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					Torts – Taylor 2008
Table of Contents
Trespass to the Person ................................................................................................................................... 4
       Goshen v. Larin [NSCA 1974] ............................................................................................................. 5
   Accidental, Negligent, and Intentional Conduct ....................................................................................... 5
       Klar (p. 41) ............................................................................................................................................ 5
       Garratt v. Dailey [US 1955] .................................................................................................................. 5
       Carnes v. Thompson [US 1932] ............................................................................................................ 5
       Basely v. Clarkson [UK 1681] .............................................................................................................. 5
   Volition and Capacity ............................................................................................................................... 6
       Smith v. Stone [UK 1647] ..................................................................................................................... 6
       Tillander v. Gosselin [ON HC 1967] .................................................................................................... 6
       Lawson v. Wellesley Hospital [ON CA 1975] ...................................................................................... 6
   Assault ...................................................................................................................................................... 6
       I. De S & Wife v. W. De S. [UK 1348] ................................................................................................ 6
       Stephens v. Myers [UK 1830] ............................................................................................................... 6
       Tuberville v. Savage [UK 1699] ........................................................................................................... 6
       Bruce v. Dyer [ON 1970] ...................................................................................................................... 7
       Cole v. Turner [UK 1705] ..................................................................................................................... 7
       Bettel et al v. Yim [ON County Court 1978] ......................................................................................... 7
   Sexual Battery ........................................................................................................................................... 7
       Norberg v. Wynrib [SCC 1992] ............................................................................................................ 7
       M. (K.) v. M. (H.) [SCC 1992] ............................................................................................................. 8
   False Imprisonment ................................................................................................................................... 8
       Bird v. Jones [UK 1845] ....................................................................................................................... 8
       Chaytor et al v. London, New York and Paris Association of Fashion Ltd. and Price [NF SC 1961] . 8
       Robinson v. Balmain New Ferry Co. [UK 1910].................................................................................. 8
Introduction to Negligence ........................................................................................................................... 9
   Duty of Care.............................................................................................................................................. 9
       Basis: Donoghue v. Stevenson [1932 House of Lords] ......................................................................... 9
       Palsgraf v. Long Island Railroad [NY 1928] ........................................................................................ 9
       Anns v. Merton London Borough Council [UK 1977] ......................................................................... 9
       Adopted: Kamloops v. Nielsen [SCC 1984].......................................................................................... 9
       Definitively redefined: Cooper v. Hobart [SCC 2001] ......................................................................... 9
                                                                                                                                                                 1
       Hill v. Hamilton-Wentworth Regional Police Services Board [SCC 2007] ......................................... 9
       Jane Doe v. Board of Police Commissioners for the Municipality of Metropolitan Toronto [ONCJ
       1998] ................................................................................................................................................... 10
       Childs v. Desormeaux [SCC 2006] ..................................................................................................... 11
       Syl Apps Secure Treatment Center v. B.D. [SCC 2007] .................................................................... 11
       Holland v. Saskatchewan [SCC 2008] ................................................................................................ 11
Governmental Liability in Negligence ........................................................................................................ 12
       Proceedings Against the Crown Act [RSO 1990] ............................................................................... 12
       Just v. British Columbia [SCC 1989].................................................................................................. 12
Professional Liability in Negligence ........................................................................................................... 13
   Doctors .................................................................................................................................................... 13
       Treatment: Challand v. Bell [Alberta SC 1959].................................................................................. 13
       Disclosure: Reibl v. Hughes [SCC 1980] ............................................................................................ 13
   Lawyers ................................................................................................................................................... 14
       Brenner v. Gregory (ON 1973) ........................................................................................................... 14
Standard of Care ......................................................................................................................................... 15
       Reasonable Man: Blyth v. Birmingham Water Works Co. [UK 1856] .............................................. 15
       Vaughan v. Menlove [UK 1837]......................................................................................................... 15
       Acceptable degree of risk: Bolton & Others v. Stone [HL 1951] ....................................................... 15
       Custom: Waldick v. Malcolm [SCC 1991] .......................................................................................... 15
       Statutory Standards: R. In Right of Canada v. Saskatchewan Wheat Pool [SCC 1983]..................... 16
       Compliance with Statute: Ryan v. Victoria (City) [SCC 1999] .......................................................... 16
       Limitations on Statutory Use: Gorris v. Scott [UK 1874] .................................................................. 16
       Liability and the Young: Heisler v. Moke [Ontario High Court of Justice 1972] ............................... 17
       Mental & Physical Disability: Fiala v. Cechmanek [Alberta CA 2001] ............................................. 17
Defences in Negligence .............................................................................................................................. 17
   Contributory Negligence ......................................................................................................................... 17
       Butterfield v. Forrester (KB 1809) ...................................................................................................... 18
       Davies v. Mann (1842)........................................................................................................................ 18
       Negligence Act RSO 1990 .................................................................................................................. 18
   The Seat Belt Defence ............................................................................................................................ 18
       Galaske v. O’Donnell (SCC 1994) ..................................................................................................... 18
   Volenti Non Fit Injuria: Voluntary Assumption of Risk ........................................................................ 19
       Hambley v. Shepley (ONCA 1967) .................................................................................................... 19
   Illegality .................................................................................................................................................. 19
       Hall v. Hebert (SCC 1993) .................................................................................................................. 19
       British Columbia v. Zastowny (SCC 2008) ........................................................................................ 20
                                                                                                                                         2
Causation .................................................................................................................................................... 20
   Inferring Causation ................................................................................................................................. 20
       Snell v. Farrell (SCC 1990)................................................................................................................. 20
       Cottrelle v. Gerard (ONCA 2003)....................................................................................................... 21
   Multiple Independently Sufficient Causes .............................................................................................. 21
       Cook v. Lewis (SCC 1951) ................................................................................................................. 21
       Walker Estate v. York Finch General Hospital (SCC 2001) .............................................................. 21
       Resurfice Corp. v. Hanke (SCC 2007) ................................................................................................ 22
       Fairchild v. Glenhaven Funeral Services (HL 2002) .......................................................................... 22
       Sindell v. Abbott Laboratories et al (SC California 1980) .................................................................. 22
       Novus actus interveniens .................................................................................................................... 23
       Aristorenas v. Comcare Health Services (ON CA 2006) .................................................................... 23
Remoteness ................................................................................................................................................. 23
   Type of Damage ...................................................................................................................................... 23
       Hughes v. Lord Advocate (HL 1963) ................................................................................................. 23
   Thin-skull doctrine .................................................................................................................................. 24
       Smith v. Leech Brain Co. (UK 1962) ................................................................................................. 24
   Crumbling skull doctrine ........................................................................................................................ 24
       Athey v. Leonati (SCC 1996) ............................................................................................................. 24
   Wagon Mound cases ............................................................................................................................... 24
Nervous Shock ............................................................................................................................................ 24
       Mustapha v. Culligan (SCC 2008) ...................................................................................................... 24
Purely Economic Loss ................................................................................................................................ 25
   Categories of PEL ................................................................................................................................... 25
   Negligent Performance of a Service ....................................................................................................... 25
       B.D.C. v. Hofstrand Farms (SCC 1986) ............................................................................................. 25
   Defective Products and Structures: Not examinable ............................................................................... 26
       Winnipeg Condominium Corp v. Bird Construction Co. (SCC 1995) ............................................... 26
   Relational Economic Loss: ..................................................................................................................... 26
       Design Services v. Canada (SCC 2008).............................................................................................. 26
       Canadian National Railway v. Norsk Pacific Steamship (SCC 1992) ................................................ 27
       Bow Valley Husky (Bermuda) Ltd. et al v. Saint John Shipbuilding Ltd. (SCC 1997) ..................... 27
   Negligent Misrepresentation ................................................................................................................... 28
       Hedley Byrne v. Heller & Partners (HL 1963) ................................................................................... 28
       Queen v. Cognos Inc. (SCC 1993) ...................................................................................................... 28
       Hercules Management v. Ernst & Young (SCC 1997) ....................................................................... 29

                                                                                                                                                               3
Vicarious Liability ...................................................................................................................................... 30
       671122 Ontario Limited v. Sagaz Industries Canada (SCC 2001) ..................................................... 30
   When is an employer liable for the torts of an employee? ...................................................................... 30
       Bazley v. Cury (SCC 1999) ................................................................................................................ 30
       Jacobi v. Griffiths (SCC 1999) ........................................................................................................... 31
       John Doe v. Bennett (SCC 2002) ........................................................................................................ 31
       PS v. Miki BCCA 2006 ...................................................................................................................... 31
Damages...................................................................................................................................................... 31
   Compensatory ......................................................................................................................................... 32
       Andrews v. Grand & Toy Alberta (SCC 1978)................................................................................... 32
       MacCabe v. Westlock (Alberta CA 2001) .......................................................................................... 32
   Punitive ................................................................................................................................................... 32
       Whiten v. Pilot Insurance Co (SCC 2002) .......................................................................................... 32
       McIntyre v. Grigg (ONCA 2006) ....................................................................................................... 33
Nuisance...................................................................................................................................................... 34
   Public Nuisance ...................................................................................................................................... 34
       Hickey v. Electric Reduction Co. of Canada (SCNF 1970) ................................................................ 34
       Mint v. Good (Lord Denning, CA, 1951) ........................................................................................... 34
   Private Nuisance ..................................................................................................................................... 35
       Pugliese et al v. National Capital Commission (ONCA 1977) ........................................................... 35
       Tock v. St. John’s Metropolitan Area Board (SCC 1989) .................................................................. 35
       Nor-Video Services v. Ontario Hydro (ONSC 1978) ......................................................................... 35
       Russell Transport v. Ontario Malleable Iron Co. (ON 1952).............................................................. 35
Rylands v. Fletcher (House of Lords 1868) ................................................................................................ 36
   Element 1: Non-natural user (refers to use of land, not a person) .......................................................... 36
       Rickards v. Lothian (PC 1913) ........................................................................................................... 36
   Element 2: Escape ................................................................................................................................... 37
       Read v. J. Lyons & Co (HL 1947) ...................................................................................................... 37
   Defences to torts of strict liability ........................................................................................................... 37




Trespass to the Person
           A trespass to the person is actionable per se, i.e. it’s not relevant whether or not the trespass
            caused injury
                o The trespass is itself an injury, justifies an award of damages because your most precious
                    possession has been interfered with
           Duty of care has no application in tort of trespass, including negligent trespass

                                                                                                                                                                4
Goshen v. Larin [NSCA 1974]
Facts
     Referee (D) walking out of wrestling match shielding face and runs into P
Issue
     Who bears the burden of proof in an action for trespass to the person?
Rule
     P must prove he has been injured by the direct act of the D
     Onus then falls on D to prove the direct act was both unintentional and without negligence
Application
     Claim fails
     Actions did not amount to negligence and were unintentional
Note
     Case defines battery: Direct (intentional or negligent) physical contact without consent
     Cook v. Lewis [1952 SCC] : trespass can be committed intentionally or negligently

Accidental, Negligent, and Intentional Conduct
Klar (p. 41)
    Accidental conduct = consequences were not reasonably foreseeable or preventable
    Negligent conduct = failure to have reasonably foreseen and avoided a result
    Intentional conduct = substantially certain of consequences, or desired them

Garratt v. Dailey [US 1955]
Facts
     D moved P’s chair. P didn’t know and was injured.
Issue
     Whether a lack of intent to cause harm precludes a battery charge
Ratio
     Intent is acting with substantial certainty and/or desire that a particular result will ensue
Result
     Case remanded to find the defendant’s state of mind

Carnes v. Thompson [US 1932]
Facts
     D attempts to hit employee with pliers but hits employee’s wife (P)
Ratio
     Transferred intent: if the D attempts to commit a trespass against one person and in doing so
       commits a trespass against another, the D is liable

Basely v. Clarkson [UK 1681]
Facts
     D took grass from P’s land thinking it was his own
Issue
     Is a person liable for an intentional act that constitutes trespass if they are not aware that the
        trespass is committed?
Ratio
     A tortfeasor does not have to have know they are trespassing to be liable if the act is voluntary.
Application
     Finding for the claimant: whether the defendant knew the true facts or not was irrelevant: his act
        was voluntary, and did cause the loss the claimant suffered
                                                                                                           5
Volition and Capacity
Smith v. Stone [UK 1647]
Facts
     D carried onto P’s land by third party
Ratio
     An involuntary act cannot be a tort of trespass
Notes
     Voluntary = directed by a conscious mind (Linden p. 45)

Tillander v. Gosselin [ON HC 1967]
Facts
     Infant (less than three) injures baby
Issue
     Can an infant be held liable for trespass?
Ratio
     Infants lack the capacity to appreciate or know the real nature of their actions, and thus cannot be
        said to negligently or intentionally commit trespass.
Result
     Dismissed

Lawson v. Wellesley Hospital [ON CA 1975]
Ratio
     Intent cannot be formed by a person that is incapable of appreciating the nature or quality of their
       act by reason of mental illness.
Reasoning
     It is an essential element that there be a voluntary act (the mind prompting and directing the act)

Assault
I. De S & Wife v. W. De S. [UK 1348]
Facts
     D struck at P but did not hit her
Ratio
     Assault is putting another into fear of battery
Stephens v. Myers [UK 1830]
Facts
     D advances toward and threatens P but is stopped before he gets close enough to hit P
Ratio
     A threat constitutes assault only when the D has the means of carrying out the threat
Result
     Action successful. D was advancing toward P with a threatening attitude, and would have reached
       him if he had not been stopped

Tuberville v. Savage [UK 1699]
Facts
     Assault. “If it were not assize time I would not take such language from you”
Issue
     Can a conditional statement constitute an assault?
Ratio
                                                                                                         6
    A conditional threat of harm constitutes assault where it is reasonably imminent
Result
    No assault; P specifically said he was not going to do any harm
Taylor
    Modern cases aren’t as concerned with whether or not threats of violence are conditional; more
       focussed on reducing violence (because threats lead to violence)

Bruce v. Dyer [ON 1970]
Facts
     plaintiff gets out of car waving fist at defendant, defendant punches plaintiff
Issue
     Is intention or violence required for assault?
Rules
     An action constitutes assault if it causes another to believe they are in danger of violence; there
       need not be actual intention or power to use violence
     A person is justified in using violence if an assault is imposed upon him
Application
     D had reasonable grounds to believe he was about to be attacked and that it was necessary to take
       some action to ward it off
     Court applies defence of self-defence to exonerate D

Cole v. Turner [UK 1705]
Ratio
     The least touching of another in anger is battery
Taylor
     This is somewhat misleading, hostile intent is not a legal requirement for battery
     Acts not done in anger may count e.g. a medical operation done without consent
     Actual standard: an act is not battery if it's generally harmless and in accordance with the
        customs of society
     Consent can be a defence in battery
            o Presumed when helping an unconscious person
            o Attempt to prevent suicide is required by statute
Bettel et al v. Yim [ON County Court 1978]
Facts
     D grabbed P and while shaking him D's head unintentionally hit P's nose, injuring it
Issue
     Should a person be liable for unforeseeable consequences of an intentional wrongful act?
Ratio
     One is liable for injuries caused by their intentional act, not just for those that are intended
Result
     Action successful
Note:
     Defences to battery: consent, self-defence, defence of property, necessity, and legal authority

Sexual Battery
Norberg v. Wynrib [SCC 1992]
Facts
     Doctor prescribes drug to addicted woman for sexual activities
                                                                                                         7
Ratio
      Where parties are in a position of inequality and where the dominant party exploits that position,
       consent is not a valid defence
Application
    Doctor-patient relationship is one of inequality; action successful

M. (K.) v. M. (H.) [SCC 1992]
Issue
     Whether or not there is a time limitation for bringing an action for sexual battery
Ratio
     The limitation period for a sexual battery based upon sexual battery does not begin until the
        victim discovers the connection between the harm suffered and the sexual battery
Note
     Referred to as “reasonable discoverability”

False Imprisonment
Bird v. Jones [UK 1845]
Facts
     P blocked from passing along a road, could go any other way
Issue
     What constitutes false imprisonment?
Rule
     Obstruction of passage not a sufficient deprivation of liberty to constitute imprisonment

Chaytor et al v. London, New York and Paris Association of Fashion Ltd. and Price [NF SC 1961]
Facts
     Ps are store employees that go to another store to compare, manager calls police, police arrest
       them
Issue
     Can there be false imprisonment without touching/force?
Ratio
     Psychological imprisonment can be false imprisonment
Result
     Action successful. Ps were made to feel compelled to go to police station to avoid embarrassment

Robinson v. Balmain New Ferry Co. [UK 1910]
Facts
     P goes through ferry turnstile, then wants to go back
Ratio
     Actual or implied consent can be a defence to false imprisonment
Decision
     P voluntarily placed himself into a situation where his liberty was deprived
     D was entitled to impose a reasonable condition before allowing him to pass through their
       turnstile from a place to which he had gone of his own free will
Taylor
     Implied consent since P entered on his own free will and knowing he had to pay to leave
     You can sometimes withdraw your consent to imprisonment
     p. 74 note 8: court in Martin v. Berends [ON Prov. Ct. 1989] said not letting a woman off an
       express bus was not false imprisonment because there was no urgent reason
                                                                                                            8
Introduction to Negligence
       Green, Judge and Jury (1930) p. 178 note 5: we may have a process for passing judgment in
        negligence cases, but practically no "law of negligence"
       Makes it flexible, but possibly unpredictable

Duty of Care
       Duty of care: used as a limiting device to deny or restrict liability, even when the D's negligence
        may have caused a loss, when:
            o Loss not deemed worthy of protection
            o Activity is not seen as appropriate to regulate under tort law
            o Person hurt is not thought to be entitled to protection of law
       Duty analysis is largely a matter of legal policy (whether tort law should be applied at all)
       In cases where there is no established duty of care, the court must establish the question from first
        principles

Basis: Donoghue v. Stevenson [1932 House of Lords]
Facts
     Woman sues manufacturer of ginger beer because of snail in bottle
Issue
     When a relationship gives rise to a duty to take care and to a right to have care taken
Ratio
     Lord Atkin: “You must take reasonable care to avoid acts or omissions which you can reasonably
        foresee would be likely to injure...persons who are so closely and directly affected...that I ought
        reasonably to have them in contemplation as being so affected when I am directing my mind to
        the acts or omissions which are called in question”
Result
     Action successful
Taylor
     This is a leading case, the basis of tort law
     But is a principle, not to be treated as a statutory definition, must be qualified in new
        circumstances
Notes
     Note 3: Donoghue gave negligence a formula, a universal principle capable of being applied to
        new situations

Palsgraf v. Long Island Railroad [NY 1928]
     example of chain of events that caused injury that was not reasonably foreseeable
     Maybe if the package had explosives the person should have taken greater care, but this wasn't
       the case

Anns v. Merton London Borough Council [UK 1977]
    Establishes two stage test to inquire whether a duty of care should be imposed in a new situation
    Limits indeterminate liability (addressing Buckmaster’s dissent in Donoghue)

Adopted: Kamloops v. Nielsen [SCC 1984]
    Anns test adopted by SCC:

Definitively redefined: Cooper v. Hobart [SCC 2001]

Hill v. Hamilton-Wentworth Regional Police Services Board [SCC 2007]
Facts
                                                                                                            9
       P investigated by the police, arrested, tried, wrongfully convicted, and ultimately acquitted after
        spending more than 20 months in jail for a crime he did not commit
Issues
     Whether police can be held liable to suspects for tort of negligent investigation.
     What is the standard of care?
Decision
     Police officers owe a duty of care to suspects. Their conduct during an investigation should be
        measured against the standard of how a reasonable officer in like circumstances would have
        acted.
            o Police officers may make minor errors or errors in judgment without breaching the
                 standard.
     Officers’ conduct met standard – claim fails
     Policy concerns (raised by D) must be more than speculative; a real potential for negative
        consequences must be apparent.
     The record does not establish that recognizing the tort will have a “chilling effect” on
        investigations (i.e. cause officers to become unduly defensive)
     Recognizing sufficient proximity in the relationship between police and suspect to ground a duty
        of care does not open the door to indeterminate liability. The class of potential claimants is
        limited to particularized suspects and by the requirement that the plaintiff establish compensable
        injury caused by a negligent investigation. Treatment rightfully imposed by the law does not
        constitute compensable injury. Quebec and Ontario have both recognized police liability in
        negligence for many years, and there is no evidence that a large number of lawsuits against the
        police have resulted.
Dissent
     Tort of negligent investigation should not be recognized in Canada
     overly cautious approach that may result from the imposition of conflicting duties would
        seriously undermine society’s interest in having the police investigate crime and apprehend
        offenders
Taylor
     No clear line between proximity and policy considerations in this case
     Illustrates that "structure" does not govern the way we solve disputes in common law (“Structures
        are our servants not our masters”)

Jane Doe v. Board of Police Commissioners for the Municipality of Metropolitan Toronto [ONCJ
1998]
Facts
     P is fifth known victim of balcony rapist
Issue
     Whether or not police were negligent in not warning the public, including Jane Doe, of this risk
Decision
     Police have statutory duty to prevent crime and common law duty to protect life and property
     Police knew the rapist would continue to attack women in Church/Wellesley area until stopped
     Didn’t warn women of danger, didn’t take measures to protect them -- liable
 Ratio
     Duty of care of police to warn people in danger is limited to specific threats to specific groups of
       people
Taylor
     This case doesn't mean that police owe a duty of care to any victim


                                                                                                          10
       Not clear when a threat is sufficiently specific to warrant a warning; it seems that duty of care
        disappears for lesser crimes (e.g. $50 scams), but still exists with respect to rape: just can't allow
        rape to happen even if it prevents more

Childs v. Desormeaux [SCC 2006]
Issue
     Do social hosts of parties owe a duty of care to third parties who may be injured by intoxicated
       guests?
Decision
     Social hosts are different than commercial hosts: no duty to monitor guests' drinking or to prevent
       them from driving can be imposed
           o They differ in capacity to monitor
           o Rules apply differently because sale of alcohol s governed by legislation
           o Profit making is relevant
Ratio
     Social hosts are not, absent conduct implicating them in the creation or exacerbation of a risk, in a
       relationship of sufficient proximity to give rise to a duty of care to third party highway users who
       may be injured by intoxicated guests.
Taylor
     Reasons don't really explain why social hosts shouldn't monitor alcohol consumption, discourage
       too much drinking

Syl Apps Secure Treatment Center v. B.D. [SCC 2007]
Facts
     P alleges that R.D. was treated by the treatment centre and BD as if her parents had physically
       and sexually abused her, that this was negligent conduct, and that the negligence caused R.D. not
       to return to her family, thereby depriving the family of a relationship with her
Issue
     Does the treatment centre and its employee into whose care a child has been placed, owe a duty
       of care to the family of a child they have been ordered to protect?
Decision
     No duty of care is owed for this scenario – claim struck out (no trial took place)
     The deciding factor was the potential for conflicting duties: imposing a duty of care in respect of
       the relationship between the family of a child in care and that child’s court-ordered service
       providers creates a genuine potential for significant conflict with the service providers’
       transcendent statutory duty to promote the best interests, protection and well‑being of the
       children in their care.
     potential for a chilling effect on social workers, who may hesitate to act in pursuit of the child’s
       best interest
Taylor
     Court primarily deals with case as a "relationship between P and D case," not a policy
       consideration case
     But also says you can't separate the two
     doesn't matter how each element of negligence is considered, just as long as they are
     Shows limitations of structuring legal analysis

Holland v. Saskatchewan [SCC 2008]
Facts
     One claim for negligently acting outside the law; breach of statutory duty
     Second claim for negligent failure to implement a judicial decree
                                                                                                             11
       P: the government and its employees “were under a duty of care to the Class [game farmers] to
        ensure those Acts and Regulations were administered in accordance with law and not to operate
        in breach of them”
Issues
     Does breach of statutory duty constitute negligence?
     Should it?
     Does a failure to implement judicial decree constitute negligence?
Result and reasons
     Statutory duty has not been recognized in tort law: traditional remedy is judicial review for
        invalidity
     Policy considerations negate recognition of liability (the chilling effect and spectre of
        indeterminate liability)
     Judicial order placed the Minister under a duty to remedy the wrongful reduction of the
        applicants’ herd status
            o Public authorities are expected to implement a judicial decision
Taylor
     claim successful because it reduces the class of persons to whom a duty is owed, and because it is
        against an executive act, not a legislative Act
            o If a government authority deliberately does not implement a judicial decree, it is seen as
                 an intentional act and therefore can be negligent (negligent acts must be intentional)
     This is as good ruling because it creates an incentive for government to act under the rule of law


Governmental Liability in Negligence
       These are examples of special-duty situations, i.e. there is something about the tortfeasor which
        makes them separate/special

Proceedings Against the Crown Act [RSO 1990]
    Under the statute the Crown is liable as if it were a person, but we still take account of the fact
       that it is the Crown when deciding what it is liable for
    Taylor: we have to develop "dividing criterion" for testing liability for government actions

Just v. British Columbia [SCC 1989]
Facts
     P brought claim against provincial Crown after a boulder rolled down a hill above a highway and
        crashed on his car, killing his daughter and injuring him
Issue
     What duty of care is owed by the Crown?
Rule
     The traditional tort law duty of care will apply to a government agency in the same way it will
        apply to an individual:
             o Parties must be in a relationship sufficient to warrant such a duty
             o But a government agency can be statutorily exempt from a duty of care, and is exempt
                from a duty of care in situations which arise from pure policy decisions
             o A policy decision is open to challenge on the basis that it was made in bad faith or that it
                was so irrational that it was not a proper exercise of discretion
             o The standard of care that applies to a government operation must be assessed in light of
                all the surrounding circumstances (e.g. availability of resources)
     This means that the Crown can be liable only for things it decides to do

                                                                                                            12
       Illustrated by lighthouse scenario: "if a decision has been made to inspect lighthouse facilities the
        system of inspections must be reasonable and they must be made properly"
Application
     P's claim concerns the implementation of policy; this is an operational matter and so is subject to
        review by the Court to determine negligence
Dissent
     decision to inspect and the extent and manner thereof are discretionary powers
Note
     How do you distinguish between policy and operational decisions?
     Guidelines for determining which decisions are appropriate for judicial review: page 499, 9
     Taylor added: Is this a matter for the ballot box? Is it a multifaceted decision? (i.e. are there so
        many competing considerations that there can't be one sensible one?)


Professional Liability in Negligence
       Standard of care is same for doctors and lawyers: the skill, knowledge and judgment of the
        average member of that profession (Bolam test)

Doctors
Treatment: Challand v. Bell [Alberta SC 1959]
Facts
     Plaintiff alleges his arm had to be amputated due to gangrene that developed as a result of
         doctor's negligence
Issue
     What is the standard of care that doctors must adhere to in performing their professional services?
Rule
     SCC laid out three part test
    1. The surgeon undertakes that he possesses the skill, knowledge and judgment of the average.
    2. In judging that average, regard must be had to the special group to which he belongs. From a
    general practitioner at a rural point, a different standard is exacted from a specialist at an urban point.
    3. If the decision was the result of exercising that average standard, there is no liability for an error in
    judgment.
     Where the experts disagree but some support for the treatment is given, the standard of care is
         met because a respectable body of medical opinion would have chosen that treatment
              o Essentially this means that where there is disagreement between two alternative courses
                  of action, either meets the standard of care
Application
     Specialist said defendant's treatment was correct; action dismissed
Taylor
     rural/urban practitioners probably wouldn't be treated differently under the law anymore
Disclosure: Reibl v. Hughes [SCC 1980]
Facts
     P alleges his consent to an operation was not informed
Issue
     What is the scope of a doctor's duty of disclosure?
Rule



                                                                                                             13
      Scope of duty of disclosure defined in Hopp v. Lepp [1980 SCC]: a surgeon should, without
       being questioned, disclose the nature of the proposed operation, its gravity, any material risks and
       any special or unusual risks attendant upon the performance of the operation
    A failure to disclose the attendant risks constitutes negligence rather than battery unless there has
       been misrepresentation or fraud to secure consent to treatment, or a different surgical procedure
       has been carried out
    a doctor may be justified in withholding info if it benefits the patient because of emotional factors
       (known as therapeutic privilege)
    Test: what would a reasonable person in the plaintiff's position have done if there had been proper
       disclosure of the attendant risks?
Application
    Various factors indicate that a reasonable person in the plaintiff's position would probably have
       opted against the surgery at that time – P wins
Notes
    White v. Turner [ON 1981]: what is a material risk? A significant risk that poses a real threat to
       the patient's health, life or comfort. Must balance severity of risk with the likelihood of its
       occurrence
    Now called “modified objective test of causation”
    Arndt v. Smith [SCC 1997]: SCC disagrees on meaning. Cory: should be combination of
       subjective and objective test (what reasonable person would have done in P's circumstances).
       McLachlin dissents; test should be more subjective (based on P's belief at trial of what he/she
       would have done, but this test would also accept reasonableness of one choice over another).
       These seem the same to me.

Lawyers
Brenner v. Gregory (ON 1973)
Facts
     P hired D to search a property title and close the purchase of a property on which a building
       encroached on the street
     P alleges that D was negligent in not obtaining a survey or warning P of the danger of purchasing
       such a property without a survey
Issue
      What standard of care do lawyers owe their clients?
Rule
     A lawyer is required to bring reasonable care, skill and knowledge to the performance of the
       professional service he has undertaken (standard of care referred to as "the reasonably competent
       solicitor")
     Must have sufficient knowledge of the fundamental rules or principles of law applicable to the
       particular work he has undertaken to enable him to perceive the need to ascertain the law on
       relevant points
     A lawyer is only liable for crassa negligentia (gross negligence)
Application
     No negligence in this case; a reasonably competent and diligent solicitor would not be expected
       either to secure a survey or to advise his client to do so
Notes
     Judges are immune from tort liability for their mistakes



                                                                                                        14
Standard of Care
       Not a moral standard; an objective standard
       What standard of care do you have to take on the assumption that you have a duty? What a
        reasonable person would have done in the circumstances.
       Reflects proposition that there is no such thing as a risk-free life, and that we have a fault-based
        tort system

Reasonable Man: Blyth v. Birmingham Water Works Co. [UK 1856]
    Defines negligence in terms of the “reasonable man”
    Negligence: the omission to do something which a reasonable man would do, guided upon those
      considerations which ordinarily regulate the conduct of human affairs, or doing something which
      a reasonable man would not do

Vaughan v. Menlove [UK 1837]
Facts
     Haystack on D’s land caught fire and spread to neighbour's cottages which were destroyed
Decision
     Defendant had been repeatedly warned of his peril
     Care a prudent man would take is the rule, not the bona fide exercise of care by the particular
       party in the situation

Acceptable degree of risk: Bolton & Others v. Stone [HL 1951]
Facts
     Defendants (appellants) are cricket club members
     During a match the plaintiff was hit with a ball on adjoining highway
     Cricket ball hit onto road 6 times over 30 years, so it's possible a person on the road could be hit
Issue
     What degree of risk is allowed in the law of negligence?
Rule
     Even the most careful person cannot avoid creating some risks and accepting others
     Test: whether the risk of damage is such that a reasonable man would take steps to prevent the
       danger.
            o Three factors to consider: size of risk (foreseeability), how severe the consequences are if
                realized, but not difficulty of eliminating the risk
Application
     risk here is so small a reasonable person would ignore it
Taylor
     Courts should take into account the difficulty of remedial measures
     Reid confirms this in Wagon Mound p. 361 (but says it’s still justifiable not to if the risk is small
       and if a reasonable man would think it right to neglect it)
     Wagon Mound adds 4th factor – social utility
After Wagon Mound
     In determining what degree of risk is acceptable in negligence, the reasonable person
       considers the size, severity, and difficulty of remedying a risk, as well as the social utility of
       the risk-creating activity.

Custom: Waldick v. Malcolm [SCC 1991]
Facts
   Plaintiff fell on icy parking area of D's rented farmhouse
Decision

                                                                                                           15
     D: there was a custom in this area not to put sand or salt on icy parking areas; court should take into
      account local custom
         Injects "community standard" - in accordance with reasonable expectations of community
            members
     Iacobucci doesn't agree
     No evidence in case at bar supporting D's claim of custom
     Even if custom had been adequately proven: "the existence of customary practices which are
      unreasonable in themselves, or which are not otherwise acceptable to courts, in no way ousts
      the duty of care owed"

Statutory Standards: R. In Right of Canada v. Saskatchewan Wheat Pool [SCC 1983]
Facts
     Plaintiff is Wheat Board, a Crown corporation
     Seeking to recover from Wheat Pool for delivery of infested grain contrary to Canada Grain Act
     Claiming statutory breach, not negligence
Rule
     Court first held that there is no tort of statutory breach
            o legislature can create a tort, but hadn't in this case
      Civil consequences of breach of statute should be subsumed in the law of negligence
Application
     Would have lost in negligence anyway
     Pool demonstrated accepted standards, followed inspection procedures of the statute - no
       evidence of negligence
     Appeal dismissed
Compliance with Statute: Ryan v. Victoria (City) [SCC 1999]
Facts
     Motorcyclist suing railway company and city after tire gets stuck and he is injured
Issue
     How should statutory compliance affect the assessment of liability under negligence?
Decision
     D argues rule should be preserved in deference to expertise of the government
     Unpersuasive: principles of negligence still apply.
     Compliance with statute is not necessarily compliance with standard of care
Ratio
     Statutory standards can be highly relevant to the assessment of reasonable conduct, and may
       render an act reasonable that would otherwise appear negligent, but mere compliance does not
       preclude a finding of liability

Limitations on Statutory Use: Gorris v. Scott [UK 1874]
Facts
     Action to recover for failure to comply with statute which caused sheep to be washed overboard
       of ship owned by D
Issue
     Does the breach of a statute that causes damages give rise to a claim under the law of negligence
       if the nature of the damages were not contemplated by the statute?
Decision
     The Act was not enacted to prevent animals from being washed overboard, it was passed merely
       for sanitary purposes - action is not maintainable
Ratio
                                                                                                          16
       A breach of statute that causes damage does not necessarily constitute negligence if the statute is
        not intended to prevent that damage.

Liability and the Young: Heisler v. Moke [Ontario High Court of Justice 1972]
Issue
     Can a child be guilty of negligence at all?
     What standard of care can be applied to a child?
Rule
     Depends; babies and toddlers can't be (their parents are for not supervising child)
     Children can be, depending on some factors
     Parents can still be liable if their children can be liable
     Infant is legal description of anyone under 18
     In determining whether a child is capable of being negligent in a given situation, we must
        consider the particular child's age, intelligence, experience, general knowledge, and alertness
     Test is therefore very subjective, unlike the reasonable man test for adults
            o This is because children develop differently
Application
     Plaintiff was bright, alert, nine years old
     But could not be expected to realize or foresee consequences of pressing clutch of tractor
Notes
     Adult activity test applies in Canada: children engaged in adult activity can be held liable as if
        they were adult
            o e.g. no special allowance made for teenagers driving, 12 year olds on snowmobiles

Mental & Physical Disability: Fiala v. Cechmanek [Alberta CA 2001]
Facts
     D is bipolar, jumps on car and chokes driver, driver strikes P’s car
Issue
     Do mental disorders negate liability in the tort of negligence?
Decision
     To find negligence, the act causing damage must have been voluntary and the defendant must
       have possessed the capacity to commit the tort
           o If D was able to understand the duty of care owed and was able to discharge that duty, his
               actions would be voluntary and the requisite capacity would exist
           o Fault remains essential
     D was afflicted suddenly: caused him to lose control of his behaviour and to be unable to
       appreciate the duty of care he owed to P and others
     This was D’s first episode; can't be held negligent for not taking precautions against his condition
       because he wasn't aware such episodes would occur
     Discharged duty of care if you had no reason to suspect that an attack would occur
Ratio
     Persons with mental disorders are relieved from tort liability if they are unable to appreciate and
       discharge their duty of care.


Defences in Negligence
Contributory Negligence
       used to be a complete defence to an action for negligence
            o If P was in any way at fault, P lost completely
                                                                                                           17
            o Butterfield illustrates this
       This rule put pressure on the law to find that P was not contributorily negligent so P did not lose
        (seen in Davies)

Butterfield v. Forrester (KB 1809)
    P rode horse into pole left by D on the road
    He was riding as fast he could go
    P was riding without ordinary care – action not maintainable

Davies v. Mann (1842)
Facts
     D’s wagon ran into P’s, killed donkey
     P left donkey on the road, D argues P was CN
Decision
     Foolish to leave donkey on public highway, but in order to avoid an unjust result where P is not
       compensated, there is no defence of contributory negligence in this case

Negligence Act RSO 1990
    Section 3: where both P and D are negligent, the court shall apportion the damages in proportion
       to the degree or fault or negligence found against the parties respectively
Taylor
    Eliminates old common law rule, but obviously still some arbitrariness
    Assessing CN: ask if D can be blamed for their damages partially or completely
Notes
    3. SOC for Ps is same as Ds: must exercise such care for their own safety as a reasonable person
       would in like circumstances
    5. Three ways Ps can contribute to their own injury
            o Contribute to the accident
            o Expose themselves to risk of being involved in an accident
            o Fail to take reasonable precautions to minimize injuries should an accident occur
    8 and 9. CN defence doesn’t work for intentional torts

The Seat Belt Defence
Galaske v. O’Donnell (SCC 1994)
Facts
     P was injured because he wasn’t wearing a seat belt when D driver got in accident
     P alleging negligence in not ensuring he was wearing a seat belt
     P was eight, parent was also a passenger
Decision
     D owes duty to children to take all reasonable steps to ensure their seat belts are on, irrespective
       of parents presence
           o Driver is in position of control, bears responsibility for safety of passengers
     Duty is shared by any parents and third parties present
     Extent of duty/responsibility depends on circumstances
           o E.g. 17 year old driver will owe less than father of eight year old in a car
Taylor
     Not a great proposition of law



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Volenti Non Fit Injuria: Voluntary Assumption of Risk
       to a willing person, no injury is done
       the idea is that you waive your right to a standard of care of another party by some kind of
        consent/voluntary behaviour (essentially consent to negligent act committed against you)
       Dropped out of fashion since 19th century – applied in very few modern cases
       Was used in employment cases like a mine blowing up and injuring miners
             o No negligence because miners willingly took the risk of going into the mine
             o Obviously unacceptable today
       Also fell out because it's a complete defence (waiving right to standard of care means there can’t
        be a breach), and now we can use CN to apportion damages

Hambley v. Shepley (ONCA 1967)
Facts
     Policeman instructed to use car as roadblock, D drove into him while escaping arrest
     Trial judge dismissed action under the volenti principle
Discussion
     Volenti is inapplicable if P was discharging public duty
     Can’t be used against employee injured due to unsafe working conditions – and the two situations
        are analogous
Rule
     The defence of volenti cannot succeed unless the evidence shows the P consented not merely to
        the risk of injury, but to the lack of reasonable care which may produce that risk
Taylor
     Rarely occurs and difficult to prove

Illegality
       Doctrine of ex turpi causa non oritur action (from a dishonourable cause an action does not arise)
       Complete defence to a negligence action

Hall v. Hebert (SCC 1993)
Facts
     Claim against D for allowing P to drive D's car when D knew P was drunk
Issue
     When can the law deny recovery in tort on the ground that the P’s conduct violated legal or moral
        rules?
Decision (McLachlin)
     Only in very limited circumstances – court has duty to preserve integrity of the legal system, and
        will deny recovery where a damage award would, in effect, allow a person to profit from illegal
        or wrongful conduct
            o Profit simply means a reward for wrongdoing
            o Compensation for personal injury is not profit – but can still be limited by CN defence
     “the law refuses to give with its right hand what it takes from the left”
            o Won’t punish and reward at the same time
     P not denied recovery – his claim was for compensation of injuries received – but damages can be
        reduced to the extent of his CN
Taylor
     SCC case, holds there can be a standard of care between two drunk people
     This case is close to the border line of when defence of illegality would be required
     Note 1: Cory says illegality shouldn’t be applied to torts – D can still argue CN, volenti, and that
        there was no duty of care owed to P
                                                                                                         19
British Columbia v. Zastowny (SCC 2008)
Facts
     Province is representing prison official being sued
     Official sexually assaulting prisoner who suffered psychological problems as a result
     Causes him to go back to prison several times (according to psychologist's testimony)
     Claim is that he should be compensated for time he spent in prison
Decision
     Defence of illegality succeeded
     Cannot get compensation for being put in prison lawfully. Legal system would be forbidding you
        from doing something, but compensating you if you did. Paragraphs 22, 30
     What distinguishes this from Hall? Zastowny isn't asking for compensation for his criminal acts
     Would serve to negate the time in prison and hence the punishment. Hall is accepting penalty for
        drunk driving, but asking for compensation for the Ds negligence
     Zastowny is personally responsible for his acts and the consequences that flow from them; he
        cannot transfer responsibility to others
Taylor
     What distinguishes this decision from Hall?
            o Zastowny: seeking compensation for the criminal penalty awarding. Loses because
                damages would be compensating him for committing criminal acts
            o Hall: not seeking compensation from D for the drunk driving penalty; seeking
                compensation for D’s negligence
     Policy consideration: Zastowny is saying he could not control himself; assault forced him to
        commit crimes. This would essentially eliminate criminal law, would make no one guilty of
        anything


Causation
       the tortious act and the injury must be causally linked in order to justify compensation

Inferring Causation
Snell v. Farrell (SCC 1990)
Facts
     Doctor found negligent at trial and on appeal for medical malpractice
     Courts departed from traditional principle of tort law that the P must prove on a balance of
         probabilities that, but for the tortious conduct of the D, they wouldn’t have sustained the injury
         complained of
             o Burden was allocated to D
Issue
     How is causation proved in tort law?
Rule
     Burden of proving causation is on P
     Shouldn’t reverse the burden of proof unless the D has a substantial connection to the injury but
         the P cannot prove causation
     If D doesn’t adduce evidence to the contrary, an inference of causation can be inferred by the
         court (robust and pragmatic approach)
             o doesn’t need to be scientifically proven, it’s best determined by common sense
Application


                                                                                                          20
       Physician in better position to know cause of injury – P can’t prove that D caused injury – burden
        of proof should be allocated to D
       Evidence supported drawing an inference of causation between negligence and injury (P wins)
Notes
    Cabral v. Gupta: 70% chance lost vision due to doctor's negligence. P awarded full damages
      because on balance of probabilities his vision would not have been lost but for doctor's
      negligence

Cottrelle v. Gerard (ONCA 2003)
Facts
     P’s leg had to be amputated because doctor was negligent in treatment of infection
     No witness said it was more likely than not that the leg could have been saved
            o She had pre-existing medical condition
Issue
     Did the breach cause damages?
Rule
     A negligent act is not a cause of injury unless it makes injury more likely than not
Application
     P can’t prove causation

Multiple Independently Sufficient Causes
Cook v. Lewis (SCC 1951)
Facts
     Two hunters take a shot, one hits P, not clear which
Rule
     If neither tortfeasor can exculpate himself in a situation of multiple independently sufficient
        causes, both are liable
Concurring
     Ds destroyed P’s power of proof
     Onus should shift to D to exculpate himself
     Since neither can, both should be liable
Dissenting
     Action should be dismissed

Walker Estate v. York Finch General Hospital (SCC 2001)
Issue
     Whether or not but for the D’s failure to properly screen blood donors, Walker would have been
       infected with HIV and died
Rule
     Situation presents unique difficulties – but for test is unworkable in cases of negligent donor
       screening (impossible to say what donor would have done if screened properly)
     This would leave “legitimate” P uncompensated
     Test should then be whether D’s conduct materially contributed to the occurrence of the injury
            o Contributing factor is material if it is beyond the de minimis range
Application
     It was. P wins




                                                                                                        21
Resurfice Corp. v. Hanke (SCC 2007)
    Material contribution test shouldn’t be applied simply because there is more than one potential
       cause of injury
General principles of testing for causation in negligence cases:
    Primary test is the but for test: P must prove on a balance of probabilities that the injury would
       not have occurred but for the D’s negligence
            o This applies to multi-cause injuries
            o Principle is that compensation should only be made where there is a substantial causal
                link
    But in special circumstances the material contribution test is applied. Two requirements:
            o It’s impossible for P to prove that D’s negligence caused the injury using the but for test
                due to factors outside the P’s control
            o D breached the DOC owed to the P, exposing P to risk of injury which P then sustained
    Examples of such situations:
            o Where it’s impossible to prove which of two tortious acts caused the injury (Cook)
            o Where it’s impossible to prove what would have happened if the D had not breached the
                duty of care (Walker)
    Liability may be imposed when these criteria are met because otherwise it would be unfair to P

Fairchild v. Glenhaven Funeral Services (HL 2002)
Facts
     P contracted a kind of cancer which normally is caused by exposure to asbestos
     P had two employers that breached standard relating to asbestos
Issue
     Should P be entitled to damages even though, based on the “but for” test, neither D has caused the
        injury?
Rule
     conventional answer based on but for test is that he can't claim damages from either employer
     This is an unattractive result, offends our instincts
     So HL suspends but for test for this case
            o Says “policy questions will loom large” when deciding whether to take this “exceptional
                course”
            o policy reasons for compensating people harmed by employer's breach of duty of care
            o injustice to employers in this case is heavily outweighed by injustice of not compensating
                victim
            o Otherwise employers could obtain immunity from this liability by only hiring people with
                previous exposure to asbestos
     Court instead asks if wrongful acts were material contributory factors
Application
     Court finds significant degree of causal connection
Taylor
     When we know there are MSCs, or where it's possible but we can't prove it, we switch to
        material contribution test

Sindell v. Abbott Laboratories et al (SC California 1980)
Facts
     P's mother ingested a drug which caused P's tumour, drug was manufactured by several
        companies
     P didn't know which company manufactured the one her mother took, sued them all
Rule
                                                                                                        22
      Liability among multiple possible tortfeasors is apportioned based on the likelihood that the
       particular party caused the injury
Application
    Percentage of market share = portion of liability and damages owed
Taylor
    Principle hasn't been adopted in Canada. What if the situation arises?

Novus actus interveniens
    Idea is that chain of causation is broken by a new act
    E.g. person gets in accident, goes on vacation and dies...car accident didn't cause death, decision
       to go on vacation is new act intervening

Aristorenas v. Comcare Health Services (ON CA 2006)
Facts
     P alleges Dr’s and healthcare workers’ negligence caused her flesh eating disease
Issue
     Whether breach of SOC found by trial judge caused the infection
Rules
     Causation is established where the P establishes on a BOP that but for the D’s negligence, her
        injury would not have occurred
     The but for test is unworkable in some situations, so the courts have recognized that causation is
        established where the D’s negligence materially contributed to the injury (Snell v. Farrell)
            o But for tests unworkable in medical malpractice cases where scientific proof of causation
                 is not obtainable. Court then takes robust and pragmatic approach to finding causation
Application
     Snell approach appropriate
     D argues there is no evidence linking the negligent wound care with the infection
     Trial judge said on BOP, D did cause the infection
     It’s pretty obvious it did, and Snell says causation test shouldn’t be applied too rigidly – P wins
Dissent
     Causation was inferred in absence of any proof pertaining to this particular infection – this
        effectively reversed the burden of proof
            o A mistake happened which could cause the disease, but not clear if it actually did
            o Proof didn't require scientific certainty, but there does need to be some causal evidence


Remoteness
       If damages are not reasonably foreseeable they are too remote and cannot be recovered
       This is an objective test
       Test for remoteness in contracts is more subjective
             o Contracting parties talk to each other - more knowledge is shared - knowledge of
                 foreseeable damage is greater

Type of Damage
Hughes v. Lord Advocate (HL 1963)
Facts
     Boy drops lamp into manhole, it explodes and burns him and causes him to fall in
     Type of injury sustained was foreseeable, but it happened in an unforeseeable way
Rule
                                                                                                       23
      A tortfeasor can be liable for damage that results from a breach even if it is caused in a way that
       is unforeseeable
Application
    P’s injury resulted from D’s breach – recovers damages even though the injury was caused in an
       unforeseen way
Notes
    Doughty v. Turner Manufacturing (UK 1964): type of injury was foreseeable, but the injury
       sustained did not result from D’s breach of duty, so damages are not recoverable
    Lauritzen v. Barstead (Alberta 1965): recovery of damages should not be conditional upon
       foreseeability of the particular harm and the precise manner or sequence of events in which it
       occurred

Thin-skull doctrine
Smith v. Leech Brain Co. (UK 1962)
    “tortfeasor takes his victim as he finds him”
    Saying P had a thin-skull, weak heart, etc is not a defence for negligence
    Type of injury must be foreseeable for recovery, but extent of injury does not need to be
       foreseeable for recovery

Crumbling skull doctrine
Athey v. Leonati (SCC 1996)
    Injuries which would have been sustained regardless of D’s negligence are not recoverable, but
       are recoverable to the extent that D accelerated them

Wagon Mound cases
       Historically important: establish concept of remoteness in tort law


Nervous Shock
       Law's name for post-traumatic stress disorder, and related disorders
       Still concern with extent of duty (floodgates)
       Anger and upset don't count - must suffer from recognized psychiatric disability
       Standard: reasonable robustness and fortitude is expected in Canada
             o Problem is who is to say what constitutes reasonable robustness and fortitude
             o But an imperfect filtering mechanism is better than none at all

Mustapha v. Culligan (SCC 2008)
Facts
     Essentially re-run of Donoghue
Rule
     Defines reasonable foreseeability: “possibility alone does not provide a meaningful standard for
       the application of reasonable foreseeability. The degree of probability that would satisfy the
       reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real
       risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the
       defendant ... and which he would not brush aside as far-fetched”
Application
     In this case nervous shock wasn't reasonably foreseeable

                                                                                                         24
       some damage was reasonably foreseeable, but the type suffered wasn't, so damage is too remote
        and can't be recovered


Purely Economic Loss
       Financial loss which is not causally connected to damage to claimant’s own person or property
            o But can be caused by damage to another's property/person (CN v. Norsk)
       PEL is treated differently than other kinds of injuries:
            o Large possible class of plaintiffs
            o Indeterminate causal chain of losses
            o Indeterminate liability in relation to time and quantum of damages
            o Loss is only money
            o Often occurs in the commercial world: can be regulated by contract, and sometimes may
                be insured against
       These reasons make courts less inclined to recognize DOC for PEL

Categories of PEL
Feldthusen created 5 categories of PEL:
    1. Negligent misrepresentation
    2. Negligent performance of a service
    3. Defective products or structures
    4. Relational losses
    5. Public authority liability

Negligent Performance of a Service
B.D.C. v. Hofstrand Farms (SCC 1986)
Facts
     D courier company had contract to deliver documents to P, D didn't deliver envelope on time, P
        lost contract and corresponding profit
     D wasn’t aware of contents
Issue
     Whether a DOC is owed in this kind of situation
Decision
     No actual or constructed knowledge in the D that the rights of a third party could in any way be
        affected, wasn’t aware of any class of persons whose interests depended on timely delivery of the
        envelope - Requirements of proximity contained in the principles of Hedley and Anns not met -
        No duty of care owed
     Constructed knowledge: what the law says one should have known/found out
Taylor
     Implies it could have gone the other way had there been such actual or constructed knowledge
Note 3 Whittingham v. Crease & Co. (BCSC 1977)
     D law firm negligently drafts will, P is testator’s son
     Only the estate can sue in contract law, so beneficiary sues in tort law
     Decision: lawyer could reasonably foresee that his negligence would cause P’s loss - solicitors
        owed DOC to draft will in accordance with testator's intentions
     Difference between this case and BDC: D solicitor knows who potential plaintiffs in negligence
        are (the intended beneficiaries), so the potential class of Ps is limited
Note 6: Fletcher v. Manitoba Public Insurance Co. (SCC 1990)

                                                                                                       25
       Insurance company found liable in tort for neglecting to inform a customer of a particular kind of
        insurance

Defective Products and Structures: Not examinable
Winnipeg Condominium Corp v. Bird Construction Co. (SCC 1995)
Facts
     D builds building for first owner, P is subsequent owner
     P suing in tort of negligence for costs of repairing building defects. Can't sue in contract because
       they had no contract, sues in negligence.
Issue
     Whether a DOC is owed in this kind of situation
Rule
     Contractors owe a duty of care in tort to subsequent purchasers if it was foreseeable that failure to
       take reasonable care in constructing a building would create defects that pose a substantial danger
       to its occupants
Decision
     Sent back to trial to determine if building was dangerously defective or merely substandard
Law in ON
     There can be liability for defective homes but not commercial buildings. Insurance for home
       defects is not common; companies can protect themselves more easily.

Relational Economic Loss:
Design Services v. Canada (SCC 2008)
Facts
     Contract A: government will consider tenderer’s bid fairly, in accordance with specifications, etc
     Contract B: entered into by successful tenderer and government
     Bidding team included Olympic (contractor) and Design Services (sub-contractor)
     Design Services wasn't part of Contract A, it only contracted with Olympic
     Public Works breached its Contract A with Olympic
     Design Services claims to have suffered economic loss as a result of the breach
Decision
     First uses Feldthusen's classification of economic loss to decide this doesn't fit within any existing
       category (paras 31-34)
     This is a relational economic loss, but doesn't fall within the criteria of the category (based on
       previous cases) that the loss arises due to physical damage to the property of the party with whom
       the claimant had a relationship, or that the relationship between the claimant and property owner
       constitutes a JV
     So Anns test is used to determine whether this category should be recognized
           o not a JV between Design Services and Olympic, so tort liability shouldn't be recognized
                     D could have chosen to enter into a JV in the bid documents, but didn’t, so
                        shouldn’t be able to make a claim as if they were party to the contract
           o Residual policy considerations - problem of indeterminate liability (sub-sub-contractors,
               employees, etc, could claim losses)
Taylor
     Problematic passage - para 43 where court seems to say claim does not fit within pre-existing
       economic loss category
     Appears to be saying that DOC is recognized within those categories, but this case doesn't, so we
       need Anns
                                                                                                         26
       But these categories are not ones in which a DOC is always recognized – they can be negated by
        policy (as seen in Hofstrand Farms - negligent service but no duty owed)
       These 5 categories are just ways of classifying claims for purely economic loss. Analytical tools
        when deciding whether there's a DOC
       But still doesn't make a difference to law because we run Anns test if the claim falls within a
        recognized category or not
       So the law is that in cases of relational economic loss, with or without damage to property - run
        Anns test
       Exclusionary rule doesn’t necessarily negate DOC. More likely that policy factor will make it
        impossible to recognize DOC in given situation
       Reasons why you might not want to recognize DOC in situation of purely economic loss
        correspond to why purely economic loss is problematic in the first place
            o Indeterminate liability (# of Ps)
            o Other opportunities to regulate the loss (such as through law of contracts, as in Design
                 Services)
            o How closely related loss is to property damage (Design)

Canadian National Railway v. Norsk Pacific Steamship (SCC 1992)
Facts
     Norsk tugboat damaged railway bridge, bridge closed for weeks resulting in economic loss to CN
       who used it under contract with its owner, Public Works Canada
     CN accounted for about 86% of bridge’s use
Issue
     Whether a person who contracts for the use of property owned by another can sue a person who
       damages the property for losses resulting from inability to use the property while being repaired
Decisions
     McLachlin (L’Heureux-Dube, Cory): where P’s operations are so closely allied to the operations
       of the party whose property is damaged that it can be considered a joint venture with the owner of
       the property, the P can recover its economic loss even though it has suffered no damage to its
       own property
            o So for practical purposes the P is in the same position as the owner
     LaForest (Sopinka, Iacobucci): there was no joint venture, only a contractual relationship that
       allowed CN to use the bridge, and it doesn’t matter that P was the principal client
     Stevenson: D had knowledge of the P – no problem of indeterminacy – recovery should be
       allowed
            o Neither McLachlin nor LaForest agreed but this holding decided the case for CN

Bow Valley Husky (Bermuda) Ltd. et al v. Saint John Shipbuilding Ltd. (SCC 1997)
Facts
     Ps are two companies that hired the D to build an oil rig
     Ps then set up an offshore company (BVHB), transferred the construction contract to it, and
       contracted with BVHB for use of the oil rig
     D’s negligent construction put rig out of service
     Ps are suing for relational economic loss
Issue
     Whether the D owed a DOC to the Ps
Decision
     McLachlin distinguishes between her decision and LaForest’s in Norsk
     They are the same in that they both said that if the P is in a JV with the person whose property is
        damaged, the P may recover relational economic loss
                                                                                                        27
       Difference was in methodology: LF started from a general exclusionary rule and proceeded to
        articulate exceptions to that rule where recovery would be permitted, M used Anns test of (1)
        sufficient proximity to give rise to DOC and (2) whether policy reasons should negate a DOC
       Here, McLachlin starts with exclusionary rule – says the case at bar doesn’t fall into any
        established categories of recovery of relational economic loss: cases where P has proprietary
        interest in damaged property, general average cases, cases where the relationship between the
        claimant and property owner constitutes a JV
       Where a case doesn’t fall within a recognized category the court may go on to consider whether
        the situation is one where the right to recover should be recognized
       Anns is then applied
       Proximity is established here because the Ds knew of the existence of the Ps and that they stood
        to lose money if the rig was shut down
       But policy negates prima facie DOC. If Ds owe a duty to the Ps, they should owe a duty to others
        who would foreseeably lose money e.g. other investors, other contractors. This creates
        indeterminate liability.
Note
       Court lists “general average case” as category of economic loss that's been recognized
       Example: during a voyage, the goods of party A but not B and C are thrown overboard to prevent
        the ship from sinking. Losses are split between all three.

Negligent Misrepresentation
       No negligent misstatement question will involve a contract on the exam
       Derry v. Peek 1889 held that you could not recover for negligent statements if they were made
        honestly
       Negligent misstatement: a form of purely economic loss
       It used to be assumed that there was no recovery at all for words (general exclusionary rule)
             o Because words, unlike acts, can be infinitely rebroadcast to anyone, there is a real risk
                 that damages for a negligent misstatement could be indeterminate
             o Also, words mentioned in social or other settings may not be intended to be relied upon
       Now, recovery for negligent misstatement can occur as long as the Anns test is satisfied

Hedley Byrne v. Heller & Partners (HL 1963)
Facts
     P was liable for costs of placing Easipower’s ads
     Asked bankers to investigate Easipower’s creditworthiness
     P’s bank wrote to D, client’s bank, for opinion as to whether Easipower was in a position to meet
       its financial obligations
     D’s reply said Easipower was good for obligations, but said “without responsibility on the part of
       the bank”
     P relied on these statements and lost money when Easipower went into liquidation
Rule
     If someone possesses a special skill and applies that skill for the assistance of another person who
       relies on such skill, a duty of care will arise
Application
     D wasn't held liable because their letter stated they wouldn't take responsibility

Queen v. Cognos Inc. (SCC 1993)
Facts


                                                                                                           28
       P was fired by D and is suing for negligent misrepresentations made during job interview with
        respect to the nature of the employment opportunity
Rule
      Required elements for a successful claim of negligent misrepresentation
       1. Must be a duty of care based on a special relationship between the representor and representee
       2. Representation in question must be untrue, inaccurate, or misleading
       3. Representor must have acted negligently in making said misrepresentation.
       4. Representor must have relied in a reasonable manner on said negligent misrepresentation
       5. Reliance must have been detrimental
Application
    All elements present – claim allowed
Taylor
    Employment contract said employer could terminate P
    Court didn't disallow tort claim because of this
    This would be harsh on an individual compared to a company (Design Services)
Note 4
    Canadian courts don’t restrict NM claims to professionals/people in the business of giving advice

Hercules Management v. Ernst & Young (SCC 1997)
Facts
     Ps relied on D’s audits of financial statements to make investment decisions and in doing so
       incurred losses
Issue
     Whether and when accountants who perform an audit of a corporation’s financial statements owe
       a duty of care to shareholders of the corporation who claim to have suffered losses in reliance on
       the audited statements
Rule
     Issue of DOC is to be determined through an application of Anns, as restated in Kamloops
            o So proximity and policy must be considered
     Test for proximity in negligent misrepresentation claims: Proximity exists (a) when the D ought
       to reasonably foresee that the P will rely on his/her representation, and (b) when reliance would
       be reasonable in the particular circumstances of the case
     Feldthusen provides five indicia of reasonable reliance (not for a strict test, just a guide):
            o Defendant had a direct financial interest in the transaction where the statement was made
            o Defendant was a profession with special skill, knowledge or judgment
            o Advice was provided in the course of defendant’s business
            o Information given deliberately, not on social occasion
            o Information given in response to a request or enquiry
     Policy considerations: DOC will be negated by the prospect of indeterminate liability
     Knowledge of plaintiff or class of plaintiffs is significant, but “even if the identity or class of
       potential plaintiffs is known to a defendant, use of the defendant’s statement for a purpose or
       transaction other than that for which it was prepared could still lead to indeterminate liability”
       and thereby negate the DOC
Application
     No question that a prima facie DOC is owed
            o Reliance is foreseeable and reasonable
            o Four of the indicia of reasonable reliance are met
     But the audit was intended to provide the corporation with information to better manage itself - Ps
       weren't relying on audit for the purpose for which it was made - D owed no DOC to shareholders
       in tort - action failed (unanimous)
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Vicarious Liability
       Holds one responsible for the misconduct of another just because of their relationship (Sagaz)
           o Most commonly arises between employer and employee
           o A strict liability tort – no proof of wrongdoing needed
           o VL doesn’t diminish liability of tortfeasor

671122 Ontario Limited v. Sagaz Industries Canada (SCC 2001)
Facts
     Rival supplier’s consultant bribed Canadian Tire exec, original supplier suing Sagaz
     Consultant hired to secure Canadian Tire’s business
Issue
     Whether Sagaz is vicariously liable for the tortious conduct of the consultant it hired
Rule
     Policy rationale underlying VL (compensation and deterrence) assist in determining whether the
       doctrine should be applied in a particular case
            o Hazards of the business should be borne by the business itself
                    Employer can spread the losses through insurance and higher prices (McLachlin
                       in Bazley)
            o Deterrence of future harm: employers are in a position to reduce accidents and wrongs
     Employee vs. Independent contractor
            o Relationship between employer and independent contractor does not typically give rise to
               a claim in vicarious liability
            o Employee must have committed the tort in the course of employment for employer to be
               VL
            o Reason for this lies in element of control: if the employer does not control activities of
               the worker, the policy justifications of VL won’t be satisfied
            o An employer doesn’t have the same control over an independent contractor – they’re in
               business for themselves
            o 549: differences b/w employee and contractor (won't need to distinguish on exam)
Application
     Although Sagaz controlled what was done, the contractor controlled how it was done – Sagaz not
       VL

When is an employer liable for the torts of an employee?
Bazley v. Cury (SCC 1999)
     McLachlin for the court
Facts
     Employee of Children’s Foundation sexually abused children in his care
     Employee charged to act as parent figure, committed the assaults when he bathed and tucked in
       children
Issue
     Can employers be held VL for their employees’ sexual assaults on clients or persons within their
       care?
Rule
     Whether the employer’s enterprise and empowerment of the employee materially/significantly
       increased the risk of the sexual assault
            o Accords with policy rationale of remedy and deterrence.
            o Imposition of VL for incidental wrongs doesn’t serve these policy considerations.
Application
                                                                                                         30
       D is VL

Jacobi v. Griffiths (SCC 1999)
Facts
     Vernon Boys and Girls Club employed Griffiths who committed sexual assault
     He was encouraged to cultivate positions of trust and respect
     Invited kids home and assaulted them
Decision
     Club only created slight opportunity to abuse power: Sexual abuse only became possible when G
        managed to subvert the public nature of the activities (which is what the Club offered)
     Club didn’t require/authorize G to be alone with child off premises – assault wasn’t committed in
        the course of employment
     In Bazley, the authorized activities were intimate, and the tortfeasor exploited this environment
     Key difference is in the nature of the operations
Dissent (McLachlin et al)
     Torts were linked to employment – Griffiths given special powers over children - Club should be
        VL
     Justified by policy considerations of compensation and deterrence

John Doe v. Bennett (SCC 2002)
    Court held Roman Catholic Diocese VL for sexual assault committed by a priest, though facts
      seem more like Jacobi than Bazley
    Main reason: this was a rural area in which the priest’s position gave him an enormous amount of
      respect/authority, and thus an ability to control his victims

PS v. Miki BCCA 2006
Facts
     Employee of building sexually assaults tenant
     Was entitled to enter the premises for the purpose of inspecting
Issue
     Whether landlord is responsible through VL for the employee’s tort of sexual assault
Decision
     Held not vicariously liable: no policy reason for imposing liability. The sexual assault had no
       significant connection to the job that the tortfeasor was employed to do. Didn't pervert something
       that was part of his job, but exploited an opportunity.
     Authority is Bazley test
     finding for P would bring us dangerously close to absolute liability for employers
Taylor
     Had landlord known that carpenter was prone to sexual assault, he probably would be liable, but
       he didn't


Damages
       Aim of damages in tort is to put you in the position you would have been in had the tort not
        occurred, as far as money can do so (restitutio in integrum)
       Damages are usually compensatory, but can also be aggravated or punitive/exemplary
       Aggravated damages are awarded in recognition of aggravated injuries caused by the D's conduct
        such as humiliation
            o e.g. Australian case where police urinated on someone): battery, but no lasting injury (i.e.
                not really a need for compensatory damages
                                                                                                       31
       Punitive damages punish D for outrageous conduct
            o Sometimes called exemplary - making an example of the D for deterrence
            o Description of conduct that will give rise to punitive damages in McIntyre v. Grigg
       Non-compensatory damages are more of an anomaly
       But compensation is not the only purpose of torts law - also deterrence (no reason to withhold this
        function just to criminal law).
       Pecuniary damages: capable of quantification
       Non-pecuniary damages: lost earning capacity and future care (inter alia)

Compensatory
Andrews v. Grand & Toy Alberta (SCC 1978)
Facts
     G&T liable for traffic accident rendering P quadriplegic
Issue
     Correct principles of law applicable for assessing damages in cases like this
Principles
     Damages are calculated on a once-for-all basis: Can't continually assess damages based on length
        of life, for example
             o In award we try to estimate how much P will need/deserve for rest of their life
     Doctrine of mitigation of damages does not apply in torts
             o No duty to mitigate in sense of being forced to expect less than real loss. Compensation
                  must be reasonable.
     Principle of paramountcy of care: no medium of exchange for happiness, no market for
        expectation of life – award must be fair and reasonable, but is arbitrary. No money can provide
        true restitution, but can provide for future care, which should be paramount concern when
        awarding damages for personal injuries

MacCabe v. Westlock (Alberta CA 2001)
Issue
     Whether damages for P should be calculated based on women’s or men’s earning potential
            o P argues use of female specific earning tables would be discriminatory
            o D argues applying male earnings tables at trial unrealistically inflated her earning
               capacity, that tort law is not the arena for correcting the social wrong of pay inequity, and
               the court should follow the principle of restitution in integrum
Decision
     Measurement of damages based on sex is not unreasonable in the circumstances – she said she
       wanted children and would prefer to stay at home
     Accepts D’s arguments: purpose of damages is compensation, not a means of righting wrongs of
       society
            o Damages in the law of torts takes society as it is
            o Law of torts can't address societal deficiencies/inequities, only the legislature can
     Here, awarding damages based on men's earning capacity would put P in better position than if
       tort hadn't occurred, so she doesn't get the higher award of damages

Punitive
Whiten v. Pilot Insurance Co (SCC 2002)
Facts


                                                                                                         32
      Insurance company accused client of insurance fraud for setting their house on fire when it was
       clear they didn't
Decision
    Punitive damages straddle civil law (compensation) and criminal law (punishment)
    Punishment is a legit objective for civil law: serves a need not met by pure civil or criminal law
    Offends some jurists
           o Should remain apart
           o No clear basis for measuring punitive damages.
           o Disproportionate to compensation
    Three objectives of punitive damages: punishment/retribution, deterrence, denunciation
Notes
    Punitive damages are directed to the quality of the D’s conduct, not the quantity of the P’s loss
    Factors considered in measuring blameworthiness: whether misconduct was planned and
       deliberate; intent/motive of D; whether the D persisted in this conduct over a length of time;
       whether the D attempted to conceal its conduct; whether the D profited from its misconduct;
       whether the interest violated was known by D to be deeply personal or irreplaceable to P

McIntyre v. Grigg (ONCA 2006)
Facts
     Drunk driver hit pedestrian causing serious physical and psychological injuries
     Only charged with careless driving and fined $500 at criminal trial because he wasn’t properly
        informed of right to counsel
Issue
     Appropriate damages
Decision
     Punitive damages are awarded to meet the objectives of punishment, deterrence, and denunciation
        of the defendant’s conduct, and not to compensate the plaintiff
     Punitive damages are designed to express the repugnance of the public, which is represented by
        the jury, towards the outrageous and heinous conduct of the defendant
     Negligent conduct can only attract punitive damages if the misconduct in question was intentional
        and deliberate and was “extreme in nature and such that by any reasonable standard it is
        deserving of full condemnation and punishment.”
     Where a wrongdoer has already been punished for an offence and the same conduct is in question
        at a civil trial, punitive damages generally will not serve a rational purpose as the sentence
        imposed in the criminal or regulatory environment will have already met the necessary objectives
        of retribution, deterrence and denunciation.
     given the fact that the misconduct in question was much more serious than careless driving, it was
        open to the jury to find that punitive damages did not amount to double punishment, that others
        would not be deterred by the fine imposed on Grigg, and that punitive damages were appropriate.
Dissent (Blair)
     SCC said punitive damages are to be imposed in rare and exceptional cases, and even then only
        with restraint. The admonition should not be thrown to the four winds.
             o nothing on the record to distinguish this case from hundreds, if not thousands, of other
                 similar situations
     I am not persuaded that an award of punitive damages in this case, and more generally, in the
        context of impaired driving and motor vehicle negligence, advances either the objectives of
        punishment or deterrence
             o it is unlikely that Grigg – or other impaired drivers in similar situations – will have to pay
                 the punitive damages awarded (insurance will)

                                                                                                          33
            o   PDs would distort the core rationale of compensation - an award of punitive damages is a
                complete windfall for the plaintiff
            o   Demonstrating outrage is not a sound yardstick for measuring legal policy
            o   A judge or jury in the civil proceeding cannot know whether the fine imposed in the
                criminal proceeding was appropriate for that proceeding without knowing all of the
                evidence and all of the factors underlying the disposition of the criminal proceeding.
Taylor
    Is this a good way to make up for insufficient criminal law? Is this circumventing criminal law by
       adding extra punishment? Who says the criminal punishment was insufficient? Should
       punishment be a subsidiary goal of tort law? Or should punishment be left to criminal law?
    Principle that emerges here is that punishment can be a purpose of torts, and punitive damages
       can be awarded when criminal punishment is deemed insufficient.


Nuisance
       Use of the term “nuisance” to describe the two has no rational basis; it’s just a product of legal
        history
       An activity can be both a public and private nuisance (Cormier, note 6 p. 567)

Public Nuisance
Hickey v. Electric Reduction Co. of Canada (SCNF 1970)
Facts
     D polluted bay and poisoned fish. P fisherman suing
Rule
     Public nuisance is actionable in tort if it causes any special and peculiar damage to an individual
Application
     Pollution created a nuisance to all persons – not just the P – private action not sustainable
Taylor
     Gagnier and Hope Point Fishing Company v. Canadian Forest Products (BCSC 1990)
            o Hickey restriction is far too narrow - should just have to prove significant difference in
               degree of damage between the P and members of the public generally

Mint v. Good (Lord Denning, CA, 1951)
Facts
     Wall next to highway falls on boy
     Wall was on a property leased to a tenant
Issue
     Structures next to highways that are in disrepair constitute a public nuisance - Is the owner or
        occupier liable?
Decision
     Depends on control over repairs
     Owner is liable in this case – he is in practice responsible for the wall’s repairs, so is answerable
        in law for its condition
Taylor
     Whether an activity constitutes a public nuisance: factors to consider
             o Inconvenience caused
             o Difficulty involved in avoiding or lessening the risk
             o Utility of the activity
             o General practice of others
                                                                                                             34
            o   Character of the neighbourhood

Private Nuisance
Pugliese et al v. National Capital Commission (ONCA 1977)
Rule
    Private nuisances are interferences for a substantial length of time by owners or occupiers of
       property with the use or enjoyment of neighbouring property
            o Enjoyment = entitled to benefits that arise
    Test (reasonable user): whether an occupier’s use of land is reasonable considering that he has a
       neighbour

Tock v. St. John’s Metropolitan Area Board (SCC 1989)
Facts
     Exceptionally heavy rain caused D’s sewer to back up and flood P’s basement
Issue
     Whether this constitutes nuisance
Decision
     Nuisance can take on many forms – physical damage to land, interference to health, comfort or
       convenience of the owner or occupier of land
     Actionable nuisances are only interferences with comfort as defined according to the
       standards held by those of plain and sober tastes
     Consider severity of the harm, character of the neighbourhood, utility of the D’s conduct, whether
       the P displayed abnormal sensitivity
            o These criteria are best used when the conduct does not cause physical damage, but
                interference with tranquility and amenity
     This would be a compensable claim if the case was between two individuals

Nor-Video Services v. Ontario Hydro (ONSC 1978)
Facts
     D built stuff next to P’s (cable T company) receiving tower that interfered with TV reception
     P’s claim is that D’s conduct prevents them from using and enjoying their property
     D cites previous case in which interference with TV reception wasn’t found to be a nuisance (not
       important part of enjoyment of property)
     D also argues P used its property for unusually sensitive use not protected by law of nuisance
Decision
     In Canada today, watching TV is an important part of enjoyment of property
           o Principal source of information, education, and entertainment
     Cites Sedleigh-Denfield “a useful test is perhaps what is reasonable according to the ordinary
       usages of mankind living...in a particular society”
     in this day and age TV is a benefit derived from occupancy of property
     interests protected by nuisance shouldn’t be closed to new or changing developments associated
       with enjoyment of land
     P’s use of its property isn’t so sensitive to interference that it shouldn’t be protected in nuisance
     In the balancing of interests appropriate to the law of nuisance, D’s undertaking is not justified
Notes
     Note 10: loss of view can't amount to nuisance

Russell Transport v. Ontario Malleable Iron Co. (ON 1952)
Facts
                                                                                                         35
       D iron foundry running in industrial area since 1907
       Ps bought land nearby in 1949 for car transport business
       Substances emitted from foundry rendered P’s property unfit for the purpose for which it was
        purchased (caused damage to cars) – Ps suing in nuisance
Ineffectual defences
     Ps came to the nuisance
     Nuisance is beneficial to public at large
     Place nuisance comes from is suitable for carrying out the conduct complained of
     Nuisance was prevented against (because nuisance is a strict liability tort)
     Wouldn’t be a nuisance if others weren’t doing it too
     Making reasonable use of property (can’t be reasonable if it causes property damage or
        substantial discomfort)
Decision
     D makes first and last arguments – they get rejected – P wins


Rylands v. Fletcher (House of Lords 1868)
Facts
       Water from D’s reservoir caused injury to P’s coal mines
       No negligence on part of D
Issue
       What is the obligation of someone who lawfully brings something on his land that is harmless
        while there but which will naturally do mischief if it escapes?
Rule
       Blackburn J. (Exchequer Chamber, adopted in HL decisions below)
            o Someone who lawfully brings something on his land, that is harmless while there but
               which will naturally do mischief if it escapes, is answerable for all the damages which is
               the natural consequence of its escape, unless the escape was caused by the D or by a vis
               major (an act of god)
            o This is the law whether damage is caused by “beasts, or water, or filth, or stenches”
       Lord Cairns
            o If D wants to use land for non-natural use and brings something on it or in it, and the
               thing escapes and does damage, they have done it at their peril
       Lord Cranworth
            o If a person brings or accumulates anything on his land which escapes and causes damages
               to his neighbour, he is responsible, however careful he may have been, whatever
               precautions he may have taken to prevent the damage
            o So the question is just whether the D’s acts caused the damage
Taylor
    Essentially two elements: non-natural use, and escape

Element 1: Non-natural user (refers to use of land, not a person)
Rickards v. Lothian (PC 1913)
Facts
     D leased part of 2nd floor of business building to P
     4th floor had lavatory for use of tenants and their employees
     flood from the lavatory caused damage to P’s stuff
     No negligence found. P bringing action in Rylands

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Rule
      Rylands principle is an application of sic utere tuo et alienum non laedas (use your own as not to
       injure another's property)
     Exception to Rylands: Where a person is using his land in the ordinary way and damages happen
       to their adjoining property without any default or negligence on his part, no liability attaches to
       him
Application
     Bringing water onto land this way was an ordinary and ordinary user of these premises – not
       liable unless negligent
Policy
     Plumbing is almost a necessary feature of life – unreasonable to attach absolute liability
     Unreasonable to extend liability to consequences of malicious acts of third parties – no possible
       precaution against them
Taylor
     Natural object doesn't refer to occurring in a state of nature
     Looking at the cases, seems non-natural refers to dangerous
     Makes sense in light of fault element of tort
     Case law on this is not unanimous:
Notes
     3. Non-natural user can be either one involving high risks or one that is out of the ordinary
     6. Ordinary fires not subject to Rylands
     7. Gertsen: “organic matter” used to fill land crate methane gas which escapes into neighbour’s
       garage causing explosion upon starting car. The fill was found to be non-natural user – dangerous
       substance, not justifiable by policy, no benefit to community
     7. Also says water being used for commercial purposes (restaurant case) is non-natural
     Professor Linden: Notions such as abnormal danger, extra-hazardous activities, activity pursued
       for personal profit etc... provide better reasoning for the imposition of strict liability than Rylands

Element 2: Escape
Read v. J. Lyons & Co (HL 1947)
Facts
     D operated factory, explosion injured P worker
Decision
     Escape element must be present for Rylands action - not present here – no damages
Notes
     2. Linden: we should ignore escape element like US does
     8. Rylands applies to case in which water mains burst and damage power lines – so Rylands not
       restricted to cases involving owners/occupiers of adjacent real property
     Taylor: ignore 9 and 10

Defences to torts of strict liability
1. Consent of the Plaintiff
     Implied by P's use of the thing (e.g. water used by tenant)
     Less likely to work when P gets no benefit from the thing
     Also applies to nuisance

2. Default of the Plaintiff

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       Akin to contributory negligence
       Not clear whether rule of contributory negligence applies (p 412 Negligence Act s. 3 - rule for
        contributory negligence)
       Refers to fault, but strict liability torts (i.e. Rylands) are not founded on fault - so the statute
        appears not to apply
       Seems like it should - no clear rule yet

3. Escape caused by Act of God (only applies to Rylands)
     Only works for extraordinary phenomena
     Limited to circumstances that no human foresight can anticipate or provide against

4. Deliberate Act of Third Person (only applies to Rylands)
     Came up in Rickards
     Applies when escape is caused by third party's conscious act of volition
     Doesn’t apply when D could have foreseen and prevented against the act
     Taylor: defence better articulated as applying to malicious acts, not just voluntary
            o Negligent act of third party not a defence

5. Legislative Authority
     No strict liability imposed when an activity is authorized by legislation unless D is negligent
     Limited by inevitability doctrine: D must prove the damage was an inevitable result of exercising
        legislative authority, and that there were no alternate methods of doing so (Tock)




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