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					                                      TORTS SUMMARY FALL 2006
                                              GILMOUR

COMPONENTS OF A NEGLIGENCE ACTION
        Plaintiff must prove
                duty of care
                breach of standard of care
                causation
                remoteness
                damages
        Defendant
                defenses
Duty of care
   - owed to persons who fall within the ambit of foreseeable risk created by the
       defendant‟s actions. Legal foundation of the tort of negligence. Its analysis
       involves determining legal responsibility in particular factual circumstances.

Breach of the standard of care
   - did the defendant do what a reasonable person would have done in the
      circumstances
   - objective test: Duty in negligence is to take care

Causation
   - the plaintiff‟s injuries must have been caused by the defendant‟s negligence
          o did the defendant‟s breach of the standard of care cause the problem
             (Buchan case – pill vs. lack of warning)
   - “but for” test

Remoteness
   - causal link between defendant‟s fault and plaintiff‟s injuries must not be too
      tenuous or remote

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

1. Introduction to the Law of Negligence

Buchan v. Ortho Pharmaceutical (Canada) Ltd., (1986), 25 D.L.R. (4th) 658
(Ont. C.A.) ...................................................................................................................... S1
FACTS
-plaintiff suing for stroke suffered as a result from taking oral contraceptives, claims she
did not receive warning of the risk of stroke
-pharma company claims that even if she had been warned she would have taken the
contraceptives


                                                                                                                         1
Duty to warn
1) Duty was owed to inform physician about risks (learned intermediary rule)
2) Ortho did not meet standard of care as they failed to warn the doctors sufficiently
(greater warning to American doctors vs Canadian)
3) Causation was evaluated using a subjective test (trier of fact evaluates the claim made
by the plaintiff) as opposed to previous objective test of reasonable patient (Reibl v.
Hughes).
4) Obiter – Drug companies should not rely on learned intermediary rule for
contraceptives due to heavy customer involvement in decision-making.


Note: Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634 ............................................. S13
 manufacturer failed to warn surgeon of the risk that breast implants would rupture
   - confirmed the use of the subjective test learned intermediary rule  for
      manufacturers b/c there is a greater chance the value of the product will be
      overemphasized, and the risks underemphasized
   - „modified objective test‟ (SCC) should be used for patient-doctor relationships (as
      in Reibl v. Hughes, and Arndt v. Smith – S12)
   - court upheld award of damages to the plaintiff resulting from the defendant
      manufacturer‟s failure to warn her surgeon of the risks implants would rupture
   - due to self-interested/profit-driven manufacturer, should be held to higher
      standard

Note: Tobacco Tort Cases in Ontario ........................................................................... S17
-SEVERAL TOBACCO TORT CASES ARE UNDER WAY IN ONTARIO

PERRON V. R.J.R. removed – 1983 quit smoking, health improved
   - Sued for failure of duty to warn of dangers of smoking
   - Dismissed due to limitation period
   - New legislation on tobacco complaints, removes limitation restriction

Ontario Tobacco Cases
          o Caputo v. Imperial Tobacco Ltd. – manipulated levels of nicotine,
              advertising to youths
          o Spasic Estate v. Imperial Tobacco Ltd. Ontario court dismissed appeal a
              motion to strike out a statement of claim alleging that tobacco companies
              negligently and deceitfully manufactured ineffective and dangerous
              products
          o McIntyre Estate v. Ontario (Attorney General) – contingency fee allowing
              to sue
Ragoonanan v. Imperial Tobacco Canada Ltd. – lost family in fire caused by careless
smoking; alleges Imperial could have sold „fire safe‟ cigarettes

Reference: Casebook, chapter 9



                                                                                                        2
2. The Standard of Care (Chapter 15)

Introduction ..................................................................................................................... 395

Analyzed in two stages:
       Question of law – what standard of care is required
       Question of fact – has P proven D breached standard?

The Reasonable Person Test ........................................................................................... 396

Arland v. Taylor, [1955] 3 D.L.R. 358 (Ont. C.A.) ........................................................ 396

 At trial, judge charged jury by saying, “I suggest you put yourself in the driver‟s seat of his car.”
    - Found to be an error, the standard of care for the jury to evaluate is the care taken “in the
          circumstances by a reasonable and prudent man”
    - “a person of normal intelligence who makes prudence a guide to his conduct”
    - “standard adopted in the community by persons of ordinary intelligence and prudence”. P.397
          [full definition]
[Judge found charge to be an error, but felt no substantial wrong was caused]

Factors Considered in Determining Breach of the Standard of Care ..................... 398

     A) Probability and severity of the harm
     B) Cost of risk avoidance
     C) Social utility

U.S. v. Carroll Towing Co., (1947) 159 F-2d 169 (2d Cir) ............................................ 409
(Probability and severity of the harm)

 Bargee not present when flotilla broke away from dock, causing damage to other ships
     3 considerations:
           probability she will break away – varies with place and time
           gravity of resulting injury
           burden of adequate precautions
Learned Hand equation: liability when: b = L x p
       b = burden of adequate caution [impact on the social utility of the act – not just cost of safety, but loss
       of social value of activity]
       p = probability of loss
       L= loss
        due to short January days, and time of war, many ships moving in and out
 in this case, Probability of harm happening was high enough and Liability/severity of harm was high as
well while burden of preventing this harm was not too high (hire a bargee)


Bolton v. Stone, [1951] A.C. 850, (H.L.) ........................................................................ 399
(Probability)
 lady walking on a road adjacent to a cricket ground, struck by ball
     -   foreseeable that accident could happen, but chance of such an accident very small
     -   considered how remote AND the consequences of such an accident (irrelevant)
     -   does not take into account the difficulty of remedial measures (irrelevant)




                                                                                                                          3
     found that the chance/probability of accident was extremely small, thus Club not liable (it says, P.
    awarded 400pounds but there was no injunction due to reasoning B> L x p)

MILLER V. JACKSON, (1977) (ENG. C.A.) P.404 –HIGH BURDEN-
 Plaintiff bought house nearby well-established cricket field
 A number of balls landed on property and caused minor damage
     -     Lord Denning found that adequate precautions had been taken and the social value of the sport
           were greater than the potential loss and the probability (but still awarded damages)
     -     Majority found that property damage was foreseeable and foreseen, and that the plaintiffs “had no
           obligation to protect themselves in their own home” [only 1 judge granted an injunction for
           nuisance]
1- tied with above case – if don’t factor in difficulty of remedial measures, action succeeds based on
probability and consequences
2-  defendant need only take precautions against a “reasonably foreseeable” risk : a risk may be
reasonably foreseeable even if it is not „probable‟, in the sense of being greater than 50% or more
likely than not (Bolton v. Stone shown that risk is foreseeable but not probable) p.405


Paris v. Stepney Borough Council, [1951] A.C. 367 (H.L.) ........................................... 401
 One-eyed employee, not provided goggles, accident occurred and lost sight
    -    Majority (Lord Oaksey
    must take all circumstances into consideration, including the fact that the man would become blind with
    another eye injury
    Tier of Fact weighs risk of injury and extent of damage (L in Learned Hand equation), and determine if
    ordinarily prudent employer would supply goggles
    -    Dissent (Lord Morton of Henryton)
agreed with risk of greater injury, but found that since it was not negligent to provide goggles for 2-eyed
workers (since risk was so remote), it can‟t be negligent to not provide for the 1-eyed man

Cost of Risk Avoidance
Not always that the more expensive the burden of avoidance the least necessary to take


Vaughan v. Halifax-Dartmouth Bridge Comm. (1961), 29 D.L.R. (2d) 523 .................. 405
LOW BURDEN-
 Dripping paint off bridge
     - Foreseeable
     - Reasonable measures were not taken to protect the cars – putting up signs, or hiring a person to wipe
     it off; would not have been too costly
   B<LxP


Law Estate v. Simice (1994), 21 C.C.L.T. (2d) 228 (B.C.S.C.) ...................................... 406
(HIGH COST OF BURDEN + HIGH L-)
 CT scan not ordered for patient, Dr.'s restricting access due to limited resources. If CT is not available Dr's
ok but physician responsible to patient before medical insurance, when CT available.
    -    “The severity of harm that may occur to the patient who is permitted to go undiagnosed is far
         greater than the financial harm that will occur to the Medicare system if one more CT scan
         procedure only shows the patient is not suffering from a serious medical condition.”
    -    several doctors found liable in negligence
  B< L x P

Social Utility
Watt v. Hertfordshire County Council, [1954] 1 W.L.R. 835 (C.A.) ............................. 408
 Fireman injured due to improperly fitted jack on truck
     -  Denning, L.J.  “in measuring due care you must balance the risk against the measures necessary
        to eliminate risk…must balance the risk against the end to be achieved…the saving of life and limb
        justifies taking considerable risk.” (b in LH eq‟n)



                                                                                                               4
    -    degree of risk greater in emergency situation
    -    Appeal by plaintiff dismissed
   B < L (social utility gained) x P
        notes that commercial ends are different from rescue personnel, only rescue
         personnel get social utility


An Economic Analysis of the Standard of Care – Posner

 Learned Hand‟s equation was creating an economic meaning of negligence
 Minimize the total of safety costs and accident costs
 Law of negligence is a law against inefficiency
   - if b > p x l, with economic view, may miss social costs/losses that occur
   - some economists argue for efficiency, but law of negligence is wrong way about
       it  strict liability for injuries – costs will be included in price and market will
       determine demand (irrelevant)

Special Standards of Care ............................................................................................ 413
    A) Standard of care expected of the disabled
    B) Standard of care expected of children
    C) Standard of care expected of professionals

Standard of care expected of the disabled

Fiola v. Cechmanek (2001), 201 D.L.R. (4th) 688 (Alta. C.A.) ..................................... 413
 MacDonald experienced a severe manic episode and attacked a driver Chechmanek who involuntarily hit
the gas pedal and stuck Jana Fiala and her daughter.

-mentally ill don‟t have to comply with the reasonable person standard.
-unforeseeable danger of mental illness; not diagnosed
-test: voluntariness and capacity to commit tort
  no ability to reason or to appreciate/discharge his duty of care  no fault
 preserving the notion that tort was committed voluntarily and must have capacity to commit tort

BUCKLEY AND T.T.C. V. SMITH TPT. LTD., (1946) (ONT. C.A.)
 Taylor (driver) became insane and due to a delusion, unable to control vehicle
    - question was “whether or not Taylor at the time of the collision was labouring
        under this particular delusion, but whether or not he understood and appreciated
        the duty upon him to take care, and whether he was disabled, as a result of any
        delusion, from discharging that duty.”
Since Taylor‟s mind was so ravaged with disease (he died of syphilis shortly thereafter),
no liability for the damages he caused could be attached, thus no liability on the part of
the defendant.

Standard of care expected of children
Joyal v. Barsby (1965), 55 D.L.R. (2d) 38 (Man. C.A.) ................................................. 419
(MORE LENIENT STNDRD-)
 Child trying to cross highway, ran into car and suffered grievous injuries



                                                                                                               5
    -    question of contributory negligence on the part of the child
Dissent – child had acted in the same way as other children with same age/experience, but she acted
improperly considering her training and traffic experience  found that child was 40% responsible,
therefore plaintiff recovers 60% of damages
Majority – child acted as a normal child of her age and experience could be expected to act (more
subjective test) – tend to interpret test leniently towards children; appeal dismissed .


Standard of care expected of professionals

White v. Turner (1981), 31 O.R. (2d) 773 (H.C.) ........................................................... 422
( –MORE LENIENT STNDRD)
 Defendant plastic surgeon performed breast reduction, left plaintiff scarred and poorly shaped
Held that mistakes don‟t necessarily mean Drs are liable but if negligent, (according to other
experts), can be held liable; in this case, liable for not doing proper tissue check
    -   no finding of negligence on basis of improper procedure
    -   was error in advanced planning, but not enough to establish negligence
    -   D's actions must reflect the skill knowledge and judgment of prudent drs.
    -   was however negligent in the execution of the surgery – did not remove enough tissue; negligent in
        doing 1) too quickly, 2) suturing done before proper check (both matters considered versus
        industry‟s standard practices)
Note 5 (p425)
-volunteers are expected to have met the professional standards of care in that they need
to have skills and training necessary to do their assigned tasks competently

Note 6 (p425)
-A person practicing in a secondary or related field will not be held liable simply because
he failed to satisfy the standard expected in the primary field. For example ,traditional
Chinese medicine will not be held in same standard as “Orthodox physician”,
only required to meet standards of his art
    i.e. Shaker v. Situ

Degrees of Negligence

 Common law basically recognizes one standard of care in negligence – that of a
reasonable person
 Special circumstance cases consider what is reasonable to expect of those with
recognized disabilities, unique skills, education or training.
 Some statutes however raise the bar by saying someone must be grossly negligent to be
found liable: liability of those who provide medical assistance during emergencies.

The Role of Custom ....................................................................................................... 427

ter Neuzen v. Korn, [1995] 3 S.C.R. 674 ........................................................................ 427
 P contracted HIV as a result of artificial insemination
 Dr. adopted standard practices; question was whether jury could decide whether the standard practice
was itself negligent
     -    Sopinka, J.  courts should not involve themselves in resolving scientific disputes; do not
          have the necessary expertise to assess technical matters. They must consider, in determining
          whether a it was negligent, the custom and practices of the field along with available knowledge
          of that time




                                                                                                                  6
      -    case sent back to trial and only question available to jury was if the doctor conformed to industry
           practice – extent of negligence
       if a profession fails to adopt obvious and reasonable measures, then a trier of fact may be able to
      pass judgment. Prior to Ter Neuzen, it was accepted that compliance with custom provided evidence of
      reasonableness, but now jury can decide if practice is short of stnd of care.


Girard v. General Hospital of Port Arthur, [1998] O.J. No. 6137 (Div. Ct.) ............... S21
        Appealing liability of Dr. conducting gait assessment without nurse (fraught with
         risk) and patient falling.
      Appeal accepted: Dr. met applicable stnd of care
it is not up to the judge to assess the practice because it challenges professional
judgments by experts.
-judgement overturned since Dr. could not have known that the patient would have fallen

3. Causation (Chapter 16)

Introduction ................................................................................................................... 433
      -       generally regarded as a factual issue
      -       even if plaintiff caused loss, no liability if too tenuous or remote to justify
              imposition of liability as a matter of policy

Determining the Cause-in-Fact .................................................................................... 433
But-For Test
- Standard test of factual causation
 Question is whether D‟s negligence was a necessary cause
        doesn‟t mean sufficient/only cause, just necessary condition to bring about injury
 Whether or not the plaintiff would have suffered the relevant injury regardless of the defendant‟s
carelessness


Barnett v. Chelsea & Kensington Hospital Mgmt. Cttee., [1969]
1 Q.B. 428 ....................................................................................................................... 433
 P‟s husband died of arsenic in his tea after the hospital has advised him to just go to
bed.
- Rule: But for not getting admitted to the hospital would the patient not have died?
    - Yes. Time if crucial: any intravenous drip could not have been given in time
        before he died procedurally.

Causation and Correlation
-          some courts are departing from traditional but-for tests and holding that if the plaintiff can prove that
    the defendant‟s negligence significantly increased the risk of a particular kind of injury and that very injury
    occurred, D is held liable
          o           McGhee v. National Coal Board, (1972) (HL) p.442
                             “if the defendant‟s negligent act significantly increased the risk of a particular kind
                  of injury and that very injury befell the P, the D would be deemed to be a causer.” [industrial
                  illness case, where D employer had pre-existing duty to P employee]
                             The burden of proof shifts if the D carelessly created a risk of injury and if
                  the plaintiff‟s loss fell within the scope of that risk
      Principle – unless defendant can bring about evidence that breach did not directly cause loss, and P
      shows MCR(material contribution to risk), then find for P [shifting of burden of proof of causation]




                                                                                                                          7
Snell v. Farrell, (1990), 72 D.L.R. (4th) 289 (S.C.C.) ................................................... 443
 Dr. Farrell performed cataract operation, continued operation despite blood in eye, resulted in blindness
(optic nerve had atrophied)
 Damage to optic nerve could have occurred naturally, or as a result of operation

     -  Sopinka, J.  trial judge shifted onus of proof of causation to D (just as in McGhee), but properly
        applied, the principles relating to causation satisfy the imposition of liability as long as they are not
        applied too rigidly.
    -    legal or ultimate burden remains with P, but if no contrary evidence by D, an inference of
        causation may be drawn even though positive or scientific proof of causation has not been adduced
considers material contribution to risk (MCR) as being sufficient, and does not support the shifting of the
burden of proof


Walker Estate v. York-Finch General Hospital (2001), 198 D.L.R.
(4th) 193 (S.C.C.) ............................................................................................................ 435
 Plaintiff contracted HIV, alleging negligence on the part of the Canadian Red Cross Society (CRCS) in its
donor-screening method
 P‟s claim dismissed at trial due to inability to prove causation that donor would have stopped donating
blood had he been given warnings
-          the question of donor screening should not be whether the CRCS‟s conduct was a necessary
   condition for P‟s injuries using the “but-for” test, but whether that conduct was a sufficient
   condition
-          argued that „but for‟ test was leaving out legitimate P claims
- whether negligence “materially contributed” to occurrence (material anything outside the de minimis range)
-          Found that “proper screening measures would, more likely than not, have deterred Robert M. [the
   donor] from donating.”
(Wilsher v. Essex Area Health Authority.. Lord Bridge interpreted McGhee: b.f still on P, but
promoting a robust and pragmatic approach to facts to enable an inference of negligence to be drawn if
scientific evidence cannot arrive at a conclusion. )


Cottrelle v. Gerrard (2003), 67 O.R. (3d) 737 (C.A.) ................................................... S27
-plainitff suffered from diabetes, found sore between her toes, Dr. did not examine but made appointment
with specialist, sore infected before specialist app, and leg became gangrenous and had to amputated below
the knee, sued for malpractice since did not inspect foot and made no follow up appointment, although
chance that if done leg could have been saved, but no one testified more likely than not, doctor convicted of
negligence, since denied plaintiff „window of opportunity‟ to save leg, DR. appealed
-appeal allowed since no proof that more probable than not that would have not lost her leg

IndependentTortfeasors and Multiple Causes

Nowlan v. Brunswick Const. Ltée. (1972), 34 D.L.R. (2d) 422 (N.B.C.A.) .................... 454
 D contractor negligent in constructing P‟s house – D argued damage wouldn‟t have occurred but-for
architect‟s poor design
     -    “where there are concurrent torts, both contributing to the same damage, whether or not the
          damage would have occurred in the absence of either cause, the liability is a joint and several
          liability and either party causing or contributing to the damage is liable for the whole damage to the
          person aggrieved.”
     -    D a concurrent wrongdoer and fact that the damage might not have occurred but for poor design
          does not excuse him from liability arising from his poor work

Joint Tortfeasors Note 6 ................................................................................................ 455
Notes: a) In circumstances that render it impossible to determine which specific harms were caused by the
                                            nd
first defendant, which were caused by the 2 , and which were caused by a combination of the two…the
court (Arneil v. Paterson, (1931) (H.L.)) held that each defender was liable for the full amount of pursuer‟s
loss.



                                                                                                                       8
b) Provincial negligence acts provide that 1 tortfeasor may obtain contribution from fellow tortfeasors, based
upon respective degrees of fault
c) Individual tortfeasor – each acts independently, liable for causal role
Joint tortfeasors – stems from legal relationship between them
          1) agent commits a tort in course of acting on behalf of principal
          2) employee commits a tort in course of acting on behalf of employer
          3) 2 or more parties agree to act in concert to bring about a common end which is illegal,
                inherently dangerous or negligent
d) Plaintiff‟s release of one joint tortfeasor extinguishes right to sue the other – however, P may settle with 1
tortfeasor and agree not to sue, not viewed as a release


Independently Sufficient Causal Factors .................................................................... 456

Dillon v. Twin State Gas and Elec. Co., (1932) 163 A. 111 (New Hamp. S.C.) 461
 D had wires carrying electric current over public bridge
 Kids played usually during the day, playing at night once, lights on, kid lost balance and grabbed wire to
prevent from falling, electrocuted and died
     -   in leaning over girder and losing balance, kid entitled to no protection from D – only liability in
         exposing kid to danger of charged wires
     -   if found that kid would have died anyways, D deprived kid from very little by electrocution prior to
         death – too short for damages
     -   if found that kid would have fallen with serious injury, then loss of life measured by its value –
         evidence he would have been crippled would be taken into account in same manner as though he
         had already been crippled
 Case sent back to trial to determine kid‟s fate from falling


Penner v. Mitchell, (1978), 6 C.C.L.T. 132 (Alta. C.A.) ................................................ 457
 Effect of successive causes of personal injuries, arising in culpable and non-culpable circumstances, on
the assessment of damages arising from culpable circumstances
 TJ awarded 13 months lost wages, although 3 months would have been missed anyway
     -    contingencies that should be taken into account in assessing prospective loss of income should
          only include those that occur in non-culpable circumstances
     -    “not to take into account future contingencies arising in non-culpable circumstances would result in
          an injured person being overcompensated”
     -    Baker v. Willoughby, (1970) (HL) – P hit by car, later shot and leg amputated  fact that leg
                                                                                    st
          amputated not taken into account when calculating damages owed by 1 tortfeasor
 Reduced damages by 3 months


Independently Insufficient Causal Factors .................................................................. 450

Athey v. Leonati (1996), 140 D.L.R. (4th) 235 (S.C.C.) .................................................. 450
 Plaintiff had pre-existing back condition, injuries to neck from accident with defendant
 Plaintiff began exercise program, felt a „pop‟, left with partial disability
     -     trial judge accepted accident contributed, but only 25% liability (75% due to previous back
           condition)
     -     Major, J.  long established that presence of other non-tortious contributing causes does not
           reduce extent of defendant‟s liability
     -     not necessary for P to establish defendant was sole cause of injury, as long as D was part, liable.
           Apportioning of liability between t. and non.t.:
                 o Thin skull rule – tortfeasor liable for P‟s injuries even if injuries are unexpectedly severe
                     owing to a pre-existing condition
                 o Crumbling skull rule -- recognizes pre-existing condition was inherent in plaintiff‟s
                     “original position”
                     -- D not liable to compensate P for any debilitating effects of pre-existing condition which P
                     would have experienced anyway
     -     no finding that disc herniation would have occurred anyways, exercise accident was not a cause,
           an effect



                                                                                                                 9
    -    since „but-for‟ argument was proved, not necessary to go to MCI (but 25% liability issued by judge
         suggests D‟s contribution outside de minimis)

p. 461 [note 2]
Damage is divisible and tortfeasors independent
Ernie: [Penner v. Mitchell] (13months) only responsible for destruction up to 2 years.
Ralph: [Backer v. Willoughby]: apportioning of damages. negligent for the house 25 years minus Ernie‟s 2
years.


4. Proof of Negligence (Chapter 20; 4 hours)

The Burden of Proof in a Negligence Action .............................................................. 563
 Legal burden: burden of proving an issue on the balance of probabilities: more probably
than not D was negligent.
 Evidentiary burden: burden of adducing evidence that, if believed, will meet the legal
burden
         if P does not prove prima facie case, non-suit ordered
 Tactical burden: strategic need to adduce evidence

Wakelin v. London and South Western Ry. Co., (1886) 12 A.C. 41 (H.L.) .................... 564
 Plaintiff‟s husband found to be run over by train
 In original trial, jury found that D was negligent
     -     Brett M.R. (Court of Appeal)  P bound to give evidence of negligence on part of defendant AND
           to give prima facie evidence that the deceased was not guilty of negligence contributing to the
           accident
     -     Believed P did not show prima facie case – did not demonstrate that husband wasn‟t contributorily
           negligent
     -     Lord Watson (majority)  if P is able to show that negligence of defendants materially contributed
           to injury, in the absence of any counter-evidence from defendant, ought to be presumed that there
           was no contributory negligence
                              burden of proving CN is on defendant
 Claim failed, b/c P did not show prima facie case of causation against D


Exceptions to the General Principles Governing the Burden of Proof .................... 567
         a) Statutes can alter common law rules
         b) directly caused injury
         c) multiple negligent defendants

Statutes and Shifting Burdens of Proof
MacDonald v.Woodard, (1974), 43 D.L.R. (3d) 182 (Ont. Co. Ct.) ............................. 567
 plaintiff, service station provider stood in front of D‟s car after boosting battery, struck by D‟s car
    -    Highway traffic Act shifts onus of proof. P show collision occurred on highway.
    -    res ipsa loquitur doctrine used in s.133(1) of HTA  owner or driver is prima facie liable for
         damage caused by his motor vehicle unless he satisfied the Court on a preponderance of evidence
         that he was not in fact negligent
     -   P need only show that the collision, and not the conduct of the driver, was the cause of the damage
S.133(1) shifts onus and burden remains on defendant when the question to be determined is whether or
not the defendant has sufficiently shown that he did not in fact cause the accident by his negligence


Note (S. 93, Highway Traffic Act) ................................................................................ S35
-when loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of
proof that the loss of damage did not arise through the negligence or improper conduct of the owner or



                                                                                                            10
driver of motor vehicle is upon the owner or driver, parent responsible unless exercising reasonable
supervision at time and made reasonable efforts to prevent or discourage, also does not cover unintentional
loss

Parental Responsibility Act 2000, S.O. 2000, c. 4 ......................................................... S37
-where a child damages, entitled up to $10, 000 in small claims

Note: Shannon v. T.W., [2002] O.J. No. 2339 (Sup. Ct.,) .............................................. S39
-parents of 2 boys who stole jewellery from plaintiffs home, when boys (10 and 16) left
unattended
 Parental Responsibility Act 2000. onus on parents to prove reasonable supervision and judge found for
parents because act does not require perfection.

Directly Caused Injury: Unintended Trespass
Dahlberg v. Naydiuk, (1969), 10 D.L.R. (3d) 319 (Man. C.A.) ..................................... 569
 D fired at deer, missed deer but hit P working on his farm
    -    Trespass: D is entitled judgment only if he satisfied the onus of establishing absence of both
         intention and negligence.
    -    found to be negligent because he fired in the direction of farm buildings, and failed to obtain
         permission from P before hunting his land or firing across his land
    -    did not show that he wasn‟t negligent
Relied on Cook v. Lewis; onus of proof be shifted to defendant to disprove allegation of negligence; second
exception to the rule of onus of proof on plaintiff


Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 S.C.C. 24 .................. S41
    -    Shifting of onus where P only establish touching took place
    -    P has to prove direct application of force resulting in offensive contact with body. The D then has
         the burden of proving that the offensive contact was neither intentional nor negligent.
 Shifts onus on standard of care



Multiple Negligent Defendants
Cook v. Lewis, [1951] S.C.R. 830 ................................................................................... 571
 P, Lewis, hit in face by bird-shot, but unable to tell between 2 shooters who shot in same direction which
one hit Lewis
 Original trial found that neither was liable – neither negligent
     -   Rand, J.  a problem of proof -- “not only violated victim‟s substantive right to security, but he has
         also culpably impaired the latter‟s remedial right of establishing liability…onus is then shifted to the
         wrongdoer to exculpate himself.”
     -   Cartwright, J.  each is liable – “to hold otherwise would be to exonerate both from liability,
         although each was negligent, and the injury resulted from such negligence.”
 shifts onus of proof on causation issue

Notes:
    1) McGhee v. Nat. Coal Bd. (1972) (HL) – Lord Wilberforce: burden of proving causation should shift
       from P to D if D‟s negligence materially increased the risk of injury and that very injury befell P (in
       cases that its impossible to determine cause of loss or for purposes of “policy and justice” it‟ll
       otherwise be unfair. Other members did not accept, and found that carelessness that materially
       increases the risk of injury can be taken to have caused or materially contributed to the occurrence
       of injuries, thereby discharging the P‟s burden.
    2) Supreme Court of Canada in Wilsher rejected McGhee in Snell v. Farrell, and held that P still
       bears legal burden and held that evidence of conduct that materially increased the risk of
       injury does not per se constitute sufficient proof. They did recognize, however, that where the
       facts are particularly within the knowledge of one party, an inference of causation may be drawn on
       the basis of very little evidence.



                                                                                                               11
     3)   Barker v. Corus (2006) (H.L.)
          Same type of industrial disease is at risk at different work stations and a number of workers got the
          disease and sewing all companies for negligence. Court found all are negligent in increasing the
          material risk (McGhee) and they apportioned damages on all.




FAIRCHILD V. GLENHAVEN FUNDERAL SERVICES
[2002] p.575
Revisiting McGhee and Wilsher.
Plaintiffs are workers who became ill from asbestos that could have existed in their different work places/
factories. Can‟t prove source but can‟t be like cook v. Lewis.

     -Also rejected Lord Willberforces‟ theory of reversed burden of proof
     -endorsed Lord Reid‟s suggestion in McGhee that there is no substantial difference between saying that
     what the D did materially increased the risk of injury to the P and that the D did made a material
     contribution to his injury (industrial diseases).
 Breach of duty which materially increased the risk should be treated as if it had materially contributed to
the disease.

BARKER v. CORUS (H.L.) 2006 Gilmour‟s example
Same type of industrial disease as Fairchild.
-court found all factories negligent in increasing material risk
- What damages to give if only one actually caused the disease?

 If liability is via materially contribution risk then apportion liability
   200,000 pounds divided by number of employers.
Res Ipsa Loquitur .......................................................................................................... 576
     -   Circumstantial evidence: “the thing speaks for itself”
     -   maxim said to consist of:
                      instrumentality of harm must have been under sole mgmt and
                         control of D or someone for whom D was responsible
                      occurrence must have been one that does not, in ordinary course of
                         events happen without carelessness
                      must not have been any direct evidence as to how or why the
                         accident occurred
     - does not shift burden of proof to defendant, means that circumstantial evidence
         constitutes reasonable evidence of negligence
if, at conclusion of case, it would be equally reasonable to infer negligence or no
negligence (as may be presented by D), P will lose since s/he bears legal burden on issue

Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424 ................ 577
 Truck discovered down steep embankment with Loewen‟s body buckled behind steering wheel and P‟s
husband, Fontaine, in passenger seat – both dead
 Under Family Compensation Act brought action arguing mere occurrence of accident sufficiently
established that husband‟s death was attributable to Loewen‟s carelessness
     -   found that only potential evidence of negligence on Loewen‟s part concerned the fact that vehicle
         left roadway, traveled with sufficient momentum to plow through trees – but taken with other
         evidence, no more than neutral evidence and did not point to negligence
     -   number of reasons why circumstantial evidence didn‟t work
          – lack of time, date, precise location of accident
         -- Accident would ordinarily have occurred in the absences of negligence
         -- D. neutralized all P‟s inference




                                                                                                                  12
--> Res Ipsa Loquitur has long been criticized by Canadian commentators

Novel Approaches to the Problem of Proof

Sindell v. Abbott Laboratories, 607 P. 2d 924 (Cal. S.C. 1980) .................................... S45
 drug administered to mother, plaintiff daughter suing for injuries incurred as a result
 unable to identify particular manufacturer
 3 causes of action
                D jointly and individually negligent in that they marketed drug as safe, when inappropriate
                    measures were taken to assess validity of claim
                jointly liable because D collaborated in promoting drug
                others; coming from strict liability, violation of warranties, fraudulent representations,
                    misbranding, conspiracy, lack of consent
     -   P relied on principle that if a party cannot identify which party caused injury, burden shifts to D to
         prove otherwise, but does not apply here in that absence of evidence not due to Ds‟ actions (as in
         Cook v. Lewis and Summers (case similar to Cook)), due to passage of time BUT defendants can
         prove that they did not manufacture injury-causing substance, so does not necessarily prevent
         shifting of onus
     -   In Summers (and Cook), able to identify all possible tortfeasors, here the trouble is that P can‟t
     -   Manufacturers did not act in concert to deceive – received approval from FDA, no common plan,
         common formula due to scientific formulation
     -   Policy reasons step in to benefit P – innocent plaintiff and negligent defendants, cost of injury can
         be better absorbed by industry (and ultimately passed on to consumer), injustice of shifting burden
         to Ds is less than to Ps
     -   Liability apportioned through market share
               o     don‟t even have to show direct causation)
               o Market share may hold mftrs disproportionately liable
               o No matching of D‟s conduct and P‟s injury, something that is absolutely essential in tort
                    law
               o Circumstantial evidence, such as market share, may be used for causation, but majority
                    uses it improperly for liability
Using „deep pocket‟ theory of liability
Note: Tobacco Legislation ............................................................................................ S65

5. The Duty of Care: General Principles (Chapter 10; 2 hours)

An Introduction to the Concept of Duty ..................................................................... 237

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) ............................................................ 238
 P‟s friend bought dark, opaque bottle of ginger-beer
 discovered decomposed snail in bottle – sued for shock, and gastroenteritis
     -    Lord Atkin (majority): extension of neighbor principle: “persons who are so closely and directly
          affected by my act that I ought reasonably to have them in contemplation as being so affected”
     -    emphasized fact that goods have to be “used immediately” and “used at once before a reasonable
          opportunity of inspection.”  eliminate possibility of goods having condition altered by time, and to
          call attention to proximity
Lord Buckmaster (dissenting): too wide ranging, had no contract no statute, fear of floodgates of cases
Note re Modern Law of Duty of Care ............................................................................. 243

Anns and the Supreme Court of Canada ......................................................................... 245
    -    established test for determining whether a duty of care existed
             o Approached in two stages:
                           A sufficient relationship of proximity or neighbourhood such that, in the
                            reasonable contemplation of the D, carelessness on his part may be likely to
                            cause damage to the P



                                                                                                             13
                          If  answered affirmatively, necessary to consider whether there are any
                           considerations which ought to negative, or to reduce or limit the scope of the duty
                           or the class of person to whom it is owed or the damages to which a breach of it
                           may give rise
    -    mid- 1980s, English distanced themselves from ANNS test.
    -    Canadian receptive to ANNS in Kamloops, however modified in Cooper


Cooper v. Hobart (2001), 206 D.L.R. (4th) 193 (S.C.C.)................................................. 246
 investors lost over $180m due to allegedly fraudulent actions of mortgage brokers
 Claim that had Registrar suspended Eron when irregularities found, would have avoided/diminished losses
     -   SCC stated Anns should still be followed for potential new duties
     -   Found that proximity is more than foreseeability – proximity focuses on relationship b/w P and D
     -   That while reasonably foreseeable financial loss might result, insufficient proximity b/w investors
         and Registrar
     -   Would have been rejected on public policy branch of Anns test anyways
-ANNS test developed where in the first branch of test reasonable foresee ability must be supplemented by
proximity which is found by type of relationship and categories.
- What are categories? P. 249
         Typical duties of negligent misstatement, a duty to warn, municipalities burden, gov. authorities.
 as case law develops, categories of relp giving rise to a DC may be recognized, no need for ANNS.

COOPER, EDWARDS V. LAW SOCIETY OF UPPER CANADA, (2001) (S.C.C.) P.253
 P. lost $12m placed in lawyer‟s trust account (but was‟t clients of lawyer) for (fraudulent) gold-mine
scheme. Sued the law society and court found:
     -    not a sufficiently proximate relationship with Law Society
     -    Law Society Act for protection of clients, not public duty to all

 courts have been fairly strict when it‟s only economic loss
Note: Cooper v. Hobart, Odhavji v. Woodhouse, Bella v. Young ................................. S71
Odhavji v. Woodhouse (2003) (3S.C.R.) SCC sup.76

Family of bank robber who was shot by police suing Chief of Police, the Police Service Board and the Right
of Ontario/ Province.
    -    Chief and ANNS test
         Foreseeable that by the Chief not making officers cooperate with SIU investigations that would
         harm appellants
                  Causal link
                  Public expects chief of police to be mindful of injuries
                  Statutory obligation
         Prima Facie DC. No policy reasons to object. Therefore Chief can be found liable.
    -    Board and ANNS test
         No special relationship between P and board
    -    Province
         same

BELLA v. YOUNG (2006) (SCC) sup.82

P: University student reported to be a Child abuser based on an unreferenced account of abuse in a paper.
She is suing university for negligence and jeopardizing her career.

-ANNS
There is relationship of sufficient proximity and repercussions were foreseeable
-Stnd of care
Facts straight before career ending move. Find a reasonable cause to make report, they didn‟t have to find a
reasonable cause of a thing to be true.
Foreseeable Risk of Injury ........................................................................................... 254


                                                                                                             14
Moule v. N.B. Elec. Power Comm’n (1976), 70 D.L.R. (3d) 741 ................................... 254
Maple tree next to electric cords. Company did its best to protect against children falling into electric cords.
Child in a strange way got hurt by them
          -sequence of events too fortuitous to be reasonably foreseeable as a probable consequence
          -no D.C. for company to do more than it already did
The Foreseeable Plaintiff Test ..................................................................................... 259

Palsgraf v. Long Island Ry. Co., (1928) 248 N.Y. 339 (C.A.) ....................................... 259
-P standing on train platform, two men run for train one almost falls and was aided aboard. He drops
unmarked package and it explodes. That threw down scales at other end of platform, hit P
     -   Cardozo, C.J.: “Proof of negligence in the air, so to speak, will not do”;
                o bodily security is protected, not against all forms of interference or aggression, but only
                    against some
                o nothing in the situation gave notice that the falling package had in it the potency of peril to
                    persons thus removed – therefore, no duty
                              risk reasonably to be perceived defines the duty to be obeyed
                o can‟t piggyback on duty owed to carrier of package
     -   Andrews, J. (dissenting): D owed a duty to the man getting on the train, and in breaching that duty,
         fell liable to all others who were affected
                o “not only is he wronged to whom harm might reasonably be expected to result, but he also
                    who is in fact injured, even if he be outside what would generally be thought the danger
                    zone.”

 accepted that: the P must prove both that the D’s conduct gave rise to a duty of care and that the duty was
owed to her. Does not mean that the individual P must be foreseeable, but rather that the P must belong to
a class of persons foreseeably at risk.

 in Canada, likely would have found that situation was too remote
HALEY v. LONDON ELECTRICITY BOARD (1964) p. 263

Dug trench and as safety measure they put a barrier that is 9inches in height. D. who was blind tipped over,
sewed for negligence. Any D.C. especially for blind or just „ordinary abilities‟?

Court found them liable: reasonably foreseeable. The blind are clearly in eye of danger, city pavement.
Number of blind people are a lot, one in five hundred.
B< PL
John T. Noonan, Persons and Masks of the Law 111-151 (1976) ................................. S89

Public Authorities

 Will not be held liable for doing what is required by statute – can be held liable for
negligently performing what is required under the statute
 Been cautious about holding liable in negligence when it exercises a statutory power
(delegation of decision making power)

JUST V. BRITISH COLUMBIA, (1989) (S.C.C.)

 snow on highway, P forced to stop car, boulder falls, killed P‟s daughter
 claim of negligently failing to maintain highway
    - Cory, J.  Barrett v. District of North Vancouver (1980) (SCC) – “municipality
       could not be held negligent for formulating one policy rather than another.”
    - policy must be found to be reasonable – must be a bona fide exercise of discretion


                                                                                                               15
     - duty of care will apply just as an individual, but exemption due to situations
       which arise form pure policy decisions
           o sent back to trial, to determine if policy followed w/o negligence
    - Sopinka, J. (dissenting)  extending policy argument too far – “difficult to
       determine what aspect of a policy decision would be immune from review.”
believes that situation was not one of policy, was operational

6. Nonfeasance: Duties of Affirmative Action (Chapter 11)

Introduction .................................................................................................................... 265
 Misfeasance/Nonfeasance
Donaghue v. Stevenson: legal requirement to not injure your neighbor (moral grounds)
but it doesn‟t extend to all acts of omission unless there is a relationship that requires it.
 Action/Omission
 Worsening P‟s situation/Failing to improve P‟s situation
 Contributor to risk/Stranger to risk

- „special relationships‟ provision expanding duty for affirmative behaviour
The Duty to Rescue ...................................................................................................... 267

Osterlind v. Hill, (1928) 160 N.E. 301 (Mass. S.C.) ...................................................... 267
 D in bus. of letting for hire pleasure boats/canoes
 let for hire a frail and dangerous canoe to intoxicated intestate, and Ryan
 canoe tipped, intestate held on for half hour, screaming, heard by D, but nothing done
based on facts, intestate not in helpless condition, able to take steps to protect himself, therefore failure to
respond immaterial

-- might be determined differently today
-- [note 5] p.268 C.L. imposes a duty to rescue where D has an obligation to intervene if he innocently or
negligently created the P‟s perilous situation
Matthews v. MacLaren; Horsley v. MacLaren (1969), 4 D.L.R. (3d) 557 (Ont.
H.C.) ................................................................................................................................ 269
 Claim of widows, children – men died in lake, Matthews fell from boat in on his own, Horsley died in trying
to save him.
     -   because of Canada Shipping Act, felt common law should come into line
     -   relation b/w the master of a pleasure boat and his invited guest should require a legal duty to aid
         and rescue (CSA impose duty of helping enemy aliens)
     -   once beginning aid, can be then held liable for any failure to use reasonable care
found that improper boating rescue procedure was negligent [later overturned by SCC b/c standard reduced
in emergency situations], but action failed on causation, as it was assumed body died quickly (just as
Horsley‟s) due to temp.
The Duty to Control the Conduct of Others ............................................................... 276
Liability for the Intoxicated
Crocker v. Sundance Northwest Resorts Ltd. (1988), 44 C.C.L.T. 225 (S.C.C.) ........... 276

 P rendered quadriplegic after participating in resort tubing competition, after being obviously intoxicated
         o        Jordan House (SCC) – held that a tavern owed a duty of care to its intoxicated patron
                           A special relationship due to inviter-invitee relationship, due to probable risk of
             injury (b/c of environment they were in)




                                                                                                                           16
                           “one is under a duty not to place another person in a position where it is
               foreseeable that that person could suffer injury.”
    -    Sundance must accept responsibility as promoter of a dangerous sport (making profit of it) for
         taking all reasonable steps to prevent a visibly incapacitated person from participating.
    -    They knew he was drunk, they cannot claim to be a „stranger‟ to potential risk
    -    Did not meet standard – burden (B) was low; Causation – found at trial
                           not whether inebriation was cause of loss – whether negligent action failed to
               prevent
    -    Voluntary assumption of risk – waiver not applicable as P did not assume both physical AND legal
         risk involved
 Due to special relationship, there is a required duty to act positively
Stewart v. Pettie, [1995] 1 S.C.R. ................................................................................ S103

 After 4 leaving dinner theatre (2 not drinking), Pettie drove and got into minor accident, leaving Stewart a
quadriplegic
 Can commercial host liability be applied to Mayfield Investments Inc.?
    -    a logical step to owe a third party a duty of care who might reasonably be expected to come into
         contact with patron – a member of a class of persons expected to be on the highway
    -    found that serving persons past the point of intoxication did not, in itself, pose a foreseeable risk
         (not apparent they violated legislation, as he didn‟t exhibit signs)
    -    due to special relationship, duty to act reasonably – but does not mean host cannot consider other
         circumstances – here, that he wouldn‟t drive (sobers wouldn‟t allow it)
    -    also on causation, it failed due to sobers discussing/allowing Pettie to drive

Liquor Licence Act – only liable to patron for death, not for damage – damages can only come from „other‟
people (damage caused by patron to another person)
Section 39 of the Liquor Licence Act, R.S.O. 1990, c. L. 19 ....................................... S111

Notes: Hunt v. Sutton Incentive Realty (2001), 196 D.L.R. (4th) 738 ......................... S111
lady at office party, then pub – employer threatened to call common law partner and kept eye on P, but did
not stop her from leaving party
 pub and Sutton jointly and severally liable for 25% of damages


Prevost v. Vetter, (currently on trial in B.C.) – D, parent of teenage boys, asleep when 15 boys
drinking alcohol (their own) – frequently had kids over
 found that parents were in a paternalistic relationship and since awoken, had to engage in role. Once
mum was awake, she became subject to d.c.


Childs v. Desormeaux, [2006] S.C.J. No. 18 ............................................................... S115
ANNS Test: no categories of relp.closer to commercial hosts
- distinguish from commercial hosts
-fors. has those general themes:
1- invite others to inherent risks
2- paternalistic relp to vulnerable
3- public role or commercial responsibilities
+ autonomy not parked at door.

 party no degree of proximity to third party users of highway/ injury not foreseeable on facts. Case of
nonfeasance.

Other Duty to Control Situations
Special Relationships

    -    relationships of economic benefit (eg. Crocker)
    -    relationships of control or supervision (parent/child, boat operator/guest)



                                                                                                            17
    - creator of dangerous situations (own a loaded gun, accident impaling next driver)
    - reliance relationships
    - statutory affirmative duties
 voluntary embarked on a course of action which altered the P‟s position – sick person
removed from store, put in small room for 3 hrs, then went to paramedics (prevented
other form of care)
Duty to Prevent Crime and Protect Others
Jane Doe v. Metro. Toronto Comm. of Police, [1998] O.J. No. 2681
(Gen. Div.) ...................................................................................................................... 285
      P attacked by serial rapist, who raped 4 others in similar circumstances – failure to warn
     -    did not find decision not to warn was a specific police policy, and found that warning should have
          been given to those women particularly at risk (stnd of care); also found that P would have taken
          steps to protect herself (causation) – and they would‟ve prevented harm
     -    argued that she had become a part of a narrow and distinct group of potential victims, and thus
          created a special relationship of proximity
it was fors. Rapist would hit again.

Hill v. Chief Constable of West Yorkshire (1988) (HL) – family sued police for not acting
reasonably, as that would‟ve prevented murder of deceased – struck out; no special relationship. Narrow
readings. Fear of floodgating with private claims to d.c.


Notes and Questions ........................................................................................................ 288

7. Special Duties of Care (Chapter 12; 2 hours)
     -    duty owed to rescuers
     -    duties owed to the unborn
     -    duty not to cause psychiatric harm (nervous shock)

The Duty of Care Owed to Rescuers ........................................................................... 297
 “danger invites rescue‟ (per Cardozo in Wagner, cb. 275 n.2)
 you create a peril, foreseeable that someone will try to rescue
 duty to rescuer of negligently created peril
Horsley v. MacLaren, [1972] S.C.R. 441 ....................................................................... 298
     -    Ritchie, J.  liability must stem from peril situation brought about by Matthews
          being aggravated negligently by D, thus forcing P to enter into water
     -    Any duty owing to P must stem from fact that a new situation of peril was created
          by D, which induced P to act as he did
     -    Error by D in trying to rescue Matthews was an error of judgment in an
          emergency situation, not negligence, therefore free from liability
     -    Laskin, J. (dissenting)  trial judge already found that D was negligent in trying
          to rescue Matthews, therefore this caused Horsley‟s reaction, and was “within the
          range of the natural and probable.”
     -    Argument of contributory negligence on the part of Horsley dispatched b/c he
          acted impulsively in an emergency situation – also, failure to take measures likely
          didn‟t cause his death




                                                                                                                        18
 defence of VAR is inapplicable where the P consciously faces a risk in an attempt to
rescue another who has been imperiled by the D‟s negligence [Urbanski v. Patel,
(1978)(Man. Q.B.)]. (p. 276 n.6) [debate as to whether firemen can recover]
 rescuer may recover for injuries sustained in assisting a person who has negligently
imperiled herself. (p. 276 n.7)
 majority of C.A. in Horsley (Ontario) held that an individual who has voluntarily
begun a rescue attempt is under no duty to continue it unless she has worsened the
victim‟s original position. (p. 276 n.9)
Duties Owed to the Unborn ...................................................................................... S123
Preconception tort: when a person suffers a disability that can be traced to the effects on
      his/her parents of the defendant‟s negligent conduct prior to the person‟s
      conception (blood transfusion, prescribed drug to mother)

Prenatal tort: when negligence during a women‟s pregnancy harms the foetus.
        If negligence causes a miscarriage or stillbirth, no damages are awarded for the
       loss of the foetus or the loss of the companionship of the expected child.
        If a child is born alive, he/she can recover damages for consequences of
       prenatal injuries that were caused by neg. of the D
        If he/she dies of such injuries after birth, an action can be brought for wrongful
       death, however children have no cause of action against their mothers (Dobson)

Wrongful Life and Wrongful Birth: negligent failures to provide women with full info.
        regarding the risks they face of giving birth to children with disabilities
         deprived of the right to make fully informed decisions
         claims on behalf of child (wrongful life) and by parents (wrongful birth) for cost
        of raising disabled children
         arise only if woman in question would have had access to a legal abortion and
        would have chosen to undergo procedure
 Cdn courts have not accepted wrongful life claims – „premise is offensive‟, but willing
to entertain wrongful birth

Wrongful Conception or Wrongful Pregnancy: Courts routinely award damages for add‟l
       costs, including pain and suffering, associated with the unplanned pregnancy and
       the need to undergo a second sterilization operation.
        Courts less willing to award damages for costs of raising an able-bodied
unplanned child
Dobson v. Dobson, [1999] 2 S.C.R. 753 ...................................................................... S125
 mother 27 wks pregnant gets into accident, resulting in prenatal injuries – caused
permanent mental and physical impairment
 claim was that mother was negligent in causing car accident
     - 2-part test to analyze: 1) sufficiently close rel‟ship, 2) public policy which should
        limit scope of duty
            o 1) satisfied only if considered distinct legal entities – a stretch
2) everything a woman does has an effect on the child b/c foetus totally dependant, tough
to limit/determine neg. actions – undermine privacy & autonomy rights of women;
damaging effects to family unit


                                                                                                         19
Nervous Shock ...................................................................................................... 312-314

Rhodes v. C.N.R. (1990), 75 D.L.R. (4th) 248 (B.C.C.A) ............................................. 316
 P‟s son killed in Alta. train crash, mother on Vancouver Island
    - duty of care rests on whether her psychiatric illness was a reasonably foreseeable
        consequence of D‟s actions
while relationship b/w mother and son “exceptionally strong”, fact that she got to
accident 8 days after does not establish req‟d proximity relationship

Strong v. Moon (1992) (BCSC) – “road pizza”  followed decision in Rhodes
        neither locational proximity (not at scene), nor was plaintiff closely or directly
       affected

Bechard v. Haliburton Estate (1991) (Ont. CA) – A D liable in psychiatric harm
      unaccompanied by physical injury if P is:
      1) a rescuer responding to emergency created by D‟s negligence
      2) a person w/in ambit of foreseeable physical risk from D‟s negligence
      3) a secondary, relational victim who experienced trauma after witnessing a
          serious accident involving a loved one or its immediate aftermath – must in
          addition be:
               relational proximity: satisfied if P is a close family member of person
              injured by D‟s negligence
               locational proximity: being at scene or witnessing immediate aftermath
              at the scene or in the hospital
               temporal proximity: short span of time b/w witnessing event and the
              onset of psychiatric illness
 Damages recoverable only if the harm amounts to a recognized psychiatric illness

Alcock v. Chief Constable of the South Yorkshire Police (1991) (HL) – damages for
nervous shock if:
           o P‟s rel‟ship with victim sufficiently close in terms of love and affection
           o Reasonably foreseeable that she might suffer shock if she apprehended the
              victim had been or might be injured
           o P was sufficiently proximate to accident/aftermath in space or time
           o P suffered nervous shock from seeing/hearing accident/aftermath

Mason v. Westside Cemeteries (1996) (Ont. Gen. Div.) – awarded damages to P for
      “considerable emotional upset” he suffered when a funeral home lost the
      cremated remains of his parents‟ bodies
       trivial physical injury attracts trivial damages, so applied to trivial emotional
      injury – see no reason to refuse if does not degenerate to illness – more
      appropriate to limit frivolous actions based on foreseeability

Vanek v. Great Atlantic & Pacific Co. of Canada (1999) (Ont CA) – daughter at school
      drank grape juice with oily substance



                                                                                                               20
      considered the reaction and aftermath engendered in the reasonable person                               
      emotional distress of parents not foreseeable
      Note on Nervous Shock Cases ...................................................................................... S135

      8. Remoteness of Damages (Chapter 17; 3 hours)

      Directness v. Foreseeability .......................................................................................... 466
      The Directness Test

      RE POLEMIS AND FURNESS, WITHY & CO., (1921) (CA)

      P‟s losses would not be too remote if they were a direct causal result of D‟s negligent act
      – close temporal and physical connection – need not be foreseeable, need only be direct
      The Wagon Mound (No. 1), [1961] A.C. 388 (P.C.) ....................................................... 467

       D negligently allowed oil spill into harbour, carried by wind/tide under P‟s warf where
      employees using welding equipment – subsequent fire
          - “I find the D did not know and could not reasonably be expected to have known
             that it was capable of being set afire when spread on water.”
          - test of reasonable foreseeability corresponds with common conscience of
             mankind, judged by what the reasonable man ought to foresee – departure from
             sovereign principle of liability if rely on „direct or natural‟ consequence
       not found liable for fire

      **  only the type of injury needs to be foreseeable; not the precise circumstances in
      which it occurred, nor the extent of the injury
      The Kind of Injury ........................................................................................................ 470

      Hughes v. Lord Advocate, [1963] A.C. 387 (H.L.) ......................................................... 470
      D left a paraffin lamp and open manhole unattended
      8-year old knocked lamp into hole, explosion, boy fell in, badly burned
         - boy‟s injuries mainly caused by burns, and it cannot be said that injuries from
             burns was unforeseeable
         - injuries suffered, though perhaps different in degree, did not differ in kind from
             injuries which might have resulted from an accident of a foreseeable nature
         - cause of the accident was a known source of danger, the lamp, but it behaved in
             an unpredictable way – D liable, known source of danger, unforeseeable way --
             no defence
A BOY WAS PLAYING NEAR         POST OFFICE HELD TO BE LIABLE BECAUSE THE NEARBY
MANHOLE BUT SCARED BY          LAMP HAD A KNOWN DANGER OF SPARKS; ALTHOUGH THE
SPARKS IN NEARBY LAMP          BOY FALLING INTO THE HOLE WASN‟T FORESEEABLE, IT
AND FELL INTO MANHOLE                WAS FORESEEABLE THAT THE LAMPS PRODUCED SPARKS
                                     AND THE SPARKS CAUSED THE BOY TO FALL


      The Thin-Skulled Plaintiff Rule .................................................................................. 473


                                                                                                                        21
Smith v. Leech Brain and Co., [1961] 3 All E.R. 1159 (H.L.) ....................................... 473
 P was galvanizer, piece of metal struck, burned lip – some time later, lip cancer
diagnosed
 Burn promoted cancer in tissues which already had pre-malignant condition
    - “The test is not whether these defendants could reasonably have foreseen that a
       burn would cause cancer…the question is whether these defendants could
       reasonably foresee the type of injury which he suffered, namely, the burn.”
 D found liable
Marconato v. Franklin, [1974] 6 W.W.R. 676 (B.C.S.C.) ............................................. 474

 P suffered minor injuries in car accident, developed symptoms of pain/stiffness, she
became depressed, hostile and anxious
 Psychiatric evidence indicated she had paranoid tendencies before, accident triggered
major personality change
    - question was whether D could foresee probability of physical injury, which led to
        weirdness – tortfeasor takes victim as he/she finds him/her
 D found liable for all consequences of negligence
The Possibility of Injury Rule ...................................................................................... 477

The Wagon Mound (No. 2), [1967] 1 A.C. 617 (P.C.) .................................................... 477
 same incident as No. 1, here, owners of two boats
 plaintiffs in No. 1 couldn‟t argue reasonable foreseeability b/c it would‟ve admitted it
should have known, thus CN – full defence
    - question was whether a reasonable man having the knowledge and experience to
        be expected of the chief engineer would have known that there was a real risk
        (unlikely, but enough to be a real risk)
    - weighed the risk against the difficulty of eliminating it (more of a std. of care
        issue)
    - foreseeability of a small risk enough to show not remote
 creates low threshold for foreseeability – some argue similar to Re Polemis
Assiniboine South School Division, No. 3 v. Greater Winnipeg Gas Co., [1971]
4 W.W.R. 746 (Man. C.A.) ............................................................................................. 481

 auto toboggan operated by boy (allowed by dad) ran out of control, struck a gas-riser
pipe servicing the school, pipe fractured, gas escaped, entered boiler room of school,
ignited by open flame – explosion and fire
 50% liable, father/son, 50% gas company
    - one need not envisage “the precise concatenation of circumstances which led up
        to the accident”  found father and son (taking part in adult activity) jointly
        liable, construction of gas pipes not an intervening act breaking chain of causation
    - pipe was negligently constructed in the sense that it was constructed in such place
        and manner as to make likely the type of damage which ensued




                                                                                                             22
    -    Gas company ought to have foreseen damage, must weigh probability of injury
         resulting and the probable seriousness of the injury – duty to take proactive
         measures increases in direct proportion to risk

Intervening Causes ........................................................................................................ 484

Bradford v. Kanellos (1973), 40 D.L.R. (3d) 578 (S.C.C.) ............................................ 485
 automatic fire extinguisher system in restaurant, fire put out by system, but hissing
noise caused panic, appellant wife sustained injury during panic
 TJ found negligence in flash fire b/c grill had not been cleaned as efficiently as it
should have been – panic could have been foreseen  C of A overturned
    - Martland J.: injuries resulting from hysterical conduct of customer which
        occurred when safety appliance properly fulfilled its function could not be fairly
        regarded as within the risk created by the respondent‟s negligence in permitting
        an undue quantity of grease to accumulate
    - Spence J. (dissent): “the person guilty of the original negligence ought reasonably
        to have anticipated such subsequent intervening negligence”
            o Persons who shouted the warning acted in a very human and usual way,
               actions were utterly foreseeable, part of natural consequence of events
               leading to injury
Fleming, Law of Torts – “if it can fairly be considered a not abnormal incident of the risk
created by him”, “least difficult are instances of just normal and reasonable response to
the stimulus of the hazard engendered by the D‟s negligence”
Price v. Milawski (1977), 82 D.L.R. (3d) 130 (Ont. C.A.) ............................................. 488
 P injured ankle playing soccer, went to hospital, Dr. x-rayed foot, went to orthopaedic
surgeon, called hospital, negative x-ray, no new ones ordered, went to another o.s. who
took new x-rays, discovered fractured ankle – P suffered permanent disabilities
 First 2 Drs. found liable, equally at fault, affirmed at appeal
    - a person doing a negligent act may be held liable for future damages arising in
        part from subsequent negligent act of another, in part from his own neg. where
        subsequent negligence reasonably foreseeable as a possible result
    - reasonably foreseeable that other Drs. would rely on accuracy of info., without
        checking even though to do so might be negligent
    - later negligence compounded effects – did not put a halt to consequences of first
        act, and attracts liability for all damage from that point forward

 It‟s for the D to prove that some new act rendering another person liable has broken
the chain of causation
 Original tortfeasor absolved of liability for an injury P sustains while recuperating if P
has been contributorily negligent
9. Damages (Chapter 18; 5 hours)

Nominal damages – to vindicate the P‟s rights in situations which she has suffered no
injuries – not available in negligence actions
Compensatory damages – put the P in the position that she would have been in had the
tort not been committed


                                                                                                                  23
Punitive damages – awarded in any situation in which the D‟s malicious, outrageous,
vicious, high-handed, or otherwise socially unacceptable conduct warrants punishment
and/or deterrence
Canadian def‟n: defendant has acted with an arrogant, high-handed or blatant disregard
for the P‟s safety or other interests (encompasses negligent acts, but courts have remained
reluctant)
Introduction ................................................................................................................... 495

Damages for Personal Injuries .................................................................................... 500
 P has burden of proof: on balance of probabilities existence and quantum of damages
    - Recent line of authority – based on reasonable or substantial probability of injury
        occurring, entitled to recover subject to likelihood of occurring
             o therefore, 35% chance of blindness = entitled to 35% of damages for
                 blindness
 Mitigation: act reasonably in all of the circumstances to mitigate loss, can recover for
steps taken to mitigate
 Set off: set-off against P‟s damage claim any parallel expenditures that P would have
incurred had tort not been committed (institutional food plan vs. eating)
 Prejudgment interest: can charge interest on amounts from beginning of cause of action
to date of order
    - would have invested $ at time of accident, since that‟s when D began to owe

 Role of judge/jury: neither counsel nor judge allowed to refer to awards in similar cases
   - appellate courts not to interfere with jury‟s assessment unless clear error in law or
        grossly inaccurate

Structured settlements – periodic payments
    - can be decided by parties to engage in; no legislation requiring it
    - many downsides  time, re-litigation, stress


Assessing unwaged –
        homemakers  mkt replacement
        students  assumptions based on education, specialization, leanings
        children/infants  class, family background

Remedies: The Law of Damages – Jamie Cassels
    - now standard practice to adjust wage-loss figure upwards to take into account the
         trend towards wage parity
    - male and female contingencies different
    - Parker v. Richards  aboriginal woman, ethnicity factored in and determined
         she would not likely have a bright future – problem with racialized statistics
raises issue of whether the law of damages should seek to replicate with precision the
results that would have been achieve in an unfair society.




                                                                                                                      24
Andrews v. Grand & Toy, [1978] 2 S.C.R. 229 ...................................................... 500-518

 young man rendered quadriplegic in traffic accident employee/employer found partially
liable
    - “The subject of damages for personal injury is an area of law which cries out for
       legislative reform. The expenditure of time and money in the determination of
       fault and of damage is prodigal. The disparity resulting from lack of provision for
       victims who cannot establish fault must be disturbing.”
Costs of future care
    - institution vs. home care – Andrews: home care b/c still had good mental
       capacity, therefore had ability to stay at home and enjoy/appreciate surroundings
       (if mental state of 5-year old, liable for 5 yr old „entertainment‟ needs)
    - costs of care multiplied by post-accident life expectancy
    - take into account inflation, interest, tax
           o lump sum not taxable, but interest generated on it is
           o discount at real rate (now set at 2.5% in Ontario)
           o future care costs grossed up for taxation purposes (weren‟t in Andrews)
    - needs costs for special equipment now needed (grossed up for tax, discounted)
    - contingencies – before always included, now not automatic

Lost earning capacity
   - projected annual earnings
   - multiplied by pre-accident working expectancy
   - contingencies, for & against
   - discounted – at same for future costs…2.5%
   - tax ignored b/c tax paid on income from work now paid by lump sum tax

Non-pecuniary loss
  - pain and suffering, lost amenities, lost expectation of life
  - functional calculation – solace
  - relative (lost finger to pianist vs. soccer player)
          o Andrews established cap of $100,000 – adj, for inflation now -- $300K
  - cases where there is no appreciation/awareness of disability, no non-pecuniary
      losses awarded
  - no contingencies, grossing up or discounting

Special Damages
   - expenses incurred prior to trial attributed to D‟s negligence
   - pre-judgment interest to cover any loan costs, or simply to reimburse
   - no contingencies, grossing up or discounting

Contingencies
   - consider both „upward‟ and „downward‟ contingencies
           o uncertainty in profession, industry, care costs/services, new relationship
productivity increases in industry (high tech)




                                                                                               25
J. Cassells, Remedies: The Law of Damages (Irwin Law, 2000) 137-149 ...................S143

R.H. v. Hunter, [1996] O.J. No. 4477 (Gen. Div.) ....................................................... S153

Survival Actions and Dependants' Claims for Wrongful Death or Injury ............. 519


Note on s.38(l) of the Trustee Act, R.S.O. 1990, c. T.23 ............................................. S157
 s. 38(1) of the Trustee Act, R.S.O 1990, c. T.23
 statutes allow the deceased‟s estate to maintain legal actions that the deceased could
have otherwise brought – also allows actions brought against estate
            o legislation excludes defamation, malicious prosecution, false
                imprisonment, adultery, non-pecuniary damages, punitive damages
            o some statutes include funeral expenses
     - argument against non-pecuniary loss is “that such a claim is personal to the
        deceased and when vested in his personal representative, does not further the
        purposes of compensation.”  argument prevailed in Canada

 survival action brought by estate in 2 circumstances:
         D‟s tort injured deceased who later died of independent causes
         D‟s tort injured deceased and caused his death
                    lost earnings prior to death
                    damages to property
                    pain and suffering
                    funeral costs
Section 61, Family Law Act, R.S.O., 1990, c. F. 3 ......................................................... 521
Dependants‟ Claims for Wrongful Death of Injury
 s. 61 of the Family Law Act, R.S.O. 1990, c. F.3
 fatal accidents legislation to compensate the deceased‟s dependants for the losses they
suffer as a result of the death
          „dependants‟ – poor term, need not show dependency, need only be family
         member
          pecuniary loss – sub (2) not exhaustive
 portion of lost earnings that would have flowed to their benefit

Keizer v. Hanna, [1978] 2 S.C.R. 342 ............................................................................ 522
 Keizer died as a result of injuries sustained in car accident, D admitted negligence
    - calculate annual disposable income of deceased that would have flowed to benefit
        of claimants
calculate deceased‟s pre-accident working life expectancy – gross-up for taxation, apply
discount rate, adjust for contingencies (possibility of remarriage etc. cb418)
Death of a Dependant Family Member ........................................................................... 526
 measure of relief low
 purpose of fatal accident legislation is to provide compensation for pecuniary losses
only – compensation not usually available for grief, sorrow or mental anguish


                                                                                                         26
 evidence of cultural tradition of intergenerational financial support may lead to award
 may recover amount for guidance, care and companionship
Collateral Benefits ........................................................................................................ 531
 benefits that the P received from 3rd parties, that otherwise wouldn‟t have had accident
not occurred
 Collateral source rule:
    - no double recovery
            o gifts  may be discouraging support, therefore not deductible
            o “private insurance”  show consideration for benefit (premiums), not
                deductible
            o subrogation  no deductibility b/c other source will get $ from P
Almost all collateral sources fall into above special categories
10. Defences to Negligence Liability (Chapter 17; 1 hour)

Introduction .................................................................................................................. 537

Contributory Negligence .............................................................................................. 537

Walls v. Mussens Ltd. (1969), 11 D.L.R. (3d) 245 (N.B.C.A.) ...................................... 538
 D drove machine to P‟s service station, while working on machine a gas torch being
used ignited pool of gasoline under truck – D deemed negligent for leaky truck
 when fire began workers began to throw snow on fire, fire extinguishers never used
 had fire extinguishers used when P showed up, fire probably would have been
extinguished
    - no portion of the responsibility for starting the fire can be attributed to the
        plaintiff
    - P entitled to invoke the “agony of the moment” rule
not whether the P exercised a careful and 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

Gagnon v. Beaulieu, [1977] 1 W.W.R. 702 (B.C.S.C.) ................................................... 541
 car driven by D, in which P was riding – ran into rear of pick-up truck
 liability of driver admitted – question is whether P was wearing seat belt
             o Failure to wear a seat belt is failure to take step which a person knows or
                 ought to know to be reasonably necessary for his own safety
             o If in such circumstances he suffers injury, and if it appears from the
                 evidence that if the seat belt had been worn the injuries would have been
                 prevented then the failure has contributed
             o The onus is on the D not only that the seat belt wasn‟t worn, but also that
                 the injuries would have been prevented or lessened
P knew or ought to have known that the wearing of the seat belt provided would reduce
the possibility of his being injured in a collision, had he been wearing it his injuries
would have been less severe – therefore CN
Negligence Act, R.S.O. 1990 .......................................................................................... 545


                                                                                                                     27
 permits the court to divide responsibility for damages b/w parties in relationship to their
relative degree of fault
Mortimer v. Cameron, (1994), 111 D.L.R. (4th) 428 (Ont. C.A.) .................................. 547

 P and D engaged in horseplay, crashed through exterior stairway wall after hitting with
„minimal‟ or „little‟ force – Cameron unhurt, Mortimer – quadriplegic
    - P and D entitled to rely on the wall providing reasonable protection
    - Risk to which they exposed themselves was risk of being injured falling down
       stairs or onto exterior landing – risk that materialized was different nature
    - Accident that occurred was beyond reasonable contemplation of parties, not
       within scope of the risk created by their horseplay, no matter how imprudent
           o Stingray, building designer, failed to conduct a reasonable inspection to
               determine soundness and thus permitted “particularly insidious condition”
           o Stingray under an ongoing duty to inspect premises
           o City negligent in original inspection (1972), but no reason/opportunity to
               inspect after this time – had Stingray fulfilled its duty, negligence of city
               would have been removed – Stingray cannot rely on city‟s negligence
 60% Stingray, 40% city

         Damages in Mortimer:
                  costs of care – at home, 24 hr attendant care, housekeeping, home
                    maintenance/repair, special equipment/alterations tohome/vehicle,
                    physical therapy, child care
                  lost earning capacity – 27 yrs, 2nd out of 3-year program, goal of
                    CMA, grades, classmates‟ careers  awarded upper range
                    (deduction of post-accident earnings?)
                  non-pecuniary loss – pretty close to max., parents/siblings claims
                    for equipment, travel, caregiving services, loss of g,c&c
                  girlfriend‟s claim for value of services not allowed b/c of limited
                    list of potential claimants – not spouse
          o Recent C of A case awarded damages to parents for lost earnings due to
             extreme sadness, difficulty dealing

Snushall v. Fulsang (2005), 258 D.L.R. (4th) 425 (Ont. C.A.) ................................... S163

Voluntary Assumption of Risk .................................................................................... 551
- with advent of apportionment of loss, courts have become increasingly reluctant to
apply the defence of VAR – tend to limit to narrow circumstances, such as sports

Dube v. Labar (1986), 27 D.L.R. (4th) 653 (S.C.C.) ...................................................... 551

 P and D, co-workers, D said he was fine to drive, P got in car as passenger
 D caused accident by inattention to road, found to be drunk
 jury held CN (in grabbing wheel) and he VAR




                                                                                                         28
     - burden on D to prove P expressly or by necessary implication agreed to exempt D
       from liability for any damage – whether P consented to absolve D of his common
       law duty of care – not simply whether P knew of risk
   - volenti will arise only where the circumstances are such that it is clear that the P,
       knowing of the virtually certain risk of harm, in essence bargained away his right
       to sue – only where can truly be said to be an understanding on the part of both
   - the finding by the jury that the P consented to bear the legal risk would likely not
       be found by all juries, but it doesn‟t have the character of unreasonableness –
       appeal dismiss
 defence of volenti likely inapplicable in great majority of drunken driver-willing
passenger cases b/c it requires an awareness of the circumstances and consequences
Illegality .......................................................................................................................... 555
-defence of ex turpi causa non oritur action

Hall v. Hebert, [1993] 2 S.C.R. 159 ............................................................................... 556
 D allowed P to drive car (both quite and equally drunk), P flipped car – sued D for
allowing him to drive considering his intoxicated condition
    - ex turpi works where:
                   P seeking to use to avoid criminal sanction (to compensate for
                      fines imposed, or lost income while in jail)
                   seeking to profit from illegal activity (no award for punitive
                      damages)
                      in this case, simply seeking damages for injuries, therefore ex turpi
                      doesn‟t apply
11. Negligent Misrepresentation (Chapter 13; 1 hour)

Introduction – Negligent Misrepresentation ................................................................... 341

Causing Pure Economic Loss ....................................................................................... 345

Hercules Management v. Ernst & Young, [1997] 2 S.C.R. 165 ..................................... 345

B.G. Checo Internat’l. Ltd. v. B.C. Hydro & Power, [1993] 1 S.C.R. 12 ...................... 355

12. Recovery of Pure Economic Loss in Negligence (Chapter 14; 1 hour)

Introduction ................................................................................................................... 367

New Categories of Pure Economic Loss ........................................................................ 368

Winnipeg Condominium Corp. No. 36 v. Bird Construction, [1995]
1 S.C.R. 85 ...................................................................................................................... 377

Relational Economic Loss


                                                                                                                          29
Bow Valley Husky (Bermuda) Shipbuilding Ltd. v. St. John Shipbuilding Ltd.,
[1997] 3 S.C.R. 1210 ...................................................................................................... 385

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860 .................................................... 368

13. Battery, Assault and the Intentional Infliction of Mental Suffering
(Chapter 3; 3 hours)

Introduction: Volition, Intent, Motive, Mistake, Accident ............. 39: 39,40-41,42,45,47

Battery and the Defence of Consent .............................................................................. 49

Bettel v. Yim, (1978), 88 D.L.R. (3d) 543 (Ont. Co. Ct.) .................................................. 49
 corner store, kid‟s (P) arm grabbed by store owner, grabbed collar, began shaking –
store owner‟s head hit kid‟s nose, kid fell to ground
    - once the P proves that he was injured by the direct act of the D, the D is entitled to
        judgment only “if he satisfies the onus of establishing the absence of both
        intention and negligence on his part.”
    - concept of foreseeability as defined by law of negligence is a concept that ought
        not be imported into the field of intentional torts  it is the dignitary interest, the
        right of the P to insist that the D keep his hands to himself
logical test is whether the D was guilty of deliberate, intentional and unlawful violence or
threats of violence. If he was, and a more serous harm befalls the P than was intended,
the D, and not the innocent P, must bear the responsibility for the unintended result

Notes:  The P need not suffer any physical injury or be conscious of the physical
       contacts that the time it occurred – invasion of personal autonomy
        D may also be held liable in battery for intentionally interfering with anything
       that the P is carrying, wearing or riding upon
        A battery can only be committed when the D undertakes a positive act which
       causes a physical contact

- P only has to prove on b of p offensive contact occurred
           o offensive contact – outside bounds of physical conduct generally accepted
                as part of everyday social interaction

Constructive intent – intentional battery may be actual or constructive intent:
       actual intent  D intended to cause offensive conduct
       constructive intent  D knew/ought to have known that his/her actions were
      substantially certain to cause an offensive contact

- can argue negligence or battery – battery better for P
                    damages likely to be higher for battery – punitive
                    no remoteness limitation (only if kind of injury not foreseeable)


                                                                                                                  30
Defences to battery action
       self-defence, defence of property, consent [full defences]
       CN – s.3 of Negligence Act
       duress, provocation not a defence
                   Cdn practice is to consider it only to reduce/deny an award for
                      punitive damages

Defence of Consent
    - consent to be valid must be genuine and voluntary
consent not valid if obtained by force, threat of force, duress, fraud, deceit, while under
the influence of drugs, or where the product of the exploitation of an overwhelming
power imbalance

Norberg v. Wynrib, [1992] 2 S.C.R. 224 ..................................................................... S169
 drug user, entered into sexual relationship with doctor in order to acquire drugs
    - “A man cannot be said to be „willing‟ unless he is in a position to choose freely;
       and freedom of choice predicates the absence from his mind of any feeling of
       constraint interfering with the freedom of his will.”
           o A position of relative weakness can interfere with the freedom of a
               person‟s will – notion of consent must incorporate power relationship b/w
               parties
    - “power dependency” relationships  parent-child, psychotherapist-patient,
       physician-patient, clergy-penitant, professor-student, attorney-client, employer-
       employee, teacher-student
    - 2 step process to determine legally effective consent to a sexual assault
               1) proof of an inequality within context of power dependency rel‟ship
               2) proof of exploitation
                       a. whether transaction is sufficiently divergent from community
                           standards of commercial morality that it should be rescinded
 Dr. deemed to have exploited relationship
Non-Marine Underwriters, Lloyd’s of London v. Scalera ................................................ 54
    -   sexual touching itself constitutes violation and is “offensive” – no requirement to
        show that consent wasn‟t given in order to show „offensive‟
           o if we were to require more, would focus on P, victim-blaming
           onus shifts to D to prove consent – consent is in D‟s mind
Bruce Feldthusen, "The Canadian Experiment with the Civil Action for
Sexual Battery" in N.J. Mullaney (ed.), Torts in the Nineties ..................................... S183
The Canadian Experiment with the Civil Action for Sexual Battery – Bruce Feldthusen

 Harder v. Brown, Lyth v. Dagg – Cdn courts recognize pathology of child sexual abuse
and its application to doctrine of consent
 Norberg v. Wynrib – recognized power dependant relationships
 Start of limitation periods  start running when the cause of action arises, or when a
minor reaches 18



                                                                                                     31
        discoverability rule can delay start date of limitation period
                    cause of action arises when material facts were/ought to have been
                       discovered
                    applies to all actions
          o Marciano v. Metzger – in incest cases, limitation period starts to run when
               the claimant has a “substantial awareness of the harm and its likely cause”
                    Presumptively starts to run @ commencement of a therapeutic
                       relationship
 Therapeutic Jurisprudence  “it is uncontestable that these suits demonstrate an unmet
demand for public justice on behalf of sexual abuse survivors
                    to punish assailant
                    seek public vindication

Assault .............................................................................................................................. 60
- the intentional creation in the mind of another of a reasonable apprehension of
immediate physical contact
Holcombe v. Whitaker, (1975) 318 So. 2d 289 (Ala. S.C.) ............................................. 61
 “If you take me to court, I will kill you.” – said it again after trying to pry open door
 D claims merely a conditional threat of violence and b/c no overt act was involved, not
assault
    - cannot say as a matter of law that pounding on door making every effort to get
        into the apartment while threatening doesn‟t constitute assault – a jury question
    evidence she felt imminent threat, asked for friends to stay at her place afterwards
Police v. Greaves, [1964] N.Z.L.R. 296 (C.A.) ............................................................... 62
 “Don‟t you bloody move. You come a step closer and you will get this [knife] straight
through your ___ guts.” – “Get off this ___ property before you get this in your guts.”
 on appeal, conviction quashed b/c considered conditional threat
    - no reason why a conditional threat should not constitute an assault. A threat in its
       very nature usually provides the person threatened with an alternative
    - not the slightest suggestion that the fact that the P was offered an alternative
       prevented the threat from constituting an assault
           o police were present on lawful occasions, entry was barred, sufficient for
              assault

The Intentional Infliction of Nervous Shock ............................................................... 79

Wilkinson v. Downton, [1897] 2 Q.B. 57 .......................................................................... 79
 practical joke saying that husband had been injured in accident, was to go fetch him
 effect of statement was a violent shock – no evidence of poor health, predisposition to
shock
    - question is whether the D‟s act was so plainly calculated to produce some effect
        of the kind which was produced that an intention to produce it ought to be
        imputed to the D
             o difficult to imagine such a statement could fail to produce grave effects –
                 substantially certain that harm/injury would result


                                                                                                                          32
   - other question was whether effect too remote
 judgment was for P for all costs associated (shock + costs of going to get husband)


 Prior to Wilkinson, P could not recover for nervous shock unless he also suffered some
physical injury

Radovskis v. Tomm (1957), 9 D.L.R. (2d) 751 (Man. Q.B.) ............................................ 81
 infant P raped by D
 action brought by father for trespass to P, own costs, mother‟s nervous shock
no medical evidence given for mother‟s nervous shock, therefore not sufficient to support
claim  no visible and provable illness

Samms v. Eccles, (1961) 358 P. 2d 344 (Utah S.C.) ........................................................ 82
 severe emotional distress P claims to have suffered b/c D persistently annoyed her with
indecent proposals -- suffered great anxiety, fear for personal safety, emotional distress
    - an action for severe emotional distress, though not accompanied by bodily impact
       or physical injury, where D intentionally engaged in some conduct toward the P,
                     a) with the purpose of inflicting emotional distress
                     b) where any reasonable person would have known that such would
                         result; and his actions are of such a nature as to be considered
                         outrageous and intolerable in that they offend against the
                         generally accepted standards of decency and morality
    - that some claims may be spurious should not prevent the administration of justice
       – function of juries, judges to determine whether claims are valid or false

 Cdn, English courts have required P to prove either actual physical harm or some
serious psychological illness to recover for nervous shock
 Courts have identified 3 difficulties with claims for nervous shock:
                   concern with false, trivial and numerous actions
                   concern that socially-acceptable conduct might cause some
                       sensitive individuals mental distress
                   difficulty in assessing damages for mental distress in absence of
                       physical injury

 Difference b/w negligent and intentional infliction of psychiatric harm:
           o Burden of proof diff. – P shows less in intentional
           o Negligence action restricts who can bring action (relational, temporal,
               locational… requirements) vs. more broad non-relational – no limitations

Note: Bell-Ginsburg v. Ginsburg (1993), 17 C.C.L.T. (2d) 167
(Ont. Ct. Gen. Div.)....................................................................................................... S193

 P alleged that D engaged in a number of high-risk sexual activities that have exposed
him, and her, to risk of infection of HIV


                                                                                                                  33
trial judge acknowledged law is in “an unsettled state”, but it may be that liability could
attach “if the emotional effects of the D‟s conduct were (a) direct and immediate, and
(b)intended or foreseeable or a probable consequence.”
A Common Law Tort of Discrimination? ..................................................................... 95

Bhadauria v. Bd. of Gov. of Seneca College (1979), 105 D.L.R. (3d) 707 (Ont.
C.A.), rev'd (1981),17 C.C.L.T. 106 (S.C.C.) ................................................................... 95
 P complains that she has been discriminated against based on ethnic origin – didn‟t
receive any interviews for the positions she was qualified for
    - no doubt that interests of persons of different ethnic origins entitled to protection
       of law – Ontario Human Rights Code
    - appropriate that these rights receive full protection of common law – Code
       doesn‟t create fundamental human right, nor does it contain any expression of
       legislative intention to exclude common law remedy

BHADAURIA V. BD. OF GOV. OF SENECA COLLEGE (1979) (SCC)

     -    common law remedy excluded by legislative initiative which overtook the
          existing common law and established a different regime which doesn‟t exclude
          Courts but rather makes them part of the enforcement machinery under the Code
     -    Code itself has laid out procedures for vindication, and procedures which P did
          not see fit to use

 Rationale for denying common law remedy (1981)
   - cheaper, more accessible procedures established by OHRC
   - tribunals staffed by specialized, expert decision-makers
   - courts not experts in discrimination law

 Since Laskin in Bhadauria:
    - lengthy delays, case backlogs and underfunding of human rights commissions
    - judges more experienced in discrimination law since equality rights in the Charter
       came into force in 1985
 Bhadauria ripe for reconsideration in test case

14. Sexual Harassment in Tort and Discrimination Law (2 hours)

Human Rights Code, R.S.O. 1990, c. H. 19, s.7, s. 10 ................................................ S197

Note .............................................................................................................................. S199

15. Informed Consent and a Doctor’s Duty of Disclosure (Chapter 6, 2 hours)

General Principles ............................................................................................................ 161
General Principles of Consent



                                                                                                                          34
 general rule, health care professional/counsellor must obtain consent to initiate any
physical examination, test, procedure, surgery, or counselling
            o should be obtained in advance and cover not only the intervention, but
                also any related issues
            o consent must relate to specific procedure/treatment
            o if patient competent to give consent, only his alone that is required
            o where next-of-kin, only relevant if patient incapable
            o to be valid – consent must be given „voluntarily‟
            o consent must be based on full and frank disclosure of nature of
                intervention, and its risks
 Health Care Consent Act, 1996 – specifies info. health professionals must provide

Exceptions to General Principles of Consent

 Courts have relaxed strict requirements of consent:
         an unforeseen medical emergency, where it is impossible to obtain consent,
        allowed to intervene to preserve patient‟s health or life – next-of-kin consent is
        irrelevant
         when patients give a general consent to a course of counselling, a treatment
        program or an operation – implicitly consenting to any subsequent counselling
        sessions or subordinate tests and procedures that are necessarily incidental to
        agree treatment – negated if patient objects
         therapeutic privilege – health care professionals have right to withhold info. if
        its disclosure would undermine patient‟s morale and discourage him from having
        needed medical treatment – subsequent cases either rejected, or narrowed
        scope/application
Pittman Estate – therapeutic w/holding of info. justified only if physician has taken
“reasonable precautions to ensure that the patient has communicated their desire not to be
told, or that the patient‟s health is so precarious that such new will undoubtedly cause an
adverse reaction…”

Marshall v. Curry, [1993] 3 D.L.R. 260 (N.S.S.C.) ....................................................... 163
-Dr. removed P‟s testicle during course of hernia operation, without knowledge/consent
   - where situation of emergency arises which could not be anticipated, better to
       remove consent and to rule that it is the surgeon‟s duty to act in order to save the
       life or preserve the health of the patient: and that in the honest execution of that
       duty he should not be exposed to legal liability – put a surgeon‟s justification on
       the higher ground of duty
       in removing testicle, acted in interest of patient and for protection of his
       health/life

Malette v. Shulman, (1987), 63 O.R. (2d) 243 (H.C.) .................................................... 165
 card in wallet signed by P, who was injured in car accident, saying she was a Jehovah‟s
Witness and was not to be given blood under any circumstances
 P‟s daughter confirmed, ordered transfusions to stop – Dr. only stopped when condition
stabilized


                                                                                                 35
    -    Dr.‟s doubt about the validity of the card, although honest, was not rationally
         founded on evidence before him  claimed doubts as:
                      current intent?
                      instruction applied to present life-threatening circumstances?
                      if P was fully informed of decision at time of signing
    - right to refuse treatment is an inherent component of the supremacy of the
         patient‟s right over his own body
doctrine of informed consent does not extend to informed refusal (argued no opportunity
to fulfill duty to inform, thus suspect of potential influences in signing)


The Burden of Proof and Consent Forms

 Courts have held that health professionals have burden of proving consent on balance
of probabilities
 Signed consent form provides only some evidence, not conclusive proof, of consent 
key issue is whether patient understood basic nature of procedures/risks and consented

Competency to Consent

 Common law test of competency focuses on patient‟s ability to understand the nature of
the proposed treatment and its risks, not her ability to make a reasoned or prudent
decision
 No recognized age of consent for medical treatment  assess whether patient/client is
capable of understanding nature of proposed procedure and its risks
           o “mature minor” – determined by age, intelligence, maturity, degree of
               autonomy or dependence, complexity of proposed treatment
           several provincial statutes that set minimum age

C. v. Wren, (1986), 35 D.L.R. (4th) 419 (Alta. C.A.) ..................................................... 169

 16 year-old girl pregnant, she left home, sought help from doctor to get abortion
 suit by parents against doctor
 TJ found on evidence that child was capable of giving invormed consent and had done
so
    - concluded that she is a “normal intelligent 16 year old” – did have sufficient
        intelligence and understanding

Notes:
   - Re L.D.K.; Children’s Aid Society of Metro Toronto v. K. and K. – held that a 12
       year-old had Charter right to refuse chemotherapy
   - Fact that a patient is mentally ill, senile, in custody, legal restraints doesn‟t mean
       incapable of giving consent – must assess capacity in relation to specific
       procedure/treatment
   - Cdn courts have held that a consent while sedated or in pain may be invalid



                                                                                                  36
    -  Healthcare professionals must refuse police requests to take blood samples –
       distinguished from unforeseen medical emergencies
Substitute Consent

 Young children, severely mentally ill clearly incapable of giving valid consent
            o obtain substitute consent from next-of-kin
            o uphold these consents provided patient was incompetent, next-of-kin acted
                 in good faith and procedure was in patient‟s best interest
 Procedures for research purposes – substitute consent may be invalid b/c not in best
interest of patient
            o Medical profession argued against saying substitute consent essential for
                 effective treatment of diseases patient suffering from

- Eve v. Mrs. E – Non-therapeutic sterilization of a mentally incompetent adult could
never be justified b/c not in best interest of patient pursuant to substitute consent
- Re K. and Public Trustee – authorized performing a hysterectomy on girl with severe
mental disability who had a phobic aversion to blood and would otherwise begin
menstruation soon

Informed Consent: Battery or Negligence?

 Battery actions limited to cases in which patient (Reibl v. Hughes):
            o did not consent at all
            o consent was exceeded
            o consent obtained fraudulently
 In all other cases, P must bring a negligence action for failure to disclose risks
    - focused on info. that a reasonable patient in P‟s position would want
    - must disclose all material risks – includes a low percentage risk of a serious
         consequence – broadened in recent years

 In Reibl, SCC adopted special objective/subjective test of causation – P must prove
reasonable person in P‟s position would have refused procedure if properly informed
Arndt v. Smith, [1997] S.C.J. No. 65 ............................................................................ S203
 P sued physician for costs associated with rearing daughter, congenitally injured by
chickenpox P contracted during pregnancy – had D properly informed her, would have
terminated pregnancy
 TJ found that risk of serious injury was very small and medical advisors would have
recommended against an abortion
    - Cory J. (majority)  subjective std suffered from “gross defect” – hindsight,
       bitterness
    - modified objective test viewed objectively, but from patient‟s particular
       circumstances – patient‟s particular concerns must be reasonably based
    - evidence of reasonable fears/concerns taken into consideration as evidence which
       could go to establishing P‟s subjective state of mind
           o purely subjective fears which are not related to the material risks should
               not be taken into account


                                                                                                         37
                   fears that are idiosyncratic
                   do not relate directly to material risks of proposed treatment
                   fears which would often be unknown to physician
  - McLachlin (minority)  “the objective test, based on the hypothetical reasonable
      person, depreciates the P‟s personal choice in such situations and deprives her
      testimony of any weight.” – subjective approach suggested by fundamental
      principles of tort law
 Held that Dr. not liable for financial costs associated with birth defects

Note: Health Care Consent Act ................................................................................... S211

16. The Tort Liability of Public Authorities (Chapter 21; 1 hour)

R. in Right of Canada v. Sask. Wheat Pool (1983), 143 D.L.R. (3d) 9 (S.C.C.) ............. 612

Just v. B.C., [1989] 2 S.C.R. 723 ................................................................................... 591
-plaintiff suing government claiming it failed to maintain highway properly


17. Vicarious Liability (Chapter 25; 3 hours)

Vicarious Liability ......................................................................................................... 706

T. G. Bright & Co. v. Kerr, [1939] S.C.R. 63 ................................................................. 709
 whether D wine dealer was vicariously liable for negligence of its motorcycle
deliveryman
    - Majority -- concluded that while deliveryman was agent, he wasn‟t D‟s servant
       b/c D had no control over the precise manner in which task was performed
Dissent – he who expects to derive advantage from an act which is done by another for
him, must answer for any injury which a 3rd person may sustain from it – not unjust that
he who has selected him and will have the benefit of his services if efficiently performed
should bear the risk of his negligence in “matters incidental to the doing of the acts the
performance of which has been delegated to him.”

Bazeley v. Curry, [1999] 2 S.C.R. 534 ............................................................................ 710

 Children‟s Aid Foundation employee sexually abused children in his care
   - authorized employees to act as parent figures for the children – charged them to
       care for the children physically, mentally and emotionally
   - employers are vicariously liable for:
       employee acts authorized by the employer
           o unauthorized acts so connected with authorized acts that they may be
               regarded as modes (albeit improper modes) of doing an authorized act
                    In determining second branch:
                            must consider unambiguous precedents


                                                                                                                   38
                                    
                                whether vicarious liability should be imposed based on
                                broader policy rationales behind strict liability
    - Fleming identified policies underlying v.l.:
             o provision of a just and practical remedy for the harm
             o deterrence of future harm
    - “a person who employs others to advance his own economic interest should in
        fairness be placed under a corresponding liability for losses incurred in the course
        of the enterprise.”
    - employer often in best position to spread cost of harm
    - employers in a better position to prevent future harm by efficient organization and
        supervision
    - employer must not only provide the locale or the bare opportunity, it must
        materially enhance the risk
             o courts should be guided by following principles:
                      openly confront question of whether liability should lie against
                        employer
                      whether the wrongful act is sufficiently related to conduct
                        authorized – where there is a significant connection b/w the
                        creation or enhancement of a risk
                      in determining sufficiency of connection, subsidiary factors can be
                        considered:
                             opportunity enterprise afforded employee to abuse power
                             extent to which wrongful act furthered employer‟s aims
                             extent to which wrongful act was related to friction,
                                confrontation or intimacy inherent in employer‟s enterprise
                             extent of power conferred on employee
                             vulnerability of potential victims to wrongful exercise of
                                employee‟s power
    - no exception for non-profit orgs  “suggestion that the victim must remain
        remediless for the greater good smacks of crass and unsubstantiated
        utilitarianism” – neither alt. attractive, but fairer to place loss on one who
        introduced risk and had better opportunity to control it
 Foundation vicariously liable – opportunity for intimate control, parental relationship
and power created special environment – abuse was not a mere accident, but the product
of special relationship, as well as the special opportunities

671122 Ont. Ltd. v. Sagaz (2001), 204 D.L.R. (4th) 488 (S.C.C.) ................................. 717

Notes ............................................................................................................................ S229

18. Nuisance (Chapter 24; 2 hours)

Introduction ..................................................................................................................... 651
 focus is on whether the D‟s conduct has resulted in an unreasonable interference with
the P‟s use and enjoyment of land


                                                                                                                         39
Private Nuisance ............................................................................................................ 652

340909 Ont. Ltd. v. Huron Steel Products (1990), 73 O.R. (2d) 641 (H.C.) ................. 652
 P built apartment building beside stamping plant – D purchases press, P complained of
noise and vibrations
 P brought action claiming loss of rental income, loss of value of building
    - legal intervention warranted only when an excessive use of property causes
        inconvenience
    - reasonableness viewed not only from standpoint of D‟s convenience, but also
        interest of surrounding occupiers
    - Unreasonableness determined by considering:
            o Severity of the interference, having regard to duration/nature/effect – from
                P„s point of view
            o Character of the locale
            o Utility of the D‟s conduct
            o Sensitivity of the use interfered with
                      In this case:
                            duration – problem not continuous, but regular for 10 yrs
                            effect – P must show caused damage
                            character of locale – std to be expected in a predominantly
                                residential area differs from that of an
                                industrial/commercial one – here “mixed use”
                                         no defence that P moved into area (but a
                                          consideration whether unreasonable interference)
                            utility of conduct – importance of enterprise/value to
                                community – question whether D took all reasonable
                                precautions is relevant as to whether the interference is
                                unreasonable

Notes:
   - If I can adopt some other manner in the use of my land to achieve the same effect
       then it becomes all the more evident that I am using my land in an unreasonable
       way
   - An interference that falls short of damage, must be continuous before it
       constitutes nuisance
   - Majority of HL ruled that only a person with a possessory interest in land can sue
       in nuisance – tenant can sue, but spouse/children cannot
Occupier may be held liable if she knows or ought to know that a 3rd party has created a
hazard on her property and she fails to take reasonable steps to abate the risk to the
nearby properties
Tock v. St. John’s Metropolitan Area Bd., [1989] 2 S.C.R. 1181 ................................... 661
 day of exceptionally heavy rainfall, blocked sewer, large amt of water entered into P‟s
basement
    - principles derived from authorities:



                                                                                                                   40
              o if legislation imposes a duty and the nuisance is the inevitable
                  consequence of discharging that duty, then the nuisance is itself authorized
                  – no recovery
              o if legislation, although it merely confers an authority, is specific as to the
                  manner or location and the nuisance is the inevitable consequence, then
                  likewise the nuisance is itself authorized
              o if the legislation confers an authority and also gives the public body a
                  discretion – it must do it in a manner and at a location which will avoid the
                  creation of a nuisance
     -    recovery will be allowed unless show that interference with the P‟s rights was
          permitted by:
              o express language in statue that no action may be brought
              o by necessary implication from language of statute coupled with a factual
                  finding that damage was the inevitable consequence of what statute
                  ordered/authorized public body to do
     -    legislation in this case permissive, thus D accordingly obliged to construct and
          operate the system in strict conformity with private rights – statutory authority
          defence not available

Notes:
    - fact that D acted reasonably is no defence in nuisance, BUT a D will not be liable
        if she unintentionally and w/o negligence, physically injures a P in a public place
D can raise defence that he has right to commit tort by prescription  uninterrupted
period of 20 years – only apply if nature of nuisance remains the same and P was aware
of nuisance
Public Nuisance

A.G. Ont. v. Orange Productions, [1971] 3 O.R. 585 (H.C.) ......................................... 667

Hickey v. Elec. Reduction (1970), 21 D.L.R. (3d) 368 (Nfld. S.C.) ............................... 669

Remedies ........................................................................................................................ 674

Miller v. Jackson, [1977] Q.B. 966 (C.A.) ..................................................................... 674

Spur Indust. v. Del E. Webb Dev. Co. (1972) 494 P. (2d) 700 (Ariz.S.C.) .................... 679

Tort Law: Theories, Criticisms and Alternatives (Chapter 20; 3 hours)

I. Feldthusen, B., “If This Is Torts, Negligence Must Be Dead” ................................. S251

II. The Effect of Liability Insurance on Tort Law

Final Report of the Ontario Task Force on Insurance
(the "Slater Report") (1986) ......................................................................................... S257


                                                                                                                       41
Final Report of the Ontario Task Force on Insurance (Slater Report) (1986)

 insurance/deterrence dilemma (tension b/w corrective and distributive justice)
 personal injury area has been transformed from a mechanism primarily concerned with
deterrence to one whose main purpose is compensation (ever meant for deterrence writ
large?)  New South Wales Law Reform Commission: “It is difficult to find any
empirical evidence which proves that…fault operates as an effective deterrent.”
 Judges keenly aware that in almost all cases the D is not paying, and that they are in the
last analysis deciding whether or not the P should be compensated from insurance monies
– examples? perhaps in Mortimer cb441; not so in Dobson supp84
 It was in the success of modern liability insurance that the seeds were planted for the
inevitable failure of tort
 The courts know they cannot deter; they also know they cannot fully and completely
compensate all victims for all accidental injury (tort not supposed to compensate for ALL
injuries)
 Justice Krever noted that judges will tend to find “fault” where none exists, so that
totally innocent Ps who suffer catastrophic injury can be adequately compensated by the
wealthier insurers of equally blameless Ds
     - Answer lies in separating compensation function from deterrence function
     - Why tort-insurance system cannot and does not achieve deterrence objective
            o most injured people do not sue
            o highly elastic doctrinal norms which adds unpredictability
            o years may pass, further dilutes deterrence
            o no relationship b/w severity of sanction (damage) and degree of fault
            o judgment rarely paid by individual wrongdoer
            o “individual last moment driver mistakes – undeterred by fear of death,
                injury, imprisonment, fine or loss of license – surely cannot be deterred by
                fear of civil liability”
     - Basic reasons why tort-insurance system remains an ineffective and inadequate
         compensation mechanism:
            o compensation paid on an irrational basis (don‟t compensate 58-year old
                patient injured in non-negligently administered surgery)
                      “if the compensation mechanism is intended to compensate for
                         accidental injury, it should compensate for all accident injury” –
                         should it?
            o more than half of all modern injuries go uncompensated
            o there is enormous delay
                      would not many successful Ps trade the „justice‟ and „satisfaction‟
                         of litigation and the non-pecuniary damages for the relatively low-
                         cost, fast and secure benefits that would be available under a no-
                         tort compensation scheme?
            o present system riddled with unpredictability and uncertainty – most crucial
                criteria of payment largely controlled by chance (lottery aspects of
                litigation)



                                                                                         42
             o inordinate financial cost of tort – large portion of premium dollar eaten up
                 by transaction costs
                      less than 50 cents paid out in compensation – 80-90 cents for no-
                         tort insurance plans
    -    In the personal injury area, tort should not be used either for deterrence or for
         compensation objectives
             o Deterrence  combination of premium pricing and Criminal Code
                 enforcement
             o Compensation  fair and more expeditious no-tort insurance system

 SLATER RECOMMENDATIONS:
       1) replace tort with no-tort automobile accident compensation;
       2) in middle term, replace tort entirely with no-tort accident compensation
           scheme (as in NZ)
       3) in long term, adopt comprehensive compensation scheme for disability arising
           from any cause (accident, disease etc.)
 FLAWS IN SLATER ANALYSIS
    1) does not consider objectives of tort law other than compensation and deterrence
       (e.g. educative function; therapeutic value of litigation; public accountability;
       promotion of values by corrective justice model, e.g. individual responsibility for
       wrongdoing)
    2) evaluates tort law by reference to goals it has never sought to achieve (deterrence
       of all behaviour that causes accidents; compensation of all victims of accidents)

L. Klar, "The Osborne Report: "No" to No-Fault", (1989)
68 Can. Bar Rev. 301 ................................................................................................... S267
 Range of options:
   - pure tort  “a retrograde step, not justified by current social policy”
   - add on no-fault  immediate no-fault benefits paid; tort avenue remains open –
      any no-fault benefits received reduced from award of damages
   - threshold no fault  minimum threshold which claimant must meet to have
      recourse to tort law to recover non-pecuniary losses – can‟t sue for those under
      threshold
   - pure no fault  victim entitled to no-fault benefits exclusively, right to sue
      eliminated

 Osborne Report recognized changes in Ontario which have made it easier for victims of
motor vehicle accidents to make tort claims and receive increased awards
 Proponents of no-fault make cost arguments – Osborne found that 35.5% of premiums
go to expenses, 64.7% go to pay claims
 Argues significant deterrent effect in increased premiums, danger of insurance
company seeking indemnity, possibility of policy limits despite insurance
 “Tort law‟s capacity for fairness and justice should not in my view be ignored. The
public‟s sense of justice, of what is fair and reasonable, must be taken into account.” –
“The public‟s sense of fairness will not be satisfied if fault is left to be dealt with solely


                                                                                                                43
through the criminal justice system and the premium rating system.” – sense of what‟s
right taken into account in compensation
 Osborne Report traced delays in litigation to lump sum damage awards – requires Ps
wait until medical condition stabilized and can be assessed
 2 responses to litigation criticism:
     - better to channel one‟s efforts into improving court process
litigation is rare exception in resolution of motor vehicle accident claims (2-3%)

III. Towards a Comprehensive No-Tort Compensation Scheme?

Geoffrey Palmer, “New Zealand‟s Accident Compensation Scheme: Twenty
Years On”, (1994) 44 U.T.L.J. 223     S279


New Zealand Accident Compensation Scheme
     passed in 1972, effective April 1974
     exchanges common law of tort for comprehensive coverage for accidental
     personal injuries (i.e., workers‟ comp model without employment limitation)
     rationale: similar to arguments in Slater Report; and reasons for adopting
     workers‟ comp in 1914
     adopted no tort no fault regime, cant bring tort action for most personal injuries
     replaced with concept of distributive justice

 Principles of NZ scheme:
           o community responsibility
           o comprehensive entitlements – uniform method of assessment
           o complete rehabilitation – physical and vocational recovery
           o real compensation – income relate benefits be paid for whole period of
                incapacity; any impairment a loss in itself, not just earning capacity effect
           o administrative efficiency

 Advantage of NZ scheme:
        at a modest cost, delivers compensation more quickly and more efficiently to all
        victims of accidental injuries regardless of their ability to prove fault
 Weaknesses of NZ scheme:
        vulnerable to political pressure
            o currently benefits reduced, but still right to sue remains unavailable – fair?
        does not cover disabilities produced by disease
        limited compensation of iatrogenic injuries
            o threshold sometimes produces „incorrect results‟
        whatever value tort law has in promoting deterrence, education, individual
        responsibility or public accountability is lost
-look to 1992 reforms, could be viewed as problematic
     -cant recover for mental shock
     put in place In part about concern of costs and moral hazard of benefit system, so
        compensation makes people care less


                                                                                           44
 can bring non-pecuniary loss, punitive damages in tort law (therapeutic value)
-vulnerability to political changes?
Why there, not here?
    - political complexity  federal state difficult
    - more North American  similar to U.S. – litigation, individual responsibility
       more pronounced

DETAILS:
2001-02 DATA
       $2.45 billion total income
       $3.9 million population
       $630 cost per capita
FUNDING OF NZ SCHEME 2001-2
       motor vehicle levy: 15%
       employers‟ levy: 28%
       earners‟ levy: 23%
       self-employed levy: 4%
       non-earners‟ levy: 24%
       medical misadventure levy: 1%
       investment income: 5%
2001-2 ACC SPENDING
       compensation benefits: 32%
       treatment costs: 29%
       adjustments to claims liability: 16%
       rehabilitation benefits: 10%
       operating costs: 10%
       collection costs: 3%
87% compensation; 13% administration




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