psychiatric, or psychological
disorder (not just for feelings of grief & sorrow)
Distinction btwn mental & physical injury is not as stark as was once perceived

-       Rhodes v. CNR
-      1900, BCCA
-      FACTS: heard about train crash , thought son might been killed, they didn‟t
       let her on the crash site, ended up he was,
-      DECISION: claim denied
-      RATIONALE: not a foreseeable consequence of the train wreck; had not
       witnessed the accident or its aftermath
-
-      BOTTOM LINE: no NS for grief & sorrow, need to have perceived accident
       w/ own senses ; NS must be a foreseeable consequence

-       Mustapha v. Culligan of Canada Ltd
-      2008, SCC
-      FACTS: fly in bottled water, becomes obsessed, develops major depressive
       disorder
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-   DECISION: damages too remote, so no liability
-   RULE: to determine reasonable foreseeability of mental injuries: how would a
    person of ordinary fortitude react (not thinskull rule)
-   REASONING: DoC established & standard breached, injuries actual &
    caused by breach
-   Trial judge relied on test of reasonable foreseeability , focused at DoC stage
    (like Moule), SCC looks to remoteness (is the harm too unrelated to the
    wrongful conduct to hold the defendant fairly liable?)
-   Remoteness: unusual or extreme reactions to events caused by negligence are
    imaginable but not reasonably foreseeable (which is all that is required, not a
    standard of perfection)
-   in remoteness phase once plaint est the foreseeability that a mental inj would
    occur in a person of ordinary fortitude (objective test) the def must then take
    plaint as finds him (thin skull would kick in)
-   Can recover damages for psychiatric harm when by any subj measure the
    reaction is far in excess of what would reasonably be expected i.e. not for
    psychological upset
-
-
-   BOTTOM LINE: in remoteness inquiry (not DoC analysis) , once plaint est
    the foreseeability that a mental inj would occur in a person of ordinary
    fortitude d/t the breach, the def must then take plaint as finds him (thin skull
    would kick in); Distinction btwn mental & physical injury is not as stark as
    was once perceived
-
-
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Standard of Care

  -      Concerned with how the def. should reasonably have acted -- there is a
         breach if def acted w/out the requisite degree of care
  -      Question of fact mixed in with question of law
  -      Plaint burden
  -
  -      The Reasonable Person Test
  -
  -       Arland v. Taylor:
  -      OntCA, 1995
  -      FACTS: Plaintiff inj in MVA, at trial jury determined no breach by driver
  -      The judge must define “reasonable person” on a case by case basis
  -      although the legal standard (“what a reasonable man would‟ve done”) doesn‟t
         change, the factual standard does change depending on time, place (not what I
         would have done, but rather what a reasonable person would have done)
  -
  -      BOTTOM LINE: reasonable person test is a question of fact &l aw & an
         objective measure
  -
  -

  FACTORS IN DETERMINING BREACH OF STANDARD OF CARE:
  -   1) the probability (foreseeability) & severity of potential injury (e.g. Bolton v.
      Stone , Paris v. Stepney Borough Council)
  -   2) cost of risk avoidance (e.g. Vaughn v. Halifax-Dartmouth Bridge Comm,
      Law Estate v. Simice)
  -   3) social utility(e.g. Watt v Hertfordshire County Council)
  -
  -    Bolton v. Stone:
  -   UK HL, 1951
  -   FACTS: Plaint hit by cricket ball when walking on a road adjacent to a cricket
      ground
  -   ISSUE: What is the nature & extent of duty of smb encouraging activity on
      their property which could cause inj to smb else?
  -   DECISION: standard of care not breached by cricket field owner – likelihood
      of severe risk was very low
  -   REASONING: Duty s/b based on the likelihood of damage to others rather
      than on its foreseeability alone i.e look at nature & degree of risk
  -
  -   BOTTOM LINE: Risk must be foreseeable PLUS there must also be a
      recognizable substantial risk of injury (nature & degree of risk)


  -       Paris v. Stepney Borough Council:
  -      UK , HL, 1951
                                                                                 14


-   FACTS: One-eyed employee looses only remaining eye when piece of equip
    he was working with flew into his eye
-   DECISION: employer is liable especially given the gravity of the injury
-   REASONING: Employer owes DoC to employee
-   SoC: the care which an ordinarily prudent employer would take in the
    circumstances
-   Must consider the risk of greater injury to this person (ie the gravity of the
    consequences)
-   DISSENT: risk was very remote & er needn‟t have taken precautions; also,
    no difference in gravity if person with one eye vs two eyes lose an eye
-
-   BOTTOM LINE: in determining SoC must consider the gravity of the risk,
    use of reasonable person test (what would ordinarily prudent employer do in
    the circumstances?)
-

-   3) these are balanced against the private & soc. costs associated with avoiding
    the risk and
-
-    Vaughn v. Halifax-Dartmouth Bridge Comm
-   NSSC, 1961
-   FACTS: A bridge maintained by def. was painted, flecks of paint were blown
    by the wind onto nearby cars in parking lot, one such car-owner sued
-   DECISION: SoC owed to take all reasonable measures to prevent or minimize
    damage from falling paint & this was breached b/d did nothing
-   REASONING: It was inevitable that paint would fall onto cars in the lot
-   Def should‟ve taken all reasonable measures to prevent or minimize this
-   These measures were feasible & the cost of doing this would have been
    minimal
-
-   BOTTOM LINE: consider feasibility & cost of risk avoidance in evaluating
    breach of SoC
-
-
-    Law Estate v. Simice
-   BCCS, 1994
-   FACTS: plaint husband died when CT scan not initially done on a timely
    basis – sued def. drs, who had felt pressured to not do unnecessary CTs per
    provincial medicare restrictions
-   DECISION: standard of care breached, drs found negligent
-   REASONING: if choice btwn dr resp to patient or medicare, should go first to
    patient, must weigh the costs to the medicare system vs the cost to the patient
    (i.e. his life)
-
-   BOTTOM LINE: need to balance & weigh conflicting duties, precedence
    goes to that which will result in the greater harm
                                                                                            15


   -
   -
   -       Watt v Hertfordshire County Council
   -      UK, CA , 1954
   -      FACTS: Fireman injured when a rarely used jack loaded into the rear of a
          vehicle which slipped & injured him
   -      DECISION: standard of care of employer not breached
   -      REASONING: risk of injury needs to be balanced against the end to be
          achieved – the saving of life (which firemen generally do, & which was the
          end in sending out the vehicle with the jack), this justifies considerable risk
   -
   -
   -      BOTTOM LINE: Social utility (when ends of activity involve saving life)
          allows for a lower standard of care
   -
   -
   -      Priestmand v. Colangelo
   -      1959, SCC
   -      Policeman not liable when run over pedestrians during a high speed car chase
   -      Courts would perhaps look at a variety of factors now
   -      Generally, the above must be assessed at the time of breach, not in hindsight
           how would a reasonable person in the def‟s circumstances have acted
   -
   -      The Hand formula:
   -      An economic analysis of SoC
   -      United States v. Carroll Towing Co
   -      Ship breaking away from mooring
   -      Owner‟s duty is a function of these variables: (1) probability ship will break
          away [P], (2) gravity of the resulting injury if it does [I], (3) burden of
          adequate precautions [B]
   -      Liability depends upon B being less than I times P
   -      No moral considerations
   -

SPECIAL STANDARDS OF CARE
   -    Can infuse an element of subjectivity to the normally objective reasonable
        person standard under certain very exceptional circumstances.

   -      A) The disabled:
   -      Generally speaking, the disabled (phys) are required to meet only the
          standard of care of a reasonable person with a similar disability
   -
   -       Fiala v. Cechmanek
   -      Alta CA, 2001
                                                                                  16


-   FACTS: man went for run, experienced extreme sudden manic episode (no
    prior hx), began choking def, who involuntarily hit gas & car hit plaint‟s care,
    who was injured
-   Couldn‟t form intent – so was it legligent?
-   ISSUE: is frame of mind important to standard of care or do we apply
    reasonable person ? Will this erode reasonable person standard?
-   DECISION: no breach of DoC
-   REASONING: tortfeasor must have voluntarily committed the act & have
    possessed capacity to commit it.
-   Test for relieving def of liability if def is afflicted suddenly & w/out warning
    w/ a mental illness:
    o D/t mental illness, had no capacity to understand duty of care to others; or
    o As a result of his mental illness, could not d/c his duty of care;
-
-   BOTTOM LINE: under very exceptional circumstances (mental illness,
    physical disability, children) can apply a subjective standard for the
    reasonable person test; test for determining if sudden mental illness negatives
    liabilty



-   B) Children:
-   when children are engaged in apparently adult activity – would be held to the
    standard expected of a reasonable adult, otherwise standard is that of child of
    like age, intelligence, experience
-
-    Joyal v. Barsby
-   Man CA, 1965
-   FACTS: child struck by car when she ran out in front of it on busy highway.
    She‟d been trained by parents to be careful
-   ISSUE: Is child old enough to be contributorally negligent?
-   DECISION:
-   REASONING: SoC for children test:
    o Did exercise care expected of child of like age, intelligence, experience
-   DISSENT: felt she didn‟t meet SoC for child of her experience as she‟d been
    trained, she was careless


-   BOTTOM LINE: SoC for children is expected care for child of like age,
    intelligence, experience unless engaging in adult activity
-
-

-   C) Professionals
                                                                                      17


-      Standard of care shown by reasonably prudent professional under similar
       circumstances (assuming general practices of professional is not itself
       negligent)
-      Higher standard of care than general public
-
-       White v. Turner
-      Ont HC, 1981
-      FACTS: breast reduction sx gone wrong,
-      DECISION: breached SoC expected for this proceedure
-      REASONING: Court asked other surgeons, who confirmed def did sx too
       quickly, did not do proper check = not up to standard of care
-      OBITER: the mere fact of a poor result does not mean that there has been
       negligence; Court may have to give more weight to one expert witness than
       another & will provide reasoning for this
-
-      BOTTOM LINE: SoC for professionals is reasonably prudent level of care
       expected for similar professionals under similar circumstances, assuming
       general practice of profession is not itself negligent
-

-
ROLE OF CUSTOM
-    Custom is important, but the true test of the legal standard is not what usually
     is done, but more what ought to be done
-
-     Ter Neuzen v. Korn
-    SCC, 1995
-    FACTS: Plaint infected with HIV from AI ; dr employed standard practices at
     the time; at trial jury found liable d/t the standard practice itself fell short of
     SoC
-    DECISION: new trial
-    REASONING: It would have been impossible to know that HIV could be
     transmitted via semen, so jury could not have found the dr negligent on that
     basis,
-    However, the jury can determine the standard of practice itself is negligent if
     (and only if) the standard practice fails to adopt obvious & reasonable
     precautions which are readily apparent to the ordinary finder of fact (not
     where a procedure involves complex , highly technical procedures, etc)
-     as this is a question of law, judge must determine whether or not the standard
     practice is itself negligent, jury would decide then whether or not
-    In this case, the jury could have found the standard practice of not screening
     donors & f/u on STDs was negligent, but NOT whether or not the screening
     itself for AIDS was
-
-    BOTTOM LINE: can only very rarely determine SoC of practice/custom is
     negligent only if it is fraught w/ obvious risks, doesn‟t adopt obvious &
                                                                                  18


    reasonable precautions apparent to the ordinary finder of fact (not when
    highly complex, technical procedure)
-
-
-
-    Girard v. General Hospital of Port Arthur
-   Ont Div Ct, 1998
-   FACTS: def dr was assessing plaint gait as part of neuro exam when she fell;
    def had adhered to accepted standard or practice
-   DECISION: no breach of SoC
-   REASONING: Trial judge erred by stating that accepted practice was
    negligent to casual observer & not relying on experts to determine this; can‟t
    dismiss expert opinion on validity of standard practice
-
-   BOTTOM LINE: The Ter Neuzen exception is very rare; most often can‟t
    claim that a professional practice falls below SoC as not adopting reasonable
    precautions apparent to ordinary finder of fact (need to consider expert
    opinion)
-
-
-
-    Resurfice Corp. v. Hanke (see also under Causation)
-   SCC, 2007
-   FACTS: plaint mixed up gas & water tanks of zambonie machine (produced
    by def) & got burned
-   DECISION: no breach of SoC
-   ISSUE: was harm to plaint reasonably foreseeable?
-   REASONING: it was not reasonably foreseeable that users of the machine
    would confuse gas & water tanks, even though others had made similar
    mistakes in the past;
-   no need to consider opinions of expert witnesses if can arrive at necessary
    conclusions on issues of fact & responsibility w/out them
-
-
-   BOTTOM LINE: breach of duty must arise from a reasonably foreseeable risk
    of harm created by act or omission
                                                                                   19


Causation

-      Was the breach of SoC a cause of the planit’s loss? (cause-in-fact)
-      Plaint burden
-      Links def breach to plaint loss
-      Proximate cause: is loss close enough or too remote
-      Generally question of fact
-      is the loss attributable to one or multiple tortfeasors?
       o “divisible loss” refers to a loss is attrib to single tf
       o Indivisible loss refers to a loss attributable to more than one tf
-
-
THE BUT-FOR TEST
-    Generally the test of causation
-    If the plaint’s inj would not have occurred but for the def’s negligent act, then
     that act is a cause of the inj
-
-     Kauffman v. Toronto Transit Commission
-    1959, Ont CA.
-    FACTS: At St Clair subway station. 2 youths ahead of plaint on escalator
     going up fell against man in front of plaint, who fell back on her. She fell on
     escalator steps w/ these people on top of her, as the escalator continued up.
     She sustained serious perm injuries. Blamed fact that handrail design was not
     properly tested
-    DECISION: no causation
-    REASONING: no evidence that anyone who fell grasped for the handrail in
     the scuffle or to prevent a fall. The handrail was not a contributing cause of
     the accident (failed but-for test).
-
-    BOTTOM LINE: item/ behaviour at hand must be at least a contributing
     cause of accident/injury
-
-
-     Barnett v. Chelsea & Kensington Hosp Mngt Committee
-    UK, 1969
-    FACTS: 3 men showed up @ hosp vomiting, they were told to go home & see
     own drs. They ended having been poisoned & died
-    ISSUE: did the dr who saw them negligently cause their deaths?
-    DECISION: no causation
-    REASONING: dr did breach standard of care, but this didn‟t cause their
     deaths.
-    Medical evidence showed they would have died b4 the dr could possibly have
     diagnosed & treated them.
-
-    BOTTOM LINE: if breach of SoC , it must actually be a cause of the
     injury/harm
                                                                                    20



-   ESTABLISHED EXCEPTIONS TO THE BUT-FOR TEST
-
-   A) The multiple negligent defendants rule
-   In Can this has been limited to cases of 2 not multiple def
-

-    Cook v. Lewis (see also under exceptions to BoP)
-   SCC, 1951
-   FACTS: 2 defendants fired at same time while hunting, shot plaint in the face,
    both denied it, plaint couldn‟t prove OBOP who had shot him; but-for the
    negligence of both was he shot
-   DECISION: causation established & both held jointly & severally liable
-   REASONING: Could prove they were negligent but impossible to prove
    which caused the loss , so the burden of causation shifts to def, both being
    held responsible unless can disprove OBOP
-    fallout of this is that one def who didn‟t cause the loss will be held liable

-   BOTTOM LINE: when 2 negligent tfs & can‟t prove which one‟s negligence
    caused injury, both can be held liable for total costs; BoP can shift to def when
    impossible to prove which negligence caused the loss; harm must be
    reasonably foreseeable & the plaint must have been harmed in this way;
    policy considerations

-
-
-   B) The learned intermediary rule
-   Manufacturers of products that aren’t directly avail to the public may d/c
    their duty to inform consumers by disclosing to learned intermediaries
-
-    Hollis v. Dow Corning Corp
-   SCC, 1995
-   FACTS: Breast implant ruptured injuring patient, dr did not warn her of this
    risk as he was not warned by def., who argued no liability on basis of
    causation – plaint couldn‟t show dr would have warned her if he‟d known
-   DECISION: causation established
-   REASONING: even though but-for test not met, def can‟t use learned
    intermediary rule to shield self from claims arising from its own negligence;
    plaint would have no other action b/c dr had not been negligent
-
-   BOTTOM LINE: even if but-for test not met, can‟t use learned intermediary
    rule as shield from negligence
-
-
-
-   C) Informed Consent
                                                                                   21


-   These cases held that h/c professionals have a duty to put patients in a
    position to make informed decisions about consenting to tx
-   Mixed subj/obj test: most informed consent cases fail on pro-def test of
    causation
-
-    Hopp v. Lepp & Reibl v. Hughes
-
-   BOTTOM LINE: Special obj/subj (modified subjective) test of causation in
    cases of informed consent w/ HCPs – would a reasonable person in the
    plaint‟s position have consented if adequately informed?
-
-   Arndt v. Smith
-   Defended sub/obj test b/c purely subj test would require hypothosization about
    how the patient would have reacted if properly informed, would leave the
    matter entirely up to the patient‟s testimony (which could be coloured by
    hindsight, bitterness, etc)
-
-
-   Buchan v. Ortho
-   1986, SCC
-   FACTS: had stroke after taking the Pill, dr didn‟t warn of risk; def didn‟t warn
    either dr or public of known risks
-   DECISION: plaint wouldn‟t have taken pills if known of risk, def breached
    duty to warn
-   REASONING: Although CL duty is for manufacturer to warn dr, the Pill is
    different, given patient role in choosing it (learned intermediary rule doesn‟t
    apply here); given gravity of risk & ease of offering a warning , breach
    occurred
-   Informed consent & Riebl test: court must be satisfied that not only plaint but
    also reasonable person would have acted differently if properly warned
    (mixed obj/subj test)  doesn‟t apply in products liability cases, applied only
    a subjective test here (diff relationship than btwn dr & patient, )
-
-   BOTTOM LINE: learned intermediary rule doesn‟t absolve manufacturer of
    taking care to warn consumer of potential risks of using product; use subj
    standard for reasonable person test in cases of product liability (not obj/subj of
    Riebl test); policy considerations – promotion of market-place honesty,
    informational advantage manufacturers have over consumers
-
-

-   RECENT ATTEMPTS TO MODIFY THE BUT-FOR TEST

-   A) Material Contribution
                                                                                    22


-   It was never clear how material contribution test differed from but-for until
    Hanke v. Resurfice Corp, which outlined the very narrow circumstances in
    which it might be avail
-   Law in this area is development, still rely on but-for
-
-    Walker estate v. York Finch General Hosp
-   2001, SCC
-   FACTS: representative plaint contracted HIV from tainted blood, held CRCS
    was negligent in screening donors. There was no test to screen blood for HIV
    at the time, so donor screening was used.
-   Trial judge noted that def was negligent in terms of warnings it gave to
    potential donors to screen them in 1984, but that the donor who was ultimately
    resp for the HIV transmittal continued to donate until 1987, so would still
    have donated the infected blood. As such, plaint couldn‟t prove CRCS
    negligence was a cause of the loss.
-   DECISION: Def‟s conduct materially contributed to the occurrence of the inj.
-   REASONING: In this case the question is not whether the def‟s conduct was a
    necessary condition for the plaint‟s injuries (but-for), but rather whether that
    conduct materially contributed. A contributing factor is material if it falls
    outside the de minimis range.
-   Hollis did not apply (what would the donor have done, subj hypothetical test).
    Proved that the failure of the def to screen donors w/ tainted blood materially
    contributed to plaint contracting HIV fr/ the blood.
-   Even if the but-for test is applied, causation would still be proved: trial judge
    should have determined if donor would have continued to donate or been
    excluded if def had followed the appropriate standard of care per ARC 1983
    pamphlet.
-   1984 pamphlet focuses on being in good health, 1983 pamphlet states not
    necessarily symptomatic could still have AIDS – 1983 pamphlet info was
    never provided to donor, if he had received this info (ie if CRC had met the
    appropriate standard of care) & continued to donate, then the def couldn‟t be
    found liable.
-
-   BOTTOM LINE: used material contribution outside de minimus range test,
    but not a firm rejection as such as but-for test.
-
-
-   B) Materially increased risk
-   Certain events/ exposures to substances many years past can in crease the risk
    that person will develop a disease/ disability
-   These situs don’t lend themselves well to the but-for test, d/t requirement that
    increased risk must be such that it more probable than not that the def’s
    negligence was cause of plaint’s loss
-
-    McGhee v. National Coal Board
-   1972, UK HoL
                                                                                   23


-   FACTS: Def employed plaint to clean out brick kilns; in breach of standard of
    care, def didn‟t provide showers at work site, had to cycle home filthy. Plaint
    developed dermatitis. Experts said lack of showers materially increased the
    risk of developing the condition, but couldn‟t say that the lack of showers was
    more likely than not to have been a cause of the condition
-   DECISION: causation est d/t materially increased risk
-   CONCURING OPINION but diff analysis: must shift the burden of proof to
    def in these cases (presumption of causality that must be rebutted OBOP);
-
-   BOTTOM LINE: if def‟s negligence materially increased the risk of a
    particular kind of inj occurring & that inj befalls the plaint, then the def will
    be deemed to be a cause; Lord Wilberforce suggests BOP s/b shifted to def to
    prove negligence did not cause condition; HoL later retreats from it’s above
    restatement of causation in Wilsher v. Essex Area Health Authority, plaint
    blindness at birth due in part to oversaturation of O2 – this was only one
    factor, several other innocent causes, no indication of which was the cause
-
-
-
-    Fairchild v. Glenhaven Funeral Services
-   UK,
-   FACTS: plaint developed mesothelioma while negligently exposed to asbestos
    by several employers on several occasions – impossible to prove which one,
    some uncertainty as to how it is developed anyway
-   DECISION: causation est‟d
-   RATIO: breach of duty that materially increased the risk of harm & that‟s the
    type of harm that occurred in an occupational disease type setting – it can be
    presumed that caused the harm
-
-   BOTTOM LINE: this was a rehab of Ghee (shifted burden to def to prove
    breach of duty that materially increased risk of harm & that‟s the harm that
    occurred was caused by breach), but only applies to occupational disease;
    courts still hesitant to move away from but-for; not yet adopted in Canada
-
-
-    Snell v. Farrell
-   1990, SCC
-   FACTS: during cataract sx, def dr. noted bleeding, waited seemed ok so
    proceeded. There was blood in the eye after the sx & became clear the optic
    nerve had atrophied , resulting in blindness. Expert witnesses testified this
    could‟ve occurred naturally or as rslt of continuing the operation. Trial judge
    found materially increased risk (given negligence of the dr & possible cause
    of blindness being the bleeding), so shifted burden to def per
    McGhee(Wilberforce approach), who could not disprove, so found in favour
    of plaint.
-   DECISION: causation established
                                                                                   24


-   ISSUE: whether plaintiff in malpractice suit must prove causation in accord
    w/ but-for or can look to materially increased risk
-   REASONING: material contrib enhancements aren‟t required – principles
    relating to causation are adequate
-   No need to reverse burden, though this could be justified in cases such as
    Cook v. Lewis where there are multi tf‟s
-   Where the facts lie particularly w/in know of def, very little affirmative
    evidence on part of plaint is required to prove causation
-   positive med opinion not needed to find causation – drs are hesitant to state
    they are 100% positive, whereas courts are only looking to est certainty
    OBOP
-   In this case, the operating dr could better observe the situation & assess it with
    their expertise; in this case, the dr made it impossible for anyone else to prove
    the cause wasn‟t the bleeding
-
-   BOTTOM LINE: reaffirms but-for test for causation (material contribution
    enhancements aren‟t required), rejects shift of burden a la Ghee; notes when
    facts lie partic w/in knowledge of def, very little affirmative evidence required
    by plaint -- likely application in other malpractice suits; causation doesn‟t
    need to be prove 100%, just OBOP
-
-   Meloche v. Hotel Dieu Grace Hospital/ Villa Marie
-   Ont CA, 1999
-   FACTS: contact wearer went to hospital for pain in eye, dx‟d w/ abrasion &
    given antibiotic, pain later increased to returned & given same dx & tx,
    eventually dx‟d w/ ulcer & referred to opthamologist, who saw nothing; rtn‟d
    later & dx‟d w/ ulcer by opthomologist; lost vision in this eye; evidence
    showed that whether or not earlier intervention would have helped was totally
    conjectural
-   DECISION: no liability
-   REASONING: need to consider Snell v. Farell on causation; can‟t substitute
    expert witness opinions; plaint did not prove OBOP that earlier
    intervention/dx would have prevented the loss of vision
-
-   BOTTOM LINE: confirms Snell v. Farell, no shift of burden, plaint must
    prove OBOP that breach in duty caused injury
-

-   C) Proportionate cause & loss of chance
-   Trades the all-or-nothing approach to losses (OBOP) for a proportionate
    approach
-   A plaintiff would recover based on a possibility that the def was a cause (e.g.
    30% chance def’s negligence was cause, would recover 30% of loss from def)
-   Has so far not been embraced by UK, Cdn courts
-
                                                                                  25


MULTIPLE CAUSES
-   1) independent tfs or joint tfs :
    o independ tf can only be held liable for situs s/he causes/contributes to
        (separate action against each actor required)
    o joint tf can be held liable for the torts committed by fellow tf(s) & can only
        be the following:
             an agent committing a tort while acting on his principal’s behalf
             an employee committing a tort while acting on his employer’s
                 behalf
             2+ individuals agreeing to an act in concern to bring about a
                 common end which is illegal, inherently dangerous, or one in
                 which negligence can be anticipated (e.g. Cook v. Lewis)
-   2) divisible or indivisible injuries:
    o If they can be divided into distinct loses & each can be contributed to diff
        tortfeasors, plaint will have a separate cause of action angst each tf
-   3) when 2+ independent tfs cause an indivisible harm must distinguish:
    o situs of independent insufficient causes (can use but-for test) -- they are
        all held jointly & severally liable for all losses (e.g. Nowlan v. Brunswick)
    o independent sufficient cause (more difficult to determine)
-
-    Nowlan v. Brunswick Construction Ltee
-   1972, SCC
-   FACTS: def contractor built home , was negligent in doing this, house
    suffered damage due to leaks in the structure. Def argued that no damage but
    for the poor design by architect, which hadn‟t provided for proper ventilation
-   DECISION: appeal allowed, damages to be paid by def
-   RATIO: where there are concurrent torts which both contributed to the same
    damage, whether or not the same damage would have occurred in the abs of
    either cause, the liability is joint & several & either tortfeasor can be held
    liable for the whole damage.
-   REASONING: structural design did contribute greatly to damage, as did the
    poor workmanship & poor quality materials. Neither alone would have caused
    the damage. Just b/c def is concurrent wrongdoer doesn‟t dismiss his liability
    from providing poor workmanship & materials
-
-   BOTTOM LINE: when independ tf‟s whose actions both contribute to and are
    necessary causes of one indivis harm, either tf can be held liable for full
    damages
-

-       Athey v. Leonati
-      1996, SCC
-      DECISION: 100% damages awarded
-      FACTS: plaint had pre-existing back condition, suffered neck & back injuries
       in MVA that def negligently caused. On dr‟s advice, plaintif began working
       out, one day heard pop & herniated discs. PI.
                                                                                  26


-   RATIO: if injuries sustained from negligent action cause or contrib. to a
    second injury, full damages are owed by def, even if there is another innocent
    condition/ action contributing to the injuries.
-   Plaint in this case must prove causation by but-for or material contrib. test.
-   REASONING: “crumbling skull” doctrine recognizes that the pre-existing
    was inherent in the plaintiff‟s original position (was already in bad shape) &
    that def need not put plaint in better position than he was, so liable for any
    additional damage but not pre-existing. But doesn‟t apply here, b/c no finding
    of measurable risk that disc herniation would have occurred w/out the
    accident
-   Actually a “thin skull” situation (latent pre-exisitng, def must take plaint as
    they come)
-   One indivisible harm: the incident at Fitness world was not a cause of the disc
    herniation but an effect = it was the inj
-   Multi independent causes: It was necessary for both accidents and the pre-
    existing for the herniation to occur , so causation is proven (neither one alone
    would have been responsible for the herniation, MVA was a necessary
    contributing cause)
-   Restoring the plaint to his/her original position , that would have been in but-
    for the harm
-
-   BOTTOM LINE: when 1 indivis harm & 2 independent causes (1 tortious, the
    other innocent), tf can be held wholly responsible for the harm (thin skull vs
    crumbling skull – would the loss have occurred but for the tortious action?)
-
-
-    Dillon v. Twin State gas & elec. Co
-   potentially diff causes for the injury
-   US, 1932
-   FACTS: young boy climbing girders on a bridge, wires strung along them.
    Boy loses balance grabs wire to break his fall, happened to be charged, is
    electrocuted. Would have either fallen to floor of bridge (resulting in severe
    injury) or off the bridge (resulting in death).
-   ANALYSIS: only fault of def would have been for exposing boy to electric
    charge. Must look to what the result of the fall would have been & what his
    status would have been . Def would be resp for putting him back in the
    position he would have been if not the electrocution.
-   if found that he would have been maimed – liability for diff btwn maimed
    state (in terms of value of life, earnings capacity in this maimed state) & death
-   if he would have died – no liability
-   DECISION: dismissed
-
-   BOTTOM LINE: if tortious & innocent cause of 1 indivis harm, tf only
    responsible for putting def back in position he would have been but for the
    tortious negligence
-
                                                                                    27


-
-    Penner v. Mitchell
-   2 acts of personal inj – one tortuous, one not
-   FACTS: MVA resulting in damages for 13 months she would have been
    unable to work. However at some point w/in these months, she had a non
    tortuous heart attach that would have prevented her from working for 3 mos
-   DECISION: subtracted 3 mos from damages owed by def
-   REASONING: look to Baker v Willoby [UK, run over then shot in same leg -
    - looked at whether or not 2nd tort diminished damages caused by 1st tort. 1st tf
    is responsible for all losses flowing from 1st tort, the 2nd tf only liable for any
    additional losses resulting from the 2nd tort. If 2nd tort concurrent cause of
    same damages, it is essentially irrelevant in evaluating the damages the 1st
    tort caused.]
-   departure from Baker. Must consider what plaintiff‟s normal existence would
    have looked like w/out the tort – don‟t do the same with 2nd torious events, b/c
    then plaint would be left with less than full compensation
-
-   BOTTOM LINE: compensation not for injury , actually for loss incurred b/c
    of it
-
-
-    Cottrelle v. Gerrard
-   Ont CA, 2003
-   FACTS: Plaint had diabetes, developed sore on foot, consulted her dr (def),
    who didn‟t examine her but sent her to a specialist. No f/u scheduled. Sore
    became infected & eventually she developed gangrene & had to have leg
    amputated.
-   DECISION: no caustion, def not liable
-   REASONING: Def could not have been aware of the atherosclerosis, but did
    fall below SoC by not examining her.
-   Look to Athey & Snell – neither apply, need to use but-for test
-   More probably than not she would have lost her leg d/t infection even if Dr
    hadn‟t breached standard of care, no “loss of chance” b/c not more probable
    than not that she would have been able to prevent it but for his breach of SoC
-
-
-   BOTTOM LINE: reaffirms but-for test; “loss of chance” claims: in
    malpractice suits, can‟t claim this unless can prove more probable than not
    that early tx/ dx, etc would have made a difference to the outcome (i.e. even if
    breach of SoC);
-
-
-    Resurfice v Hanke
-   2007, SCC
-   FACTS, DECISION: [ see under Role of Custom]
-   DECISION: no causation, SoC not breached
                                                                               28


-   REASONING: there must be a significant relationship btwn harm & def‟s
    behaviour.
-   mat contrib. case can apply only in rare circumstances:
    o Must be impossible for plaint to prove def‟s negligence caused the plaint‟s
       injury d/t factors outside plaint‟s control (e.g. current limitations on
       scientific knowledge)
    o Must be clear that the def breached a DoC owed to the plaint, exposing
       plaint to an unreasonable risk of inj & plaint must have suffered that form
       of injury
    o Possible factual examples: Cook v. Lewis & Walker Estate v. York Finch
       Hospital
-
-   BOTTOM LINE: confirm general test for causation = but-for, though in rare
    cases as outlined above, material contribution test can apply; attempted
    clarification of when to use material contribution test (still not clear)
-
-

-    Fullowka v. Royal Oak Ventures Inc
-   NWT CA, 2008
-   FACTS: miners killed in deliberately set blast by striking miner. Mine went
    on strike, replacements brought in.
-   ISSUE: what test should be applied to determine causation?
-   DECISION:
-   REASONING: but-for test not unworkable (even though it‟s a hypothetical
    situ), so s/b used here, not material contribution
-   Focus on whether the conduct of the other def acting reasonably would have
    diverted the 3rd part from his/her intended course of conduct


-   BOTTOM LINE: Courts are very hesitant to put the but-for test aside , it must
    be unworkable & use of MC test justified; even if situation requires
    consideration of hypotheticals, but-for not necessarily unworkable; cause
    doesn‟t have to be sole cause, just a cause
                                                                                    29


Proof of Negligence
BURDEN OF PROOF IN NEGLIGENCE ACTION
-   OBOP – the party who bears the legal burden will lose the issue unless s/he
    has convinced the judge/jury to this requisite degree of certainty
-   OBOP – tribunal must feel a persuasion based on a preponderance of
    probability
-   Legal Burden:
    o generally remains w/ same party throughout proceedings
-   Evidentiary Burden:
    o Can shift from one party to the other during the trial as evidence is
       introduced
    o Relates to the adducing evidence in support of one’s position
    o At start of trial plaint bears dual burden – legal & evidentiary burden of
       immediately producing enough evidence to est a prima facia case. If this
       isn’t est’d, judge may order a nonsuit
    o Once this prima facia case is est’d evidentiary burden shifts to def –
       although doesn’t have to, should consider presenting evidence to rebut the
       plaint’s prima facia case
    o Legal policy elements in who has to prove various elements in a suit

-      Wakelin v. London & South Western RY Co
-      1886, UK HL
-      FACTS: plaint claimed def negligently & unskillfully drove a train on a line
       that cut across a footpath, it struck & killed her husband. Def argues death
       caused by his own negligence, could have seen train approaching. Def refused
       to present evidence b/c said plaint had no case
-      DECISION: nonsuit
-      REASONING: plaint has not d/c‟d BoP of proving materially contributing via
       negligence to the death, contributory negligence was at that time a complete
       bar to negligence (ie not used to merely mitigate recovery), jury couldn‟t have
       made proper decision based on facts, def‟s negligence must be a probable
       cause
-      CONCURRING OPINION diff rationale: doesn‟t follow that the whole
       burden of proof belongs to the plaint – affirmative proof of contributory
       negligence should lie w/ the def, plaint does not need to prove the negative in
       order to entitle her to a verdict in her favour
-
-      BOTTOM LINE: contrib. negligence used to be a complete bar to negligence,
       not just to mitigate recovery, BoP was much higher for plaint, did not shift to
       def at any time
-
-

EXCEPTIONS TO THE GENERAL PRINCIPLES GOVERNING BoP
                                                                                  30


-   A) Statutes & shifting burdens of proof
-   MacDonald v. Woodard
-   1974, Ont Co Ct
-   FACTS: plaint struck while standing in front of def‟s car after he‟d given him
    a boost. B/c he was standing provisions of s.133 of Highway Traffic Act (now
    s.193) applied – onus of proof that loss or damage did not arise through the
    negligence or improper conduct of the owner or driver of the car is upon the
    owner or driver (onus shifts to def)
-   This shifted burden remains on def until the very end of the case
-   Knowledge of relevant circumstances leading up to the accident might be
    known only to def, making it very hard for plaint to overcome initial BoP
-   Statutory Res ipsa loquitur doctrine
-   DECISION: award in favour of plaint
-   REASONING: plaint must show that damages were caused by presence of a
    car on the highway – no need to show that def conduct caused collision for the
    provision to activate, no need to find any specific act of negligence; the
    burden then shifts to def.
-
-
-   BOTTOM LINE: shift of BoP under provision of Highway Traffic Act --this
    can have profound effect
-
-
-
-    Parental Responsibility Act, 2000, S.O., c.4t
-   Parent is responsible for damages caused by their child (destruction, damage,
    taking of property) & can have action brought against them in small claims
    court for loss resulting from the d/d/t of the property & economic loss suffered
    from this
-   Parent will be found liable unless they can show:
    o s/he was exercising reasonable supervision over the child/ made
        reasonable efforts to prevent/discourage  onus for proving this lies w/
        parent
    o the activity that caused the loss was not intentional
-   if more than one parent, they are joint & severally liable
-   s. 10(1), (2) applies to any action brought otherwise than under the act – in act
    for damage to property/ personal injury or death caused by child, onus of
    establishing that the parent exercise reasonable supervision & control over the
    child rests w/ the parent
-
-    Shannon v. T.W.
-   Claim against parents of boys who stole from plaint dismissed by London Sm.
    Clms Court
-   Not supervised. However judge looked at evidence re: older boy‟s experience
    & bckgrd & concluded it was reasonable for parents to leave him in charge
                                                                                  31


-   Parental Resp Act requires reasonableness not perfection – need only est
    provided reasonable supervision
-
-
-   B) Directly caused injury: unintended trespass
-
-    Dahlberg v. Naydiuk
-   1969, Man.CA
-   FACTS: def fired at deer, missed, bullet hit plaint who was working on his
    farm. Def had obtained his permission to hunt from the owner, but not to fire
    over or hunt on the farm. Brings action re: negligence & trespass
-   ISSUE: if relying on negligence, onus rests upon plaint to prove it. However,
    if trespass he would have to est. no negligence on his part
-   DECISION: Finding of trespass in favour of plaint
-   REASONING: def failed to prove he wasn‟t negligent. He was negligent in
    that he 1) fired in direction of farm bldgs & 2) did not obtain permission from
    plaint before hunting on his land
-   RATIO: Application of rule in Cook : onus is shifted to def to prove he wasn‟t
    negligent & no intent; Policy reasons: put people at risk, there are many other
    open spaces to hunt
-
-   BOTTOM LINE: shift BoP a la Cook when impossible for plaint to prove
    negligence – policy considerations (def put ppl needlessly at risk)
-

-    Cook v. Lewis [ see also under Causation ]
-   SCC, 1951
-   FACTS: 2 defendants fired at same time while hunting, shot plaint in the face,
    both denied it, plaint couldn‟t prove OBOP who had shot him;
-   DECISION: plaint was awarded 100% of his losses
-   RATIO: could prove defs were negligent but impossible to prove which
    caused the loss , the burden of causation shifts to def, both being held
    responsible unless could disprove otherwise OBOP
-   REASONING: tf made it impossible for the plaint to establish liability by
    confusing his act w/ environmental conditions; there would be no other means
    of redress for the plaint; harm was reasonably foreseeable, & plaint was
    soharmed
-   CONCURRING OPINION w/ diff analysis: the onus of disproving the causal
    link s/b shifted, but focused not just on issue of personal security but also on
    plaint‟s remedial right to est liability
-
-   BOTTOM LINE: when 2 negligent tfs & can‟t prove which one‟s negligence
    caused injury, both can be held liable for total costs; BoP can shift to def when
    impossible to prove which negligence caused the loss; harm must be
    reasonably foreseeable & the plaint must have been harmed in this way;
    policy considerations
                                                                                    32


-

-   C) Res Ipso Loquitur
-   “the thing speaks for itself” – but what is it saying? Could be negligence,
    could be some innocent factor
-
-    Fontaine v. BC
-
-   FACTS: 2 ppl had gone on hunting trip, they don‟t come home. Later they are
    found dead in the car; widow of passenger sued claiming def driver‟s
    negligence must have caused accident (RIL)
-   DECISION: claim dismissed
-   REASONING: RIL is not a rule of law/ free-standing doctrine of law per se,
    but rather a way of dealing w/ circumstantial evidence  it‟s possible to est
    negligence on circumstantial evidence alone, but not necessarily so
-
-   BOTTOM LINE: RIL is not a rule of law/ free-standing doctrine of law per
    se, but rather a way of dealing w/ circumstantial evidence  it‟s possible to
    est negligence on circumstantial evidence alone, but not necessarily so
-
-

-   NOVEL APPROACHES TO PROBLEM OF PROOF
-
-    Sindell v. Abbot Laboratories
-   US (Calif) decision, 1980
-   FACTS: 200 defendants, though 5 had 90% of market share of sale of the
    drug, DES
-   plaint could not prove which manu had manufactured the drug her mother had
    taken while pregnant w/ her. This drug caused her to develop a rare, serious
    form of cancer,Drug companies continued to manu the drug even though they
    eventually found out it was harmful & ineffective. Pharmacists tended to hand
    out stock of the drug manu by different companies interchangeably. As such,
    plaint could not determine who had actually manufactured it, so difficult to
    prove causation.
-   DECISION: prima facia liability est‟d
-   REASONING: application of market-share liability rule. Changing times,
    deterrence need new approach to determining causative link
-   apportioned liability & damages by using the respective market shares of the
    different def‟s.
-   DISSENT: fault shouldn‟t depend on whether or not the def has deep pockets,
    burden of proof relies on plaint, if want chng should do it thru legislation. Too
    radical, should stick w/ the law as it is classically stated.
-
-   BOTTOM LINE: “market share liability” unique way to assign causation
    when multiple possible tfs & impossible to determine which one
                                                                                  33


    (manufacturing-type situ); apportion liability to def according to its respective
    degree of market share & shift BoP to defs to prove they didn‟t contribute (i.e.
    did not make the drug that injured the plaint); policy concerns re: changing
    times, deterrence; strong dissent says BoP should remain w/ plaint, changes to
    this should go through legislation, fault shouldn‟t be determined by depth of
    def‟s pockets

-    BC Tobacco Damages & HC Recovery Act

-   Difficult for individuals to sue b/c diff to prove which company‟s cigs they
    smoked, that they didn‟t accept all the risk (esp if began smoking later in life)
-   The act allows govt to sue on their behalf for HC costs associated w/ smoking
-   Adopted principle of “liability based on risk contribution” embraced by
    majority in Sidell – if can‟t prove which def caused or contributed to exposure
    and there is more than 1 who did, they can all be found liable for a proportion
    of the damages equal to their proportion of contribution to the risk (i.e. their
    market share)
-   Similar legislation now in other provinces, in some states in US
                                                                                       34



Remoteness of Damages
  GENERAL
  Even if SoC breached & injury cased as a result, no liability if connection btwn the
  breach & the loss is too remote
  Underlying principle of fairness (vs absurdity of “the want of a nail”); Means for
  courts to control scope of liability
  Desire to strike balance btwn holding def resp for a loss that s/he inflicted &
  relieving plaint of unreasonable burden
  AKA Legal causation or proximate causation
  Whereas causation is concerned w/ factual connection btwn breach & loss,
  remoteness is concerned w/ the legal connection
  Cut-off based on policy not logic
  -
  DIRECTNESS VS FORESEEABILITY
  -
  -       A) The Directness test
  -       Rationale applied by dissent in Palsgraff – once you’ve caused negligence,
          you s/b held responsible for all the results of it
  -       R= plaint loss recoverable if directly a result of def’s carelessness
  -
  -        Re Polemis and Furness, Withy & Co
  -       1921, UK (KB)
  -       Est directness as test for remoteness  plaintiff‟s loss would not be too
          remote to be recoverable if it was a direct result of the def‟s carelessness
  -       Directness = close temporal & spatial connection btwn breach & loss
  -       The harm was not foreseeable, but it was a direct result of the breach (not too
          remote to recover damages so long as harm is directly the result of the breach)
  -
  -       BOTTOM LINE: plaintiff‟s loss not too remote to be recoverable if it was a
          direct result of the def‟s carelessness; Criticized as being unworkable, unfair,
          illogical, too pro-plaintiff
  -
  -
  -       B) The Foreseeability test
  -       Damage must be reasonably foreseeable to be recoverable
  -
  -        The Wagon Mound (no. 1)
  -       PC, 1961 (Aus.)
  -       FACTS: WM carelessly let oil spill into the harbour, this was swept to plaint‟s
          wharf, where they were using welding equip. Spark fell & ignited oil or the
          oil-soaked rags sitting on the wharf, causing fire; damage to wharf &
          equipment
  -       DECISION: for def
                                                                                      35


-      REASONOING: rejection of Polemis & the directness test; foreseeability
       becomes the new test – the damage must be reasonably foreseeable; although
       furnace oil is meant to burn, plaint did not know & could not reasonably have
       known that once spread on water it will ignite;
-      Crt says applying the RF test over the D test will not normally make a
       difference, but sometimes it will;
-
-      BOTTOM LINE: rejection of directness test, intro of foreseeability test
       (damage must be reasonably foreseeable); POLICY: too harsh to demand
       more than a standard of reasonableness from people; way to limit potential
       liability; rationale is that you are resp for the RF of your act
-

MODIFICATIONS TO FORESEEABILITY TEST:
Don’t change the foreseeability rule, just adds a gloss

a) The kind of injury
-
-       Hughes v. Lord Advocate
-      HL, 1963
-      FACTS: employees of def left manhole open & unattended, also left out
       paraffin lamp; plaint boy knocked over lamp into manhole, there was an
       explosion, the boy then fell in the manhole & was badly burned
-      DECISION: for plaint
-      REASONING: not to be expected that plaint‟s burns would be as bad as they
       turned out to be;
-      cause of the accident was a known source of danger (lamp), but it behaved in
       an unexpected way -- explosion was the real cause of the injuries & the
       explosion was unforeseeable, however the type of damages (burn by fire) that
       arose were foreseeable & did in fact occur
-      Appeal had said that b/c explosion was unforeseeable & that‟s what caused
       the injuries, there was a break in the chain of causation
-      How then are you going to analyse the chain of events? at each step there is an
       element of foreseeability
-
-      BOTTOM LINE: No foreseeability of the manner in which the injuries occur
       or the extent of the injuries, but rather only that a certain type of injury could
       foreseeably occur, & that injury actually occurs;
-
-
b) The thin-skulled plaintiff rule
-
-       Smith v. Leech Brain & Co
-      1962, QB , UK
                                                                                   36


-     FACTS: he was hit by a piece of molton metal on lip in indust accident; he tx
      & left it. Eventually he developed cancer there. He had pre-malignant
      cancerous growths there that was triggered by the burn. Died.
-     DECISION: for plaint
-     REASONING: thin-skulled plaintiff rule, but in light of PC ruling in WM #1;
-     says WM didn‟t consider that tfs must take their victims as they come
-     WM decision is therefore not on point, b/c they weren‟t laying down law
      based on thin-skulled rule
-     RULE: Don‟t need to est that extent of injury is reasonably once you‟ve est
      that the type/ kind of injury is reasonabley foreseeable
-     Def will resp for all of inj notwithstanding the existing a pre-existing
      condition or increased vulnerability
-
-     BOTTOM LINE: thin skull rule : don‟t need to est that extent of injury is
      reasonable once you‟ve established that the type of injury is reasonably
      foreseeable; look to extent of injury to determine the loss caused by def
-
-      Marconato v. Franklin
-     1974, BCSC
-     FACTS: MVA caused by def‟s negligence, plaint suffered minor physical
      injuries; eventually developed major personality changes; she had
      predisposition towards psychiatric issues (was latent, triggered by the
      accident)
-     DECISION: for plaint
-     REASONING: reasonable foreseeability only goes so far; need to also
      consider if they type/ extent of injuries (eggshell personality) ;
-     however, don‟t need to foresee the extent of the recovery; once you‟re recog
      that some type of physical injury is foreseeable, and the accident did factually
      cause exacerbation of the condition, then the thin-skull rule can kick in & def
      can be wholly liable
-     Increasingly expansive, generous views to continue to allow remoteness to
      coexist w/ not conflict with thin-skull rule
-     Thinskull here – what injury did the breach cause in law
-
-
-     BOTTOM LINE: eggshell personality; once you‟re recog that some type of
      physical injury is foreseeable, and the accident did factually cause
      exacerbation of the condition, then the thin-skull rule can kick in & def can be
      wholly liable [NB: would likely not be overruled by Mustapha – there was an
      actual physical injury here, so the mental inj was more foreseeable]
-
-
-
c) The possibility of injury
-
-       The Wagon Mound (No. 2)
                                                                                 37


-   1967, PC (Aus.)
-   FACTS: see WM1 [under “Foreseeability Test”]; different owners of other
    ships in the explosion
-   DECISION: for plaint
-   REASONING: In WM1, concluded it wasn‟t reason foreseeable that oil on
    H2O wouldn‟t burn;
-   here Crt determined that there was different evidence & that it was reasonably
    foreseeable; the experience of the def was such that they would have thought
    the ignition on H2O as possible but not probable
-   Should have been aware of a real risk & should have taken the reasonable
    simple steps of preventing the risk
-   Test: was it a real risk? i.e. would a reasonable man w/ the experience of the
    chief engineer have reasonably foreseen / known that it was possible despite
    remote in terms of being probable?
-   When determining real risk: look to magnitude of risk & actual circumstances,
    the legality of the activity, the severity of the possible risk of injury
-   Court maintains RF test, but broadens its meaning at this stage of the analysis
-
-   BOTTOM LINE: would a reasonable man w/ the experience of the def have
    reasonably foreseen/ known that it was possible even if remote in terms of
    probable? What would a reasonable man done to prevent the risk?
-
-   Assiniboine South School Division, No. 3 v. Greater Winnipeg Gas Co
-   1973, SCC
-   FACTS: snowmobile modified by father so 11 yo could start it; while he was
    driving it it got away & hit a gas pipe that was installed on the ground & close
    to a school, gas leaked into boiler room & was ignited by pilot light, school
    extensively damaged.
-   DECISION: for plaint, apportioned 50-50 liability to gas company &
    father/son
-   REASONING: if one could foresee in a general way (if damage of the type
    that occurred actually did occur) the extent & manner of damage need not be
    foreseeable
-   Must weigh probability of injury (which is low) and the potential severity of
    injury w/ the cost of avoiding it
-   Broad view of liability
-   Per WM#1 -- test of foreseeability question of possible not probable
-   Court rejects argument of dad & son that you can factor out the negligent state
    of affairs already in place b4 they hit the gas pipe
-
-   BOTTOM LINE: it‟s enough that one could foresee in a general way the sort
    of thing that happened, the extent of damage & manner in which it occurred
    need not be foreseeable so long as the kind of damage that occurred is
    foreseeable (look to Hughes, WM#1 & #2); damage need not be probable,
    only possible
-
                                                                                       38


INTERVENING CAUSES
Loss caused by plaint breach, but loss is exacerbated by subsequent intervening act
occurs after breach involving plaint or 3P conduct
Should these increased injuries be the def’s responsibility by virtue of original tort
(not should they have done something to prevent them)
General principle= “within the scope of the risk” test
Courts vary in asking whether the loss caused by the intervening act or the
intervening act itself was w/in the scope of the risk created by the original tf
NB generally CL doesn’t hold a person resp for the acts of others

-       Bradford v. Kanellos
-      1973, SCC
-      FACTS: Fire negligently started on grill, it was extinguished by a fire
       extinguisher system (state-of-the-art), did what it was designed to do. It made
       a hissing noise & someone in restaurant heard & thought it was gas leaking so
       yelled that there was gas leaking & that there would be an explosion. As a
       result, ppl pushed & plaint fell off her chair & was injured.
-      DECISION: for def
-      REASONING: not reasonably foreseeable that an idiotic person would cry
       out, this was NIA not w/in the scope of the risk created by the original tort
-      DISSENT: felt the reaction was a normal one esp as ppl would have to pass
       grill to exit the restaurant; would not have cut off liability at NAI, as majority
-
-      BOTTOM LINE: ask: was the NAI w/in the scope of risk? strong DISSENT
       (w/n/h cut off liability at NAI); POLICY: crt may not have wanted to punish
       def for installing good fire extinguishing system
-
-       Price v. Milawski
-      1977, OntCA
-      FACTS: plaint inj ankle playing soccer, dr who saw him mistakenly xrayed
       his foot so misdiagnosed as a strain; problems continued; went to FMD, who
       called for results & did not treat d/t negative xrays despite symptoms;
-      DECISION: for plaint (both liable)
-      REASONING: it was reasonably foreseeable to Dr #1 that subsequent drs
       would rely on misinformation in the file; this possibility was not a risk a
       reasonable man would brush aside as far-fetched; although Dr #2‟s later
       negligence compounded Dr #1‟s negligence, it did not halt/ break the chain of
       causation of negligence of Dr#1 (so was not NAI)
-      It‟s not negligent to rely on med info o/f, but given the ongoing unusual
       symptomology, it was negligent to not investigate further on the part of Dr #2
-
-      BOTTOM LINE: you can be liable for future damages arising in part from the
       subsequent negligent act of another where the subsequent negligence &
       consequent damage were reasonably foreseeable as a possible result of your
       negligence; NAI must put a halt to the consequences of the first act
                                                                                       39


   Assessment of Damages
GENERAL
Underlying principle: fairness to both Ps
Don’t over- or under-compensate

   Classification of damages:
   -       1) nominal damages (usually where no injury suffered)
   -       2) compensatory damages (usually awarded in negligence claims)
   -       3) punitive damages (def conduct is key; rare but not unheard of in Canada)
           o Must be evidence of high-handed, arrogance, blatant disregard for
               plaintiff’s safety
           o Cf aggravated damages (designed to compensate as rslt of how the tort
               was committed; not punitive)
           o E.g awarded in. Robitaille v. Vancouver Hockey Club (where plaint forced
               to play hockey while injured; def medical staff consciously ignored his
               complaints about a serious injury)
           o E.g. not awarded in Kraft v. Oshawa General Hospitalu (crossword
               puzzle, anaesthetist)

   Elements of Calculating Damages:
   -     1) BoP
   -     Plaint must prove compensability of loss per tort law
   -
   -     2) Standared of Proof
   -     1) losses that occur prior to trial:
         o plaint must prove existence & quantum of losses OBOP, if so get 100%, if
             not gets nothing
   -     2) losses that occur post-trial:
         o a) OBOP ; or
         o b) reasonable substantial possibility of injury (subject to the likelihood of
             it occurring) e.g. if 35% chance plaint will lose sight in future, would
             recover 35% of award

   -       3) Mitigating losses:
   -       Plaint must act reasonably to mitigate losses & can’t recover for losses
           avoided;
   -       Plaint can recover for losses/ expenses incurred in attempting to mitigate
           losses;
   -       Def has burden of proving that plaint didn’t act reasonably (esp will take hard
           line w/ property claims vs personal inj in terms of required degree of
           mitigation)
   -
   -       4) Set-Off
                                                                                  40


-   Def can set off expenses that would have been incurred anyway if truly
    calculable & of parallel nature (e.g. wouldn’t offset for food, as this expense
    would be incurred anyway)
-
-   5) Payments
-   Generally lump sum pymt (one kick at the can); judgment is generally final;
    however if change in circumstance btwn trial & appeal award amount can be
    changed
-   Justification: perhaps some certainty/ predictability for plaint & def
-   many criticisms of lump sum system – does it adequately compensate?
-   Exception for mal meds (p. 606)
-
-   6) Roles
-   appellate crts aren’t supposed to interfer w/ quantum of damages unless
    “wholly erroneous” or if there is an error in law
-
-   Approaches in calculating damages for Personal Injury:
-   historically, the global approach used to calculate damages – brought about
    higher awards, more predictability & consistency
-   alternative: structured settlement (periodic non-tax pymnts)
-   “The Trilogy”
-   Now separately assess each head of damage:
    o Pecuniary Loss (can be calculated)
              Future loss**
              Lost earning capacity
              Considerations relevant to both heads of pecuniary loss
    o Non-Pecuniary Loss (not easily calculated)
              Like NEL; pain & suffering etc.(usually upper limit of 100K for
                 worst case personal inj, though more in others e.g. Hill v. Church
                 of Scientology & Bella v. Young)  Crts want to avoid US
                 experience, will look at social costs of high award esp given $
                 can’t really compensate here anyway
-   ** NB Cost of future care: Lump sum pymtns are not taxable, though any
    interest generated & capital gains will be – so has to be grossed up to account
    for lost tax $
-
-   1) Special losses:
    o Pre-trial pecuniary losses
    o Easy to calculate losses (receipts will show )
-   2) General damages
    o Pre-trial non pecuniary losses
    o All post-trial losses
-   look at p 624 note 6 Knutson v. Farr
-   note 7, 5 on p612 **
-   note 9 will also now account for hiring a financial advisor to invest the lump
    sum
                                                                                    41


  -    taxes



DAMAGES FOR PERSONAL INJURIES

  -     Andrews v. Grand&Toy
  -    1978, SCC
  -    FACTS: young man rendered quadriplegic after MVA; SCC asked to look
       only at how damages were calculated
  -    DECISION:
  -    1) Pecuniary costs
  -
       o A) Cost of future care
       o should be a self-extinguishing fund
       o Award must be fair & just to both parties (ensuring claims are legit,
         justified, and proved)
       o Looking to worker‟s comp isn‟t appropriate as a measure of society‟s SoC
       o Relevance of social burden of expense (e.g. insurance premiums, etc)
       o Entitlement to home care granted : plaint desire to live at home not
         enough, need evidence (though crts are fairly sympathetic towards
         plaintiffs wishing to live at home); Crt rejected requiring plaint to live in
         inst as mitigation
       o Life expectancy in determining # of yrs for future care
       o Contingency deductions: not a closely calc figure, crt here uses 20%, but
         recognizes potential for under & over compensation, that this is an
         uncertain venture (further bad things outside actuarial evidence that might
         happen in the future)
       o NB future care costs is not offset (is grossed up)
       o B) lost earning capacity
       o i) Level of earnings: Easier w/ older plaint, here plaint was on a career
         path, so attempted to project fwd
       o ii) Contingency deductions: depends on situ, here uses 20% (arbitrary)
       o iii) Possible duplication w/ comp for costs of future care, 2 approaches:
               Future care award w/out deduction for basic necessities he‟d have
                 to pay for anyway, but deduct for this from loss of future earns
               Deduct cost of basic necessitites from future care & calculate
                 future earnings based on gross figure
               HERE: takes the 1st approach (more plaint-friendly)
       o Taxes not deducted
       o Not grossed up , unlike award for cost of future care
       o Deduction rate now generally fixed by legislation
       o not a self-extinguishing sum like cost for future care
       o C) Considerations relevant to both heads of pecuniary loss
                                                                                   42


    o i) Capitalization rate: allow for inflation at the rate of return on
      investments; here uses present rates & make allowance for effects of
      future inflation , comes to figure of 5%
    o this is now regulated by statues btwn 2.5 %– 3.5% under Ontario Rules of
      Civil Procedure
    o ii) allowance for tax: did not deduct
-
-   2) Non-Pecuniary Loss
    o Philosophical, policy exercise over legal one
    o i) Conceptual approach: meat chart
    o ii) personal approach: values assigned in relation to loss of happiness by
        the vic
    o ii) functional approach: provide vic w/ reasonable solace for misfortune
    o Crt is wary of avoiding the US experience – so sets an upper limit of
        100K, one global award to compensate for worst case scenario

-
-   BOTTOM LINE: one of the trilogy; change from global approach used b4 to
    calculate damages
-
-
-   Article by J. Cassells “Remedies: the Law of Damages”
-   How do you assess lost earnings capacity for those who don‟t work, or the
    young?
-   E.g. Teno v. Arnold
-   Little girl heard ice cream truck music, was hit by a car & seriously injured
-   Not able to work
-   In trying to assess LEC, court didn‟t want to recognize for her the moderate
    economic success of her mother (who was a teacher)  set her expected
    earnings at $6000/ yr (mom had earned $10,000)
-   Incorporation of social assumptions
-   Eg assumption children are not likely to achieve greater econ success as their
    parents, those whose parents are econ well-off will do at least as well
-   Use of gendered & racialized stats in calculating awards
-   The result of this is that females have ended up being awarded less in
    awarding , they tend to replicate existing wage gaps, though some crts have
    attempted to close this gap somewhat  should damages awards seek to
    replicate these social injustices
-   One response has been to degender the stats
-   E.g. Tucker v. Asleson
-   Young girl is injured
-   Good , stable family, would have had good prospects
-   Crt used male statistics in calculating LEC
-   However employed a negative contingency factor of 63%, however
-   Dissent in appeal  need to deal w/ the parties in front of them, not there to
    remedy social inequities
                                                                                  43


-   Should tort law be concerned w/ distributive justice?
    o Courts role in shaping the discourse on issues such as inequality
    o Is it a cop out
    o Overburdening the defendant
    o Need to put the plaintiff in the same position they were in b4 the
-   Marriage contingency: works in favour of a boy/man, to the disadvantage of
    girl/woman when calculating LEC
-
-    Blackwater v. Plint
-   2005, SCC
-   FACTS: sexual abuse vic in residential school; sued church, govt , & individ
    perpetrator; he had also been physically abused there (but missed out on
    statutory time limit to claim for this) , he had also been sexually abused @
    home prior
-   ISSUE: should damages be offset by trauma he went through at home & non-
    sexual abuse he went through while at the school  All 3 of these combined
    together to form his damage
-   DECISION: damages quantum
-   REASONING: i) Apportionment: school 75% (vicariously liable ), govt
    (vicariously liable & on basis of non-delegable statutory duty) 25%; based on
    position to have supervised & therefore prevented the harm
-   ii) Effect of prior abuse: plaint w/h suffered psych harm anyway
-   Crumbling vs thin skull – need not put plaint in better than original position
-   Was the effects of the sexual assault greater b/c of his prior damage? If so it‟s
    thin & you take it into consideration
-   Was the home trauma resp for damages that would have occurred anyway? If
    so, it‟s crumbling
-   iii) general & agg damages: can‟t exceed legal limit
-   iv) punitive damages: only against individual resp not the govt or school board
-   there must be evidence of reprehensible conduct, govt & church are liable
    only for their relationship to perp, not by any misconduct
-
-
-   BOTTOM LINE: thin vs crumbling skull can be used in calculating damages;
    vicarious liability determined & damages apportioned based on supervisory
    position (position to prevent harm)
-
-    E.D.G. v Hammer
-   2003 SCC
-   FACTS: girl was abused by school janitor , told no one at school; was later
    abused by relatives as well; sued janitor & school board
-   DECISION: damages quantum
-   REASONING: i) Vicarious liability for school board rejected b/c they didn‟t
    know & could not have known about abuse
                                                                                        44


-      ii) Is 1st tf liable to injuries inflicted by 2nd tf? (Athey) -- when harm caused is
       indivisible, on the hook for the full amnt even though damages contributed by
       other tfs
-      here, 90% of plaint damage was determined to be indivisible
-
-      BOTTOM LINE: Athey principle applied to damages & case not involving
       tortious preconditions (if def‟s negligence was a cause of indivisible harm, def
       can be liable for whole amount)
-
SURVIVAL OF ACTIONS & DEPENDANTS’CLAIMS FOR WRONGFUL
DEATH OR INJURY
-     Can now can bring action to compensate deceased dependants & actions by
      deceased’s estate for actions he could have brought if he had survived
-     Actions generally survive the deceased death, but some actions are excluded
      (eg defamation, certain types of damages like non-pecuniary or punitive)
-     Statutes vary somewhat by province, so need to ensure that an action can be
      brought given the situation
-
-     Fatal injuries Act (R.S.N.S.) & Family Law Act (R.S.O.):[p-628]
-     Specific statutory head of damages (e.g. in Ont, can collect for pecuniary
      damages)
-     Put the deceased‟ dependant in the position they would have been in if the
      deceased had been alive
-     Who can benefit varies from province to province; also what varies as to when
      an action can be brought (death vs death or incapacity/injury)
-     Gives claimants a derivative claim  if the deceased would not have had a
      good lawsuit had they survived, they dependant/estate would not either
-     Legislation will also vary as to the damages that can be claimed (generally
      pecuniary loss, but also some non-pecuniary type loss in e.g. FLA s. 61(e) –
      legislation has defined certain non-p type losses as p here)
-
A) Death of the family provider
-      Keizer v. Hanna
-     1978, SCC
-     FACTS: MVA causing death of husband
-     DECISION: damages quantum
-     REASONING: guiding principle is that widow is entitled to an award of such
      amount as will assure her the comforts & station in life which she would have
      enjoyed but for the death
-     Sum calculated based on what husband would have provided less
      contingencies – based on what deceased earned while alive less income tax
      rate & what he used to spend on himself (trying to get at net amount)
-     Also discount rate based on present rates of return for LT investment &
      effects of future inflation
-     Similar to how damages calculated for loss of future earnings /care in personal
      inj claim
                                                                                           45


   -
   -       BOTTOM LINE: want to put surviving dependant family members in same
           position they w/h been in but-for the loss of the provider, use his income as
           base less contingencies & income tax amount & applying a discount rate
   -
B) Death of a dependant family member
   Difficult to calculate damages
   When think of pecuniary damages, children are in actuality a net cost, so would need
   evidence to demonstrate pecuniary benefit had the child lived
   Can make exceptions if care & companionship that might reasonably have been
   expected
   Sometime crts will award unusually close bond btwn parent & child (e.g Mason v.
   Peters)
   Sometime crts will try to be culturally sensitive
   Difficult to assess value in financial terms of the contributions of emotional support,
   child care, homemaking, but can do it (e.g. Bjornson v. McDonald where parents of a
   single mom were killed)

C) Collateral Benefits
   Certain types of benefits are deducted, others are not
   Want to avoid double-recovery
   Private insurance, charitable gifts, public welfare, pension not deducted
   Deductions of many bens determined by statutes (WSIB, EI)
   Trend towards deducting collateral bens, crts have deducted welfare
   Subrogation: sometimes part of award is subrogated statutory action (eg w/ OHIP)
   If a plaint has “paid for” smthg (eg private insurance, premiums) crt less likely to
   deduct (why should defendant be the one to benefit?):
   e.g. Raytyh v Bloomer
   - Police officer did not show he contributed to a payment
   - Deduction allowed for the benefits received from employer
   e.g. Cunningham v. Wheeler
   - Established that had contributed to benefits during collective bargaining
   - No deductions for additional benefits
                                                                                          46


Defences to Negligence Liability
  A) CONTRIBUTORY NEGLIGENCE
  NB crts of appeal should rarely interfere w/ trial judge’s apportionment of liability

  -       Walls v. Mussens
  -      1969, NBCA
  -      FACTS: fire started as result of gas leaking from def „s car on plaint‟s
         premises. Tried to put it out w/ snow & it spread. There were fire
         extinguishers, but they were forgotten even tho plaint was there trying to put it
         out.
  -      DECISION: no contrib. neg
  -      REASONING: the plaint was in the agony of the moment. Test for contribu
         negligence is not whether plaint exercises a careful & prudent judgment in
         doing what he did, but whether what he did was something an ordinarily
         prudent man might reasonably have done under the stress of the emergency.
         Perfection of the standard is not required.
  -
  -      BOTTOM LINE: “agony of the moment”; test for CN is what ordinarily
         prudent man reasonably have done under the stress of the emergency
  -
  -       AG Ont. v. Keller
  -      1978 Ont CA
  -      FACTS: cop in high speed chase while on duty, car went out of control & hit
         a pole
  -      DECISION: not contrib. negligent
  -      REASONING: his actions (speeding on icy roads) were no more than was
         reasonably necessary to carry out his statutory duty;
  -      DoC to self vs DoC viz his professional duties
  -      CN standard does depend on the situation, the individual
  -
  -      BOTTOM LINE: confirms Mussens rule, CN depends on situ not individ,
         even given specifics of profession
  -
  -       Gagnon v. Beaulieu
  -      1977, BCSC
  -      FACTS: MVA where plaint in passenger seat , was rear ended, not wearing a
         seat belt
  -      DECISION: CN found
  -      REASONING: BoP w/ defendant to prove OBOP that the seat belt wasn‟t
         worn, & that wearing it would have prevented/ lessened the injuries
  -      Here, def est‟d this
  -      Can‟t rely on person‟s own belief – the standard is that of ordinarily prudent
         person
  -
                                                                                   47


-   BOTTOM LINE: w/ seat belt cases BoP with def OBOP to prove that seat
    belt wasn‟t worn & that wearing it would have prevented/lessened the injuries
-
-    Negligence Act
-   RSO 1990
-   If can‟t determine degree of fault btwn 2 tfs,, are deemed equally @ fault
    (joint & severally liable)
-   If fault/negligence by plaint contrib. to damages, crt shall apportion damages
    proportional to degree of fault of the respective parties
-   If not practicable to determine the respective degree of fault btwn any parties
    to an action, all parties shall be deemed equally at fault
-   If jury tried, the degree of fault is question of fact for the jury
-   If damages are caused by fault or negligence or more than 1P, the crt can
    direct that the plaint bear some portion of costs
-
-    Galaske v. O‟Donnell
-   driver & owner of car negligent when 8 yo passenger didn‟t wear a seatbelt,
    though her father was also a passenger
-
-    Rewcastle v. Sieben
-   16 yo w/ credit card, cell phone, 7.5 km from home; asked for seat w/ belt &
    was refused so sat in lap w/out one, car crashed & she died
-   Crt determined it was a reasonable decision to ride w/o a seatbelt so no CN
-
-    Mortimer v. Cameron
-   1994, OntCA
-   FACTS: some drinking, horseplay @ top of the stairs, one pushes the other,
    they hit a wall at the bottom which seemed fine. It broke & plaint rendered
    quadriplegic; Sues friend, owner of building, city.
-   DECISION: friend, plaint are not CN; 60:40 negligence owner: city
-   REASONING: friend & plaint both breached DoC to plaint, but that his
    injuries weren‟t caused by the horseplay, it was the broken wall  too remote,
    not reasonably foreseeable that the wall would have given away & cause that
    type of injury; they had the right to rely on the wall
-   The risk that materialized is different than the risk they took on; (Is crt taking
    a generous view? Can you really argue that it is not the type of injury that
    could occur d/t falling down stairs?)
-   Owner had obligation to conduct reasonable inspection, had not complied w/
    by-law, had a positive duty to correct issues, ongoing duty to inspect
-   City had last inspected in 1972
-
-
-   BOTTOM LINE: crts not always quick to find plaint CN b/c their actions may
    have in some way contributed; the risk that materialized was much more than
    they had assumed w/ their actions (risk must be a proximate cause of injury)
-
                                                                                        48


-       Snushall v. Fulsang
-      2005, SCC
-      FACTS: MVA, plaint was passenger , car was rear-ended by plaint, she was
       only wearing lap belt
-      DECISION: Reduces CN to only 5%
-      REASONING: SCC notes causal relation of CN & def action to her injuries,
       but the nature of causation is different for each; plaint failure to wear a SB
       only helped prevent the injuries that would have occurred d/t the def‟s tort; the
       plaint hasn‟t committed a tort themselves
-      Causation is not the actual basis of allocation, rather it‟s an assessment of
       degree of fault/blameworthiness [ reflected in negligence act ]
-      Def is sole cause, plaint only failed to take reasonable steps to protect self
       from this negligence
-      Reduces CN to only 5% , noting that 25% would be a max in this kind of case
       (MVA, seat belt), & only in cases where harm would have been avoided
       altogether
-
-      BOTTOM LINE: max 25% CN in seatbelt cases & only where harm would
       have been avoided altogether; crts hesitant to offset CN too high noting
       difference in nature of causal relation (wearing seat belt would have only
       reduced injuries that were the result of the def‟s negligence) ; causation not
       used to allocate damages, but to assess degree of fault
-
-       Kennedy v. London
-      2009, Ont SCJ
-      FACTS: Plaint cyclist collides with post , he had ridden on the path many
       times, had passed it before (even earlier that day)
-      DECISION: 40% municipality liability; plaint 60%
-      REASONING: plaint CN by failing to use reasonable care and take proper
       precautions for his own safety, wasn‟t paying enough attn as he rode
-
-     BOTTOM LINE: plaint liability is not always maxed out at 25% (Snushall)
-
2) VOLUNTARY ASSUMPTION OF RISK
-     Complete defense
-     Inflexibility of all-or-nothing approach can lead to injustice
-     Not usually applicable in drunk driver & drunk passenger cases (d/t lack of
      awareness, inability to consent to give up rights to sue)
-     Narrowed as a defense
                                                                                       49


-       Dube v. Labar
-      1986, SCC
-      FACTS: 2 coworkers drinking a great deal, they drive, def loses control of car
       & crashes
-      DECISION: for def (VAR applies)
-      REASONING: for this defence to work, must show that plaint not only
       assumed the physical risk, but assumed also the legal risk of no recourse as
       well;
-      must have bargained away his right to sue (implied or expressed); not enough
       that plaint knew of risk, but also took it on intentionally
-      here jury found that plaint did this by entering the car knowing of the def‟s
       state of impairment
-      SCC notes that the jury‟s decision was extreme but not unreasonable, so the
       crt can‟t interfere with it
-
-      BOTTOM LINE: VAR only applies when shown plaint knowing virtually
       certain risk of harm in essence bargains away right to sue as a result of def
       negligence (implied or expressed)
-
-      e.g. Crocker [see under Nonfeasance]
-      was unable to understand by signing the waiver he was bargaining away his
       right to sue, this was never brought to his attention
-
-      Sports participants & spectators:
-      limits of VAR might include excessive violence or illegal play
-
-      Encouragement:
-      If plaint encouraged def to be careless, crts may apply VAR
-      (e.g. Tracy on motorcycle)

3) PARTICIPATION IN ILLEGAL OR IMMORAL ACT
-     AKA ex turpi
-     Can only be used when the plaint genuinely seeks to profit from his/ her
      illegal conduct or where the claimed compensation would amount to an
      evasion of a criminal sanction
-     Complete defense
-     BoP on def
-
-      Hall v. Hebert
-     1993, SCC
-     FACTS: def & plaint both drunk, def allows plaint to drive his car even
      though drunk, he rolls the car.
-     DECISION: for plaint -- def of ex turpi is rejected
-     REASONING: at trial def of VAR rejected. So he goes for ex turpi in an
      attempt to negate CoA
                                                                                   50


-   This is a defense usually applies when plaint genuinely seeks to profit from
    illegal conduct or where compensation claimed would amount to evasion of
    criminal sanction; not applicable here, could only look to CN defence
-   McLAUGHLIN (MAJ): notes DOC applies to all, not just those who act
    morally, legally
-   CORY J : feels ex turpi s/b eliminated as def, instead crt s/b able to disallow
    claim on accnt of plaint conduct by finding no DoC
-
-   BOTTOM LINE: applies when plaint genuinely seeks to profit from illegal
    conduct or where compensation claimed would amount to evasion of criminal
    sanction
-
-    BC v. Zastowny
-   2008. SCC
-   FACTS: abused while in jail; after released couldn‟t get a job, became
    addicted to drugs, ended up repeatedly in jail. Psych evidence confirmed his
    drug abuse & criminality were likely exacerbated by the abuse
-   DECISION: cannot collect compensation for periods of time he was in jail
-   REASONING: except in exceptional circumstances (eg wrongful conv), can‟t
    get compensation for period of unemployment d/t incarceration for conduct
    which the law has determined worthy of punishment
-   The justification for this is the preservation of the legal system (it would allow
    smb to profit from illegal /wrongful conduct or would permit evasion of a
    penalty prescribed by criminal law)
-   There is a causal connection, there was a breach of DoC, but the def‟s
    responsibility for that part of the harm he caused will be suspended
-
-   BOTTOM LINE: cannot be compensated for period of employment d/t
    incarceration for illegal conduct; POLICY: justification for denying
    compensation here is preservation of legal system (would otherwise allow
    profit for illegal behaviour)
                                                                                   51


Negligent Misrepresentation
  -    Financial loss w/out associated physical loss or harm is treated differnetly
  -    Actions differ from words, possibility of damage is usually more apparent w/
       physical conduct; People are less cautious w/ words
  -    Crts are more generous if words cause physical injury, will likely approach as
       would for negligent actions i.e. Donahoughe v Stevenson. E.g. Robson v
       Chrysler (eg model falling off stage upon direction)
  -    Policy concerns over indeterminate liability
  -
  A) CAUSING PURE ECONOMIC LOSS

  -     Hercules Mgmt v. Ernst & Young
  -    SCC 1997
  -    FACTS: def were accountants, had provided financial audit of 2 companies
       for shareholders per statute; the companies then went under; plaint claimed
       that audit done negligently, relied on these statements in investing more
       personal $ in the companies & individual investors, ended up losing $
  -    ISSUE: did auditors owe DoC to the shareholders ?
  -    DECISION: for def
  -    REASONING: crt pushes all policy considerations into St II of the Anns
       analysis;
  -    St. I (existence of a special relationship i.e. proximity):
       o proximity will be present when def must have reas foreseen that plaint
           would have relied on advice & plaint was reasonable in doing so in the
           circumstances
       o several factors that can be considered to determine if reliance is reasonable
           (not a test):
                 def had financial interst in the transaction of which repress made
                 def was a professional or smb who possessed special skill, knowl,
                    judgement
                 adviace/info was provided in course of def‟s business
                 info/advice was given deliberately, & not on soc occasion
                 info/advice was given in response to specific ? or request
       o NB, prima facia Doc would not generally be owed btwn acct & advisee
           d/tpolicy considerations of indeterminacy of liability re: negligent
           misrepresentation & accountants
  -    St. II ( any residual overriding policy considerations):
  -    to avoid indeterm liability need to :
       o know who the reprts are being prepped for
                 here, that is not an issue, def knew ID of plaint
       o statements need to be used for the purpose for which they were intended
                 Here statements used for different purpose (personal investment
                    decisions, rather than for company purposes & for facilitating
                    overseeing management of company)
                                                                                52


-   BOTTOM LINE: policy concern over indeterm liability, but there can be
    recovery for pure econ loss; note factors to be considered when applying Anns
    in these cases
-
-    Queen v. Cognos
-   1993, SCC
-   FACTS: plaint had good job in Calgary, interviewed for job in Ottawa; told at
    interview that position interviewing for was associated w/ a certain project
    that would take about 2 yrs & that his employment prospects after that were
    good. He wasn‟t told that the funding for the project hadn‟t been confirmed.
    He got there, they didn‟t fund the project & he was let go after 18 mos
-   DECISION: for plaint
-   ISSUE: Is DoC owed during pre-employment interview & was this breached?
-   REASONGING:
-   Here both parties acknowledge that there is a DoC, but this issue is whether
    this duty is negated by a disclaimer contained in the employment K that was
    signed 2 wks after the interview (Cf Checko where agmnt @ same time); here,
    the tort was independent of the K
-   No success if had been about negligent misstatement re: the amnt of time he‟d
    be working on the project, or the conditions under which he‟d be let go, or
    over security of employment d/t provision in K  plaint saying employer
    misrepresented the nature & existence of the job being offered itself NOT his
    involvement in it.
-   must meet 5 criteria per Hedley to establish misrepresentation :
-   1) DoC based on special relationship ;
-   2) representation must be untrue, inaccurate, or misleading;
-   3) representor must have acted negligently in making the misrepresentation;
-   4) the representee must have relied in a reasonable manner on the
    misrepresentation;
-   5) reliance must have been detrimental to the representee in the sense damages
    resulted
-   Here, all five elements established.
-   SoC here would be that exercised by reasonable person in the circumstances
     mngr here acted carelessly
-
-   BOTTOM LINE: for Anns in these cases need to consider 5 crit per Hedley
    AND reasonableness per Hercules; there is a spec relationship btwn
    prospective employer & employee @ pre-employ interview
-
-
-    BG Checo v BC Hydro
-   SCC, 1993
-   FACTS: BC asked for bids, the plaint did a flyover & noted clearing ongoing,
    they ended up winning the bid; in K, BC would do the clearing, but Checo
    would need to inform itself of all aspects of the work & advise if any errors;
    clearing did not get done, & caused Checo difficulties in completing his work
                                                                                      53


-   ISSUE: there was a breach of K (not at issue) but can plaint also pursue tort
    action?
-   DECISION: for plaint
-   REASONING:
-   Minority  cannot pursue tort action; if Ps define specific duty as term of K,
    the consequences of breach of this duty s/b dealt w/ as breach of K;
-   Majority  can pursue tort action; basic principle is that the right to sue in
    tort is not taken away by the K, though the K can limit the scope of the tort
    duty; 1 or both can waive right to sue, but the mere existence of a K doesn‟t
    negate tort action
-   Tort duty must yield to Ps superior right to arrange their rights/duties in
    another way (i.e. must yield to K) when applicable
-   3 categories of case :
    o 1) K obligations are more stringent that tort duties would be (Ps wouldn‟t
        likely sue, but right to sue in tort is not extinguished)
    o 2) K obligations are co-extensive w/ tort obligations (nothing specifically
        stated, so can pursue action in both K & torts)
    o 3) K obligations are less e.g. exemption/ exclusion clauses – waiver cases
        (here you would need very clear terms to nullify the tort possibility)
-   This is in category #2. Here, BC did not negate duty in the K, so can be sued
    in tort
-
-   BOTTOM LINE: Ps can outline ways in K to remedy breach & can stipulate
    no right in tort if not, they can sue in tort; Dissent: if Ps define specific duty as
    term of K, the consequences of breach of this duty s/b dealt w/ as breach of K;
-
B) RECOVERY OF PURE ECONOMIC LOSS IN NEGLIGENCE

-   When injury is only financial
-   Crts concerned w/ indeterminate liability, overloading crts w/ lawsuits
-   So must set boundaries
-   They have allowed for financial losses resulting from damage to physical
    person or property
-   Taxonomy 5 categories of claim for pure econ loss (open to create new ones):
    o Negligent misrepresentation
    o Independent liability of statutory public authorities
    o Negligent performance of a service
    o Negligent supply of shoddy goods or structure
    o Relational economic loss
-   Specific policy concerns for each of these
-
-   Winnipeg Condominium v. Bird Construction
-   SCC, 1995
-   Doc here does extend to economic losses for shoddy work
                                                                                         54


-      FACTS: non-privity purchaser converted building into condos, shoddily build,
       a section of exterior cladding falls, no one was hurt, but plaint sues for costs
       of repair
-      DECISION: allowed
-      REASONING Laforest: DoC arises to non-privity subsequent purchasers
       when there is reasonable threat of harm to person or property; if just defective
       the question is left open as to recovery
-      Why is this economic loss? There was property damage
-      Don‟t need privity of K is such circumstnances: rationale is that builder here
       should be held to a reasonable SoC, you‟d rather subsequent owners took
       steps as soon as they notice structural damage w/ potential to harm, & if they
       can only recover if smb is injured this may not happen
-
-      BOTTOM LINE: : DoC arises to non-privity subsequent purchasers when
       there is reasonable threat of harm to person or property; if just defective the
       question is left open as to recovery, linked to foreseeability of harm; policy
       consideration do not negate DoC, opposite ones strengthen it;
-
C) RELATIONAL ECONOMIC LOSS
-
-    Bow Valley Husky Bermuda v. St John Shipbuilding
-    SCC, 1997
-    FACTS: HOOL & BVI form new company, BVKB (plaint), formed K with
     this new company;
-    BVKD K‟s w/ SJS (def) to drill for oil;
-    BVHB instructs SJS to use a certain heat-tracing system manufactured by
     Raychem, so SJS K‟s w/ Raychem for this.
-    This system needed a circuit breaker installed to function properly , wasn‟t
     installed until after a fire, which caused damage.
-    HOOL, BVI, BVHB launch suit against SJS & Raychem. HOOL & BVI had
     only economic loss (to keep paying while repairs took place).
-    DECISION: no DoC from SJS to HOOL or BVI; BVHB fails in negligence
     action angst SJS, but succeeds against Raychem (reduced by 40% d/t CN)
-    REASONGING: although dissent, they all agree over law on relational econ
     loss , why this has not traditionally been covered b/c: concern over
     indeterminate liability (class, amount, activity), may be more efficient to place
     burden on victim to buy insurance; discourage a multiplicity of lawsuits,
-    McLaughlin: Can recover relational econ loss under certain circumstances
     (certain open categories), categories currently are:
     o plaint has possess/ proprietary interest in damage prop;
     o general average case (when cargo must be jettisoned d/t e.g. inclimate
         weather that would cause the ship to sink),
     o when relationship btwn claim & property owner is a joint venture
-    agrees policy reasons are compelling requiring new categories be formed
     when required by justice to do so, or where deterrence or plaint did not have
                                                                                 55


    much chance to allocate risk d/t K, but crts s/n/b too aggressively seeking to
    do this
-   look to Anns test
    o proximity of relationship: ought the defs reasonablely foreseen that plaints
        might suffer loss as a result of use of the product about which the warning
        s/h been made
    o st II: negates the above d/t policy considerations (no defensable reason to
        distinguish relationship w/ others, indeterminate liability, ripple effect);
        what about deterrence ? well, the plaint did have the chance & did in fact
        allocate their risk
-   BVHB did not have to rely on relational economic loss b/c it actually owned
    the rig that sustained damage
-
-   BOTTOM LINE: currently there are only 3 categories of relationship where
    relational econ loss is recoverable; door is left open somewhat d/t crts
    openness to considering further, also “joint venture” is an arguable term
                                                                                        56


Intentional Torts
  -    Protect the physical integrity of body or property
  -    BoP issue (shifts to def re: defenses)
  -    Generally, must be voluntary & intentional:
       o Volition: individ had control over physical actions, conduct is voluntary &
          intentional
       o Intent: the actor’s desire to bring about the results or consequences of
          his/her act; did the def desire to bring about the specific consequence
          giving rise to the tort in question? Doesn’t need to be hostile intent;
          doesn’t necessarily matter if def didn’t want the consequence to come
          about
               Imputed/ constructive intent (unintended consequences that are
                  certain or substantially certain to result from it)
               Transferred intent (intent to commit tort angst 1P, but
                  unintentionally commits it against the plaint OR if def intends to
                  commit one type of intentional tort against the plaint, but
                  unintentionally commits another (quite rarely occurs in practice)
       o Motive : generally not an element , though may be relevant to question of
          damages,
       o Mistake: when def intends the consequences, but those consequences have
          a different factual or legal signif than contemplated – not a defense to
          intentional tort
       o Accident: any situ where def unintentionally & w/out negligence injures
          plaint; what is key here is lack of intent – is a defense to negligent &
          intentional tort
       o Liability of children & mentally ill: same issues of volition & intent, but
          inquiry will be around whether this def was capable appreciating the
          nature & quality of his/her act; NB parents/ guardians are not held
          vicariously liable for act of their kids, but could be in their own right (e.g.
          negligent supervision)

  A) BATTERY

  -    Intentional infliction on the body of the plaint
  -    Harmful or offensive contact (outside the generally accepted conduct of
       everyday life) w/out consent
  -    Once proves affected by act of def, def is required to prove lack of intent or
       volition
  -    Protect from bodily harm & protection of person from violation of dignity
  -    Very much a concern of protecting dignity, which may be reflected in
       damages as opposed to those arising from e.g. horseplay
  -    Defense of consent must be proved OBOP by def
  -
  -    Bettel v. Yim
  -    Ont Co Ct, 1978
                                                                                    57


-   FACTS: plaint was young man, was harassing def (store keeper) lighting fires
    inside store w/ others, def grabs him & shakes him to get a confession, he
    accidentally cracks him on the nose
-   DECISION: for plaint
-   REASONGING: foreseeability is not imported into these torts
-   Did def intend to engage in harmful or offensive contact; must intend to bring
    about a physical contact, but doesn‟t need to intend that contact to be harmful
    or socially offensive
-
-   BOTTOM LINE; def intended to engage in harmful or offensive contact
    (physical contact) even if didn‟t intend that contact to be harmful/offensive
-
-   Norberg v. Wynrib
-   1992, SCC
-   FACTS: drug addicted patient given drugs from dr in exchange for sex, when
    she asked for help, he told her to just quit
-   ISSUE: was there consent (in context of battery claim)?
-   DECISION: for plaint
-   REASONGING: LaForest, there was a battery here, so issue of consent is key
    (b/c it‟s a defense if a reasonable person who is aware of the consequences &
    capable of protest or resistance would voice his objection) ;
-   must be able to choose freely, even w/out force this can be compromised if the
    position of the plaint is one of relative weakness;
-   turns to K law, where there are justice factors which prevent weaker Ps from
    being bound to Ks they made, must be voluntary ,
-   can‟t be power dependency relationship (special relationship outlined )
    TEST: look for
    o 1) proof of inequality btwn the parties &
    o 2) proof of exploitation;
-   here b/c she was an addict, she lacked the ability to truly consent in this
    relationship  he had substantial power over her AND he exploited her
    through this sex for drug exchange (which he initiated),
-   flagrant disregard on his side of her well-being;
-
-   BOTTOM LINE: defense to battery = consent (if a reasonable person who is
    aware of the consequences & capable of protest or resistance would voice his
    objection), but this can be vitiated if power dependency relationship; test for
    this = proof of inequality btwn Ps & proof of exploitation
-
-   Non-marine underwriters v. Scalera
-   SCC, 2000
-   FACTS; claim against 5 bus drivers, sex abuse occurred over several years ,
    one of the drivers had insurance policy but wouldn‟t cover intentional or
    criminal acts;
-   DECISION: for plaint
                                                                                   58


-   REASONING: argument was that she should d/t the nature of sexual assault
    (as only 2 ppl are present) ;Crts confirm plaint doesn‟t need to establish she
    did not consent ;
-   Foundation of tort of battery is violation of personal autonomy as well as
    bolidy integrity; any act can be pf harmful/offensive contact that is outside the
    generally accepted conduct of everyday life  expansive understanding of
    what this means;
-
-   BOTTOM LINE: Consent can be expressed or implied, but must be proved by
    def OBOP; est fairly low hurdle for plaint re: what constitutes
    harmful/offensive contact
-
-
-   Article: Feldthusen “The Canadian Experience w/ the civil action for sexual
    battery”
-   1997
-   All damages that flow directly fr/ the tort are recoverable in battery, can
    recover even w/out proof of damages, but injury is not just physical but to
    autonomy & dignity
-   Issue around limitation periods (b/c vic may not know, recognize that s/he had
    been abused)
-   Notes awards in these cases have been low  due to a # of factors, but in part
    at least d/t discriminatory influences angst women, children
-   This has changed somewhat, they have been increasing, but still remain low
-
B) ASSAULT

-   “Intentional creation of the apprehension of imminent harmful or offensive
    contact”
-   Protects ones right from the threat of physical harm
-   Need not be actual physical contact, no actual carrying out of threat
-   Rarely will find tort action for assault alone, usually w/ battery (damages are
    usually quite small)
-   Focus on impression on created in plaint’s mind
-   Elements:
    o Def’s conduct must have reasonably created threat of imminent physical
        contact (reasonable person must have felt threatened)
-   Usually future threat don’t constitute assault – there must be immediacy
    (though this is somewhat relaxed now)
-   R.v. Ireland (UK, silent hang-ups; guilty of assault based on the calls, silence
    could equally be a threat in the sense of assault) i.e. silence can be an assault
-   Fears can’t be entirely subjective, idiosyncratic fears, needs to be more
    objective than that, but there will be some subjectivity to it
-   Need to look at the reality of the threat
-   Def need not have been actually able to carry out the threat
-
                                                                                 59


-
-
-   Holcombe v. Whitaker
-   Alta SC, 1975
-   FACTS: wife tried to get husband to agree to annulment, he threatened to kill
    her if she took him to crt, broke into her apt & repeated his threat
-   DECISION: for plaint
-   REASONING: def says there was no overt act of violence, merely a
    conditional threat of violence
-   Words are not enough, but can give meaning to an act, both together can =
    assault
-   He had limited how her life could go fwd b/c she was afraid of him
-   Here however crt looked to immediacy of threat of harm & its effect upon her
-
-   BOTTOM LINE: words which give meaning to an act can = assault; crt will
    look to effect on plaint‟s life (focus on impression words created in plaint
    mind)
-
-   Police v. Greaves
-   NZ, 1964
-   FACTS: police called to residence, they knocked on def‟s door, he had a knife
    & said would knife them if they came in
-   DECISION: for plaint
-
-   BOTTOM LINE: there was reason to believe that he had the present ability to
    carry out the threat (they ended up leaving to get back-up)
-
-   Warman v. Grosvenor
-   Ont 2008
-   FACTS: through 2 yrs postings on the internet & personal email, def
    threatened & intimidated plaint; expressed hatred of him, called on others to
    act against him, try to get him evicted, act violently; included his address;
-   DECISION: for plaint
-   REASONING: here, there was a high level of malevolence, plaint was clearly
    affected (he even moved), threats are serious that smb would harm him
-   Damages would have been $175, 000 d/t seriousness of allegations, the
    frightening threats made, the danger they have created, & extreme malice
-   However plaint used simplified process so waived entitlement to anything
    beyond $50K
-
-   BOTTOM LINE: crts will look into e.g. degree of malevolence when
    calculating damages; effect upon plaint‟s life, seeming seriousness of the
    threats
-
C) INTENTIONAL INFLICTION OF MENTAL SUFFERING
                                                                                  60


-   Doesn’t apply viz family law d/t policy reasons (floodgates etc)
-
-   Wilkinson v Downton
-   1897, UK
-   FACTS: practical joker tells plaint her husband was seriously injured, she
    suffered nervous shock & sued for her expenses
    DECISION: for plaint
-   REASONING: doesn‟t fit w/ assault or negligence, so new tort created.
-   Def willfully infringed plaint legal right to personal safety ;
-   Need to show act or statement that is calculated to produce harm & actual
    harm incurred as a result
-   1) don‟t need wider statement (like defamation), can be uttered only to plaint;
    should be extreme & calculated to cause mental anguish to plaint, not just run-
    of-the-mill type practical joke situation
-   2) fact that harm is calculated (intentional) differentiates form negligence &
    from harm that‟s not tortious
-   intention here has same meaning as in other torts, def must have wanted to do
    it or reaslized w/ substantial certainty, doesn‟t have to have seen the full
    extent of the harm
-   occasionally the intention aspect has been relaxed, so comes close to
    negligence
-   reaction s/b reasonable, need to have anticipated the occurrence of this type of
    reaction, though not the extent of it as a reasonable person would experience it
    (unless def was aware of particular vulnerabilities of the plaint)
-   3) harm requirement has also been relaxed somewhat
-
-   BOTTOM LINE: new tort; needs to be act or statement that is calculated to
    produce harm & actual harm incurred as a result
-
-   Purdy v Woznesensky
-   Sask CA, 1937
-   Plaint husband physically assailed by def; plaint wife suffered mental
    suffering, successfully sued
-   Def should have foreseen that causing plaint to witness the attach he would
    probably upset her nervous system
-
-   Radovskis v. Tomm
-   Man QB, 1957
-   FACTS: mom suing for intentional infliction of nervous shock when daughter
    raped by def
-   DECISION: for def
-   REASONGING: test for recovery is a visible & provable illness that is shown
    to be the natural consequence of violent emotion
-
-   BOTTOM LINE: test for harm is a visible & provable illness shown to be
    consequence of the mental shock; NB this is an old case, however (1957)
                                                                                   61


-
-      Samms v. Eccles
-      Utah SC 1961
-      FACTS: def continuously annoyed plaint w/ indecent proposals
-      DECISION: for plaint
-      REASONING: even when no bodily impact or physical injury, can find harm
       so long as def conduct towards plaint was intentional , w/ purpose (or
       reasonably thought to be so), actions would offend generally accepted
       standards of decency of morality
-      Usually comments will be offensive but not so extreme so as to be outrageous
-
-      BOTTOM LINE: unsettled law in Canada, but it does broaden defn of harm
       to include mental harm (note comments were deemed “outrageous”)
-
-      Bell-Ginsburg v. Ginsburg
-      1993 Ont Gen Ct
-      FACTS: wife sues bisexual husband who deceived her & exposed her to risk
       of HIV, motion to strike down
-      DECISION: motion can go fwd
-      REASONING: could succeed if the emotional effects of the def‟s conduct
       were a) direct & immediate & b)intended or foreseeable as a probable
       consequence
-
-     BOTTOM LINE: not definitive, but opens door
-
D) A COMMON LAW TORT OF DISCRIMINATION?
-
-     Bhadauria v. Board of Goveners of Seneca College
-     1979, SCC
-     FACTS: plaint applied many times at employer & was never hired, though she
      was very qualified, sued saying the it was ethnic discrimination, didn‟t pursue
      HRC claim; sued for breach of HRC
-     DECISION: for def
-     REASONGING: CA recognizes CL tort of discrimination & that CL should
      develop to protect individ rights in HRC;
-     SCC says that legislature put in place whole structure to deal w/ these kinds of
      claims, so this has precluded development of HR discrimination in tort law
-     Should following the procedure in place for remedy
-     Would have to find a way around through an existing recognized CoA, which
      would allow crt way to allow for damages for sexual harassment or
      discrimination , constructive d/m
-
-     BOTTOM LINE: to sue for discrimination, need to find a good existing CoA
      to attach HRC claim to, can‟t sue for discrimination on its own

-
                                                                                 62


-   HRC
-   S.46(1) Now modified so that it can order def party to pay restitution or other
    remedy, the condition of this is that there is a civil proceeding & a crt has
    determined that a breach of HRC has occurred
-
-   BOTTOM LINE: need to find a good existing CoA to attach HRC claim to
    activate 46(1) & ask for remedy for this
                                                                                  63


Informed Consent & a Doctor’s Duty of Disclosure
-   Need to obtain informed consent of patient b4 treating (Buchan v. Ortho)
-   Battery claim here will apply where:
    o a patient did not consent at all
    o Consent was exceeded
    o Consent obtained fraudulently
-   Once patient aware of general nature of proposed tx & consents, it’s not
    battery
-   If failure to inform by HCP, that doesn’t vitiate the consent, but can amount to
    negligence (breach of dr’s affirmative duty to d/c risks of tx)
-   Sometimes crts will relax strict requirement of consent e.g.
    o Emergency
    o Where consent will extend to necessary antecedent procedures
-   Now mostly codified
-   Close link to preservation of bodily integrity & dignity
-
-    Marshall v. Curry
-   1933, NSSC
-   FACTS: plaint consented to hernia sx, dr removed a testicle as well, plaint
    says did not consent; def said could not have known in advance & it was
    necessary to repair the hernia & given that the testicles was disesased, it was
    necessary to remove to preserve health
-   DECISION: for def
-   REASONING: HCP needs consent b4 treating; consent can be expressed or
    implied (may arise fr/ discussion or fr/ circumstances); wrt emergency dr‟s
    duty is to save life of preserve health in an emergency
-   Tying the above principles to the situ, they found that it would not be
    reasonable to put this off , was necessary to preserve life/health, was
    unforeseeable
-   Even if no implied consent, it was justified operation (so based on implied
    consent & the fact that it was an emergency & necessary to preserve life/
    health)
-
-   BOTTOM LINE: implied consent is possible; NB used to be must riskier, to
    preserve health/life of patient in unforeseen circumstances sx could be
    justified even if no implied consent
-
-    Malette v. Shulman
-   1987, Ont HC
-   FACTS: in MVA, brought to hospital unconscious, needed blood transfusion
    to live; she had a card noting she was Jehovah‟s Witness & refused
    transfusions; daughter showed up & confirmed belief, so stop; they only
    stopped when stabilized; she lives, but cost to her is chance at eternal
    salvation
-   DECISION: for plaint
                                                                                 64


-   REASONING: award damages d/t violation dignitary interest; underlines that
    consent is needed & that we have ability to refuse even life-saving tx
-   Informed refusal argument by def was refused (this is not a requirement, can
    refuse tx for any reason w/out being informed of consequences)
-   Must have known or ought to have known of refusal
-
-   BOTTOM LINE: jehovah‟s witness card enough to establish lack of consent;
    individuals have ability to refuse even life-saving tx
-
-    C. v. Wren
-   1986, Alta CA
-   FACTS: 16 yo wanted abortion, parents sued dr to prevent it, saying that dr
    needed consent, daughter is below age of majority so need their consent
    DECISION: for def.
-   REASONING: looking to parental rights; sliding scale in “age of consent” 
    parental pwr decreases as child grows older
-   Here girl was sufficiently intelligent & understood the consequences; parents‟
    consent was irrelevant per the law
-   This is now under statute, but this condified CL as this
-   Statute doesn‟t provide for minimum age for conset, it uses the test
    surrounding their consent
-
-   BOTTOM LINE: if minor is sufficiently intelligent & able to understand the
    consequences, they can provide consent w/out parents (no specific statutory
    minimum)
-
-    Arndt v. Smith
-   SCC, 1997
-   FACTS: pregnant women get chicken pox, asked her dr about it, he did not
    mention the very small possibility the the child may be born w/ severe
    disabilities. This actually happened, sued on basis of not being warned of risks
    of continuing w/ her pregnancy under the circumstances, that if properly
    informed she would have aborted
-   ISSUE: how does one determine causation here? On what basis do u judge
    what the patient would have done?
-   DECISION: for def
-   REASONING: turns on causation (like (Buchan v. Ortho); def‟s breach was
    not giving more info on risks; plaint needed to est that having this info would
    have made an impact on her decision to continue w/ the pregnancy
-   Crt refs to Riebl v. Hughes  standard can‟t be too subjective, w/b too
    influenced by hindsight, but can‟t be too objective, as would not allow for
    looking to circumstances particular circumstances relevant to plaintiff ,
-   so needed modified test : what would a reasonable person in the plaint‟s
    particular circumstances have done?
-   But can‟t be unreasonable fears, etc; need to consider question posed to dr
-   Reaffirms modified objective test in cases of informed consent
                                                                                   65


-   Crt felt if properly informed reasonable person w/n/h had an abortion; there
    was no particular fear belied by any questions, only asked generally what the
    risks were
-   [But how would the patient know what risks to ask about?]
-   DISSENT: in this type of circumstance a subjective test is required (obj test
    deprives plaint testimony of any weight), but here even if subjective test, feel
    she would not have had an abortion given e.g. her desire to have a baby,
    distrust of mainstream medical profession, small risk etc
-
-   BOTTOM LINE: test for establishing that a patient would have acted
    differently had they been properly informed of risks = what would a
    reasonable person in the plaint‟s particular circumstances have done; NB
    strong dissent re: s/b subjective test
-
-    Health Care Consent Act S.O.
-   Codifies CL, doesn‟t replace it
-   Capacity is determined :
    o Understand info that‟s relevant towards making a decision
    o Appreciate the reasonably foreseeable consequences of dec/ lack of dec.
-   Consent is valid when:
    o Relates to tx
    o Is informed
    o Given voluntaritly
    o Not obtained through misrepresentation or fraud
-   Emergency exception won‟t apply if HCP knows that consent has already
    been refused
-   Emergency only applicable when delay in obtaining consent will prolong the
    suffering
-   Battery claims likely limited in a HC context
-   Main aim appears to be shielding HCPs from liability for reasonable decisions
    made in good faith
                                                                                     66



  Tort Liability of Public Authorities

SEE CHART

  -     R. In right of Can v. Sask wheat pool
  -    1983, SCC
  -    FACTS: had delivered infested wheat to the pool, a violation of Canada grain
       act, statute had not mentioned possibility of civil suit; Wheat Board sued
       Pool; no CL claim for negligence (b/c no fault on part of wheat pool), just on
       breach of statute
  -    ISSUE: can breach of stat duty gave rise to a civil cause of action?
  -    DECISION: denied
  -    REASONING: look to US & UK developments ; need some element of fault
       on def part to found liability
  -    If were to recognize new separate tort, this would impose risk on def w/out
       proof of fault, claims now need to establish fault
  -    General principles:
       o Civil consequences of breach of stat s/b subsumed in law of negligence
       o Notion of tort of stat breach giving a right to recovery merely on proof of
           breach & damages s/b rejected, as shld the view that unexcused breach
           constitutes negligence per se giving rise to absolute liability
       o Proof of statutory breach, causative of damages may be evidence of
           negligence
       o Statutory formulation of the duty may afford a specific, and useful,
           standard of reasonable conduct

  -    BOTTOM LINE: no recognition of separate tort of statutory breach; stat
       breach s/b considered in context of general law of negligence, need something
       more (i.e. some degree of fault) than just stat breach to show negligence
  -
  -     Just v. BC
  -    1989, SCC
  -    FACTS: accident on mountaintside hwy , rock got loose & landed on plaint
       car, killing plaint daughter & injuring him; sued govt for not maintaining road
       properly (there had been other recent rock falls, the weather was such that it
       was likely to happen & govt had ignored this & a reasonable inspection
       would‟ve revealed this )
  -    DECISION: new trial, as plaint has est CoA
  -    REASONING: crt draws distinction btwn govt policy & operation; difficult
       line to draw,
  -    POLICY : don‟t want to handicap gov‟t ability to operate efficiently, consider
       socio-econ benefits & political practicability so exclude policy decisions; i.e.
       could have chilling effect on govt policy-making
  -    so long as formation of policy was done in good faith & reasonably carried
       out, negligence principles won‟t apply
                                                                                        67


   -       Crt can assess this by looking at avail of equip, personnel, & budgetary limits
           etc  SoC is different that for private citizen due to scope of govt
           responsibility
   -       Whether policy or operation depends on nature of the decision not identify of
           decision-makers
   -       MAJORITY: here, this challenged govt actions were operational not policy
           (“product of administrative direction, expert or professional opinion, technical
           standards, or general standards of care”)
   -       Takes broader view of operational
   -       DISSENT: Agrees on law, differ on application
   -       Here, the action was one of policy
   -       relies on Anns, but notes that decision on when to inspect etc is w/in
           discretionary policy of govt , so would have to show that acted outside
           discretion
   -       takes a broader view of policy
   -
   -       BOTTOM LINE: distinction btwn policy & operation not clear
   -
   -        Ingles v. Tutkaluk Construction
   -       2001 SCC
   -       City‟s decision to institute building inspection prog was an optional matter of
           policy, but once they had, the implementation of that system was an
           operational function & therefore subj to SoC
   -       no distinction btwn phsy damage & purely economic loss in case angst public
           authority once DoC/SoC est‟d
   -
   -
Policy                                        Operational
Implementation of tree removal program        Failure to erect higher median barriers on
Swinamer v. Nova Scotia                       highway in timely manner
                                              Malat v. Bjornson
Maintenance of municipal manhole covers       Decision to issue bldg permit & failure to
Wegren v. Prince Albert                       id construction defects
                                              Mortimer v. Cameron
Adoption of particular sys for clearing       Failure to inspect & maintain a highway
snow from sidewalks                           Lewis v. BC
Knodell v. New Westminister

Decision not to reduce speed limit in         Denial of crabbing licence on acct of an
school area                                   officer‟s negligent measurement of plaint‟s
Potts v. Heutink                              boat
                                              Keeping v. Canada
Refusal to enter into agmt w/ parents to      Failure to anticipate freeze-up & apply salt
provide for needs of special needs child      to hgwy in timely manner
AL v. Ontario                                 Benoit v. Farrell Estate
                                                                                 68


-
-   Note on Cooper v. Hobart
-   Need to situate the distinction w/in Cooper/Hobart framework
-   Policy/operational dichotomy falls into 2nd stage of Cooper
-   Cooper introduced greater focus on proximity, so many decisions are now
    decided there before having to deal w/ policy/ operation issue
-   However, est‟ing proximity difficult
-   Coexistence of CL & stat DoC in Cooper  potential conflict & this hasn‟t
    been completely resolved (Cf Wheat Pool)
-   Greater reluctance in assigning liability to public authorities
-
-    Taylor v. Canada
-   2007, Ont CA
-   FACTS: TMJ implants caused serious injury b/c of design flaw
-   DECISION: not a determinative finding  action can move fwd
-   ISSUE: is there a private law DoC?
    REASONING: applies Cooper analysis; Is it right & fair to recognize a
    relationship of proximity?
-   Statute gives Minister discretionary powers
-   Duty owed to private duties or public at large?  only to public at large, so no
    proximity on that basis
-   Govt decisions pursuant to its statutory powers may involve 2nd tier policy
    considerations relating to the availability & allocation of resource sin
    determining procedures & practices for the enforcement of the act & the
    regulations in particular situations
-   But if govt did not duly exercise their discretion & created, enhanced or
    contributed to a risk of harm to a discrete group of ppl, there can be proximity
    & DoC may arise
-   Here, failure to f/u on its repeated communications that distributor was in
    breach of its obligations under the FAC are more consistent w/ a failure to
    exercise statutory discretions (an abuse of discretion) than w/ decisions duly
    made w/in their discretion.
-   Inaction by govt bodies w/ stat pws conferred to protect public don‟t usually
    engage DoC even if harm is reasonably foreseeable
-   However if creates for a discrete grp a reasonably foreseeable risk of harm,
    can generate a DoC
                                                                                 69


-
-   BOTTOM LINE: if inaction (e.g. abuse of discretion) by govt w/ statutory
    powers conferred to protect the public creates an increased, foreseeable risk of
    harm to a discrete group, it can create a relationship of proximity & private
    law DoC can arise
-
-    Holland v. Saskatchewan
-   2008, Sup. Ct. J.
-   FACTS: plaint refused to register in programe to get rid of bugs on deer, so
    govt revoked certification for herds; sued & won; then govt refused to
    reinstate certification & pay for losses, so sued again
-   DECISION: no final determination , it is prelim  says action can move fwd
    on one aspect of claim (govt refusal to implement judicial order)
-   REASONING: negligent breach of stat duty not recognized by crts
-   So crt of appeal applies Anns / Cooper to determine if new kind of DoC
    arises (didn‟t bother w/ St I given residual policy concerns making invalid at
    St II)
-   SCC agrees, no action for negligent breach of stat duty, appropriate remedy is
    to look to judicial review
-   However, also need to address: is there a claim for negligent failure to
    implement a judicial decree :
    o Policy decisions about what acts to perform undera statute do not vive rise
        to liability in negligence
    o Once decision made, govt may be liable for manner in which implements
        (Operational)
    o Public authorities are expected to implement a judicial decision
    o Implementation of judicial decision is as such an “operational” act
-
-
-   BOTTOM LINE: although no action on claim of negligent breach of stat duty,
    govt may be liable for the manner in which they implement policy (incl
    judicial decisions)
-
-   Abarquez v. Ontario
-   2009, Ont CA
-   FACTS: SARS nurses sued govt, which is 3rd P, said that govt had issued
    directives during the crisis that they had to follow) for breach of rights under
    s7 & negligence
-   DECISION: prelim, govt appeal of decision that plaint had good CoA 
    claim cannot move fwd
-   REASONING: prov govt had duty to protect citizens at large from disease, no
    private law DoC to individuals who contracted SARS;
-   HC workers are at greater risk b/c of their jobs, not b/c of some risk that govt
    created
-   Nurses argued that relationship to govt diff from that of general public during
    crisis b/c govt directly engaged nurses by issuing directives
                                                                                    70


-   Nurses argued mismanagement of SARS crisis  crt rejects this, says that
    various interests & claims were weighted (including those of nurses) & to
    prioritize interests of nurses over general public (this w/b a possible conflict of
    interest)
-
-   BOTTOM LINE: example of operational decision where DoC not recognized
    to a specific group;
                                                                                 71


Vicarious Liability
-    Liability for another’s negligence by virtue of relationship
-    1) statutory vicarious liability – will depend on the statute
-    2) principal-agent relationship
-    3) employer-employee relationship
-
-
-    Bright v. Kerr
-    1939, SCC
-    FACTS: example of #2,
-    ISSUE: is wine dealer responsible for acts of his agent deliveryman?
-    REASONING: no imputed act or guilt;
-    rationale is that liability will derive from one who expects to derive an
     advantage from the one who is negligence
-    Principle has power to choose his agent
-    In the course of the agent‟s employment
-    Principle won‟t be liable for acts outside the scope of the agency
-

-    Bazley v Curry
-    SCC, 1999
-    FACTS: unanimous court; employer operated residential care facilities for
     young emotionally troubled children; hired def & he turned out to be a
     pedophile, though employer didn‟t know it & had no reason to know;
     employer was acting like a substitute parent
-    DECISION: for plaint
-    REASONING: Application & expansion of Salmond‟s test, employers are vic
     liable for:
-    1) acts authorized by employer
-    2) unauthorized acts so connected w/ authorized acts of employer that they
     can be though of as modes, if unauthorized modes, of doing an authorized act
     How do you determine #2? First look for precedence , if nothing look to
     policy considerations to see if vicarious liability s/b imposed
-    3 general categories of cases where vicarious liability found:
     o In furtherance of employer‟s aim (e.g. driver)
     o Where employer‟s business creates situation of friction (e.g. provoked
         bartender)
     o Dishonest employee (e.g. employee theft or fraud, even where anathema
         to employer business e.g. drycleaner theft when common in the business;
         if random act there would not be vic liab)
-    Common feature of the 3 is enterprise risk  employer‟s business created risk
     that produced the tortious act;
-    2 policy concerns here:
     o Provide a just & practical remedy
     o deterrence
-    balances w/ placing too much burden on employer  but SCC rejects this
                                                                                    72


-   vicarious liab has to be closely/ materially linked to risk created by
    employer’s enterprise (not unwilling insurance); is there a meaningful
    connection btwn enterprise & wrong that occurred , it must materially
    enhance the risk of the harm?
-   look to :
    o the opportunity that the employment offers to the employee
    o the relationship that is established btwn wrongdoer & vic;
    o nature of the employment;
    o power differentials inherent in employment situation;
    o exercise of power & authority that came with that;
    o any other factors
-   here, given the “substitute parent” situation that employee was in, the
    employer s/b vic liab
-   Joint & severally liability
-
-   BOTTOM LINE: test for determining vic liab in master-servant relationship;
    the employers‟ business must created the risk that produced the tortious act
-
-   Jacobi v. Griffiths
-   1999, SCC
-   FACTS: sexual assaults by employee of Boys & Girls club that planned
    afterschool activities
-   DECISION: for def (not liable)
-   REASONING: has to be a strong, rigourous test, not enough that employer
    can pay $
-   Nature of employment here just provided opportunity to commit the crime; he
    didn‟t as result of employer have chance to insinuate himself in private lives
    of clients
-   nature of employment did not place perp in special relationship of trust &
    caring w/ the kids; nature of the business was merely to operate activities (not
    residential);
-   Policy concern: Activities may no longer be offered if they assign liability to
    employer
-   DISSENT: vulnerable clients, did materially & significantly enhance the risk
    of the assaults occurring
-
-   BOTTOM LINE: need strong connection btwn risk created or enchanced by
    the enterprise & the wrong committed esp w/ non-profits
-
-   Blackwater v Plint
-   Dual vicarious liability (govt & church)
-   Vic liab doesn‟t require fault, but may be apportioned based on ability to
    supervise & hence prevent the wrong
-   Note 16, p 878 – SCCC decision on dual vicarious liability is a bit thin, but
    establishes it is possible
-
                                                                                73


-   # Ont co v. Sagaz Industries
-   SCC, 2001
-   FACTS: plaint manufactured car seat covers, sold mostly to Cdn Tire; def
    hired marketing company to sell its own covers, which succeed in doing this
    by bribing Cdn Tire for K
-   DECISION: for def (NB marketing co is IO)
-   REASONING: rationale behind vic laib:
    o Provides just & practical remedy
    o employer can best spread the losses
    o deterrence (in best position to prevent wrong-doing from occurring)
-   determining liab when not actually an employee:
    o Control test ( right to give orders & instructions to employee re: manner in
        which he‟ll work) doesn‟t always apply
    o Organization test (is person‟s work integrated as part of the business, not
        merely working “for” the business)
    o Enterprise test: is there control over activites of the wrk & does employer
        benefit & have ability to reduce loss
-   crt notes one test won‟t suffice  must look to relationship btwn them; must
    consider if employee is working on own account (making own profits, using
    own equip etc)
-   here, marketing co was an IO, not employee/dependant
-
-   BOTTOM LINE: must look to relationship btwn tests to determine if IO or
    employee for purposes of determining vic liability
-
-   Non-delegable duties:
-   Public auth under non-delegable DoC, must ensure reasonable care is taken
    incl that taken by contractor doing work
-   In Lewis , could sue IO & public authority, as public authority cannot delegate
    their responsibility  BC statutorially required to maintain a hwy, contracted
    out to independent contractor, who was negligent resulting in plaint death 
    BC bore responsibility along w/ actual tf
-   Will depend on stat provisions, circumstances of the case, policy
    considerations
-   Crown must be careful in hiring & supervising contractor & has non-del DoC
    in terms of the relationship
-   resp for road maintenance is entire w/in pwr of Ministry, public has no choice
    re: traveling on public roads,
-   Stresses importance that safety & lives are at stake
-   Govt shared liability for the negligence d/t contractor conduct
-   Initially expected that SCC would take very expansive view of the doc, this
    hasn‟t occurred re: how broadly to read Lewis, has backed off
-   Can find govt liable on other grounds, however , for its own negligence(eg
    negligently hiring & /or supervising contractor)
-   Not necessarily limited to govts, though hasn‟t yet been applied elsewhere
    (e.g. hospitals)
                                                                                74


-
-   BOTTOM LINE: certain duties are non-delegable, esp public authority, must
    ensure reasonable care taken not only in hiring contractors but in their work;
    so far application of this doctrine has been narrow
                                                                                       75


Tort Law: Theories, Criticisms & Alternatives
No fault system of auto insurance in Ontario:
   -       no fault below a certain minimum
   -       over certain statutorily determined minimum (catastrophic injury) can sue in
           tort

Feldthusen:
    -      tort negligence system s/b abolished, whether or not no-fault or other system
           replaces it
    -      not an effective compensation system
           o it is not accident insurance – all face risk of disability from accident or
               illness, but no one foregoes insurance thinking they can rely on tort
               system)
    -      not an effective deterrent system
           o potential suit doesn‟t deter sloppiness or mistakes
           o suits only brought against those w/ deep pockets
           o at most, provides incentive to avoid paying damages, not avoid accidents
    -
Effect of Liability Insurance on Tort Law
Slater Report:
    -      of $2.4B paid out under various accident compensation schemes in 1981, only
           $250M was paid through tort
    -      should transform from system primarily concerned w/ deterrence to one
           concerned w/ compensation  insurance (can‟t do both)
    -      judges look first for presence of insurance before finding fault, transforming
           into system of social insurance for a wide range of societal risks
    -      absurd to only compensate when presence of “fault” (seriously injured
           milkman d/t non-negligently administered angiogram)
    -      most injuries go uncompensated
    -      enormous delay in victims getting awards
    -      uncertain & unpredictable results (lottery-type system)
    -      costly & inefficient to administer
    -      Bottom Line: should be deal with through insurance, 3 choices:
           o No-tort injury compensation for auto accident injuries only
           o No-tort injury compensation for all accidents
           o No-tort compensation for all disability

Klar on the Osborne Reprt:
   -       Osborne report was to deal with issues of compensation for vics of MVAs
           o Rejected pure tort system
           o Tory system w/ add on no-fault benefits recommended
           o Pure no-fault system rejected
           o Threshold no fault system rejected
           o Comprehensive no-fault system needs further consideration
   -       There is a deterrence effect despite presence of insurance
                                                                                           76


           o Danger of insurance co seeking indemnity from the insured
           o Possibility of policy limits being exceeded , w/ excess becoming the
              responsibility of the wrongdoer
           o Average Joe is most influenced by possibility of civil liability
   -       Tort system leads to better justice & fairness
           o Public sense of right/wrong insists that fault be considered when
              compensating
   -       Delays in tort system, work against insurers as well as vics
           o Rooted in lump-sum pymnt method, which is not necessary
           o Could change rules of civil pro to make litigation less onerous
           o Litigation is the rare exception

   Criminal Injuries Compensation
   -     although theoretically available under tort system (e.g. battery), govts set up
         system to provide compensation
   -     why only for vic‟s of crime & not for injury resulting from other
         circumstances?
         o Moral duty to aid innocent sufferers of egregious event that might befall
             any of us
   -     e.g. Compensation for Victims of Crime Act
   -     couldn‟t likely sue perpetrator of the crime
   -     plaint must est OBOP that AR occurred & that plaint suffered
   -     no conviction required
   -     small awards
   -     award can be reduced dependant upon conduct of plaintiff

Towards a Comprehensive No-Tort Compensation Scheme
  -      in NZ felt corrective justice principle so key to tort can‟t do justice to those
         injured b/c of accident
  -      move to principle of distributive justice
  -      rejected CL tort liability d/t delay, difficulty in proof, inefficiency, cost, one-
         time pymnt
  -      packaged as: compensate more, cost less
  -      reforms in 80s to limit scope of accident
  -      fairly cost effective
  -      funded via employer levys & $ that would otherwise have funded MVAs, etc
  -      built back in need to establish fault in mal-meds, though swung back on this
         recently (can now recover for injury t/t non-negligent tx)
  -      significant caps on compensable earnings
                                                                                          77



Preserve Tort System                           Abolish Tort System
- delays d/t litigation system can be worked   -delays (waiting 10 years for pymnt)
on; litigation is rare
- not as inefficient as seems                  - inefficient
-                                              - doesn‟t properly compensate
- there is a deterrence effect despite         - doesn‟t deter (potential suit doesn‟t deter
insurance especially if policy exceeded,       sloppiness or mistakes; insurance covers
insurance companies seeking indemnity          everything)
from the insured, average Joe concern
- public sense of right/wrong insists fault    - arbitrary, unfair, only compensates “fault”
be considered in compensating                  injuries (milkman angiogram)
- other state-administered systems set up to   - uncertain/unpredictable results (lottery)
circumvent tort system haven‟t worked out
well, haven‟t provided more predictable
results (Compensation for Victims of
Crime)
- NZ experience: has required much             - NZ experience: has worked fairly well,
tweaking, had to build some fault back into    fairly cost effective
the system
- corrective justice                           - would better distribute justice

				
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