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					NUISANCE ......................................................................................................................................... 5
 1. THE GROUNDS OF LIABILITY ......................................................................................... 5
   Appleby v. Erie Tobacco Co. ................................................................................................ 5
   Rogers v. Elliot ......................................................................................................................... 6
   Mayor, etc. of Bradford v. Pickles ....................................................................................... 6
   Hollywood Silver Fox Farm Ltd. V. Emmett ..................................................................... 7
   Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, inc. .......................................... 7
   Bryant v. Lefever ..................................................................................................................... 8
   Aldred’s Case ........................................................................................................................... 8
   Prah v. Maretti .......................................................................................................................... 8
   Shuttlewort v. Vancouver General Hospital ..................................................................... 8
 2. LEGAL PROCESS AND PUBLIC POLICY ...................................................................... 9
   Holmes, “Privilege, Malice and Intent” .............................................................................. 9
   Bamford v. Turnley ................................................................................................................. 9
   Miller v. Jackson .................................................................................................................... 10
   Sturges v. Bridgman ............................................................................................................. 10
 3. REMEDIES ........................................................................................................................... 11
   Shelfer v. City of London Electrical Lighting Co. ......................................................... 11
   Spur Industries v. Del E. Webb Development Co. ........................................................ 12

NEGLIGENCE ................................................................................................................................. 12
 Standard of Care ........................................................................................................................ 14
   The Objective Standard ....................................................................................................... 14
     Vaughan v. Menlove ........................................................................................................... 14
     Buckley v. Smith Transport Ltd. .................................................................................... 14
     Roberts v. Ramsbottom ................................................................................................... 14
     Mansfield v. Weetabix ...................................................................................................... 15
     Holmes, The Common Law ............................................................................................. 15
     McHale v. Watson .............................................................................................................. 16
     Fleming, The Law of Torts .............................................................................................. 17
       The Reasonable Man ...................................................................................................... 17
       Moral Qualities and Knowledge..................................................................................... 17
       Physicians – Informed Consent..................................................................................... 17
       Beginners .......................................................................................................................... 17
       Need for Experts .............................................................................................................. 17
       Physical, Intellectual and Emotional Characteristics ................................................. 18
       Age and Lunacy ............................................................................................................... 18
   REASONABLE CARE ........................................................................................................... 18
     Posner, “the Learned Hand Formula for Determining Liability” .......................... 18
     Bolton v. Stone................................................................................................................... 18
     Latimer v. AEC ................................................................................................................... 19
   Custom and Usage ................................................................................................................ 19
     Trimarco v. Klein ............................................................................................................... 20
     TJ Hooper ............................................................................................................................ 20
     ter Neuzen v. Korn............................................................................................................. 20
     key factors to see if risk is unreasonable ................................................................... 21


                                                                                                                                                  1
     PROOF OF NEGLIGENCE ................................................................................................... 22
     legal burden: burden of proving an issue on the b of p .......................................................... 22
     evidentiary burden: burden of adducing evidence that, if believed, will meet the legal burden
      22
      Prosser, The Law of Torts, 4th ed. ................................................................................. 22
         Functions of Court and Jury ........................................................................................... 22
         Burden of Proof and Presumptions............................................................................... 22
         Circumstantial Evidence – Res Ipsa Loquitur ............................................................. 22
      Byrne v. Boadle .................................................................................................................. 23
      Schiff “A Res Ipsa Loquitur Nutshell” ......................................................................... 23
      Fontaine v. British Columbia .......................................................................................... 23

DUTY AND REMOTENESS .......................................................................................................... 24
 DUTY OF CARE .......................................................................................................................... 24
   Anns Test .................................................................................................................................. 24
   A successful tort claim must have the following features: ....................................... 25
   Wright, Cases on the Law of Torts, 4th ed. ..................................................................... 25
     Duty of care recognized: (1) The manufacturer has a duty to warn if he knows or
     should have known about current risks with taking the products. Manufacturers of
     products have a duty to take care, not to harm the end-users of those products.
     (Buchan v. Ortho Pharmaceutical);; (3) manufacturers owe the consumer a duty
     of care for the quality of the goods (Donoghue v. Stevenson (HL)) ; (17) Duty to
     the rescuers: a negligent defendant owes a duty to a rescuer who‟s coming to the
     aid of somebody who has been empiriled by the defendant‟s negligence, provided,
     that the rescuer‟s intervention is not so utterly foolhardy as to be outside of any
     accountable risk and thus beyond even contributory negligence (Horsley v.
     MacLaren; ............................................................................................................................ 25
     Duty of care not recognized: (1) Statutory regulator against particular investors
     (Cooper v. Hobart); (2) Police office Board and Province of Ontario when they
     don‟t have statutory obligation (not sufficient proximity) (Odhavji v. Woodhouse);
     (3) Social host liability not recognized toward intoxicated guest or user of the road
     Childs v. Desormeaux; (5) Women don‟t owe a duty of care to the foetus she is
     carrying (Dobson v. Dobson)........................................................................................... 25
   Winterbottom v. Wright ........................................................................................................ 25
   M’Alister (or Donoghue) v. Stevenson............................................................................. 26
   Deyong v. Shenburn ............................................................................................................. 27
   Watson v. Buckley and Osborne, Garrett and Co. Ltd. ............................................... 27
   Clay v. AJ Crump & Sons Ltd. ........................................................................................... 27
   Palsgraf v. Long Island Railroad Co. (US version of Donoghue) ................................ 28
   Prosser, “Plasgraf Revisited” ............................................................................................ 29
   Haynes v. Harwood ............................................................................................................... 30
   Urbanski v. Patel .................................................................................................................... 31
   Dobson v. Dobson; Canadian abortion rights action elage et al., Interveners ..... 31
   Duval v. Seguin ...................................................................................................................... 32
   Weinbrib and Weinrib ........................................................................................................... 33
   Wellbridge Holdings v. Greater Winnipeg ...................................................................... 33
   Kamloops v. Nielsen (two stage test) .............................................................................. 34


                                                                                                                                                2
    Cooper v. Hobart ................................................................................................................... 34
    Stevens v. Brodribb Sawmilling ........................................................................................ 35
   POLICY CONSIDERATIONS .................................................................................................... 35
    Donoghue v. Stevenson: ..................................................................................................... 35
    Odhavji v. Woodhouse ......................................................................................................... 35
   REMOTENESS ............................................................................................................................ 36
    In Re Polemis and Furness, Withy & Co. ........................................................................ 36
    Overseas Tankship (UK) v. Morts Dock & Engineering (the wagon mound, no.1)
     .................................................................................................................................................... 37
    The Wagon Mound 2 ............................................................................................................. 37
    Smith v. Leech Brain & Co. Ltd ......................................................................................... 38
    Stephenson v. Waite Tileman Limited ............................................................................. 38
    Cotic v. Gray, 1981 ................................................................................................................ 39
    Hughes v. Lord Advocate .................................................................................................... 39
    Doughty v. Turner Manufacturing Co. ............................................................................. 40
    Keeton, Legal Cause in the Law of Torts ........................................................................ 40
    Hill v. Winsor........................................................................................................................... 40
    NOVUS ACTUS INTERVENUS  New Act Intervenes; someone or something breaks
    the chain of causation between one person‟s negligent act and another‟s injuries. ..... 41
         Bradford v. Kanellos ......................................................................................................... 41
    Home Office v. Dorset Yacht Co. Ltd. .............................................................................. 42
    Lamb v. London Borough of Camden ............................................................................. 43

CAUSE IN FACT ............................................................................................................................. 43
 proving a tort action: ................................................................................................................ 43
 But For test ................................................................................................................................... 44
 2 aspects of the causation analysis ..................................................................................... 44
 THE NATURE OF FACTUAL CAUSATION ........................................................................... 44
   Barnett v. Chelsea & Kensington Hospital Management Committee ...................... 44
   Multiple Causes ..................................................................................................................... 45
   Lambton v. Mellish (multiple causation – indivisible causastion) .................................. 45
   Corey v. Havener ................................................................................................................... 45
   Kingston v. Chicago and NW Ry ....................................................................................... 45
   Sunrise Co. Ltd. et al. v. Ship “Lake Winnipeg” (sequential causation) ................... 46
   Baker v. Willoughby .............................................................................................................. 47
   Saunders System Birmingham v. Adams ....................................................................... 47
   Athey v. Leonati (not sole or predominant but sufficient cause) .................................... 47
     General Principles ............................................................................................................... 47
 FACTUAL UNCERTAINTY ....................................................................................................... 48
   Blackstock v. Foster ............................................................................................................. 48
   Multiple Tortfeasors .............................................................................................................. 49
     Joint Tortfeasors ............................................................................................................... 49
     Cook v. Lewis ..................................................................................................................... 50
     Sindell v. Abbott Laboratories et al .............................................................................. 50
   Material Contribution ............................................................................................................ 51
     McGhee v. National Coal Board (exception to proof of causation) .......................... 51
     Wilsher v. Essex Area Health Authority ...................................................................... 52


                                                                                                                                                          3
  Fairchild v. Glenhaven Funeral Services (exception to proof of causation – 2
  defs) ....................................................................................................................................... 53
  Farrell v. Snell..................................................................................................................... 54
Walker Estate v. York Finch General Hospital ............................................................... 55
Loss of Chance ...................................................................................................................... 55
  Hotson v. East Berkshire Area Health Authority ...................................................... 56




                                                                                                                                                4
Tort Law exists to protect:
       - the life and security of a person
       - preserving the physical integrity of one‟s tangible properties both real and personal

vs. Criminal Law
           - state vs. private individual
           - more punishment
           - burden of proof beyond a reasonable doubt

Tort law – 2 private litigants
           - more compensation
           - standard of proof = on balance of probability (need only 50% or more)

                                          NUISANCE
Nuisance - an interference with the use and enjoyment of land
      - rights and duties that govern the relations between neighbors

Private nuisance - interference with the use and enjoyment of another's property.
        - Prerequisites: possession of a neighboring property and proof of damage
        - Possible outcomes: an injunction (halt) or monetary damages.

Goal: balancing act between the two parties
       - balance of one person‟s rights and freedoms with another‟s use and enjoyment of their
           property, based on the standard of a reasonable person

Analysis:
       - does use of land interfere with plaintiff‟s use of land?
       - Is so = is the interference substantial and unreasonable? (if no = not actionable)


Courts look at:
       - nature of the act complained
       - nature of the injury
       - character of neighborhood where nuisance have occurred
       - frequency of occurrence of nuisance
       - duration of nuisance

THE GROUNDS OF LIABILITY

Appleby v. Erie Tobacco Co.

       -   nuisance complained: odor arising from manufacture of tobacco on def‟s premises (tried
           to reduce, but could not)

Issue: are they guilty of nuisance? Should an injunction follow? (yes)

What constitutes a nuisance?
      - what makes life less comfortable and causes sensible discomfort and annoyance
      - does not need to affect health
      - render plaintiff‟s premises less fit for the ordinary purposes of life


                                                                                                 5
different localities = there is a local standard applicable in each particular district
        - local standard may be higher in some districts than in others

 Manufactory constitutes a nuisance - odors cause material discomfort and annoyance

Must an injunction follow? yes
      - no one should be called upon to submit to the inconvenience and annoyance arising
           from a sickening odor for a “small money payment”
      - inconveniences and annoyance cannot be adequately “estimated in money”

 reasonableness of def‟s actions are irrelevant (even best efforts)
 you can introduce a fresh noise in a fairly noisy area, if it‟s unreasonable, it is still a nuisance

Rogers v. Elliot

facts: defendant in charge of ringing church bell
        - plaintiff – recovering from sunstroke – had convulsions because of bell noise
        - defendant refused plaintiff‟s request not to ring bells – sue for damages

ringing the bell = nuisance?

fundamental question: by what standard, as against the interest of a neighbor, is one‟s right to use
his real estate to be measured

if use of property is objectionable solely on account of the noise which it makes, it is a nuisance, if
at all, by reason of its effect upon the health or comfort of those who are within hearing

the right to make a noise for a proper purpose must be measured in reference to the degree of
annoyance which others may reasonably be required to submit to
        - not people sensitive or relaxed people (too uncertain)
        - people of ordinary prudence

Present case: pl‟s claim rests upon the injury done to him on account of his peculiar condition
      - not contended that bell ringing affected health or comfort of ordinary people in the
          vicinity

 maliciousness of disturbance is irrelevant

Mayor, etc. of Bradford v. Pickles

     -   defendant owned land above plaintiff‟s town
     -   defendant sinks shaft to change flow of underground water
     -   this reduced amount of water flowing down to plaintiff‟s spring

plaintiffs alleged that defendant‟s sole purpose was to injure them and force them to buy
defendant‟s land or pay him for water  sought an injunction to stop this

earlier case: owner of land had right to sink a well upon own premises and abstract subterranean
water through his own soil that would have gone to plaintiff‟s spring by gravity

 no nuisance  def‟s property rights are more important than ill intent



                                                                                                          6
Hollywood Silver Fox Farm Ltd. V. Emmett

plaintiff – bred silver foxes on its land

defendant – neighbor - made son discharge guns on his own land as near as possible to interfere
with breeding
        - relied on Bradford case:
               o plaintiff‟s business required extraordinary degree of quiet
               o defendant had right as owner to shoot on own land, despite intentions

Decision: granted injunction
       - in an action for nuisance by noise, the motive of the noise-maker must be considered in
           determining whether or not he was using his property in a legitimate and reasonable
           manner

“no proprietor has an absolute right to create noises upon his land, because any right which the
law gives him is qualified by the condition that it must not be exercised to the nuisance of his
neighbors or of the public”

 Bradford case has no bearing in this case

Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, inc.

Appeal from an order temporarily enjoining the appellants from continuing with the construction of
a 14 story addition to Fontainebleau hotel

Appellee – plaintiff – owns Eden Roc Hotel

The 14 story addon will cast a shadow over some swimming areas of Eden Roc

Plaintiffs claim:
      - construction would interfere with the light and air on the beach in front of the Eden Roc
      - cast a shadow to render beach wholly unfitted for use and enjoyment of guests
      - malice because building on south side, not on north side

sic utere tuo ut alienum non laedas
        - One should use his own property in such a manner as not to injure that of another
        - One must use his property so as not to injure the lawful rights of another
“property owner may put his own property to any reasonable and lawful use, so long as he does
not thereby deprive the adjoining landowner of any right of enjoyment of his property which is
recognized and protected by law, and so long as his use is not such a one as the law will
pronounce a nuisance”

 no legal right to the free flow of light and air space across the adjoining land of his neighbor

      -   universally held that where a structure serves a useful and beneficial purpose, it does not
          give rise to a cause of action, either for damages or for an injunction under the maxim sic
          utere tuo ut alienum non laedas
      -   even though it causes injury to another by cutting off the light and air and interfering with
          the view that would otherwise be available over adjoining land in its natural state,
          regardless of intention



                                                                                                      7
decision:
       - plaintiff has not established a cause of action against the defendants by reason of
          structure
       - injunction dismissed

Bryant v. Lefever

Facts: Plaintiff and defendant – occupiers of adjoining houses (same height)
       - originally, houses were of same height
       - def rebuilds and is now higher
       - now – plaintiff‟s chimneys smokes
       - Jury – defendant‟s wall interfered with comfort of human existence in Pl‟s premises
       - Defendants appealed

Decision: judgment for defendant (def can build any height of house he wants)

       -   if defendants caused nuisance, they have the right to do so
       -   the plaintiff causes nuisance by lighting fire in chimney so close to the defendants‟ wall
       -   plaintiff should move his chimney higher, so that there is no nuisance

Aldred’s Case

There is no right to a view from one's home. It is a matter of delight, not of necessity.

Prah v. Maretti

Whether an owner of solar-heated residence states a claim upon which relief can be granted when
he asserts that his neighbor‟s proposed construction of a residence interferes with his access to an
unobstructed path for sunlight across the neighbor‟s property

Court overruled previous precedents refusing to protect sunlight rights because:

   1. society has increasingly regulated the use of land for the general welfare
   2. the sunlight was being used for energy
   3. the need for easy and rapid development has lessened

 judgment for the plaintiff

Shuttlewort v. Vancouver General Hospital

       -   hospital builds isolation hospital for diseases
       -   plaintiff‟s house faces it, and says it is a nuisance and asks for an injunction or
           damages

quia timet
        - type of action brought to protect him from damage which he has reason to fear will be
           the result of the operation of the isolation hospital

requirements for success:
       - requires proof by the plaintiff of a well-founded apprehension of injury
       - proof of actual and real danger
       - strong probability that if hospital be established, it will be an actionable nuisance


                                                                                                        8
       -   a sentiment of danger and dislike, however natural and justifiable
       -   certainty that hospital will be disagreeable and inconvenient
       -   proof that it will abridge a man‟s pleasure, or make him anxious
       -   the inability of the Court to say that no danger will arise

Plaintiff‟s allegation that hospital will be a nuisance based on:

       -   crying child patients  but no proof here that this will occur

       -   a person can, from the upper storey of Pl‟s house, see into hospital rooms (interferes
           with comfort)
               o can‟t base claim on sentiment

       -   danger of infection to member of his household from existence or operation of the
           isolation hospital
               o onus is on plaintiff to prove a well-founded apprehension of injury, proof of
                   actual and real danger
               o he must prove widespread believe and such belief must be founded in fact

       -   plaintiff‟s property has depreciated in value because of hospital construction
               o mere fact of depreciation cannot found an action

Decision: case dismissed with costs

1. LEGAL PROCESS AND PUBLIC POLICY

Holmes, “Privilege, Malice and Intent”

       -   questions of policy are legislative questions
       -   question of policy cannot be answered by generalities, but determined by particular
           character of the case
       -   conclusion will vary, and will depend on different reasons according to the nature of the
           affair

Bamford v. Turnley

Plaintiff alleged defendant‟s adjacent brick-making operation was a nuisance

There are actions of a neighbor which are nuisances, but for which there are no liability – they are
acts necessary for the normal occupation and use of land

if they were done maliciously  nuisance

Question: is brick making operation for the public good?
       - if yes = def has right to continue but a duty to compensate
       - if no = def is liable
       - either way compensation is due

 public gain vs. loss of individual (dust)
       - if Def makes $100 and costs Pl $40  def allowed to continue if he pays off Pl
       - injunction would stop economically efficient activity (inappropriate)
       - fairness  compensation, but efficiency  allowing activity to continue


                                                                                                       9
 those acts necessary for the common and ordinary use and occupation of land and houses may
be done, if conveniently done, without subjecting those who do them to an action

lawful because it is for the public benefit
        - public consists of all individuals of it
        - a thing is only for the public benefit when it is productive of good to those individuals on
           the balance of loss and gain to all
        - ex. Railway – public good, only if it‟s benefits outweighed loss of land

Miller v. Jackson

   -   popular cricket field
   -   newcomer buys house on edge of field, is annoyed
   -   judge stops cricket from occurring
   -   some property damage – cricket club offered to remedy damages and pay all expenses
   -   owners reject all offers

“if cricket cannot be played on a ground without creating a substantial risk, then it should not be
played there at all”
         - true if cricket field was built second
         - but should not be if cricket field was built there first

useful test – what is reasonable according to the ordinary usages of mankind living in society

        is the use by the cricket club of this ground for playing cricket a reasonable use of it?

       Circumstances:
             o for over 70 years, cricket has been played on the ground to the benefit of the
                 community

        does it suddenly become a nuisance when one chooses to build a house on edge of the
       grounds where it may be struck by a ball occasionally?

Balance: right of the cricket club to continue playing cricket on ground vs. right of the householder
not to be interfered with

Priority to cricket ground – because been there for 70 years
Public interest vs. private interest  not a question of damages but a question of injunction

Sturges v. Bridgman

   -   defendant – occupier of confectioner with mortars
   -   plaintiff – physician who builds a consulting room right next door
                o mortars are too loud
   -   defendant claims he had acquired the right by uninterrupted user for more than 20 years
                o if no right = action-able nuisance

Issue: can user which is neither preventable nor actionable found an easement?




                                                                                                      10
Acquisition of easements by user:

     a man cannot be said to consent to or acquiesce in the acquisition by his neighbor of an
     easement through an enjoyment of which he has no knowledge, actual or constructive or
     which he contests and endeavors to interrupt, or which he temporarily licenses

nec vi nec clam nec precario = not by force, nor stealth, nor license

nuisance = one interferes with use and enjoyment of neighbor‟s land, and neighbor complains

BUT: if no complaint is made for a long time, they lose the right to complain
This is only applicable if the neighbor was originally in a position to complain; if not, how could he
have surrendered the right?

Confectioner had noisy work but doctor did not have a neighboring office. Doctor could not have
heard the noise  could not have complained of nuisance, and since he could not alienate his
rights be concession, the confectioner could not have acquiesced the rights to make such noise.

 decision for plaintiff (doctor)

2. REMEDIES

value for the loss or damage suffered by the plaintiff or injunction

Shelfer v. City of London Electrical Lighting Co.

Damages in substitution for an injunction may be given if:

       1.   the injury to the plaintiff‟s legal right is small
       2.   and is one which is capable of being estimated in money
       3.   and is one which can be adequately compensated by a small money payment
       4.   and the case is one in which it would be oppressive to the defendant to grant and
            injunction

but – def‟s conduct can disentitle him from asking that damages be assessed in substitution to
injunction

Compare

Canada paper company v. Brown
      - pulp mill vs. home owner
      - pulp mill = enhances prosperity of town
      - but should not take away rights of property owner

Black v. Canadian Copper Co.
       - mines vs. farms
       - the Court ought not to destroy mining industry – nickel is of great value to the world
       - even if a few farms are damaged/destroyed  compensation awarded




                                                                                                     11
Spur Industries v. Del E. Webb Development Co.

Facts: defendant operated cattle feedlot in an agricultural district (always been)
       - plaintiff bought land in area of feedlot to develop an urban area “Sun City”
       - as development grew, it went closer and closer to feedlot, until developer encountered
           sales resistance because of flies and smells of feedlot

1. where the operation of a business such as a cattle feedlot is lawful in the first instance, but
   becomes a nuisance by reason of nearby residential area
      - may the feedlot operation be enjoined in an action brought by the developer of the
          residential area?

2. assuming that the nuisance may be enjoined, may the developer of a new town/urban area in a
   previously agricultural area be required to indemnify the operator of the feedlot who must move
   or cease operation because of the presence of the residential area created by the developer?

operation of spur‟s feedlot – public and private nuisance

Del Webb – showed special injury in loss of sales  standing to bring suit to enjoin nuisance

Spur must move lot
But Webb must pay Spur a reasonable amount of the cost of moving or shutting down

   -   this situation is limited to a case where a developer has, with foreseeability, brought into a
       previously agricultural or industrial area the population which makes necessary the granting
       of an injunction against a lawful business and for which the business has no adequate relief



                                        NEGLIGENCE
“Losses lie where they fall” (Oliver Wendall Holmes). Accidents happen and they are just that,
accidents. The loser bears the loss. Unless, there is another party involved who is to blame for
the losses in which case there is a possible tort action. The onus is upon the plaintiff to prove that
his/her injuries, the loss, should not fall upon him/her, and should instead be shifted to someone
else by way of compensation.

CONSIDER: it is not necessary to use the “losses lie where they fall” postulate as pt. of departure
and make p prove guilt of d. What if onus were on d to prove not liable? Problem: the rule is not
neutral; it favours d who is, usually, a large corporation (no point suing someone w/out money to
pay damages) most often backed by insurance company.

Definition
        Omission to do something in which a reasonable person guided upon those considerations
        which ordinarily regulates the conduct of human affairs, would do, or doing something
        which a prudent and reasonable person would not do

Core issues
       - negligent act: standard of care – what standard do we apply to the facts?
       - Causation – link between negligent act and damages
       - Damages – issue of public policy
       - Liability – range of Pls who can claim liability


                                                                                                     12
Classes of Negligence

   1.   defense of contributory negligence
   2.   defense of voluntary assumption of risk
   3.   defense of illegality
   4.   defense inevitable accident

Prerequisites For Negligence

   1. Was the defendant under a duty to the plaintiff?
   2. Did the defendant breach the duty to the plaintiff?
   3. Was there damage?
   4. Is there a causal relationship (both proximate and factual) between the breach and the
      damage?
   5. Were there any defenses available to the defendant? (contributory negligence, voluntary
      assumption of risk, illegality)

Approaches:
      - ABC approach
      - Conventional American Approach
      - Linden and Feldthusen Approach
      - JC Smith Model

J.C. Smith model (Liability and negligence):
   - starts from the premise that not all losses caused by unreasonable conduct will result in
       compensation

   1. does the law impose upon the actor a duty to take care so that the activity in question does
      not harm the claimant?
          o Does the law of negligent extend to cover the situation?

   2. if the answer to question number 1 is YES, and therefore there is no reason in law to refuse
      to apply negligence law to actor or activity in question, do the facts of the case in dispute
      justify the contention that the actor ought to have taken reasonable care for the plaintiff‟s
      protection?
           o was there a foreseeable risk upon the plaintiff?


   3. how ought the defendant to have acted in the situation?
         o Did the defendant breach the duty of care by not acting reasonably?

   4. was this breach of the defendant‟s duty of care a sufficient cause of the plaintiff‟s injury?
         o would the injury have occurred even if there had been no breach? (but for test –
             refers to causation)

   5. for which of the plaintiff‟s injuries should the defendant be held liable (assuming there‟s
      more than on injury)
          o stated technically – which injuries are sufficiently proximate in law to the breach to
              justify the imposition of liability?



                                                                                                      13
    6. are there any factors in the plaintiff‟s conduct which justify a reduction or even an
       elimination of the damages which otherwise would have been awarded?

Standard of Care

If duty of care is determined - then determine whether the defendant has fallen below the
prerequisite standard of creating risk. The standard must be objective.

The Objective Standard

Vaughan v. Menlove

Facts:
   -     defendant made a rick near boundary of own premises
   -     probability of fire
   -     when advised to take it down, he said he‟d “chance it”
   -     there was fire, plaintiff‟s cottage was destroyed

question: whether the fire had been occasioned by gross negligence on the part of the defendant
with reference to the standard of ordinary prudence

decision: plaintiff wins

new trial was obtained on the ground that the jury should have been directed to consider whether
he had acted bona fide (in good faith) to the best of his judgment
   - if he had, he ought not to be responsible for the misfortune of not possessing the highest
        order of intelligence

 instead of saying that the liability for negligence should be co-extensive with the judgment of
each individual, which would be variable, we ought rather to adhere to the rule which requires in all
cases a regard to caution such as a man of ordinary prudence would observe



Buckley v. Smith Transport Ltd.

    -    car accident – driver had syphilis of the brain

test of insanity – did the insane delusion make the def unable to understand the duty that rested
upon him and unable to discharge that duty?

 exception based on insanity to rid of objective standard of care

Roberts v. Ramsbottom

    -    driving vehicle and suffered a stroke
    -    liable because continued to drive when he was unfit to do so and when he should have
         been aware of his unfitness
    -    def was not morally to blame, but that is irrelevant to the question of legal liability in this
         case
    -    impairment of judgment does not provide a defence


                                                                                                           14
Mansfield v. Weetabix

   -   def did not know that he had a condition  gets into a car accident
   -   standard of care he was obliged to show was that which is to be expected of a reasonably
       competent driver unaware that he is or may be suffering from a condition that impairs his
       ability to drive
   -   decision = his actions did not fall below the standard

Holmes, The Common Law

Objective: to see whether there is any common ground at bottom of all liability in tort

There are two theories of the common-law liability for unintentional harm

       1. Austin
          o theory of criminalist
          o liability to an action = a sanction, a penalty for disobedience
          o such liability ought only to be based upon personal fault

       2. theory of voluntary action
          o directly opposed to Austin
          o under the common law a man acts at his peril
          o he is never liable for omissions expect in consequence of some duty voluntarily
             undertaken
          o if the act was voluntary, it doesn‟t matter that the detriment which followed from it
             was neither intended nor due to the negligence of the actor

An act is always a voluntary muscular contraction, and nothing else
   - the chain of physical sequences which it sets in motion or directs to the plaintiff‟s harm is no
        part of it, and very generally a long train of such sequences intervenes

 if the intervening events are of such a kind that no foresight could have been expected to look
out for them, the defendant is not to blame for having failed to do so

general principle of our law:
   - loss from accident must lie where it falls
   - this principle is not affected by the fact that a human being is the instrument of misfortune

 no foundation of legal responsibility if it‟s an accident

requirement of an act = requirement that the defendant should have made a choice

the standards of law are standards of general application
    - law takes no account of the infinite varieties of temperament, intellect, and education which
       make the internal character of a given act so different in different men

the law considers what would be blameworthy in the average man, the man of ordinary intelligence
and prudence, and determines liability by that

Principle: every man is presumed to possess ordinary capacity to avoid harm to his neighbors




                                                                                                     15
Exceptions:
       - when man has a distinct defect that all can recognize
   - ex. Blind man
   - infants

the idea of fault, whether there is fault is connected to whether there can be foreseeability – maybe
the accident was inevitable

McHale v. Watson

Situation:
    - children playing tag
    - defendant throws a dart-like object to a post
    - dart hits plaintiff‟s eye – damaging eyesight

Issue: is the defendant negligent?

   -   must judge what defendant did by the standard expected of a reasonable man, and that
       that standard is not graduated according to age
   -   childhood is not an idiosyncrasy

Decision: defendant not negligent – did not know that dart will reflect off wood to eye

Appeal argued on 2 grounds:

   -   his Honor was in error in holding that the liability or degree of responsibility of the defendant
       or the standard of care to be exercised by him in any way differed from the liability degree
       of age of 21 years
   -   his Honor should have made a finding of negligence whether he applied the standard of the
       ordinary reasonable man or the standard appropriate to a 12 year old boy

BUT: there is authority in favor of applying lower standard for young children



3 categories of infants:
           - children so young as to be manifestly incapable of exercising any of the qualities
               needed to the perception of risk
                    o ex. Babies

           -   those capable as adults of foreseeing the probable consequences of their actions

           -   those who come between the extremes in the above categories and whose
               capacities are infinitely various

evidence does not suggest that the defendant was other than a normal 12 year old boy

case comes down to:
       - whether it was right for the trial judge to take into account defendant‟s age in
         considering whether he did foresee or ought to have foreseen that the dart might not
         stick in the post but be deflected from it towards plaintiff



                                                                                                     16
Decision: appeal dismissed

Fleming, The Law of Torts

The Reasonable Man

“the reasonable man of ordinary prudence”
        - a model of the standard to which all are required to conform
        - the embodiment of all the qualities we demand of the good citizen: and it not exactly a
           model of perfection, yet altogether a rather better man than probably any single one of
           us happens, or aspires to be

law has chosen external, objective standards of conduct
       - individuals are often held guilty of legal fault for failing to live up to a standard which as
          a matter of fact they cannot meet

legal standards are standards of general application

but subjective factors are not wholly ignored by the jury

Moral Qualities and Knowledge

         -    the reasonable man is presumed to be free from over apprehension and from
              overconfidence
         -    perception of risk is the correlation of past experience with the specific facts in a
              situation, which depends to a large extent on knowledge as the basis for judging the
              harmful potentialities of contemplated conduct

person‟s substandard experience or knowledge is not generally considered an excuse
           - except in exceptional cases of children

if person has more extensive knowledge, the propriety of his judgment as to the risk involved is
determined by what a man with such knowledge would regard as probable


Physicians – Informed Consent

     -       a physician will be adjudged by the standard of the average practitioner of the class to
             which he belongs
     -       they can be acquitted by conforming to practices accepted as proper by a responsible
             section of their profession

Beginners

     -       they cause more than their proportionate share of accidents
     -       social need for compensating victims outweighs all competing considerations
     -       beginner is held to the standard of those who are reasonably skilled and proficient in that
             activity

Need for Experts

     -       in what circumstances must the reasonable man enlist the skill of an expert?


                                                                                                        17
     -    Depends on prevailing community standards
     -    For tasks demanding expert skill, especially those impinging immanently on public safety,
          even the layman will be judged by the standard of expert

Physical, Intellectual and Emotional Characteristics

     -    physically handicapped is judged by the standard of what can be expected from a
          reasonably prudent person suffering from his disability

Age and Lunacy
     - a child, whether as Pl or Def, is only expected to conform to the standard appropriate for
        normal children of similar age and experience
     - a minor who engages in dangerous adult activities (ex. driving a car) must conform to the
        standard of the reasonably prudent adult (his position analogous to beginners)
     - lunatics – more controversial
             o if insanity extreme as to preclude them from duty to take care – excused
             o Or, must at least be capable of foreseeability of harm

REASONABLE CARE

Posner, “the Learned Hand Formula for Determining Liability”

United States v. Carroll Towing Co.
       - whether it was negligent for owner of barge to leave it unattended for several hours in a
           busy harbor (while unattended, it crashed into another ship)
       - is owner liable?

Hand Formula

         Variables:
            1. the probability that barge will break away (P)
            2. gravity of the resulting injury (L)
            3. burden of adequate precautions (B)

          liability depends upon whether B < (L)(P)

Expected costs: the avg cost that will be incurred over a period of time long enough for the
predicted number of accidents to be the actual number

Hand Formula is an application to accidents of the principle of cost-benefit analysis
Negligence = failing to avoid an accident where the benefits of accident avoidance exceed costs

*Negligence is an objective standard

Bolton v. Stone

The defendants were playing cricket and accidentally hit a ball, much farther than the distance of a
usual hit, into the street where it struck Stone. Over 30 years prior, a ball had been hit to the road
six times, and no other person had been injured.

Issue: What is the nature and extent of the duty of a person who promotes on his land operations
       which may cause damage to persons on an adjoining highway?


                                                                                                    18
Decision: appeal allowed

foreseeable that a ball might be hit to the road and might injure someone. But odds of this
happening were known to be remote.
not just forseeability of harm which should prove negligence, but also the likelihood and probably
magnitude of harm; in this case it was thought unlikely that harm would occur, and that if it did
occur, it would be minor.

Negligence:

       “The omission to do something which a reasonable man, guided upon those considerations
       which ordinarily regulate the conduct of human affairs, would do, or doing something which
       a prudent and reasonable man would not do” Blyth v. Birhmingham Waterworks Co.
       (Alderson B)

Test to be applied should be whether the risk of damage to another person is so small that a
reasonable person would have thought it right to take steps to prevent the danger. He or
she should take into account the likelihood of harm being caused and the seriousness of the
consequences should harm be caused, but not the difficulty or expense of remedial measures

       o   Is the risk small enough that the reasonable person would disregard it?
       o   The reasonable person will disregard “fantastic possibilities”, but will take “realistic
           probabilities” into account.

Continuum: The issue in this case is somewhere in between. Where does it fall on the continuum –
is it closer to a reasonable probability or a fantastic possibility?

Latimer v. AEC

factory is flooded and gets slippery  factory tries to clean up, but doesn‟t have enough sawdust to
clean up all areas

Issue: Does the factory owe a duty of care to shut down a factory when the conditions, even after
attempted clean up, are unsafe?

Decision: AEC found not negligent.

Reasons:
      -    closing the factory would have been too expensive
      -    no other employee either fell or experienced any difficulty
      -    no other employee saw reason to close the factory
      -    appellant did not establish that a reasonable prudent person would have closed factory

Ratio: Remedial steps not being possible, an employer need not close down a factory and instead
risk harm to an employee if a reasonably prudent employer would so do.

Custom and Usage

4 steps:

1) onus on party relying on custom to prove the custom (usually the D).


                                                                                                      19
2) Non-compliance with the custom is prima facie (a working standard) evidence of negligence.
3) If you’ve complied with the standard, then prima facie there is no negligence…
   There will be:
4) Onus on other party to show that the custom itself is negligent (not reasonable).

-   judges may also look to the custom and usage “by others engaged in the same business”.
-   the general rule is that if you comply with the custom, you‟re 90% on your way to avoiding
    liability.
-   Plaintiffs can also argue that the custom itself is not reasonable – this is hard to do, though.

Trimarco v. Klein

Klein (landlord) to Trimarco – injures himself when bathtub glass shattered
Trimarco – it is custom for landlords to have shatterproof glass (but custom enacted on a date after
injury)

proof of common practice aids society in formulating general expectation of how individuals will act
   - but, standard practice is not enough to prove negligence; jury must be satisfied with its
        reasonableness
   - judges order new trial because statutes referred to by Pl did not refer to him (his was not a
        new installation)

when certain dangers have been removed by a customary way of doing things safely, this custom
may be proved to show defendant has fallen below required standard, proof of customary practice
may establish due care (Bennett v. Long Is. R.R. Co)
   - and contrariwise, when proof of a customary practice is coupled with a showing that it was
      ignored and that this departure was a proximate cause of the accident, it may serve to
      establish liability

TJ Hooper
   - significance of custom
   - barges towed by tugs were caught in storm and sank; alleged to be unseaworthy because
      they didn‟t carry radios which would‟ve alerted them of the storm

    -   Learned Hand J:
           o No general custom among coastal carriers to equip tugs w/ radios
           o But radios are relatively cheap now and would afford great protection
           o Courts must say what is required; there are precautions so imperative that even
              their universal disregard will not excuse their omission

 Owners of tugs liable

ter Neuzen v. Korn

    -   issue concerning the liability of the respondent physician for conducting an artificial
        insemination procedure which resulted in his patient (appellant) contracting HIV
    -   respondent was not aware that HIV could be transmitted by AI
    -   physicians have a duty to conduct their practice in accordance with the conduct of a
        prudent and diligent doctor in the same circumstances
    -   physicians must be judged in the light of the knowledge that ought to have been reasonably
        possessed at the time of the alleged act of negligence



                                                                                                       20
 when a doctor acts in accordance with a recognized and respectable practice of the profession,
they will not be found to be negligent

General rule: where a procedure involves difficult or uncertain questions of medical treatment or
complex, scientific or highly technical matters that are beyond the ordinary experience and
understanding of judge or jury, it will not be open to find a standard medical practice negligent

Exception: if a standard practice fails to adopt obvious and reasonable precautions which are
readily apparent to the ordinary finder of fact, then it is no excuse for a practitioner to claim that
he/she was merely conforming to such a negligent common practice

 medical knowledge on HIV was highly variable

 not negligent

key factors to see if risk is unreasonable

   1. magnitude of risk
            o needs more than a fantastical chance – needs to be a real risk of injury
            o actors are not required to guard against fantastic probabilities
            o actors are entitled to ignore far-fetched risk, but not ones sufficiently probably to
                warn precautions being taken (Bolton v. Stone)

   2. gravity of injury – precaution should be commensurate with the danger

   3. utility of conduct of the person
                o where the defendant‟s conduct has great social value, he/she may be entitled to
                   take greater risk
                o ex. All the trains could be running at 5km/hr to be safer, but we‟d all be greatly
                   inconvenience
                o how much risk are we willing to tolerate in the face of important public purpose?

   4. Burden/cost of eliminating the risk
            o Where the cost is minimal, the chances are that the courts will say risk should
                have been eliminated
            o If cost is great, where risk is not great, court will see that the risk is
                unreasonable to guard against
   5. custom/practice
            o standard of care can be affected by custom and practice
            o no rule on how much weight to be given to such things
            o if the actor‟s practice is one that conforms to community customs/practices, that
                will generally leave the defendant with liability
            o compliance to custom is not conclusive evidence of reasonable care, but it is still
                relevant to the standard of care, and judging the standard of care

   6. statutory standards
          o ex. Trimarco v. Klien
          o chapter 7: the role of statutes




                                                                                                         21
PROOF OF NEGLIGENCE

Proof on balance of probabilities = 50% +1

Burden of proof is on plaintiff (if cannot find 50% +1, then decision favors def)

      legal burden: burden of proving an issue on the b of p
           o Burden of Proof rests on the party alleging negligence (Plaintiff)
      evidentiary burden: burden of adducing evidence that, if believed, will meet the legal
       burden
           o P can meet evidentiary burden without meeting legal burden
      strategic burden- the need to pass evidence has gone to the other side.
      Res ipsa locquitor - The tactical burden can be shifted to D


Prosser, The Law of Torts, 4th ed.

Functions of Court and Jury

   1. the sufficiency of the evidence to permit a finding of the facts.
          o before any duty, or standard of conduct set, there must first be proof of facts which
              give rise to it; and once the standard is fixed, there must be proof that the actor has
              departed from it

   2. the weight of the evidence as establishing the facts
          o Once it is determined that reasonable men may differ as to whether a fact has been
             proved, the probative value of the evidence, and the conclusion to be drawn from it
             lies in the hands of the jury

   3. the existence of a duty.
          o whether the interest of the Pl which has suffered invasion was entitled to legal
              protection at the hands of the def.

   4. the general standard of conduct
          o In negligence cases once a duty is found, the duty always requires the same
             standard of conduct, that of a reasonable man under the same or similar
             circumstances

   5. the particular standard of conduct.
          o What the reasonable man would have done under the circumstances

Burden of Proof and Presumptions

   -   “risk of non-persuasion” = burden of proof
   -   burden of proof does not require that the jury be convinced beyond all reasonable doubt,
       but only that they be persuaded that a preponderance of the evidence is in favor of the
       party sustaining the burden

Circumstantial Evidence – Res Ipsa Loquitur

   -   negligence must be proved, and never presumed
   -   “the thing speaks for itself” = res ipsa loquitur

                                                                                                   22
   -   what is required is evidence – some form of proof – it must be evidence from which
       reasonable men may conclude that t is more likely that the event was caused by negligence
       than that it was not
   -   negligence may be proved by circumstantial evidence (evidence of one fact, or of a set of
       facts, from which the existence of the fact to be determined may reasonably be inferred)

Baker v. Market Harborough Industrial Cooperative Society Ltd.

   -   vehicles collided on a straight road at night – plaintiffs: wives of deceased – brought action
       in negligence against the company owner of the vehicle driven
   -   same negligent acts: failing to keep a proper lookout, failing to drive on correct side,
   -   each found equally to blame  each plaintiff recovered 50% of damages

 in absence of any evidence enabling the court to draw a distinction between them, it should hold
them both to blame, and equally to blame

Byrne v. Boadle

Fact: plaintiff walking down street, past defendant‟s shop, when a barrel of flour fell on him

Issue: Without affirmative proof of negligence, can a defendant automatically be liable for prima
facie negligence?

Decision: yes

Rules: Exercise of ordinary care and prudence a person would observe under similar
circumstance. Res Ipsa Loquitor - The thing speaks for itself. Proof that the instrument causing
the injury was under the exclusive control of the df and the injury does not ordinarily happen unless
negligent.

 Plaintiff is not bound to give proof of negligence when the occurrence of the circumstance is
alone enough to show negligence caused.

Generally – burden of proof is on plaintiff
Res ipsa loquitur shifts evidentiary burden onto defendant (jury can still decide either way)

Schiff “A Res Ipsa Loquitur Nutshell”

   -   “the thing speaks for itself”
   -   prima facie evidence of negligence
   -   even if the Pl introduces no evidence tending to demonstrate the precise cause of injury, if
       the injurious event alleged is of such factual nature that, in the ordinary course of things
       known to reasonable men, it would probably not have occurred if def had acted according
       to the applicable duty of care, the trier of fact may infer by common reasoning from the fact
       of the injurious event itself that something done by def in violation of that duty caused Pl‟s
       injury

Fontaine v. British Columbia

Facts: Pl‟s husband and hunting friend were found dead in their car which had been washed along
a flood swollen creek. No one saw the accident and no one knew precisely when it had occurred.


                                                                                                    23
Trial judge dismissed claim because appellant had not proved that negligence by Lowen caused
Fontaine‟s death (trial judge rejected Pl‟s use of res ipsa loquitur)

When does Res Ipsa Loquitur apply?
  - the circumstances of the occurrence must permit an inference of negligence attributable to
      the defendant
  - only operates to provide evidence of negligence in the absence of an explanation of the
      cause of the accident. if the facts were known, the inference is impermissible and it is the
      task of the court to review the facts and to decide whether they amount to the Pl having
      satisfied the burden of proof on him

Effect of application of Res Ipsa Loquitur
    - as in any negligence case, the Pl bears burden of proving on a balance of probabilities that
        negligence on the part of the def caused the Pl injuries
    - if Def produces a reasonable explanation that is as consistent with no negligence as the res
        ipsa loquitur inference is with negligence, this will effectively neutralize the inference of
        negligence and the Pl‟s case must fail
    - if the Pl has no direct or positive evidence which can explain the occurrence and prove that
        the def was negligent, appropriate circumstantial evidence, as defined by res ipsa loquitur,
        may be introduced
    - its use has been restricted to cases where facts permitted an inference of negligence and
        there was no other reasonable explanation for the accident

Application to this case
   - no negligence on Loewen
   - should not be concluded that the accident would ordinarily not have occurred in the
       absence of negligence

SCC:
  - Pl still has burden of proof
  - Res ipsa loquitur only in absence of evidence
  - Implication of res ipsa loquitur does not shift burden of proof to defendant


                                    DUTY AND REMOTENESS


DUTY OF CARE

   -   a person is only required for meeting a standard of care if he/she has a duty of care

Duty: has to do with relationship between individuals, which results in one person having legal
obligation for benefit of the other

Anns Test
   1. is there a sufficiently close relationship between the parties so that, in the reasonable
      contemplation of the def, carelessness on its part might cause damage to the pl?
   2. if the answer to question 1 is “yes”, are there any considerations that ought to negative or
      limit either (a) the scope of the duty, (b) the class of persons of whom it is owed, or (c) the
      damages to which a breach of it might give rise?


                                                                                                    24
Ex. 2006, SCC – Childs v. Desmoreaux

           1. is there a sufficiently close relationship between parties or proximity to justify a
              duty?
           2. if yes, are there policy considerations which ought to negative or limit the scope of
              duty, the class of persons of whom it is owed, or the damages to which a breach of
              it might give rise?

A successful tort claim must have the following features:

   1. that D‟s risks causing harm were unreasonable  negligent.

However, even if standard of care is breached, it must be shown that:

   2. D owed a duty of care to P, such that the duty to not cause this particular person harm was
      breached.

If no duty exists, then defendant cannot be held liable.
Wright, Cases on the Law of Torts, 4th ed.

   -   every form of activity carries with it the possibility of harm to others
   -   liability for “fault” involves the idea that the risks created be “unreasonable”

when a question arises concerning the person(s) who may be considered within a risk created by
the def‟s conduct  “duty”

Duty of care recognized: (1) The manufacturer has a duty to warn if he knows or should have
known about current risks with taking the products. Manufacturers of products have a duty to take
care, not to harm the end-users of those products. (Buchan v. Ortho Pharmaceutical);; (3)
manufacturers owe the consumer a duty of care for the quality of the goods (Donoghue v.
Stevenson (HL)) ; (17) Duty to the rescuers: a negligent defendant owes a duty to a rescuer who‟s
coming to the aid of somebody who has been empiriled by the defendant‟s negligence, provided,
that the rescuer‟s intervention is not so utterly foolhardy as to be outside of any accountable risk
and thus beyond even contributory negligence (Horsley v. MacLaren;

Duty of care not recognized: (1) Statutory regulator against particular investors (Cooper v.
Hobart); (2) Police office Board and Province of Ontario when they don‟t have statutory obligation
(not sufficient proximity) (Odhavji v. Woodhouse); (3) Social host liability not recognized toward
intoxicated guest or user of the road Childs v. Desormeaux; (5) Women don‟t owe a duty of care
to the foetus she is carrying (Dobson v. Dobson)
Principle: the plaintiff has to establish that the defendant had a legal obligation to take reasonable
care not to harm him/her.

Winterbottom v. Wright

Facts: Df (wright) was a manufacturer and repairer of mail coaches. He contracted with the
Postmaster to keep the coaches in a safe and secure condition. Df failed to comply with his
promise and PL, a driver, was seriously injured as a result.

Issue: Whether df's breach of contract entitles the pl to recover for his injuries? Court: No



                                                                                                   25
Rule: The right to recover for a breach of contract, or privity of contract, is confined to those who
enter into the contract.

General rule: wherever a wrong arises merely out of the breach of a contract, whether the form in
which the action is conceived by ex contractu or ex delicto, the party who made the contract alone
can sue (Tollit v. Sherstone)

Reason: The contract was between the df and the Postmaster and not the pl. If similar pls were
allowed to sue there would be unlimited actions. The df did not injure the public, nor create a public
nuisance  he is not liable. There is no public duty, a carrier cannot be sued unless a duty existed
between the df and pl.

Plaintiff‟s Argument: As servant to the df, the breach of the df‟s duty under the contract caused an
injury, the df‟s duty to avoid such extended to the pl.

Defendant‟s Argument: There is no privity of contract between the df and the pl, and the df did not
owe a duty to the pl.

Damnum absque injuria - Loss without injury (no remedy)

 The only safe rule is to confine the right to recover to those who enter into the contract; IF ONE,
WHY NOT FIFTY.

M’Alister (or Donoghue) v. Stevenson

Facts: Claimant bought ginger beer and found the decomposing remains of a dead snail.

Claimant became unwell and brought a claim of tort negligence against the manufacturer.

Issue: Do manufacturers owe a duty of care to consumers who are not in a contractual
agreement?

House of Lords decided that the manufacturer could be liable in certain circumstances. In deciding
the legal principles, Lord Atkin commented:

Reasons
    Manufacturer was in fact responsible for the snail in the bottle and that the snail was the
      cause of the appellant‟s illness.
    Manufacturer owed a duty of care to the appellant in that he should have reasonably
      foresaw that his failure to ensure the product was free of contaminants could have resulted
      in illness or injury to the consumer, and was bound to do so.

Neighbor principle
    One must take reasonable care to avoid acts or omissions which one can reasonably
      foresee would be likely to injure his / her neighbor.
    Neighbors are defined as persons who are so closely and directly affected by one‟s act that
      (s)he ought reasonably to have them in contemplation as being affected when one directs
      his / her mind to the acts or omissions in question.

 there is a duty of care


                                                                                                        26
DISSENT: Lord Buckmaster argues for continuation of the principle derived from Winterbottom: “If
one, why not fifty”; P is too far removed from D to be owed a duty of care. Without, a contract, no
connection from which to base a duty.

Deyong v. Shenburn

Plaintiff: actor whose clothes were stolen from dressing room – sued producer for failing to use
reasonable care in safeguarding his property

Trial judge: defendant had not used reasonable care for safety of property
        - but held def was under no duty to exercise care and dismissed action

Reason: there has never been a decision that a master must, merely because of the relationship
        which exists between a master and servant, take reasonable care for the safety of his
        servant‟s belongings in the sense that he must take steps to insure, so far as he can, that
        no wicked person shall have an opportunity of stealing the servant‟s goods

 carelessness, but no duty

Watson v. Buckley and Osborne, Garrett and Co. Ltd.

   -    Hairdresser contracted with distributor of lotions
   -    Hair dye – not suppose to contain more than 4% acid (but not stipulated in writing)
   -    Without testing lotion, plaintiff packaged it and advertised that it was perfectly safe
   -    Buckley, another hairdresser, suggested plaintiff use it
   -    But really had 10% acid = caused plaintiff dermatitis
   -    Plaintiff brought action against the distributor for its alleged negligence

Generally: Although the manufacturers would owe such a duty, the distributors, being distributors
and not manufacturers, are absolved

Present case:
     initial act: negligent act of the manufacturer = putting acid in too strong a solution
       - distributor not responsible

Did the negligence of the distributor cause the damage? yes

       negligent act of the distributor = various acts and omissions and representations which
       intervened between the manufacturer of the article and its reaching Watson

 hairdresser (distributor) liable for using a dye she had impliedly warranted that it was safe

Clay v. AJ Crump & Sons Ltd.

   -    owner of garage hired architect, demolition contractors, and building contractors
   -    asked architect to leave a certain wall standing for time being
   -    architect agreed without inspecting the wall – relied on demotion contractors
   -    wall was in dangerous condition anyone who inspected would have noticed
   -    building contractors made cursory inspection of wall – didn‟t notice anything
   -    wall collapses killing 2 workmen and injuring plaintiff


                                                                                                   27
Negligence awarded against architect, demolition, and building contractors

   -    class of persons to whom a duty was owed was not affected by the fact that other persons
        had ample chance to inspect wall
   -    the fact that the building contractor had last chance of examination did not break chain of
        causation

Palsgraf v. Long Island Railroad Co. (US version of Donoghue)

   -    A passenger carrying a package, appeared to employee (defendant) to be falling.
   -    Guard pulls him into the cart, another guard attempts to push him in - caused a package to
        fall on the rails
   -    the package contained fireworks  exploded
   -    injury to Palsgraf (Plaintiff) – other side of platform
   -    Palsgraf sued the railroad, claiming her injury resulted from negligent acts of the employee
   -    The trial court found for Palsgraf (Plaintiff), Long Island Rail Road appealed the judgment

Cardozo opinion (Majority)

   -    The Court of Appeals reversed and dismissed Palsgraf's complaint, deciding that the
        relationship of the guard's action to Palsgraf's injury was too indirect to make him liable
   -    no way that the employee could have known that the package wrapped in newspaper was
        dangerous, and that pushing the passenger would thereby cause an explosion
   -    Without any perception that one's actions could harm someone, there could be no duty
        towards that person, and therefore no negligence for which to impose liability

            o   The risk reasonably to be perceived defines the risk to be avoided, and risk imports
                relation; it is risk to another or others within the range of apprehension
            o   The guard could not have been negligent because he could not have apprehended
                that the plaintiff was endangered by his action

Negligence is not actionable unless it involves the invasion of a legally protected interest, the
violation of a right

If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least
to outward seeming, with reference to her, did not take to itself a quality of a tort because it
happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with
reference to some one else

 the duty is only to those within the range of apprehension

 danger of floodgates = you don‟t owe duties to the world at large

       * Compare to Buckmaster, J in Donoghue v Steve.: “If one, why not fifty”…taken from
         Winterbottom case re. how far to stretch duty of care.

Dissent (Andrews)

   -    you owe a duty to anyone who could be injured by your conduct (even if it wasn‟t
        foreseeable)




                                                                                                    28
Two Approaches to Negligence:

             1. Relative concept – the breach of some duty owing to a particular person or to
                particular persons
             2. An act which unreasonably threatens the safety of others, the doer liable for all its
                proximate consequences

Negligence:
   - an act or omission which unreasonably does or may affect the rights of others, or which
       unreasonably fails to protect one‟s self from the dangers resulting from such acts

      -   there is no negligence unless there is in the particular case a legal duty to take care, and
          this duty must be one which is owed to the plaintiff himself and not merely to others

Duty of care
   - a duty imposed on each of us to protect society from unnecessary danger, not to protect A,
       B, or C alone


the right to recover damages:
    - the plaintiff‟s rights must be injured
    - injury must be cause by the negligence
    - damages must be so connected with the negligence that the latter may be said to be the
        proximate cause of the former

Proximate:
   - because of convenience, public policy, sense of the word justice – the law declines to trace
      a series of events beyond a certain point
   - ex. railroad sparks sets fire to haystack – sets A‟s house on fire and A‟s neighbor‟s house
           1. A may recover from negligent railroad
           2. B may not

           act of the railroad was not the proximate cause of B‟s fire

      -   proximate cause – something without which the event would not happen

      -   must ask:
            o whether there was a natural and continuous sequence between cause and effect?
            o Was the one a substantial factor in producing the other?
            o Was there a direct connection between them, without too many intervening causes?

Prosser, “Plasgraf Revisited”

Controversy:

      -   the risk which determines the existence of negligence in the first instance limits the
          recovery for it, and that the same factors which characterize the conduct as wrongful define
          the scope of liability for its consequences
vs.
      -   what the defendant might foresee is important in determining whether he was at fault at all,
          but is not decisive as to the extent of the consequences for which, once negligent, he will
          be liable


                                                                                                         29
Direct causation
    - Palsgraf is a typical case of direct causation

   -     direct consequences are always proximate, and recoverable, whatever their nature and
         whoever the plaintiff may be

Freak accidents
   - a rule can have validity only as it applies to situations that recur without significant
       differences
   - freak accidents do not recur, and the differences which can arise in them are virtually
       unlimited

Haynes v. Harwood

Situation:
    - defendants‟ driver left horse unattended
    - boy threw a stone at horse – horse runs away
    - plaintiff sees a woman in danger from horse and runs – risks his life and limbs to stop horse
    - plaintiff = personal injuries entailing pecuniary loss
nature of the street
    - three schools in neighborhood
    - children around

Points

1. no evidence of negligence on part of the defendants‟ driver?

         Negligence:
            1. in order to give a cause of action, negligence must be the neglect of some duty
                owed to the person who makes the claim

         negligence complained here:
             2. a failure to use reasonable care for the safety of those who were lawfully using the
                  highway in which two horses was left unattended
         plaintiff using highway for purpose of stopping runaway horse and preventing serious
         accidents is within category of those lawfully using the highway
          first point fails

2. assuming there was evidence of negligence: novus actus interveniens
    - “intervening act that breaks the chain of causation”
    - chain of causation between cause of accident and the damage was broken and plaintiff‟s
       claim cannot be sustained

         present case:
            1. damage was a result of the wrongful act in the sense of being one of the natural and
                probable consequences of the wrongful act
            2. it is sufficient if the accident is of a class that might well be anticipated as one of the
                reasonable and probable results of the wrongful act

          what‟s anticipated by a man leaving his horses unattended




                                                                                                       30
3. volenti non fit injuria
    - “to a willing person, no injury is applied”
    - plaintiff willingly assumed the risk
    - damage he suffered was the result of his own act, he cannot recover

        American rule:
           1. the doctrine of the assumption of risk does not apply where the plaintiff has, under
               an exigency caused by the defendant‟s wrongful misconduct, consciously and
               deliberately faced a risk, even of death, to rescue another from imminent danger of
               personal injury or death, whether the person endangered is one to whom he owes a
               duty of protection, as a member of his family, or is a mere stranger to whom he
               owes no such special duty
          this is not a matter of consenting to harm

Basis of liability to the rescuer

    -   the wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his
        rescuer
    -   is it reasonably foreseeable that a rescuer would step into the situation?
    -   ex. kidney transplant gone wrong – foreseeable that a member of family would donate
        organ

Urbanski v. Patel
   - kidney transplant
   - expected that a member of family would donate his organ to help her

Dobson v. Dobson; Canadian abortion rights action elage et al., Interveners

Issue: should a mother be held liable in tort for damages to her child arising from a prenatal
negligent act which allegedly injured the foetus in her womb?

Situation:
    - 27th week of pregnancy
    - snowstorm – car accident – negligent driving
    - infant – injured in utero  permanent mental and physical impairment and cerebral palsy
Analysis:

City of Kamloops v. Nielsen
    - even where a duty of care exists, it may not be imposed for reasons of public policy
    - (legislature should deal with it)

    before imposing a duty of care:
            1. there must be sufficiently close relationship between the parties to give rise to the
               duty of care
            2. there are no public policy considerations which ought to negative or limit the scope
               of the duty, the class of persons to whom it is owed, or the damages to which a
               breach of it may give rise

    1 is satisfied if assumed that pregnant woman and fetus can be treated as distinct legal entities
                 o woman and fetus = closest possible physical proximity that two “legal persons”
                      could be



                                                                                                     31
   -   foreseeability: almost any careless act/omission by pregnant woman could be expected to
       have a detrimental impact on fetal development

   -   public policy: legal duty of care should not be imposed b/c:

               o privacy and autonomy rights of women
                          if liable – could render the most mundane decisions taken in course
                            of her daily life as a pregnant woman subject to the scrutiny of courts
                          family harmony

               o difficult to create a standard of conduct for pregnant women
                             decisions involving standard of care in tort law focus upon generally
                                accepted norms, rather than on the individual woman

negligence:
   - cannot exist in the abstract
   - there has to be a specific duty owed to a foreseeable plaintiff, which is breached, in order
       for negligence to arise
   - there is not “general duty of care”

Insurance-dependent rationale
    - inappropriate in this case
    - court has held that existence of insurance is irrelevant to a determination of tortuous liability

Liberty and equality
    - fundamental right to control her body and make decisions in her own interest
    - any other individual can avoid being a tortfeasor by isolation, but mother carries fetus all
        day

Dissent: Major J
   - Dobson was already under a legal obligation to drive carefully
   - Appellant‟s autonomy interests are not in issue
   - Where a duty of care is owed to a third party, the child‟s prima facie right to sue cannot be
       negatived under the second branch of Kamloops on policy grounds flowing from the
       pregnant woman‟s freedom of action

   -   At issue – the relationship between the rights of a pregnant woman and the rights of her
       born alive child

Duval v. Seguin
   - foreseeable that some users of the highway were pregnant women and that an unborn child
       could be injured in an accident

   Family Law Act s. 65-66
      65: no person is disentitled from bringing an action or other proceeding against another for
          the reason only that they are parent and child

       66: no person is disentitled from recovering damages in respect of injuries for the reason
           only that the injuries were incurred before birth




                                                                                                     32
Weinbrib and Weinrib
  - transactional equality
             o since the plaintiff and the defendant have equal status in their relationship, the
                decision between them cannot be made on basis of considerations that reflect
                the normative position of only one of them
             o excludes 2 solutions:
                        the woman be liable for any actions that foreseeably might injure the
                           fetus
                        importance of autonomy

   -     a tort duty to the plaintiff exists if the plaintiff is within the class foreseeably put at risk by the
         defendant‟s unreasonable act

                 o definition of class – normative construct that reflects what it is that renders the
                    defendant‟s act wrongful
                 o the duty is owed to the plaintiff only inasmuch as the plaintiff is within that class

Wellbridge Holdings v. Greater Winnipeg

Issue:
         whether the plaintiff was barred from recovery simply because it was not yet in existence
         when the bylaw was passed and therefore whether the defendant could have owed it any
         duty of cares

argument to deny Pl‟s recovery:
   - because the Pl was incorporated after the passage of the bylaw
   - because the Def could have repealed it before the Pl‟s incorporation

   -     Neighbor principle (Donoghue v. Stevenson) did not extend to an entity not yet in existence

Does it matter if the wrongful act occurred not only before birth by also affected the mother even
before the child‟s conception?

         Renslow v. Mennonite Hospital
               o newborn successfully sued the def for resulting injuries

         possible consequences of this ruling:
                o scenario 1 – 3 (p.161-162)

         Renslow type actions should be limited:
               o number of future claims
               o def defending stale claims
               o family problems

         statute recommended for limitations:
             1. statutes should exclude the natural parents of infant as possible de
             2. a bar on all Renslow type actions against all other real persons if not commenced
                 within five years from date of the negligent conduct
             3. limit recovery to situations where Pl is a member of the first generation to follow the
                 preconception negligent act




                                                                                                             33
Kamloops v. Nielsen (two stage test)

In order to decide whether or not a private law duty of care existed:
       1. is there a sufficiently close relationship between the parties so that, the reasonable
            contemplation of the defendant, carelessness on its part might cause damage to that
            person? If so,

       2. are there any considerations which ought to negative or limit:
              a. the scope of the duty and
              b. the case of persons to whom it is owed or
              c. the damages to which a breach of it may give rise?

Criticism
    - policy considerations relevant to second stage are uncontrolled by the relationship between
        the parties and may be beyond the court‟s institutional competence to judge
    - refers only to policy considerations that negative liability, not to those that might confirm
        liability
    - relationship between Pl and Def is fragmented not only by the recourses to instrumental
        policy concerns, but also by disjunction between the justice and policy considerations of the
        two stages
    - notion of foreseeability is transfigured

Cooper v. Hobart
  - appellant is an investor who alleges that the Registrar is liable in negligence for failing to
     oversee the conduct of an investment company which the Registrar licensed

Issue: whether the Registrar owes a private law duty of care to members of the investing public
giving rise to liability in negligence for economic losses that the investors sustained

Proximity – close and direct relationship
   - def may be said to be under an obligation to be mindful of the plaintiff‟s legitimate interests
       in conducting his affairs
   - factors:
               o expectations
               o representations
               o reliance
               o property or other interests involved

Residual Policy Considerations

   -   concerned with the effect of recognizing a duty of care on other legal obligations, the legal
       system and society more generally
   -   does the law already have a remedy?
   -   Would recognition of the duty of care create the spectre of unlimited liability to an unlimited
       class?
   -   Are there other reasons of broad policy that suggest that the duty of care should not be
       recognized?

 Government actors are not liable in negligence for policy decisions, but only operational
decisions
   - it is inappropriate for courts to impose liability for consequences of a particular policy
       decision


                                                                                                     34
 government actors may be liable for negligence for the manner in which it executes policy

No duty of care owed by regulatory bodies to customers/clients for failing to regulate behaviour

Stevens v. Brodribb Sawmilling

Where a duty of care exists under the common law of negligence, it requires the taking of
reasonable care to avoid a reasonably foreseeable and real risk of injury

A relevant duty of care will have existed in a particular case only if there was reasonable
foreseeability of a real risk that injury of the kind sustained would be substance by a member(s) of
a class which included the particular plaintiff

POLICY CONSIDERATIONS

Donoghue v. Stevenson:

In this case, the policy consideration were:

(1) would this have placed an undue burden on the manufacturer;
(2) Health and well being of consumers;
(3) Manufacturers are in the best position to guard against defect in the process.

Odhavji v. Woodhouse

Facts: The estate of a person who had been shot by police officer sue the Chief of police, the
Police Office Board and the Province of Ontario, alleging a negligent infliction of emotional distress
because of the various failures on their part to ensure that the police officer involved co-operated
with the Special Investigation Unit. Since it is a novel type of claims (against the superior), the
Anns test is applied to determine whether or not these individuals owed a duty of care to the man
who was shot.

Holding:

(1) Chief of police: he owed a duty of care because he had a statutory obligation to make sure that
the police co-operate fully with the SIU and therefore it‟s reasonably foreseeable that if he fails to
do that, that will cause harm to individuals. Policy considerations (factors): (i) direct causal link
between the misconduct and the harm that is complained of, (ii) reasonable expectation that
members of the public would hold that the chief would be mindful of the injuries that would flow if
he doesn‟t comply with his statutory obligations.

(2) Police services board: doesn‟t owe a duty of care. Even thought is reasonably foreseeable that
if the Police Services Board didn‟t discharge all of its functions and responsibilities properly
members of the public might be harmed, there still is not a sufficient relationship of proximity
because or he policy considerations (factors): (i) looking at the Board functions and powers, it
says that unlike the chief of police, there is no direct supervisory role over the police officers so
there is not close causal connection between the misconduct and the harm that is the subject of
the lawsuit here. (ii) unlike the chief of police there is no statutory obligation to ensure that the
police officers cooperate with the SIU.




                                                                                                   35
(3) Province of Ontario: no duty of care owed by the province to individuals that‟s enforceable by
the individuals. Province owes its duties to the public as a whole, but we don‟t have that close and
direct connection that‟s referred to in Cooper v. Hobart. So, there‟s an insufficient proximity
between the parties here. It‟s not involved in oversight of the day to day conduct; there is no
statutory obligation on the province to ensure that police officers co-operate with the SIU.



REMOTENESS


Remoteness of Damage:

      must show that the kind of injury that occurred may not have been expected.
      P must show that damage was not remote (i.e. that a certain sequential chain of events
       lead from D‟s action to P‟s injury).

Remoteness is the second control device (duty of care is the first)

   1. reasonable foreseeability rule
   2. interpretation of reasonable foreseeability
          a. mechanics of the accident
          b. possibility of damage
          c. linkage for building foreseeability upon foreseeability
          d. the demarcation/characterization of damage
          e. foreseeability as an Elastic Concept
   3. special issues relating to remoteness

In Re Polemis and Furness, Withy & Co.

Facts : plaintiffs‟ boat was destroyed  sued the defendants
   - Defendants claimed that the damages were too remote to be foreseeable
   - The arbitrators - plaintiff‟s ship was destroyed by fire, that the fire was caused by a spark
        igniting gasoline vapor, and that in turn the spark was caused by a falling board.
                 o at least some damage was foreseeable.
   - The arbitrators awarded heavy damages to the plaintiffs. The defendants appealed.

 The defendants will only be held responsible for the proximate (i.e. not too remote) results of
their negligence

Issue: is damage too remote to be considered as a result of the action?

would reasonable person foresee act would cause danger?
   - no = not negligent act
   - fact that the damage it in fact causes is not the exact kind of damage one would expect is
       immaterial, so long as the damage is in fact traceable to the negligent act, and not due to
       the operation of independent causes having no connection with the negligent act, except
       that they could not avoid its results

 workers found liable (not too remote)



                                                                                                     36
 When an act is performed and is found to be negligent if the resulting damage can be seen as a
direct consequence of the action then liability is unavoidable.

Overseas Tankship (UK) v. Morts Dock & Engineering (the wagon mound, no.1)

   -   crew allowed oil to leak from ship  fire

did not know and could not reasonably be expected to have known that oil was capable of being
set afire when spread on water

Issue: are the appellants liable for fire damage? Or are they too remote?

Decision: the damages are too remote. The wagon mound is not responsible.

Replaced Polemis rule (directness of connection between negligent action and final injury)
   - does not seem consonant with current ideas of justice of morality that, for an act of
      negligence, however slight or venial, which results in some trivial foreseeable damage, the
      actor should be liable for all consequences, however unforeseeable and however grave, so
      long as they can be said to be “direct”

foreseeability = logical link between, and the test for, breach of the duty of care and the damages

      Court moves away from direct consequence as good law and introduce concept of
       reasonably foreseeable and apply it to the damages
      They do not find that the resultant damages were reasonably foreseeable


Test in Re Polemis is rejected as “no longer good law”; had it not been, then D would be found
liable. Instead of a „direct result of negl act‟, the courts use a test of reasonable foreseeability, such
that the damages are of such a kind that one could reasonable foresee them as resulting from the
negl. act. Court finds that the fire was not of the kind of damage that should have been reasonably
foreseeable as resulting from the spill. E.g. yes: contaminate dock/indiv. slip on dock = kind

 The essential test in determining liability is whether the damage is of such a kind that the
reasonable man should have foreseen. That is, it is not nec. that the exact damage, insofar as full
extent and precise circumstances, be reasonably foreseeable; but that the kind of damage be
reasonably as resulting from the negligent action.

The Wagon Mound 2

FACTS: The owners of the ship being repaired on Mort‟s Dock sue the Wagon Mound for
damages.

ISSUES: Are these damages too remote?

DECISION: No, P may recover

REASONS: In wagon mound 1, it was argued that the fire was a direct result of the spill and this
was overturned as no longer good law; instead: reasonably foreseeable; and fire was not argued
as reasonably foreseeable from spill. In this case, the argument was based on the legal principle
of STARE DECISIS Stand by past decisions, previous cases.
So, test used here was of reasonable foreseeability, which was shown to exist b/w spill and fire.

                                                                                                       37
RATIO: The test establish in Wagon Mound No.1 one, wherein the damages must be reasonably
foreseeable in order to not be too remote, is upheld.

NOTE: The Wagon Mound No. 1 could not go back and argue their case in this slant, b/c of the
legal principle of RES JUDICATA  facts of a case cannot be interpreted differently in a
subsequent case with the same parties.

Smith v. Leech Brain & Co. Ltd

“Thin Skull” rule

Smith – worked in gas industry – prone to cancer
   - molten metal – burned lip
   - diagnosed with cancer – died

foreseeable by any reasonable employer that a workman, unless protected, would be liable, to get
molten metal on him

 was the cancer and death resulting from it caused in whole or in part by the burn?

Issue: is the type and extent of injury reasonably foreseeable such that def is liable?

Views
   1. cancer caused by burn itself
   2. malignancy existed long before accident
   3. pre-malignant changes from working in gas industry, and burn was the promoting agency
      which made the cancer develop

“Thin skull” = tortfeasor takes the victim as he finds him

    -   overseas tankship v. morts dock did not override “thin skull” principle
    -   type of injury was reasonably foreseeable  damages claimed – even though couldn‟t
        foresee ultimate consequences of cancer

 not whether it was foreseeable that burn would cause cancer but, whether foreseeable the type
of injury which he suffered (the burn)

 def is liable

Stephenson v. Waite Tileman Limited

Foreseeability limited to initial injury

Situation:
    - rope cuts appellants‟ hand
    - hand swells and develops fever
    - appellant contended that respondent had been negligent in allowing wire rope to get into
        such a dangerous condition

jury found the initial cut on hand was injury reasonably foreseeable
    - but the appellant‟s ultimate disability was not damage foreseeable



                                                                                                 38
Conclusions

     1. thin skull rule upheld – damages which flow from pre-existing susceptibility and/or any
        new risks created by the initial injury may be recovered

     2. in such cases the question of foreseeability should be limited to the initial injury

     3. if Pl establishes that initial injury was within a reasonably foreseeable kind, type or
        character of injury, then link between ultimate consequences of initial injury and
        negligence of defendant can be forged simply as one of cause and effect

If reasonable foreseeability is made out with respect to the initial injury, the plaintiff must then
establish an adequate relationship of cause and effect between the initial injury and the ultimate
consequence.

 Def is liable

Cotic v. Gray, 1981

P‟s husband was the victim of a car accident in which D found negligent. Prior to accident,
husband has severe depression, after accident he becomes psychotic and kills himself.
Court says as a matter of policy, psychological disorders are not excluded from thin-skull rule, and
that D must take victim as he finds him: psychological mess. D is liable to P for the death of her
husband.

Hughes v. Lord Advocate

Facts:
   - maintenance hole unattendend
   - child comes along and knocks lamp into hole  explosion
   - child falls into hole and is injured

Issue: was the accident reasonably foreseeable? (def liable to the child?)

Rule: exact type of harm need not be foreseeable – merely that a harm may be suffered from the
negligent act
   - Don‟t have to predict the circumstances – how it occurred is immaterial

If a known source of danger causes an accident/damage in a way that could not have been
foreseen, D is still liable. Don‟t have to see the extent or the circumstances of the injury, one must
only see the kind/type of injury to recover

Chain of events leading to explosion  not foreseeable
Burns  foreseeably caused by lamp

Decision: plaintiff can recover (Def. liable)

The workmen left lamps out. If boys found these lamps, it is reasonable they would play with them,
and if the lamps fell it is reasonable that an explosion would result and someone would get burned.




                                                                                                       39
Liability may be found where:
  1.) there exists a duty of care,
  2.) if the duty to act had been followed there would have been no accident, and
  3.) the injuries resulting from the accident are of a kind which may be RF to result.

Doughty v. Turner Manufacturing Co.

    -   accidentally knocked cover into cauldron
    -   no one thought immersed cover posed danger and no one moved it from cauldron
    -   erupted  personal injury

 explosion alone caused the liquid to erupt

- First risk: initial drop of lid might cause splash

- Second risk: if lid immersed in liquid and temperature exceeds 500 degrees it will disintegrate and
cause under-surface explosion

 splash caused no injury

 Def. not liable

Keeton, Legal Cause in the Law of Torts

The descriptions of risks and results are fact oriented
   - they are heavily dependent upon interpretation of the facts of the particular case

“The breadth or narrowness of the description of risks and results upon which the court relies is
usually a more significant influence on the particular decision than the choice of rule on legal
cause”…pg. 195
- focus either on the type of harm or the mechanism of harm, as depends on your goal in how the
case is viewed.
- by studying past precedents, one can get a sense not only of the legal rules and principles to use,
but how to present the facts of the case
- seeking guidance from precedents, look to tendencies and trends as to the level of generality
which the facts are related.


Hill v. Winsor

    -   tug boat bumps into piles  plaintiff was trapped and injured

 not necessary that injury in form in which it in fact resulted should have been foreseen
   - it is enough that it now appears to have been a natural and probably consequence

was the result within the risk?
   - was the result of which Pl was complaining in the case within any of the risks by reason of
       which def conduct was characterized as negligent?

Decision for the Plaintiff
   - rested upon court‟s choice of a generalized description of the relevant risk – upon a type-
       oriented in preference to a mechanism-oriented description of risk


                                                                                                   40
Classes of cases - were the particular accident and the resulting damages foreseeable?

        1. cases where damages resulting from misconduct are typical
                o impossible to show that they were unforeseeable

        2. freak accidents

        3. between 1 and 2  neither typical nor freak accident
                o if unusual deals significant = consequences unforeseeable
                o if unusual details insignificant = consequences are foreseeable

              foreseeability determine only after significant facts have been described
                     if facts are detailed = accident unforeseeable
                     if facts are general = accident foreseeable

 foreseeability of injury – not a test of the scope of liability  but will have influence on decisions

Rule:

Plaintiff must show that the injury fell within scope of the council‟s duty
    - in cases of physical injury – the scope of the duty is determined by whether or not the injury
         fell within a description which could be said to have been reasonably foreseeable

unless the injury is of a description which is reasonably foreseeable, it is “outside the scope of the
duty” or “too remote”
NOVUS ACTUS INTERVENUS  New Act Intervenes; someone or something breaks the chain of
causation between one person‟s negligent act and another‟s injuries.

When there is an intervening act, should the initially negligent person be responsible?

Intervening acts only work to excuse negligence when they are too remote to be reasonably
foreseeable:

If I cause X, and X brings about a reasonably foreseeable result Y, and Y causes your injury, I am
not liable. However: if Y is a reasonably foreseeable result of X, then I am still liable.

Bradford v. Kanellos

    -    panic in the restaurant

Rule: a def will not be held liable for injuries sustained by Pl, where those injuries resulted from the
intervening act of another, whose actions could not be regarded as within the risk created by the
def‟s original negligence

Majority: it was not reasonably foreseeable that the “idiotic” person would insight panic (the
intervening act is not reasonably foreseeable, so the defense of intervening act succeeds and the
plaintiff cannot recover)

Minority: it was “utterly” and “naturally” and “inevitable” result of the fact that the fire extinguisher
uses CO2 that sounds like gas, and thus could reasonably be foreseen as a cause of other
problems (like the panic)
    The kind of injury is not the kind that causes the injury the plaintiff has suffered.

                                                                                                            41
      The plaintiff is clearly deserving.
      However, the restaurant is clearly following procedures.
      This is a theoretical tie

 def not liable
 intervening act not reasonably foreseeable (therefore, breaks chain of causation)

IMPLICATIONS: As between a negligent defendant and an injured plaintiff, the tie should go to the
plaintiff. Without the negligence, whether it was direct/indirect/remote, the fact is without it the
situation of the fire the injury would not have occurred. This is why insurance exists.

Home Office v. Dorset Yacht Co. Ltd.

Situation:
    - Borstal boys working on island, under supervision of officers
    - Escaped and damaged yacht

Issue:
    - whether the Home Office or these borstal officers owed any duty of care to the respondents
       capable of giving rise to a liability in damages
    - to what extent does the law regard the acts of another person as breaking the chain of
       causation between the def‟s carelessness and the damage to the Pl?

officers went to bed  consequences easily foreseeable

Home Office arguments

   1. there is virtually no authority for imposing a duty of this kind
   2. no person can be liable for a wrong done by another who is of full age and capacity and
      who is not the servant or acting on behalf of that person
   3. public policy requires that these officers should be immune from any such liability

 human action does not per se sever the connected sequence of acts

if human action is part of the link between original misconduct and damage was something very
likely to happen  not regarded as an intervening act

public policy – should not hold Home Office liable

A is responsible for damages to B by act of C

   1. A has the legal right to detain C in penal custody and to control his acts while in custody
   2. A is actually exercising his legal right of custody of C at the time of C‟s tortuous act
   3. A if he had taken reasonable care in the exercise of his right of custody could have
      prevented C from doing the tortious act which caused damage to the person/property of B
   4. at the time of C‟s tortious act A has the legal right to control the situation of B or his property
      as respects physical proximity to C
   5. A can reasonably foresee that B is likely to sustain damage to his person/property if A does
      not take reasonable care to prevent C from doing tortious acts of the kind which he did

 Court found that they were liable (slim majority)
   - it was reasonably foreseeable

                                                                                                      42
Lord Reid (majority): Question is really one of remoteness
   - Novus Actus Interveniens can relieve a defendant of responsibility.
   - Believes that foreseeability is not enough to diffuse NAI, there must be a high probability for
      the NAI to be dismissed as a defense.
   - In this case it was very clearly probable that the criminal boys, on an island, would try to
      make an escape with a boat, so NAI is dismissed.
   - The intervening act is found to be reasonable, and home office should have taken more
      caution to prevent the act from occurring.

Lord Diplock (majority): Slightly different line of reasoning, but the end is the same
He finds a duty of care between the parties due to proximity

Oliver LJ (minority):
    - No real argument, he relies on policy and says that‟s up to the courts.
    - His view of policy is that they should not be held responsible.

Ratio: For a defense of intervening acts to be struck down the intervening act must be something
that is very likely to occur, not just foreseeable. This has the effect of tightening the test for
intervening acts.

Implications: it seems there should be some difference in analysis when we are dealing with a
government institution when compared with a corporation or commercial enterprise as they can
add it to the cost of doing business.

Lamb v. London Borough of Camden

   -   water burst – Mrs Lamb goes to America
   -   she asks her agents to look after her interests
   -   emptied house for renovation  squatters invaded damages

Issue: can Mrs Lamb recover from the council for the amount due to squatter‟s damages?

 it was Mrs. Lamb‟s job to get the squatters out

this is a question of public policy
    - if insured, insurance would cover damages

 city is not liable
   - not reasonably foreseeable that “the puncturing of a water main would fill the plaintiff‟s
        house with uninvited guests in 1974” (Oliver J)

                                          CAUSE IN FACT

proving a tort action:

   1. STANDARD OF CARE breached by D
   2. Even if standard of care was unreasonable, did D have a DUTY OF CARE?
   3. Once it has been shown that D was negligent and he had a duty of care to the P, it must be
      shown that the actual injuries are not TOO REMOTE, such that the damage caused was
      not totally unforeseeable in considering the negligent act.


                                                                                                     43
   4. It must then be shown that it was the P‟s risks which resulted in the D‟s injuries; thus,
      analysis of the materialization of risk into injury is required to prove negligence using the
      concept of CAUSE IN FACT.

Without materialization of risk into injury, there is no liability
       - def cannot be held liable for negligence unless the def‟s act resulted in an injury to the
       plaintiff

Cause: two meanings

       1. proximate cause or remoteness
             o connects act an injury by directing attention to whether the injury or accident
                suffered by the Pl is within the reason for regarding the def‟s act as wrongful

       2. cause in fact
             o connects act and injury by asking whether the former produced the later

But For test

Whether the plaintiff‟s injury would have occurred by for the defendant‟s act
      - if the injury would have occurred in any case = causation no present, suit fails
      - burden of proof is on the Plaintiff

  test is inadequate in certain cases of multiple causation (especially where there are several
   negligent parties each of whose action would have been sufficient to produce the injury even
   without the action of the others)

 When we apply the but for test, the plaintiff has to prove that it is more probable than not that but
   for the defendant‟s breach of the standard of care he would not have suffered injury/loss. The
   but for test is something different that the balance of probability. The simplest and general test
   for causation is the but for test. The but for test always calls for an answer to an hypothetical
   question (what would have happened to the plaintiff if the defendant had not breached the
   standard of care), and therefore the answer is always speculative. See Barnett v. Chelsea &
   Kensington Hospital Mgmt. Cttee

2 aspects of the causation analysis

(1) We have to enquire whether this defendant‟s tortious conduct was a factor into the plaintiff‟s
injury at all (cause and effect).

(2) Remoteness of damages (proximate cause). It‟s a legal issue. The question is “even if the
defendant caused the plaintiff‟s damages, he will not going to be liable if the causal connection
between negligent act and the plaintiff‟s loss is really to tenuous as a matter of law to justify
imposing liability

                             THE NATURE OF FACTUAL CAUSATION

Barnett v. Chelsea & Kensington Hospital Management Committee

Facts: three watchmen drank tea then started vomiting persistently
        - drove to hospital, but doctor refused them treatment, told them to go home
        - one of them dies later in the night


                                                                                                      44
Issue: was the deceased‟s death caused by negligence or would def have died in any event?
        BUT FOR the def‟s negligence, would the harm have arose?

there was arsenic poisoning
deceased needed to be treated before a certain time to survive

Doctor‟s argument = would have died before treatment anyway

 doctor breached duty by not treating deceased – but would he have died anyway?

Decision: Pl failed to establish, on grounds of probability, that def‟s negligence caused death
       - def (doctor) not negligent

 Pl must show Def was negligent

Multiple Causes

Rule: The liability is divisible between the defendants when the losses are divisible, and the liability
will be joint and several between the defendants when there is an indivisible loss made by an
independent tortfeasor.

Stage of analysis for multiple causes cases:
(1) Are the losses divisible or invidisible;
(2) if 2 tortious events: independent or joint tortfeasors, or is there 1 tortious and 1 non tortious
event;
(3) Measure of loss caused.

Lambton v. Mellish (multiple causation – indivisible causastion)

Def Mellish and Def Cox – merry go round operators  used organs

Plaintiff complained of noise

Def‟s argument: his organ is quieter than the other, and only when organ is combined with the
other person‟s organ is it a problem – so should not be liable

 if the acts of 2 people, each being aware of what the other is doing, amount in the aggregate to
what is an actionable wrong, each is amenable to the remedy against the aggregate cause of
complaint

Corey v. Havener
      - both def. were wrongdoers
      - if each contributed to the injury that is enough to bind both
      - each on their own would be enough to be 100% liable (2 = double?)

Kingston v. Chicago and NW Ry
      - sparks from def car started a fire
      - fire merged with another fire (unknown source)
      - united fire destroyed property

  - this was two separate, independent, and distinct agencies


                                                                                                        45
  any one of two or more joint tortfeasors/wrongdoers who‟s concurring acts of negligence result
  in injury, are each individually responsible for the entire damage resulting from their joint or
  concurrent acts of negligence

 burden is on DEF to show that fire set by him was not the proximate cause of the damage

 it is impossible to apportion the damage to either defendants
         - to permit each to blame the other side for the damage = both wrongdoers could escape

 material contribution test

Multiple Causation and Damage

Damage – essential element in the cause of action for negligence

 If both are tortfeasors = each is liable for the result the two caused gives a full recovery from
either

 If one cause is innocent = wrongdoer is answerable only for his own wrong and its results
NESS: necessary element of a sufficient set
       - a particular condition is the cause of a specific consequence if an only if it was a
           necessary element of a set of antecedent actual conditions that was sufficient for the
           occurrence of the consequence
       - ex. merged fire – if fire by itself insufficient, but together sufficient for damage – each
           was cause of the injury

Sunrise Co. Ltd. et al. v. Ship “Lake Winnipeg” (sequential causation)

Situation
        -   Def. gets into accident with Kalliopi  negligence
        -   On the way to repairs, Kalliopi gets into another accident (Def not at fault)
        -   First accident = 27 days of repairs
        -   Second accident = 13 days of repairs

Issue: should Def only pay 14 days of repairs? (13 days subsumed in the 27?)

Decision: no – Def still has to pay 27 days

Reasons
      - Def cannot benefit from occurrence of second accident
      - There is no causal link between the second accident and the loss of profit suffered by
        Kalliopi

DISSENT: McLachlin J

       -    13 days from first accident
       -    14 days can be from either accident
       -    def should be liable for 20 days (13 + 14/2)

   goal: to restore Pl to position it would have been in but for the tortious conduct of Def (no less
       and no more)


                                                                                                        46
        -   if a subsequent incident intervenes which makes work necessary and that work is done
            at the same time as a previous incident, it is open to the court to conclude that because
            the ship would in any event have been out of commission during the time required to
            repair by the second incident, the Pl has not established that the detention to that extent
            was caused by the Def‟s act

Possibilities of action:

        -   to the extent the loss is caused by a cause other than the tort, it is not compensable
                o Pl entitled to 13 days of repairs
                o But: where the subsequent event causes greater detention than the first, the Pl
                    may be unable to recover anything against the Def who caused the first loss

        -   pro rata apportionment
                o expense not to be wholly attributed to one set of repairs alone, but forms a factor
                    in the cost of each
                o must be divided between them in some proportion
                o principle of apportionment

Baker v. Willoughby
      - Pl injured leg due to Def‟s negligent driving - Pl later got shot in the same leg
      - Leg damage would have been permanent anyway
      - Actions of the def and the robber were concurrent causes of the loss of income
      - Def had to compensate for losses that he had caused
      - Damages are to be assessed on the basis that the Pl is already partially incapacitated

 the occurrence of the second tort cannot be successfully relied on by the def as reducing the
damages which he must pay

Saunders System Birmingham v. Adams

        -   Def rented a car to X with defective brakes (X hits Pl)

If X did not use brake until too close to Pl and impossible to avoid hitting with brakes in good
condition  Pl cannot be awarded any damages

Athey v. Leonati (not sole or predominant but sufficient cause)

Car accident and pre-existing back condition leads to herniated disc

Issue: should the loss be apportioned between tortuous and non-tortious causes where both were
necessary to create the injury?

 a def is liable for any injuries caused or contributed to by his negligence
      - if Def‟s conduct is found to be a cause of the injury, the presence of other non-tortious
      contributing causes does not reduce the extent of the def‟s liability

General Principles

1. “but for” test – requires Pl to show that the injury would not have occurred by for the negligence
of the def


                                                                                                    47
2. as long as a def is part of the cause of an injury, the def is liable, even though his act alone was
not enough to create the injury

3. Multiple tortious causes:
        - apportionment between tortious and non-tortious causes is contrary to the principles of
            tort law
        - only apportionment between tortious causes are permitted

4. Divisible injuries
        - def is not liable for injuries which were not caused by his negligence

5. adjustments for contingencies
        - hypothetical or future events need not be proven on a balance of probabilities
        - they are given weight on relative likelihood
        - past events must be proven and treated as certainties

6. independent intervening events
       - plaintiff must be plaed in the position he would have been in absent the def‟s negligence
          (the “original position”)
       - but not to be placed in better or worst position
       - plaintiff‟s loss = original position – injured position

7. thin skull and crumbling skull
         - thin skull = tortfeasor liable for the Pl‟s injuries even if injuries are unexpectedly sever
             owing to a pre-exiting condition

       -   crumbling skull = pre-existing condition was inherent in the Pl‟s “original position”
              o def is liable for injuries caused, but need not compensate the Pl for any
                  debilitating effects of the pre-existing condition which the Pl would have
                  experienced anyway

8. the loss of chance
        - Pls may be compensated where their only loss is the loss of chance at a favorable
            opportunity or of a chance of avoiding a detrimental event

 if there‟s a “necessary cause”, Def is liable

 Pl has proven, on balance of probabilities, that injuries suffered in the two earlier accidents
contributed to some degree to the subsequent disc herniation
       - contribution assessed to be 25% - outside de minimus range = def fully liable
       - finding of material contribtion



                                      FACTUAL UNCERTAINTY

Blackstock v. Foster

       -   stationary motor car when appellant negligently drove into the back of it
       -   respondent‟s chest hit steering wheel
       -   inoperable malignant growth in chest

                                                                                                          48
Issue: causal connection between the malignant growth and blow to chest from accident?

 Onus is on Pl (uncertainty benefits Def) to prove that it is more probable than not that the blow
sustained by him in accident caused a benign growth to become malignant

Decision: for Def (Pl did not fulfill evidentiary burden)

Multiple Tortfeasors

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

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

Joint Tortfeasors
It is important to distinguish situations in which two or more defendants are held jointly and
severally liable as independent tortfeasors, from those in which two or more defendants are held
jointly and severally liable as joint tortfeasors.

    - Independent tortfeasors jointly and severely liable: Each independent tortfeasor is held liable
      because of the causal role that his or her carelessness played. Each defendant acts
      independently of the others and they are held jointly and severally liable for the plaintiff‟s
      losses that are caused by the combined effects of their careless acts or omissions.

    - Joint tortfeasors jointly and severely liable: The liability of joint tortfeasors stems from the
      legal relationship between them, rather than from the causal role that they individually played
      in bringing about the plaintiff‟s losses. Because of the legal link between them, all joint
      tortfeasors are held jointly and severally liable for all of the plaintiff‟s injuries, even if a
      particular joint tortfeasor did not cause or materially contribute to the plaintiff‟s injuries. There
      are three major situations in which the defendants will be held to be joint tortfeasors: (1)
      Agent commits a tort in the course of acting on behalf of his principal, (2) Employee commits
      a tort in the course of acting on behalf of his employer, (3) Two or more parties agree to act in
      concert to bring about a common end which is illegal, inherently dangerous or one in which
      negligence can be anticipated.

  Because the analysis of a case will defer depending upon whether the defendants are joint or
  independent tortfeasors, this issue should be addressed before the duty of care issue.




                                                                                                        49
Cook v. Lewis
      - Pl gets shot in the face by 1 of 2 hunters, but unable to say which one

General rule: when it is certain that one of two individuals committed the offence charged, but it is
uncertain whether the one or the other was the guilty agent, neither of them can be convicted

 if A has proved that he was negligently injured by either B or C but is unable to establish which
of the two caused the injury, his action must fail against both unless there are special
circumstances which render the rule inapplicable

 BUT this rule should not be applied here – instead: both hunters negligent, was one or the other
who shot him, so both are liable

 Where two or more people act negl and cause harm to another, where it is unknown which was
the direct cause of the harm, both will be liable to the P and the onus is shifted to them to prove
which one is not liable.

In joint tortfeasors situations due to ones connection with another party you are responsible for
their actions as well.

Sindell v. Abbott Laboratories et al

       -   Pl got cancer because of drug DES mother took while pregnant
       -   There was proof that DES caused cancer
       -   Pl could not establish which company manufactured the DES
       -   Pl sues all companies for continuing to market the drug even knowing it caused cancer

Issue:
  may a plaintiff, injured as the result of a drug administered to her mother during pregnancy, who
  knows the type of drug involved but cannot identify the manufacturer of the precise product, hold
  liable for her injuries a maker of a drug produced from an identical formula?

 SC allowed appeal even though Pl could not name the manufacturer (market share liability)

Def argument
        - we are not engaged in joint enterprise – only in same business
        - collective liability can be established, but not individual liability
Summers case
        - since no way hunter knew who fired shot, it was reasonable to shift burden of proof to
           the Def to prove that one or the other of them didn‟t do it
        - between innocent Pl and negligent Def, “the latter should bear the costs”
Policy considerations
        - Def better able to bear costs of injury
        - They can spread it among public

Market-share liability
       - assessed damages in proportion of their share of the market unless they can prove they
          could not have produced the product at that time

*in the end, even though Def acted individually, their separate actions combined to cause injury
   all parties liable, even if some did not directly contribute



                                                                                                    50
DISSENT
     Applicable rule: Pl must introduce the evidence which affords reasonable basis for the
     conclusion that it is more likely than not that the conduct of the def was a substantial factor
     in bringing about the result  A mere possibility of such causation is not enough

Material Contribution
       - use if “but for” test doesn‟t work
       - usually in multiple causation case
       - if someone increases another‟s risk of being injured, does this amount to material
          contribution?

There are some cases where it would be difficult, if not impossible, to meet the but for test. In those
cases, we might be able to say that the risk of a particular event occurring is increased because
something else happen, but it may be very difficult to establish that it is more probable than not that
the defendant‟s negligence act was a cause of the plaintiff‟s lost

ex: (1) where it may be just a matter of statistical probability or possibility that there is a causal link
between the defendant‟s negligence and the plaintiff‟s loss; (2) where multiple independent causes
may bring about a single harm). In those situations, the but for test could operate unfairly and leave
legitimate plaintiffs uncompensated.

McGhee v. National Coal Board (exception to proof of causation)

       -   Pl works at brick kiln, rode bike home (owner knew this)
       -   Owner‟s duty to take reasonable care to provide adequate washing facilities but failed to
           do so
       -   Pl develops dermatitis

Issue: would dermatitis not have developed if Pl not ridden his bike home?

Information
       - washing is the only practicable method of removing danger
       - disease attributable to work but has not been proved that failure to carry out the
           admitted duty caused the onset of the disease

Appellant had to prove that his additional exposure to injury caused by his having to ride bike home
unwashed caused the disease (more probable than not that this additional exposure to injury was
the cause of it)

Rule: pursuer succeeds if he can show that fault of the defender caused/materially contributed to
his injury
Decision: Def breached duty and increased Pl‟s risk of injury
        *but not knowing exactly what caused the disease*

Lord Wilberforce:
      - Principle: where a person has, by breach of duty of care, created a risk, and injury
          occurs within the area of that risk, the loss should be borne by him unless he shows that
          it had some other cause

      Basic rule prior to this is that the plaintiff has to show the cause.




                                                                                                        51
      However, if the plaintiff can show that the defendant was negligent and caused a risk, and
       that risk could be a cause of the harm, then the burden shifts to the defendant. The
       defendant must show that they aren‟t liable by showing another cause.
      “where a person has, by a breach of duty of care, created a risk, and injury occurs within
       the area of that risk, the loss should be borne by him unless he shows that it had some
       other cause” text p 258

        burden of proof should be on Def to absolve himself

Rule: where an injury is caused by 2+ factors operating cumulatively, one (or more) of which
factors is a breach of duty and one (or more) is not so, in such a way that it is impossible to
ascertain the proportion in which the factors were effective in producing the injury or which factor
was decisive, the law does not require a pursuer or plaintiff to prove the impossible, but holds that
he is entitled to damages for the injury if he proves on a balance of probabilities that the breach(s)
of duty contributed substantially to causing the injury

Lord Salmon

Rule: When it is proved, on a balance of probabilities, that an employer has been negligent and
that his negligence has materially increased the risk of his employee contracting an industrial
disease, then he is liable in damages to that employee if he contracts the disease despite that the
employer is not responsible for other factors which have materially contributed to the disease

If D creates a risk of injury to P, and this risk is the result of D‟s negl actions, and P develops an
injury consistent with what would result of that risk; then once P has proven all of this the onus
shifts to the D to prove otherwise. If D is unable to disprove these factors, then the conclusion
reached is material contribution to the injury.

 No substantial difference in saying “defendants materially increased risk of injury” or “what
defendants did made material contribution to injury”.

Malone, “Ruminations on Cause-in-Fact”
      - all rules of conduct are designed to protect some persons under some circumstances
          against some risks

Wilsher v. Essex Area Health Authority

       -   Pl was a prematurely born infant suffering from RLF
       -   There were 5 causes of it
       -   Impossible to say which of the scenarios caused it (or more likely to cause it)
       -   Causation was not proven


McGhee established no new principle of law
     - it affirmed the principle that the onus of proving causation lies on the plaintiff

      It is more likely that it is not the negligence in this case (compare to McGhee where it was
       at least 50/50 if not more).
      The analysis Wilberforce would give (as per McGhee) would be:
      Caused a risk by breach of duty  yes
      Risk could cause the injury  yes


                                                                                                         52
        Thus the defendant must show that they did not cause the issue.
        20% is certainly not “de minimus”
        Liability in McGhee is clear, but Wilberforce went too far.

IMPLICATIONS:
    We don‟t need to create reverse onus on defendant to prove these cases.
    The burden lies with the plaintiff to prove causation

Fairchild v. Glenhaven Funeral Services (exception to proof of causation – 2 defs)

         -   Worker inhales asbestos dust – gets mesothelioma
         -   But worked under two different employers

can an employee recover where he could prove negligently inflicted injury, but having worked for
more than one employer, not the identity of the person who caused the injury?

Which employer should responsible? A or B? or A and B?

 both

But-for test fails

         -   Not held that C had proved against A that his mesothelioma would probably not have
             occurred but for the breach of duty A
         -   Nor against B that his mesothelioma would probably not have occurred but for the
             breach of duty by B
         -   Nor against A and B that his mesothelioma would probably not have occurred by for the
             breach of duty by both A and B together

 are there special circumstances of such a case, principle, authority or policy requires or justifies
a modified approach to proof of causation?

         -   cannot show def‟s breach had probably caused damage (like McGhee)
         -   but McGhee had only one def

Certain conditions are necessary for applying the McGhee principle:
    Claimant must prove all he can, but state of science leaves uncertainty over exactly how
       injury was caused
    Defendant‟s conduct created material risk of injury to the claimant himself, not just a class
       of persons
    Defendant‟s conduct must have been capable of causing the injury
    Claimant must prove injury was caused by eventuation of kind of risk created by
       defendant‟s wrongdoing
    Claimant must prove injury was caused by agency that operated in same way as
       defendant‟s wrongdoing
    Other possible cause is similar wrongful act or omission of another person

 Impossible to prove on a balance of probabilities that injuries were the cause of the D‟s
wrongdoing, science has not yet advanced to be able to prove such things. So, since identical in
this regard to McGhee, same law applies and Fairchild recovers.



                                                                                                    53
 both employers materially contributed to the risk  both liable

Farrell v. Snell

Facts: Snell is an old lady with a difficulty with her sight - corrective surgery. The doctor is negligent
during surgery and she loses sight. The doctors argument is that she would have gone blind
anyway and there was always a chance, even if there way no negligence, could have gone blind.

Issue: was the doctor negligent?

Decision: the doctor was negligent

Follow Wilberforce or McGhee? – Wilberforce is too far (reversing burden will not be followed)
Instead, if the plaintiff can bring forward information that the injury is within the zone of risk that the
defendant caused, and the defendant has nothing to say about this, then they will be guilty. That is
once there is evidence the onus will shift, but not a burden to disprove.

 reversing burden of proof should only be done when 2 causes are possible, but should not be
done when a cause could be the result of factors unrelated to def or not the fault of anyone

Points
   1. scientific evidence not required
   2. causation can be inferred from the facts “in the absence of evidence to the contrary
       abduced by the def”

 Onus of proving causation on plaintiff but adopts a lower standard of proof for plaintiff where
inference of causation can be drawn.

Sopinka J – reverse onus wasn‟t needed because existing principles are flexible enough
      - the allocation of the burden of proof is not immutable. The legal or ultimate burden of
          proof is determined by the substantive law “upon broad reasons of experience and
          fairness”
      - in a civil case, the two broad principles are:
              o that the onus is on plaintiff
              o that where the subject matter of the allegation lies particularly within the
                  knowledge of one party, the party may be required to prove it

Present case
      - continued operation after bleeding started
      - “the legal or ultimate burden remains with the plaintiff, but in the absence of evidence to
          the contrary adduced by the def, an inference of causation may be drawn, although
          positive/scientific proof of causation has not been adduced”

Sopinka has lowered the burden on the plaintiff: we are not departing from the traditional but-for
test of causation. However, “in certain circumstances, it‟s going to take very little affirmative
evidence on the part of the plaintiff to justify an inference of causation being drawn against the
defendant in the absence of evidence of the contrary”. So in Snell v. Farrell type of cases, the
burden of proof isn‟t shifted to the defendant, and it is still the balance of probability, but the Court
will accept a less onerous standard for the plaintiff to meet; what the plaintiff will have to do to meet
the balance of probability is much easier.




                                                                                                        54
What are the circumstances that make a Snell v. Farrell type of case:

(1) The facts lie particularly within the knowledge of the defendant,
(2) The defendant is in a better position to determine what was happening,
(3) The defendant, by his actions, made it impossible to determine what have occurred,
(4) Complex and scientific evidences in terms of the cause of this in the first place.

However, it is important to note that we don‟t have particular clarity by the SCC in terms of whether
all those factors are necessary, or what combination of those factors is necessary (we don‟t have
satisfactory explanation from the SCC about the application of these factors. Snell v. Farrell can
be useful when the causation problem is that there is 2 different/independent possible causes (it is
an either/or situation). So the material contribution test cannot be useful for these types of
situation.

Walker Estate v. York Finch General Hospital

   -    Pl estate claimed damages for negligent action in allowing unscreened blood to become
        part of the blood supply (HIV infected blood)
   -    This action failed at trial and in Appeal the decision was reversed
            o However – The Court of Appeal erred in this case by imposing liability on the basis
                 of an inference of causation.

   The but for test should not be applied if it will operate unfairly
           o Not applicable in all cases where there may be multiple independent causes bring
                about a single harm
           o Simultaneous sufficient causes
   The proper test for causation in cases of negligent donor screening is whether the defendants
   negligence “materially contributed” to the occurrence of the injury. In the present case, it is
   clear that it did. A “contributing factor is material if it falls outside the de minimis range” (Athey
   v. Leonati)

 Appeal dismissed – settled for plaintiff

       - How does the material contribution test applies? In Walker Estate, the SCC has identified
         the material contribution test as something different than the but-for test, but it ends saying
         that in any event the but-for test is satisfied in the present case. That leaves with some
         difficulties in knowing what to make of the material contribution test in terms of when it
         applies and what does it means.

       - The only indication that the SCC gives us is that a material contribution as to be more than
         a de minimis contribution (more than just a little bit).
       - The material contribution test can be useful when confronted with a situation where it is
         impossible to determine precisely how the defendant‟ s carelessness contributed to the
         harm suffered (the problem when we got donors screening is that the plaintiff ability to
         prove causation relies on what a third party would have done had the defendant not been
         negligent). It cannot be useful for the Snell v. Farrell type of case: when there is 2
         different/independent possible causes (either/or situation).

Loss of Chance
   - alternative to full recovery
   - is P able to recover 100%? If not, loss of chance?
   - Not available as compensation currently


                                                                                                       55
Hotson v. East Berkshire Area Health Authority

        -   Pl falls and suffers facture in hip (if not treated, will be worsened)
        -   Goes to hospital, but they negligently do not do a hip x-ray
        -   Goes home – returns to hospital and find that there is hip damage
        -   There is 5 days in between

Issue: can a plaintiff recover damages in negligence for the loss of a chance or loss of opportunity?

Court says 75% chance that he would have gotten the damage anyway

 loss of probability/chance

balance of probabilities – 50% +1

Court
        -   percentages are moot because whether he had a chance to recover depended on
            question of fact
        -   if there were insufficient blood vessels after fall = no chance of recovery
        -   it‟s wrong to say that there is a 25% chance of recovery
        -   trial judge erred in finding that he could recover
        -   on a appeal

 appeal dismissed

 but it should not be a rule that loss of chance will never win in medical negligence suit

       From Fairchild, Sidnell, McGhee, Athey we have a line of reasoning that we say there must
        be a sufficient increase of risk beyond the deminimus range.
       Compare to McGhee: Are the injuries consistent with the negligence caused by the
        defendant; as a result Wilberforce would say it‟s up to the doctor to disprove that they are
        not causal. Reid says was the risk increased. Which in this case is a resounding yes.




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