140 Law of Torts

Law 140 Law of Torts Fiona Kelly 2008-2009
By Ilia Von K orkh
Note: The materials here may not be in the same order as in the syllabus, but are arranged in the way that makes sense to me. Im sure that you can work this out.
140 Torts: Fiona Kelly 2008 - 2009

Introduction
BASIC TERMS AND THEMES TORTS DISTINGUISHED FROM OTHER AREAS OF LAW THE BASES FOR IMPOSING LIABILITY IN TORT THE FUNCTIONS OF TORT LAW
Remedies
REMEDIES AVAILABLE IN TORT CLAIMS CATEGORIES OF DAMAGES
9 10 11
Intentional Interference With The Person

BASIC PRINCIPLES OF LIABILITY
Battery
The intentional infliction of a harmful or offensive contact on another person.
ELEMENTS OVERVIEW DEFENCES BETTEL V. YIM [1978] ONCA

If physical contact was intended, then the fact that the magnitude of its consequences exceeded the expectation is irrelevant.
Assault
Intentional creation in mind of reasonable apprehension of imminent harmful or offensive contact
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ELEMENTS OVERVIEW HOLCOMBE V. WHITAKER [1975] ABSC

Both threatening words, and actions that make them plausible are necessary for assault.
POLICE V. GREAVES [1964] NZCA

Conditional threat can be assault
False Imprisonment
Intentional confinement, of another person within fixed boundaries.
12
ELEMENTS OVERVIEW BIRD V. JONES [1845] QB

False imprisonment requires a total restraint of movement
CAMPBELL V. SS KRESGE [1976] NSTD

If, as a result of the defendants intentional conduct, a person reasonably feels totally restrained, however that result is obtained, it amounts to an imprisonment.
HERD V. WEARDALE STEEL [1915] HL

It is not a false imprisonment to hold PL to the conditions s/he has accepted.
DEFENSE
Intentional Infliction of Nervous Shock

Intentionally causing another person severe mental suffering.
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ELEMENTS (CANADIAN) WILKINSON V. DOWNTON [1897] QB

There is a cause of action when D has willfully done an act calculated to cause physical harm to PL and that has in fact caused harm.
RADOVIS V. TOMM [1957] MBSC

The physical consequences of the shock must be present to amount to a visible and provable illness.
INNOMINATE TORTS
Intentional interference with real property (trespass)

The direct and intentional physical intrusion onto the land in the possession of another.
15
ELEMENTS OVERVIEW PUBLIC/PRIVATE DISTINCTION ENTICK V CARRINGTON [1795] CP

Definition of trespass
TURNER V THORNE[1960] ONHC

Once it is established that the defendant is a trespasser, s/he is liable for all the consequences of the trespass, whether or not they are intended or foreseeable.
PENNEY V GOSSE [1974] NFSC

One does not have to hold a legal title to land. Any possession is good against those who have a weaker right of possession themselves.
HARRISON V CARSWELL [1976] SCC

The owner of a mall has enough possessory interest in common areas of the mall to claim trespass
DEFENCES
Chapter 4: Defences Consent

OVERVIEW
17 17 17 17
Implied Consent
WRIGHT V. MCLEAN [1956] BCSC
Implied consent by entering activity
Exceeding Consent
If a defendant exceeds the consent provided by the plaintiff the case will be treated as if no consent was given.
AGAR V CANNING [1966] MBCA

Actions go beyond what was consented to
CONSENT IN FIGHTS COMPETENCY TO CONSENT
Vitiating Consent
FRAUD MISTAKE DURESS LATTER V BRADDELL [1880]
Old British case where duress is seen only as physical violence, not psychological
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UNDUE INFLUENCE/PUBLIC POLICY NORBERG V WYNRIB [1992] SCC

Consent vitiated in a power-dependent relationship 3

Consent to Criminal or Immoral Acts
HALL V HEBERT [1993] SCC
Modern definition of the ex turpi causa principle.
20 20
Consent to Medical Treatment

MALETTE V SHULMAN [1987] ONHC
Informed consent is not the same as informed refusal. Any treatment outside of consent is tortious.
COMPETENCY TO CONSENT TO MEDICAL TREATMENT SUBSTITUTE CONSENT
Self-defence
WACKETT V CALDER [1965] BCCA
What constitutes reasonable force is a case-by-case determination, dependent on the facts.
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The Elements Of The Tort

DUTY OF CARE STANDARD OF CARE CAUSATION REMOTENESS DAMAGE/ACTUAL LOSS DEFENCES DAMAGES
Duty Of Care
DONOGHUE V. STEVENSON [1932] HL
Duty of care arises when D is proximate to PL and can reasonably foresee harm
25
ANNS V. MERTON LONDON BOROUGH [1977] HL

Recognizing new categories of Duty of Care in negligence
COOPER V. HOBART [2001] SCC

Policy implications and Anns Test
PROXIMITY FORESEEABILITY MOULE V. NB ELECTRIC POWER CO [1960] SCC

Only reasonably foreseeable risks will lead to Duty of Care
AMOS V. NB ELECTRICAL POWER CO [1976] SCC

Those who erect electric lines carrying heavy charges have a duty to take proper precautions against all foreseeable injuries
PALSGRAF V. LONG ISLAND RAILWAY CO [1928] NYCA

The PL must be someone to whom D owes a duty of care, or belong to such a class.
Special Duties of Care

DUTY TO RESCUE OSTERLIND V. HILL [1928] MASS SC
As long as D has not created the situation of peril, there is no duty to rescue.
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MATTHEWS & HORSLEY V. MACLAREN [1969] ONHC

By beginning the rescue process D assumes a duty to act, and will be liable for negligence.
STEVENSON V. CLEARVIEW RIVERSIDE RESORT [2000] ONSC

Ambulance attendant has no duty to offer assistance to individuals rescuing the PL 4

DUTY TO CONTROL THE CONDUCT OF OTHERS CROCKER V. SUNDANCE NORTHWEST RESORTS [1988] SCC
There is a duty of care of between a proprietor to an intoxicated patron, when the proprietor is aware of PL intoxication and participated in getting him to that point.
DUTY TO PREVENT CRIME AND PROTECT OTHERS JANE DOE V METROPOLITAN TORONTO POLICE[1998] SCC
Police have a duty to prevent crime in situations where the PL falls into a category of foreseeable and proximate victims.
DUTY OF CARE OWNED TO THE RESCUERS HORSLEY V. MACLAREN [1969] ONHC

If one by his fault creates a situation of peril, he has a duty of care to anyone who attempts to rescue the person who is in danger.
DUTIES TO THE UNBORN A MANUFACTURERS AND SUPPLIERS DUTY TO WARN HOLLIS V. DOW CORNING CORP [1995] SCC
Manufactures have a continuous duty to warn the users or learned intermediaries of all existing and new evidence of hazards.
NEGLIGENT MISREPRESENTATION HEDLEY V. BURNE [1963] HL

A duty can arise in a situation of negligent misrepresentation that results in pure economic loss.
KEITH PLUMBING V. NEWPORT CITY CLUB [2000] BCCA

Mere presence of a disclaimer clause will not automatically prevent liability
HERCULES V. ERNST & YOUNG [1997] SCC

Duty of care in negligent misrepresentation causing pure economic loss.
Standard Of Care
ARLAND V TAYLOR[1955] ONCA
The standard is the care that would have been taken in the circumstances by a reasonable and prudent man.
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PROBABILITY AND SEVERITY OF HARM BOLTON V. STONE [1951] HL

The reasonable person would take into account the degree of risk and take precautions only where the risk is substantial.
PARIS V STEPNEY BOROUGH COUNCIL [1951] HL

The severity of the damage (considering individual characteristics of the PL) can outweigh the low probability
BURDEN/COST OF AVOIDANCE VAUGHN V. HALIFAX-DARTMOUTH BRIDGE COMPANY [1961] NSSC

One has to consider all the possible cheapest precautions.
LAW ESTATE V. SIMICE [1994] BCSC

Public policy can be important when determining the standard of care
SOCIAL UTILITY WATT V. HERTFORDSHIRE CC [1954] CA

You must balance the risk against the end to be achieved.
Special Standards of Care

DISABLED FIALA V. CECHMANEK; FIALA V MACDONALD [2001] ABCA
You must balance the risk against the end to be achieved.
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CHILDREN

JOYAL V. BARSBY [1965] MBCA
The standard of care expected of a child is determined according to what a child of that age, intelligence and experience would have done in the same circumstances.
PROFESSIONALS WHITE V. TURNER [1981] ONCA

Standard of care for a professional is determined based on industry specific standards of practice and testimony of experts in the given field.
CUSTOM TER NEUZEN V. KORN [1995] SCC

Conforming to a negligent practice enshrined as an industry standard is not an excuse.
GROSS NEGLIGENCE
Causation But For Test

KAUFFMANN V. TORONTO TRANSIT COMMISSION [1959] ONCA
The negligence is not the cause of injury as the injury would have happened nonetheless.
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BARNETT V. CHELSEA & KENSINGTON HOSPITAL [1969] QB

If the action would not have prevented the injury, then negligence is not the cause.
EXCEPTIONS TO THE BUT FOR TEST MODIFICATION TO THE BUT FOR TEST WALKER ESTATE V. YORK FINCH GENERAL HOSPITAL [2001] SCC
If the conduct of the D was a sufficient condition outside of the de minimis range, then D is liable
SNELL V. FARRELL [1990] SCC

In cases where scientific proof of causation is lacking, materially increased risk is applicable.
Multiple Causes and Divisible/Indivisible Loss

INDEPENDENT INSUFFICIENT CAUSE ATHEY V. LEONI [1996] SCC
41
In independent insufficient causes, as long as D is part of the cause of an injury, D is liable, even though his act alone was not enough to create the injury.
NOWLAN V. BRUNSWICK CONSTRUCTION [1972] SCC

If two or more negligent Ds cause of contribute to an indivisible injury, liability is joint.
INDEPENDENT SUFFICIENT CAUSE LAMBTON V. MELLISH [1894]

In independent sufficient causes, D is liable if his conduct is a significant and substantial factor.
SUCCESSIVE CAUSES OF PARALLEL INJURY
Remoteness
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FORESEEABILITY TEST FOR REMOTENESS WAGON MOUND (NO.1); OVERSEAS TANKSHIP LTD. V. MORTS DOCK AND ENGINEERING [1961] AUPC
Foreseeability is the proper test for remoteness
HUGHES V. LORD ADVOCATE [1963] HL

The proper question for remoteness is whether the injury is of the kind that is foreseeable.
SMITH V. LEECH BRAIN & CO. [1962] QB

The proper question for remoteness is whether the injury is of the kind that is foreseeable.
POSSIBILITY OF INJURY
6

WAGON MOUND (NO.2); OVERSEAS TANKSHIP LTD. V. MILLER STEAMSHIP CO. [1967] AUPC
Injury must be reasonably foreseeably possible, not probable.
ASSINIBOINE SOUTH SCHOOL DIVISION V. GREATER WINNIPEG GAS CO. [1971] SCC
Injury must be possible, not probable
INTERVENING CAUSES BRADFORD V. KANELLOS [1973] SCC

An intervening cause will not break the chain of causation if it is a consequence of the original negligence An intervening cause will not break the chain of causation if it is a reasonably foreseeable consequence of the original negligence An intervening cause will not break the chain of causation if it is a reasonably foreseeable consequence of the original negligence
Vicarious Liability
VICARIOUS LIABILITY IN EMPLOYER/EMPLOYEE CONTEXT WEST & WEST V MACDONALD'S CONSOLIDATED LTD & MALCOLM [1931] AB SC
One can mix private business with their employment, and still be acting in the course of the employment.
47
WILLS V. BELL ICE [19??] ??

One cant mix private business with their employment, and still be acting in the course of the employment.
BAZLEY V. CURRY [1999] SCC

Salmond Test is overruled for intentional torts.
Contributory Negligence
WALLS V. MUSSENS LTD [1969] NBCA GAGNON V. BEAULIEU [1977] BCSC
Failing to wear a seatbelt is contributory negligence if the injuries could have been prevented by wearing it.
49
In finding contributory negligence, PL should not be expected to meet the same standard of care required of D.
APPORTIONMENT OF LOSS MORTIMER V CAMERON [1994] ONCA

Apportionment is a finding of fact and appellate courts should rarely interfere with a trial judges apportionment of liability.
Other Defenses
VOLUNTARY ASSUMPTION OF RISK DUBE V. LABAR [1986] SCC
PL must not merely know the risk, but consent that he intended to take on the whole risk.
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PARTICIPATION IN A CRIMINAL OR IMMORAL ACTIVITY HALL V. HEBERT [1993] SCC

Those participating in criminal activity can still seek relief in tort.
BC V. ZASTOWNY [2008] SCC

Damages for criminal activity cannot clash with the principles of justice and criminal system.
INEVITABLE ACCIDENT RINTOUL V. X-RAY AND RADIUM INDUSTRIES [1956] SCC

There is a good reason why this defense never comes up.
Damages
ANDREWS V. GRAND & TOY ALBERTA [1978] SCC
PLs can make reasonable (non-extravagant) choices in regard to their future care.
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Introduction
BASIC TERMS AND THEMES
Torts, broadly dened, means compensable wrongs. There are two major sub-categories of actions based on their underlying theories of liability: Torts of intentbased on a defendants subjective intention to interfere with the plaintiff s person or property Torts of negligencebased on carelessness or unintentional wrongdoings of the defendant 3rd small categorystrict liability torts (no evidence of being either negligent or intentional) Torta civil (private) wrong between people as opposed to society Based on usage and custom; is largely common law
TORTS DISTINGUISHED FROM OTHER AREAS OF LAW

While Criminal law and Tort law share a common heritage, they became distinctive as differing as private and public wrongs. Tort is based on civil proceedings, commenced and maintained by the plaintiff. Criminal proceedings are run through the State. Tort and Contract both give rise to civil actions, but the interests protected are different. Contract breaches occur when mutually agreed upon terms are breached. An action in tort arises when there is a breach of general principles of law instead of mutually agreed upon terms. There are civil wrongs that do not fall under tort law, such as trespass of property. A single fact situation could give rise to tort, contract and criminal actions. A tort is a civil wrong compensable by a common law remedy in damages. A tort is not a crime, a breach of contract or an infringement of an equitable right, although they could occur together.
THE BASES FOR IMPOSING LIABILITY IN TORT

Generally, there are four categories of actions: 1. intentional torts 2. negligence 3. strict liability 4. residual actionssuch as defamation, nuisance. Absolute LiabilityD is held liable if his conduct causes the plaintiff s loss. No defences. Essential issue is causation, not fault. No modern instances of this. Strict Liabilityis liability in the absence of wrongful intent or negligence. I.e. product manufacturers in some states. If plaintiff can show that the product injured them, the manufacturer is liable if it was defective when it left the manufacturer. Also, employers are liable for employee actions while on the job. Negligencethe failure to take reasonable care to prevent foreseeable harm to others. Plaintiff must prove that the defendant failed to take reasonable care to prevent the risk that caused the harm. Intentional Tortsis also based on fault. Plaintiff must show actual subjective intent on the part of the defendant.
THE FUNCTIONS OF TORT LAW

There is no governing principle that dictates the proper goals of tort law. compensation for harm, injury (DOMINANT MOTIVATION) sanction injury and negligence, deter further accidents > either specically or generally. complements Criminal Law system > seeks to inuence conduct of citizens different burden of proof (civil) e.g. OJ Simpson case BUT Certainty of punishment is not therenot necessarily likely to have to pay for committing a tortuous wrong Deterrence fails if damages ow to the customers without penalizing the wrongdoer. Criminal sanction cannot be addressed in Tort law. Tort litigation seeks to identify and remedy specic action of wrongdoers, and correct personal injustice to victim

Mollies PLs anger and resentment civilized vehicle for securing vengeance. Educational dimension > teaches litigants about requisite standards of conduct and the need to recognize and accommodate the legitimate interests of others. Accountability - e.g. holding tobacco companies and arms manufacturers liable FUNCTIONS: COMPENSATION, PUNISHMENT, DETERRENCE, ACCOUNTABILITY, CORRECTIVE JUSTICE, APPEASEMENT, VENGEANCE, EDUCATION Tort law has many failings including nancial costs of litigation, inefciency, small group of plaintiffs who take action as well as succeed. Insurance schemes have taken a burden from the courts by protecting many people, but if defendant has no insurance, plaintiff may not be able to collect. Flaws with enforcement and deterrentcomplicated Defendants must be worth suing Those worth suing fall into three categories people or institutions with liability insurance large corporations or governmental institutions that are able to absorb the cost uninsured persons with personal wealth
Remedies
A remedy is the means by which to achieve justice in any matter in which legal rights are involved. Remedies may be ordered by the court, achieved by way of agreement (settlement) between the person claiming harm and the person s/he believes has caused it, or by the automatic operation of law. Some remedies require that certain acts be performed or prohibited (eg, injunctions). Others involve payment of money to cover loss due to injury (eg, damages). Others still involve a court's declaration of the rights of the parties and an order to honor them. Being awarded some form of remedy is the point of tort law and is usually the last element of a tort claim. Where do remedies t in an (intentional) tort action? A. Alleged tort committed B. PL establishes D acted voluntarily C. PL establishes D acted intentionally D. PL establishes elements of individual tort (eg, assault, battery, trespass) E. D raises any defences (eg, self-defence, consent) F. Court determines remedy (if PL successful)
REMEDIES AVAILABLE IN TORT CLAIMS

Injunction: an injunction directs D to act in a particular way. It either restrains D from continuing to do something, or compels him/her to do something. Damages: a monetary award in favour of PL. An award of damages gives the PL a legal right to a specic sum of money. There are many different types of damages but they all address two specic forms of loss: I. Pecuniary (monetary) losses (also known as special damages); and II. Non-pecuniary (non-monetary) losses (also known as general damages).
CATEGORIES OF DAMAGES
Nominal Damages: usually awarded in a token amount to address a violation of a legal right that the law deems worthy of protection, even in the absence of actual harm. Rarely awarded. Compensatory Damages: awarded to compensate for actual loss, whether pecuniary or non-pecuniary.

Aggravated Damages: A type of compensatory damages, but aggravated damages are awarded when Ds conduct is so outrageous that the harm done is worse than it otherwise would have been. Aggravated damages are designed to compensate PL for the injury to their dignity. Punitive (or exemplary) damages: Punitive damages have, as their general objective, punishment, deterrence and denunciation (ie, they are not compensatory). They are usually awarded in cases where D has demonstrated some particularly unacceptable or egregious behaviour. Disgorgement Damages: Rarely applied in Canadian law, disgorgement damages are intended to strip D of any benets that s/he obtained as a result of his/her own wrongdoing.
Intentional Interference With The Person

BASIC PRINCIPLES OF LIABILITY
a) Volition you must have conscious mind when doing something Voluntariness is only really used in mental illness situation or with children; parents arent vicariously liable for children unless they were negligent in supervising or controlling the children. b) Intent desire to bring about results or consequences of action Intent must be for result, not the action itself; this limits the scope of the intentional tort; Absence of direct intent does not mean that there is no tort because of two other principles: ! Imputed (constructive) intent Intending to commit a tort against one person, and committing the SAME tort against a different person If consequence is certain or substantially certain to result from action, then can impute intent ! Transferred intent Intend to commit one tort and committing another Intent to commit tort against PL and INTENTIONALLY commits another tort against PL c) Motive doesnt have any role to play in cause of action itself usually; PL has to prove intent, not motive couple of intentional torts - will add punitive damages where malice is demonstrated relevant to defence taken into account for damages > size of award, punitive damages, etc. ! Duress doesnt negate intent in torts, though it does in Crim just because youre forced to do something, doesnt mean you dont have intent to do it ! Provocation need 2 things for provocation: D loses power of self-control Ds response was proximate in time of PLs action If transferred intent, provocation doesnt apply; compensation to damaged party would be reduced in that case, and that wouldnt be right. d) Mistake has no effect on the issue of intent and not relevant to intentional tort elements can betaken into account for damages > size of award, punitive damages, etc. Mistake of Fact v Mistake of Law e) Accident - means no intent sometimes things just happen > no negligence, intent, etc.
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Battery
The intentional iniction of a harmful or offensive contact on another person.
ELEMENTS
Intentional Iniction to another person Of harmful and offensive contact
OVERVIEW
The tort of battery is dened as The harm and/or offense involved need only be the harm or offense of being touched without consent. The D need not exhibit malice. Battery is actionable without the need to prove actual damage (ie, it is said to be actionable per se). All that is needed is physical contact. The general rule with regard to intention and battery is that the defendant must have intended the contact to occur. The defendants motive is irrelevant. But incidental contact does not count. It is not necessary that the PLs body actually be touched for a battery to have occurred. Battery includes offensive contact with a person's clothing, something they are carrying, or something they are riding on. Also indirect intrusion (food poisoning) Trivial contacts may still be batteries. However, everyday contacts (eg, jostling on a bus) do not attract civil liability. If a D can establish (the burden of proof rests on the D) that the PL consented to the battery, the D will not be civilly liable. D does not have to be aware that the contact has occurred.
DEFENCES
Consent One of the major defenses; The burden of proof lies on the D; in sexual battery cases and sporting activity cases, there is a minority opinion that the burden of proof should lie on the P; Self Defence more rare, but a defence nonetheless.
BETTEL V. YIM [1978] ONCA

If physical contact was intended, then the fact that the magnitude of its consequences exceeded the expectation is irrelevant. Issue: PL goong off with matches, D thinks something is going on; shakes and inadvertently smashes PLs nose with his head. Is D guilty of the unintentional consequences of his intentional acts? Discussion: Elements of Battery are (a) Intentional iniction on (b) body of another by (c) offensive or harmful contact. Foreseeability of negligence is not relevant here - we are dealing with an intentional tort; it would ignore essential difference between intentional iniction of harm (battery) and unintentional iniction of harm (negligence). Ruling:The D is found guilty of the battery.
Assault
Intentional creation in mind of reasonable apprehension of imminent harmful or offensive contact
ELEMENTS
Intentional Creation in mind of other person Of reasonable apprehension of imminent harmful or offensive contact
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OVERVIEW
Different from Battery because it is a threat, dont need physical interference The focus of the courts inquiry is on the impact of Ds threat on PLs mind. Whether D actually intends or has the ability to cause the contact is irrelevant. What is important is that D intends to cause the apprehension in PLs mind. The physical contact that is feared must be imminent (the immediacy requirement) (cf future threats). Words alone rarely constitute an assault, primarily because they fail to meet the immediacy requirement. However, when words are accompanied by an act, they can be read together and may constitute an assault. Conditional or future threats can constitute an assault, though they typically need to be accompanied by some show of force. A show of force accompanied by an unlawful or unjustiable demand (a condition), compliance with which will avert the threatened battery, is an assault. Subjective/ Objective Apprehension Test: did the PL in fact apprehend the immidiacy of the physical contact, and was that apprehension reasonable?
HOLCOMBE V. WHITAKER [1975] ABSC

Both threatening words, and actions that make them plausible are necessary for assault. Issue: D utters :if you take me to court I will kill you; bangs on door Discussion: Is this reasonable apprehension? Is the threat immediate? With a condition. Can words alone be an assault? Need to have some action that goes with words. A defendant is not free to compel the plaintiff to buy her safety by compliance with a condition which he has no " legal right to impose. Door banging is physical action that shows the intent and willingness to follow through with the words. Ruling:
POLICE V. GREAVES [1964] NZCA

Conditional threat can be assault Issue: D made threats to police: if you come closer, Ill kill you; had knife Discussion: Where there is a threat of violence exhibiting an intention to assault and a present ability to carry the threat out, the elements of an assault are made out. The fact that there was an alternative to leave the house did not prevent the conditional threat from constituting an assault. But the discussion distinguished this from other cases where condition removes reasonable apprehension.
False Imprisonment
Intentional connement, of another person within xed boundaries.
ELEMENTS
Intent to conne another person against their will. In Australia, this element will be fullled if the imprisonment is negligently occasioned. In the United States, the possibility of false imprisonment arises if the imprisonment causes bodily harm or if the alleged victim is aware of the connement as it happens. An act pursuant to this intent. The resulting connement of another person against his or her will. Absence of a reasonable means of escape. A means of escape will not be reasonable if it endangers personal safety, such as leaping from the window of a tall building. Absence of legal authority on the part of the person acting to conne another.
OVERVIEW
General rule: anyone who intentionally connes, even if only momentarily, another person within xed boundaries is liable for the tort of false imprisonment. 12

There cannot be a false imprisonment without total connement. Blocking another persons way is not an imprisonment if another route can be taken. The restraint may be imposed by barriers, other physical means, an implicit of explicit threat of force, or an implicit of explicit threat of legal authority. Physical force (touch) is not necessary for there to be restraint (Bird). The focus is on whether there has been an assertion of, and submission to, control. Thus, restraint can also be achieved by way of some kind of psychological force. For example, it may be false imprisonment if a PL goes along with the D in order to avoid a scene which would be embarrassing (Campbell). Restraint is not total if there is a reasonable means of escape left open to PL, even if it involves a minor trespass (Wright v Wilson). However, PL must not be expected to risk physical injury. The effect of the psychological impact makes escape impossible PL need not be conscious of the connement in order to be imprisoned (cf, assault). Connement can be caused by negative as well as positive conduct. That the imprisonment was lawfully justied (eg, legal authority) is a defence available to D. PLs guilt or innocence may be relevant to, but not necessarily determinative of, the validity of the defence. Punitive damages are increasingly awarded in false imprisonment cases. Also can be imprisonment if you cause someone else to imprison someone.
BIRD V. JONES [1845] QB

False imprisonment requires a total restraint of movement Facts/Issues: PL is stopped from crossing a bridge by police, who act under Ds orders. PL could go in other directions Discussion: Cant confuse False Imprisonment with restriction of freedom. If you have some reasonable means of escape, then no false imprisonment Dont have to be touched Some confusion seems to me to arise from confounding imprisonment of the body with mere loss of freedom: it is one part of the denition of freedom to be able to go whithersoever one pleases; but imprisonment is something more than the mere loss of this power; it includes the notion of restraint within some limits dened by a will or power exterior to our own. Dissent stopping someone is infringing on their liberties and is equivalent to F.I. Ruling: no FI found.
CAMPBELL V. SS KRESGE [1976] NSTD

If, as a result of the defendants intentional conduct, a person reasonably feels totally restrained, however that result is obtained, it amounts to an imprisonment. Facts/Issues: Someone called in store security and accused PL of shoplifting; Security accosted PL and asked her to come in with him. PL was fearful and complied. Nothing was found and she was released, but felt very upset. Discussion: Total restraint doesnt need to be physical connement Court draws distinctions between someone who submits against will and someone who cooperates reluctantly If PL had actually been shoplifting, there would still have false imprisonment, but have some legal justication for it, Ruling: FI with compensatory damages Shopkeepers Privilege - will allow a shopkeeper to temporarily detain for the purpose of investigation. This is nascent in US, but will likely fail miserably in Canada.
HERD V. WEARDALE STEEL [1915] HL

It is not a false imprisonment to hold PL to the conditions s/he has accepted. Facts/Issues: D prevented PL was using the lift cage, which was the only means of egress from the mine. PL was detained in the mine for extra hours. Discussion: Ds reasons for refusal were that PL has agreed contractually to perform work, and was trying to bail out on it. Thus, PL has accepted the conditions when he went into the mine Court says its not false imprisonment where youve consented to connement Ruling: presence of a K waives any claims to FI 13

DEFENSE
Defense of legal authority: having witnessed the offense being committed. a reasonable or probable grounds to believe that the detained had committed the offense.
Intentional Infliction of Ner vous Shock

Intentionally causing another person severe mental suffering.
ELEMENTS (CANADIAN)
Intentional and outrageous conduct designed to inict emotional distress or that a reasonable person would have known would cause emotional distress; D need not intend to cause nervous shock. It is sufcient if D acted in reckless disregard for this possibility, or if it was foreseeable that profound distress would ensue (ie, imputed intent). That more harm was done than was anticipated is irrelevant (Wilkinson). that causes a visible and provable illness. Unlike battery or trespass, intentional iniction of nervous shock is not actionable without proof of actual harm. PL bears the onus of showing that, as a result of the Ds conduct, PL suffered some kind of "visible and provable" illness. Though this test has been recently relaxed.
WILKINSON V. DOWNTON [1897] QB

There is a cause of action when D has willfully done an act calculated to cause physical harm to PL and that has in fact caused harm. Facts/Issues: As practical joke, D tells PL her husband is hurt; she goes into nervous shock, w/o a history of bad nerves Discussion: Intention: D may not have intended person would be so distraught, but can that be so certain that we can impute intent? There was denite intent to cause some degree of distress, and this is enough to impute the full liabilty Remoteness (not to be confused with negligence): were damages sustained unrecoverable as if akin to grief (type you cant recover for in torts) Court says they are recoverable No need for reasonableness because in intentional tort mere intention is enough [Cf more recent decision of Rahemtulla where the court held that it is not necessary to show that D intended to cause nervous shock; reckless disregard to this possibility is sufcient.] Ruling: Full damages awarded
RADOVIS V. TOMM [1957] MBSC

The physical consequences of the shock must be present to amount to a visible and provable illness. Facts/Issues: Daughter is raped; mother tries to recover by being distraught Discussion: Must show that there is some physical or psychological manifestation of injury Ruling: Case dismissed due to baseness of physical or psychological evidence. In more recent years, Canadian courts have expanded liability for nervous shock be broadening the denition of visible and provable illness. Rahemtulla v Vanfed Credit Union: A plaintiff must provide evidence of a visible and provable illness, but the absence of expert medical evidence is not fatal to the claim. Tran v Financial Debt Recovery: A plaintiff may be entitled to recover for emotional harm falling short of a psychiatric condition or illness. Purdy v ? : PL is forced to watch her husband being beaten and is successful in claiming nervous shock Elements 1) intentionally engaged in conduct; 2) purpose of iniction emotional distress; or 14

3) reasonable person would have thought so; 4) offends generally accepted standards of decency and morality; 5) can be emotional harm Difference between US and Canada In US an objective standard based on accepted standards of decency and morality In US can be emotional harm only
INNOMINATE TORTS
Torts that arent specically named, such a battery Might be used in cases of intentional conduct that is morally blameworthy and likely to cause injury (poisoning of food, other unjustied, intentionally-inicted bodily injuries)w Are they moving towards one category of intentional torts? Advantage is you wouldnt have to t into specic categories (just some basic elements)
Intentional interference with real property (trespass)

The direct and intentional physical intrusion onto the land in the possession of another.
ELEMENTS
Direct (expanded to indirect under some circumstance) Physical Onto Land (or object on the land) In possession of another
OVERVIEW
A trespass may be committed by entering PLs land in person, propelling an object or third person onto the property, or by failing to leave after permission to enter has been terminated. A trespass may also be committed by bringing an object onto the PLs land and wrongfully failing to remove it. Trespass is actionable per se. That is, there is no need to show harm. Lack of knowledge is not a defense. PL is generally required to be in possession of the land at the time of the intrusion in order to sustain an action in trespass. A person with legal title to land is presumed to have exclusive possession and the right to maintain a trespass action (though this presumption is rebuttable). For the purpose of a trespass action, land includes not only the surface area, but also houses, other structures, trees, and anything else that is afxed to it. Indirect trespasses are not actionable (eg, snow blown by wind on to the PLs land is not actionable, but snow blown by a snow blower would be). A trespass may be committed by the continued presence on the land of a structure, chattel or other thing which the actor has tortiously placed thereon, whether or not the actor has the ability to remove it. Where the complaint is for trespass to land, the trespasser becomes liable not only for personal injuries resulting directly and proximately from the trespass but also those which are indirect and consequential. Doctrine of continuing trespass: In instances where an object remains on the plaintiff s land without consent, the plaintiff is able to maintain successive actions in trespass until the object is removed (Johnson v BC Hydro).
PUBLIC/PRIVATE DISTINCTION
Note dissent: The considerations which underlie the protection of private residences cannot apply to the same degree to a shopping centre in respect of its parking areas, roads and sidewalks. Those amenities are closer in character to public roads and sidewalks than to a private dwelling.
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A more appropriate approach is to recognize a continuing privilege in using the areas of the shopping centre provided for public passage subject to limitations arising out of the nature of the activity thereon and to the object pursued thereby, and subject as well to a limitation against material damage.
ENTICK V CARRINGTON [1795] CP

Denition of trespass Facts/Issues: D, claiming authority under a warrant, broke into PLs house and carried away some papers. Discussion: The great end, for which men [sic] entered society, was to secure their propertyBy the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass or even treading upon the soil. If he admits the fact, he is bound to show by way of justication, that some positive law has empowered him or excused him.
TURNER V THORNE[1960] ONHC

Once it is established that the defendant is a trespasser, s/he is liable for all the consequences of the trespass, whether or not they are intended or foreseeable. Facts/Issues: D is to deliver packages to PL. PL is not home, and D trespasses and leaves them inside PLs garage. PL comes home at night, trips over the packages and eats shit (ie. serious injuries) Discussion: Unquestionable trespass The fact that a trespass results from an innocent mistake and, in that sense is not deliberate or willful, does not relieve the trespasser of liability. A trespasser is liable for any harm to the possessor Ruling: D is liable in damages.
PENNEY V GOSSE [1974] NFSC

One does not have to hold a legal title to land. Any possession is good against those who have a weaker right of possession themselves. Facts/Issues: A squatter without title maintained a trespass action against a subsequent trespasser. Discussion: Any form of possession, so long as it is clear and exclusive and exercised with the intention to possess, is sufcient to support an action for trespass against a wrongdoer. Actual possession is good against all except those who can show a better right of possession in themselves. Ruling: Trespass sustained.
HARRISON V CARSWELL [1976] SCC

The owner of a mall has enough possessory interest in common areas of the mall to claim trespass Facts/Issues: Discussion: The public areas of a private shopping mall are private property for the purposes of trespass law. The plaintiff is therefore entitled to seek an injunction against the defendant (a picketer) to prevent her from entering the public areas for the purpose of picketing. A different decision would require an amendment by the legislature to the Petty Trespasses Act.
DEFENCES
accident is a defense having a right granted to you by an authority (police warrant) duress is not a defense mistake is not a defense
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140.2 Defenses
Chapter 4: Defences Consent
OVERVIEW
Main defence for intentional torts. Even though PL may be able to establish that D committed an intentional tort, liability might not be imposed if D is able to raise a common law or statutory defence (such as consent). PL must have consented to the specic act that gave rise to the tort action. Consent is a defence that D must plead and prove. That is, the burden of proving that PL consented to the conduct falls on D (Non-Marine Underwriters v Scalera, [2001] 1 S.C.R. 551) Consent may be given explicitly through words or in writing, or implicitly through participation, demeanor or other behavior. Consent can: not be given, expressly given, implied, given but it doesnt hold for the particular activity (e.g. exceeded or vitiated fraud, mistake, duress and public policy) Consent can sometimes be vitiated (for example, on the basis of public policy, fraud, competency, and duress). Tension in law between individual autonomy and protection of vulnerable people. Consent to an act generally extends to risks normally inherent in that act. Consent is about consenting to the activity and the reasonable consequences. Unreasonable or unforeseeable consequences may exceed or vitiate consent. Failure to resist or protest is an indication of consent of a reasonable person who is aware of the consequences and capable of protest or resistance would voice his objection. However, consent must be genuine, it must not be obtained by force or threat of force.
Implied Consent
There are certain situations in which the law is willing to nd that PL consented to particular conduct, in the absence of PL explicitly issuing his/her consent. This is called implied consent. Implied consent often arises in relation to sporting injuries and st ghts.
WRIGHT V. MCLEAN [1956] BCSC

Implied consent by entering activity Facts/Issues: Children playing by throwing lumps of clay and mud balls at each other. PL is injured. Discussion: In sport where there is no malice, no anger and no mutual ill, that combatants consent to take the ordinary risks, and the pain that may result from them, of the sport in which they are engaged. But this is only while play is fair, according to the rules and blows are not malicious but rather given in sport. If play is not fair etc, then consent is ended and parties regain same rights as when not engaging in sport. Ruling: Case dismissed.
Exceeding Consent
If a defendant exceeds the consent provided by the plaintiff the case will be treated as if no consent was given.
AGAR V CANNING [1966] MBCA

Actions go beyond what was consented to Facts/Issues: PL suing D for injuries that resulted from hockey game. Discussion: A person who engages in sport must be assumed to accept the risk of accidental harm and to waive any claim he would have apart from the game for trespass to his person in return for enjoying a corresponding immunity with respect to other players (implied consent). This includes unintentional injury resulting from one of the frequent infractions of the rules of he game. 17
140.2 Defenses
The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to polite social intercourse. But there is a need to establish some limits placed on a players immunity from liability. Injuries inicted in circumstances that show a denite resolve to cause serious injury to another, even when there is provocation and in the heat of the game should not fall within the scope of implied consent. Consent to game may mitigate damages. Note: Courts have become less tolerant of hockey violence. Stated that it cannot be assumed that a player implicitly consents to a type of assault b/c it occurs frequently in the sports e.g. ghting. In R v McSorley judge found that some forms of conduct are too dangerous for the players to consent to. Ruling: R v Cey, [1989] SASK CA: It cannot be assumed that (hockey) players implicitly consent to a specic type of assault simply because it occurs with some frequency in the sport.
CONSENT IN FIGHTS
Courts will protect parties from liability in the situation of a consensual ght. Relates to consensual ghts. R v. Jobidon: Criminal law says that cant consent to serious bodily harm or death. Jobidon and Paice have been applied in a tort setting. In Abbot v Jarocki, J applied the test to a planned ght between high school kids to nd liable D (wearing steel toed boots) who kicked PL while he was already on the ground. J held that PL could not have consented to the iniction of bodily injury. Rather than arguing that in these cases PL could not have consented, might it make more sense to treat these cases as ones in which consent has been exceeded?
COMPETENCY TO CONSENT
For consent to be valid, person must be capable of appreciating the nature and consequences of the act to which it applies. There are situations where PL cannot consent: Age: PL under 14 years cannot consent to sexual activity Diminished mental capacity Other examples are intoxication, other incapacitating condition. Court likely to interpret adults to be competent to consent. More of an issue if someone is really old or young.
Vitiating Consent
FRAUD
Even in situations where D establishes that PL has consented to the act giving rise to the tort, PL may raise factors that vitiate consent. Not all situations of fraud will vitiate consent. PL must establish two factors: that D was aware of, or responsible for, PLs misapprehension; and that the fraud relates to the nature and quality of the act as opposed to a collateral matter. R v Williams [1925]: consent to sex vitiated where the (16 year old) PL was not aware of the sexual nature of the act. Papadimitropoulos v R [1958]: consent to sex upheld where the D deceived PL about whether they were married. Whether the parties were married or not was a collateral matter that did not pertain to the nature and quality of the act. R v Cuerrier [1998] SCC criminal trial: HIV positive man who lied about status to sexual partners. Fraud that relates to the harmful consequences of the act can vitiate consent. Three part test where harmful consequences ow from the act. The Crown/PL must show: 1. That the accused was dishonest, which could include not only lying but also non-disclosure; and 2. The Ds dishonesty resulted in a deprivation, which could consist of actual harm or exposing a person to a signicant risk of bodily harm; and 3. That the dishonesty induced the complainant to consent to the dangerous activity when he would not have otherwise done so.
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140.2 Defenses
MISTAKE
The fact that a PLs consent was induced by a mistaken belief will vitiate consent only if the D was responsible for creating PLs misapprehension. Like fraud, PLs consent will also only be vitiated if the mistaken belief goes to the nature or quality of the act, or presents the possibility of a signicant risk of a serious physical harm (as outlined in R v Cuerrier). Ds mistaken belief that the PL consented provides no defence.
DURESS
Consent secured by force or threat of force (duress) is not valid.
LATTER V BRADDELL [1880]

Old British case where duress is seen only as physical violence, not psychological Facts/Issues: a maid is forced by her employers to undress and undergo a pregnancy examination against her will. She sues for battery. Defending doctor claims consent. Discussion: Lindley J.: PL had it entirely in her own power to comply or not to comply with her mistresss orders, and there was no evidence whatever to show that anything improper or illegal was threatened to be done if she had not complied. There was no evidence of any force or violence, or threat of force of violence. Lopes J (dissent): I cannot adopt the view that PL consented because she yielded without her will having been overpowered by [physical] force or fear of violence. That is not, in my opinion, an accurate denition of consent in a case like this. Ruling: There was no duress, thus consent is valid.
UNDUE INFLUENCE/PUBLIC POLICY

Courts have increasingly recognized public policy considerations in negating the defence of consent. To show that the consent given was not legally effective PL must provide: Proof of inequality between the parties, which will ordinarily occur within the context of a special power dependency relationship. Proof of exploitation.
NORBERG V WYNRIB [1992] SCC

Consent vitiated in a power-dependent relationship Facts/Issues: a doctor was having sex with a drug-dependent patient in exchange for illegal prescriptions. She consented of her own volition. Is this consent valid? Discussion: Majority: The concept of consent as it operates in tort law is based on a presumption of individual autonomy and free will. It is presumed that the individual has freedom to consent or not to consent. This presumption, however, is untenable in certain circumstances. A position of relative weakness can, in some circumstances, interfere with the freedom of a persons will. Our notion of consent must, therefore, be modied to appreciate the power relationship between the parties. Ruling: the power relationship and the duciary duty of the doctor vitiate consent. To show that the consent given was not legally effective PL must provide: 1. Proof of inequality between the parties, which will ordinarily occur within the context of a special power dependency relationship. 2. Proof of exploitation (measured by community standards)
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140.2 Defenses
Consent to Criminal or Immoral Acts
Based on the Latin maxim ex turpi causa non oritur actio, a person cannot recover in tort law for the consequences of his or her own illegal or immoral conduct Ex turpi should be applied to prevent PL from proting nancially from his or her illegal or immoral conduct. Generally, the ex turpi principle will not operate in tort to deny damages for personal injury, since tort suits will generally be based on a claim for compensation. The use of ex turpi is not justied where the plaintiff's claim is merely for compensation for personal injuries sustained as a consequence of the negligence of the defendant, since no inconsistency is introduced into the fabric of the law in making such an award.
HALL V HEBERT [1993] SCC

Modern denition of the ex turpi causa principle. Facts/Issues: PL sues D in negligence, because D allows his to drive Ds car, knowing that he was intoxicated. Discussion: D uses the ex turpi rule against PL Courts can bar recovery in tort on the ground of the plaintiff's immoral or illegal conduct but only in very limited circumstances. Duty of the courts is to preserve the integrity of the legal system, and is exercisable only where this concern is in issue. it generally does not apply in damages for personal injury the focus of the test these days is mostly on the criminal activities. Ruling:
Consent to Medical Treatment

Health professionals and counselors must obtain consent in advance before they initiate any kind of physical exam, test, procedure, surgery or counseling. To be valid, the consent must have been given voluntarily (without duress or fraud). relate to the specic procedure or treatment that is undertaken. be based on a full and frank disclosure of the nature of the intervention and its risks. The fact that a plaintiff makes an appointment and comes for treatment provides strong evidence of implied consent. Exceptions to principle of consent in medical settings: In the case of an unforeseen medical emergency where it is impossible to obtain the patients consent, a healthcare professional may intervene without consent to preserve the patients health or life Marshall v Curry [NSSC] 1933: testicle taken out as a bonus to a hernia operation; Where a general consent has been provided, the patient will be treated as having implicitly consented to any subsequent sessions, tests etc that are incidental to the agreed treatment.
MALETTE V SHULMAN [1987] ONHC

Informed consent is not the same as informed refusal. Any treatment outside of consent is tortious. Facts/Issues: Jehovas Witnesses gets a blood transfusion that saves her life, even though she had a card in her pocket prohibiting the procedure. She sues for battery Discussion: Doctor claimed that the patient was not fully informed of the risks of not going through blood transfusion when she signed the card: informed refusal thus D was obliged by law to instruct her of the risk - J overrules this doctor is legally and ethically obliged to treat within the connes of given consent the right to refuse treatment is not premised on the understanding of risks of refusal. Ruling: there was no consent. The procedure was battery.
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140.2 Defenses
COMPETENCY TO CONSENT TO MEDICAL TREATMENT
For consent to be valid it must be given by someone who is legally competent. The test for competency focuses on the patients ability to understand the nature of the proposed treatment and its risks, not on his or her ability to make a reasoned or prudent decision. The test is applied on a case by case basis. There are no general rules about who is or is not competent to consent to medical treatment. With children, judges apply the mature minor or Gillick-competency rule (Gillick v West Norfolk Health Authority). If the child has been found to have sufcient intelligence, understanding and maturity to make up his or her mind, the court will recognize the childs consent (or refusal to consent). In the case of an adult, the general rule is that even in cases of senility or mental illness, if the patient is able to understand the relevant information and appreciate the consequences of the decision, he will be found competent to consent.
SUBSTITUTE CONSENT
In situations where the patient cannot consent, because of intellectual disability, mental illness or age, substitute consent can be obtained from the patients next of kin. Mrs E v Eve (SCC, 1986): For substitute consent to be upheld the following three requirements must be met: A. The patient must be incompetent; B. The next of kin must have acted in good faith; C. The procedure must be in the patients best interests.
Self-defence
The common law excuses intentional interference with a person if that person is threatened with harm by another. The burden of proving self-defence falls on the party invoking the defence (Mann v Balaban [1970] SCC). To invoke self-defence, D must establish on the balance of probabilities that: He honestly and reasonably believed that an assault was imminent; and The force used to avert the risk was reasonable in all the circumstances. Defensive force is reasonable if: (a) it is not greater than necessary for the purpose of preventing the attack; or (b) not disproportionate to the threat being counteracted. In other words, acts of self-defence must be both reasonably necessary (ie, there was no reasonable alternative), as well as reasonably proportionate to the harm being threatened (ie, not excessive).
WACKETT V CALDER [1965] BCCA

What constitutes reasonable force is a case-by-case determination, dependent on the facts. Facts: PL is intoxicated and challenges D to a ght. Swings a few sissy blows and gets knocked down; gets up and tries to continue the ght, and gets knocked out and has his jaw broken. Issues: Was Ds use of fo rce excessive and unnecessary? Discussion: D saw that PL was too drunk, and this vitiated consent to ght Trial J saw this as grounds for Ds action of assault CA: Though PL was drunk, he was still a large man and could have caused harm D was trying to walk inside the bar after the rst punch that knocked PL down one is entitled to reject force with force an attacked person defending himself ... is not held down to measure with exactitude or nicety the weight or power of his blows the rst blow was insufcient to stop PL, so the second one was justied and necessary. Ruling: The use of force was justied.
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140 Negligence Flowchart

Y
DUTY OF CARE Is this a recognized duty?
Duty to rescue Duty of Care Owned to the Rescuers Duty to Control the Intoxicated Duty to Control Based on a Supervisory Relationship Duty to Prevent Crime and Protect Others A Manufacturers and Suppliers Duty to Warn Negligent Misrepresentation
ANNS/COOPER TEST Foreseeability and proximity: Was is reasonably foreseeable that of ANY negligent conduct by D would cause ANY harm to PL? 2. Policy Considerations 1.
STANDARD OF CARE Reasonable Person or special standard?
Children Disabled Professionals Custom Statute
1. Was it reasonably foreseeability that THIS negligent conduct by D would cause ANY harm to PL? 2. Was the risk substantial? Does the severity of injury outweigh low probability? 3. Policy Considerations 4. The burden of cost to prevent the harm
Did D fall below the standard of care?
CAUSATION Can each injury be attributed to each tortfeasor? EXCEPTIONS Learned Intermediary? Informed Consent?
Multiple Negligent Ds? DIVISIBLE
Joint Tortfeasors?
INDIVISIBLE Was each cause sufcient to cause the injury?
N
Does the But For Test Work? Independent Insufcient
Y
Independent Sufcient Can the But For Test work? Material Contribution Did Ds negligence contribute to the injury beyound the de minimis range?
N
Material Contribution? Materially Increased Risk?
Can the But For Test work? Material Contribution Did Ds negligence contribute to the injury beyound the de minimis range?
BUT FOR TEST But for Ds negligence, would PLs injuries have occurred?
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140 Negligence Flowchart

REMOTENESS Is the harm too remote? WAGON MOUND 1 TEST Was it foreseeable that THIS negligent conduct by D will PROBABLY cause THIS injury to PL? HUGHES TEST Was it foreseeable that THIS negligent conduct by D will PROBABLY cause THIS KIND of injury to PL? WAGON MOUND 2 TEST Was it foreseeable that THIS negligent conduct by D will POSSIBLY cause THIS KIND of injury to PL?
Pre-existing Condition? Intervening Causes
Was the intervening cause a reasonably foreseeable consequence of Ds negligent conduct?
Crumbling Skull Rule
Thin Skull Rule
OTHER FACTORS Can D pile the blame elsewhere? Contributory Negligence Did PLs actions contribute to the injury? Vicarious Liability SALMOND TEST Acts authorized by the employer Unauthorized acts so connected that they may be regarded as modes of doing what has been authorized.
1. 2.
DEFENSES Can Ds guilt be absolved? Voluntary Assumption of Risk Inevitable Accident Participation in Criminal Activity
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140.3 Negligence: Duty of Care

The Elements Of The Tort
DUTY OF CARE
For there to be any tort liability in negligence, D must have owed PL a duty of care. The standard of proof in negligence is on the balance of probabilities There are some dened relationships in which a duty is automatically owed, eg doctor/patient; lawyer/client. The harder cases are where the relationship between the parties is less formal. In such cases, the neighbour principle helps guide the analysis. The modern law of duty continues to be an area of signicant debate. However, it is generally accepted that in order for a duty to arise there must be: (a) a foreseeable risk of injury; (b) a relationship of proximity between the parties; (c) no policy reasons for not imposing a duty.
STANDARD OF CARE
There can be no liability unless D breached the duty owed to the PL. Whether D breached the duty is determined by asking whether his actions fell below the appropriate standard of care. The general standard of care required is that of the reasonable person in the circumstances of the case. Some groups in society are held to a standard higher (doctors) or lower (children) than that of the reasonable person.
CAUSATION
Cause in Fact Causation is the element of negligence that links Ds breach of the standard of care with the PLs actual loss. There is no tort liability unless the Ds breach caused the PLs damage. But for test: if you can say but for the actions of the defendant this harm would not have occurred, causation is established. Additional tests for causation have emerged to deal with situations where the but for test is inadequate. For example, rules concerning material contribution of risk, multiple Ds, multiple causes, and a PL with a particular susceptibility.
REMOTENESS
Cause in Law Often considered to be an off-shoot of causation, remoteness asks whether the relationship between the Ds breach and the injury experienced by the PL is too remote to justify recovery. The effect of the remoteness test is that in negligence (unlike intentional torts) liability is usually limited to those losses that were foreseeable consequences of the Ds negligent act.
DAMAGE/ACTUAL LOSS
Negligence is only actionable in cases where PL has suffered actual loss.
DEFENCES
D can raise a variety of defences that will limit or negate liability even in circumstances where all of the elements of the tort have been made out. For example, contributory negligence (where PL also behaves negligently and thus contributes to his injury), voluntary assumption of risk (where PL engages in a risky activity), participation in criminal activity (Hall v Hebert test), and inevitable accident (where the accident could not have been avoided even with the greatest care or skill).
DAMAGES
Following Andrews v Grand & Toy (ABCA), damages are quantied under the following headings: Pecuniary loss Future care Lost earning capacity Considerations relevant to both heads of pecuniary loss Non-pecuniary loss
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Duty Of Care
Duty Of Care Test: 1. Is the alleged DoC within an established category or analogous to it? If yes, DoC is established. 2. Is the harm reasonably foreseen (Burden of Proof on PL)? 3. Is there sufcient proximity in relationship between PL and D (Burden of Proof on PL)? 4. Are there any residual policy considerations that would negate or limit (Burden of Proof on D): (a) what are the arising legal/social/economic obligations if there is a DoC? (b) does the law already provide a remedy? (c) would recognition of DoC create unlimited liability to an unlimited class? Note: BP is on the balance of probabilities. Steps 2, 3, and 4 are known in Canada as the Anns/Kamploops Test Steps 2 and 3 do not apply to established categories (Childs v Desormeaux [2006] SCC). Anns/Kamloops Test: (a) Is there a sufciently close relationship between the parties so that in the reasonable contemplation of D, carelessness on his part will cause damage to PL? (b) Are there any policy considerations that would negate or limit the duty?
DONOGHUE V. STEVENSON [1932] HL

Duty of care arises when D is proximate to PL and can reasonably foresee harm Facts: PL drinks a bottle of root beer that has a snail in it. She complains of gastric pains and sues for negligence Issues: Does D owe duty of care to PL? Discussion: in English law there must be, and is, some general conception of relations giving rise to a duty, of which the particular cases found in the books are but instance You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who is my neighbour? persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts of omissions which are called in question. Donoghue Test: reasonable foreseeability of harm; and a relationship of proximity between PL and D. Ruling: Ruling for PL
ANNS V. MERTON LONDON BOROUGH [1977] HL

Recognizing new categories of Duty of Care in negligence Facts: D was informed that the foundation of the building was complete, but chose not to inspect, and gave a BP as is. PL suing D for failing to inspect the foundations and granting a BP Issues: Is there a DoC? Discussion: D claims that negligence cannot be had, as they are not within the established category. It is not necessary that DoC has to fall into one of the previously established categories. Novel DoC has to be approached in two stages: is there a sufcient relationship of proximity between PL and D, in the reasonable contemplation of D, carelessness on his part may be likely to cause damage to PL, in which case prima facie duty of care arises. are there any considerations which ought to negative, or to reduce or limit the scope of the duty Since 1977, British law has distanced itself away from the PL-based approach of Anns The two part Anns test was rst adopted in Canada in Kamloops v Nielson [1984] SCC. Ruling: Anns gets a tort test named
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COOPER V. HOBART [2001] SCC
Policy implications and Anns Test Facts: PL invested money into a broker, who was closed down by D, who acted as a Registar of Mortgage Brokers for Canada. PL lost her money and sued for negligence. Issues: Does D owe a DoC to PL? Discussion: where the DoC does not fall into a recognized category, the second part of the test arises. the second part of the Anns/Kamloops test is an avenue for policy considerations: what are the arising legal/social/economic obligations if there is a DoC? does the law already provide a remedy? would recognition of DoC create unlimited liability to an unlimited class? in this case, Ds duty would arise out of the statute from which he operates the statute does not impose DoC, thus there was no sufcient proximity even if it did, the policy implications mean that D has to balance private and public interest and the public always wins. Ruling: Ruling for D
PROXIMITY
Proximity is generally used to characterize the type of relationship in which a duty of care might arise. Proximate relationships are often identied through the use of categories. The courts have created a series of relationships which are innately proximate. The court in Cooper endorsed a list of categories from Anns in which a proximate relationship (and thus a duty) had already been established. The list was not intended to be exhaustive. Established Proximate Relationships: Where the Ds act foreseeably causes physical harm to PL or the PLs property Negligent misstatement Misfeasance (an afrmative action) in public ofce A duty to warn of risk of danger A duty to inspect without negligence A duty to conduct work undertaken in a non-negligent manner Relational economic loss related to a contracts performance (in some dened situations)
FORESEEABILITY
Whether, at the time of the alleged tort, it was reasonably foreseeable to a person in the Ds position that ANY carelessness on his or her part could create a risk of ANY injury to the PL.
MOULE V. NB ELECTRIC POWER CO [1960] SCC

Only reasonably foreseeable risks will lead to Duty of Care Facts: PL climbs a tree onto another tree, steps on a rotten branch and falls on power-lines. His parents sue the electrical company for negligence in not trimming the tree sufciently or placing the lines far away. Issues: Does D owe a DoC to PL? Was the risk of injury foreseeable? Discussion: It is foreseeable that children will climb trees power companies should respond by placing their wires such that children will not come unexpectedly in contact with them. however, a company is not necessarily responsible for every accidental contact with its wires by climbing children or that it is deemed to be endowed with prevision of every harmful contingency In placing the wires 33ft from the ground and causing the adjacent trees to be limbed as they were at the place of this accident, D had taken adequate precautions against such dangers inherent in the presence of the wires as could be reasonably foreseen. the accident as it happened was a result of a number of unlikely events, which were outside of the range of reasonable foreseeability
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Ruling: Ruling for D
AMOS V. NB ELECTRICAL POWER CO [1976] SCC

Those who erect electric lines carrying heavy charges have a duty to take proper precautions against all foreseeable injuries Facts: PL climbs a young tree, which sways under his weight, hits a power line and fries the little bastard. His parents sue the electrical company for negligence in not trimming the tree sufciently or placing the lines far away. Issues: Does D owe a DoC to PL? Was the risk of injury foreseeable? Discussion: The tree in the case was young and limber, thus gave sway easily The tree was not trimmed sufciently Those who erect electric lines have a duty to take proper precautions against all foreseeable injuries Unlike in Moule, D had failed to take adequate precautions against reasonably foreseeable dangers inherent in the presence of the wires. Accident was one which could have been foreseen and which was almost inevitable Ruling: Ruling for PL The PL must be foreseeable. Thus, foreseeability (and thus duty) cannot be transferred from one PL to another. This does not mean that each individual PL must be foreseeable, but rather that the PL must belong to a class of persons foreseeably at risk ( such as all drivers on the road).
PALSGRAF V. LONG ISLAND RAILWAY CO [1928] NYCA

The PL must be someone to whom D owes a duty of care, or belong to such a class. Facts: As a train pulls away from a station, the conductor helps two running men get on board, pulling the second one. The man drops a package, which happens to contain reworks - causing an explosion. The shockwave knocks over a scale on the other side of the platform, which falls on PL and crushes her a wee bit. Issues: Does D owe a DoC to PL? Was the PL foreseeable? Discussion: While the conduct of the guard may have been negligent in relation to the package owner, it was not negligent in relation to PL, who was standing so far away. PL must show a wrong in relation to herself, not a wrong to someone else. Absent a wrong to her, there was a lack of foreseeability (and thus an absence of duty). Dissent: D should be liable for all proximate consequences of their actions for example, someone speeding in a car is negligent, even if they do not hit anyone D were careless in their actions and it produced consequences that were perfectly foreseeable. D need not have foreseen PL in particular, but she belonged to a class of persons that was foreseeable to D (passengers on the platform). Ruling: Ruling for D
Special Duties of Care

Special duties generally refer to situations where courts have already established (often as a matter of policy) that a duty will or will not arise. Those instances where a duty has been found to consistently arise become the established categories of duty that are referred to at the initial stage of the Cooper test. If you can t your case into one of these established categories, there is no need to proceed with any additional duty analysis. Misfeasance: positive acts. Nonfeasance: omissions or failures to act As a general rule, courts have been willing to impose liability for losses causes by misfeasance, but rarely in cases of nonfeasance. The few cases where nonfeasance has given rise to a duty typically involve a contractual or statutory obligation to act.
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One way to think about the distinction between misfeasance and nonfeasance is that misfeasance involves worsening the PLs position, whereas nonfeasance involves failing to improve it.
DUTY TO RESCUE
There is no general common law duty to rescue, even if you have specic skills that could be of aid.
OSTERLIND V. HILL [1928] MASS SC

As long as D has not created the situation of peril, there is no duty to rescue. Facts: D rented a canoe to the deceased (whose estate is PL), even though PL was drunk as shit. PL ipped the canoe, and was in the water crying for help for half hour, after which he drowned. D heard the cries, but did not help. Issues: Is D negligent in (a) renting a canoe to someone drunk, and (b) not saving him while he was drowning? Discussion: Court cites an earlier case that sets a standard for excessive intoxication as incapable of standing, walking, or caring for himself in any way Here, PL not only rented the canoe, but held onto it for half hour after ipping it. Thus, he was not excessively drunk, and D is justied in renting him the vessel The failure of D to respond to the cries of help is immaterial as there is no legal obligation for him to do so. Ruling: Ruling for PL
MATTHEWS & HORSLEY V. MACLAREN [1969] ONHC

By beginning the rescue process D assumes a duty to act, and will be liable for negligence. Facts: The estates of PLs (deceased) are suing D for negligence. D was the captain of a yacht, and PLs were invited guests. After a day of drinking on the boat, PL.M fell into the water. D backed the boat up, but lost control and had to re-back it, to come closer to PL. At this point, PL.H. got frustrated and jumped in to save PL.M. The water was freezing, and PL.H. instantly died of shock and heart failure. PL.M also sank - cause of death uncertain. Issues: Is D negligent in his condition and conduct in response to PL.Ms falling into water? Discussion: There are no common law obligation to rescue a drowning person But the notion of implied contract is making its way into situations where a special relation exists Extending the passenger/carrier quasi contractual relationship, it should give rise to a legal duty to aid and rescue Either way, D afrmatively undertook to rescue PL.M, and is thus liable for negligence, even if there is no legal duty to act Negligence in this case = what would a reasonable boat operator do in the circumstances? The standard operating procedures were known to D, and were disregarder - his attempt to rescue took too long, was bungled and incompetent Thus, his conduct was negligent, partly due to being drunk But, liability does not follow a nding of negligence, unless Ds conduct was the effective cause of death Burden is on PL to prove the causation Cause of death was uncertain, as the body was no found But, water was cold enough to kill PL.H. who was a younger man outright Thus, on a balance on probabilities, PL.Ms life could not have been saved, even by the most competent rescue operation Ds negligence is not the cause of PL.Ms death. Ruling: Ruling for D
STEVENSON V. CLEARVIEW RIVERSIDE RESORT [2000] ONSC

Ambulance attendant has no duty to offer assistance to individuals rescuing the PL Facts: A diver suffers additional spine injuries when people try to pull him out of the water. Off duty ambulance ofcer observes, but does not intervene by telling the proper procedure, and is charged with negligence Issues: Is there a duty of care? Discussion: There was no duty for the ambulance ofcer to intervene There is no special relationship between someone who is not working in their working capacity, and someone who is in need of assistance. 28

An off duty ambulance attendant is simply a private party. The same goes for doctors, who have no general duty, though some jurisdictions have imposed a statutory duty to go to a party's aid. Ruling: Ruling for D Health professionals cannot abandon a patient: discontinue care without making adequate arrangements for ongoing treatment Statutory provisions: Code s.129(b) - An individual must comply with an ofcers request for assistance in making an arrest or keeping the peace; Duty to render assistance in emergency situations involving crime. Code s.252: if you are involved a car accident you must stop and render assistance if a person is injured. Code s.217: one who undertakes an act is required to complete it, if failing to do so is or may be dangerous to life.
DUTY TO CONTROL THE CONDUCT OF OTHERS

Duty to Control the Intoxicated: There is no general duty to control the conduct of others, but the courts have been willing to impose such a duty in situations where a special relationship can be demonstrated, such as: Bar owner/Patron (created by liquor licensing rules) Once the staff is aware that PL is intoxicated and intends to drive, they have a legal duty to stop him, or call the police Hague v. Billings [1989] ONCA Serving patrons past the point of intoxication is not in itself a foreseeable risk Stewart v. Pettie [1995] SCC Social hosts do not owe a responsibility to third parties that are injured by their drunk guests The difference between social hosts and bar hosts are (a) ability to monitor alcohol consumption (b) licensing regulations and (c) prot from sales. Childs v. Desormeaux [2006] SCC Owner of a vehicle has a common law duty not to permit a drunk to drive
CROCKER V. SUNDANCE NORTHWEST RESORTS [1988] SCC

There is a duty of care of between a proprietor to an intoxicated patron, when the proprietor is aware of PL intoxication and participated in getting him to that point. Facts: PL is at a snow-tubing contest, lling out an entry form, which includes a waiver form. He then proceeds to buy booze from the resort (as well as form the contest site) and gets visibly shit-faced. Resort manager questions his capacity to perform, but PL says that he is alright. He eats shit and becomes quadriplegic. Issues: Is there a duty of care which arises from a special relationship? Discussion: The common thread running through these cases [commercial host cases] is that one is under a duty not to place another person in a position where it is foreseeable that that person could suffer injury. The relationship between the ski resort and the PL mirrored that of a commercial host and patron (eg, bar owner/patron), where a positive duty has been found. D knew that PL is severely intoxicated: they had factual knowledge D provided him with additional liquor Both owner and manager questioned PL, but did not stop him Thus, they were both aware of the risk, but did nothing And the resort was proting from their actions. Ruling: Judgement for PL. Duty to Control Based on a Supervisory Relationship Parents/Children: Parents are not (automatically) vicariously liable for their childrens acts. For liability to be found, it needs to be shown that the parent failed to adequately supervise the child (be negligent in their supervision) Prison Guards/Prisoners: guards have a duty to control prisoners Employers/ Employees: employers have a duty to keep employees safe, and to supervise their behaviour Mental Health Workers: to control mental health patients in institutional settings Sports coaches/supervisors: to control participants.
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DUTY TO PREVENT CRIME AND PROTECT OTHERS JANE DOE V METROPOLITAN TORONTO POLICE[1998] SCC
Police have a duty to prevent crime in situations where the PL falls into a category of foreseeable and proximate victims. Facts: PL is raped by an established balcony rapist with a set modus operandi. He had perpetrated several rapes in the area under investigation by the police. The police chose not to warn the women in the neighbourhood, because they would become hysterical and jeopardize the investigation. The investigation was low key, as it was not violent, but just rape. PL sues the police for negligence Issues: Is there a special duty of care? Discussion: The rape could have been prevented, since the rapist followed the same procedure all the time. The police decided that the best way to catch the rapist after another rape - PL thus was in a role of bait. SCC applies the Cooper test: it was reasonably foreseeable that the rapist would rape again At the time that she was raped, PL had become a member of a small specic group that were vulnerable to attack Thus, proximity is present, in respect to PL being a member of a class of potential victims There is no policy reasons for preventing such a duty Police do not have a DoC to a larger populace, only to the proximate foreseeable victims. There is a DoC: not a general duty to prevent crime, but to warm the specic victims One has to argue that they are not a random victim. Ruling: Judgement for D
DUTY OF CARE OWNED TO THE RESCUERS

If a person by his fault creates a situation of peril, he must answer for it to any who attempt to rescue the person who is in danger. Videan v. British Transport Commission [1963] CA Though it is possible, courts rarely hold rescuers contributorily negligent for their rescue attempts. It is presumed that because PL are responding to an emergency situation PL should not be held to the same standard of care as those acting in less extreme circumstances. The defense of voluntary assumption of risk has been pretty much eliminated in rescue cases. Rescuers are foreseeable and are owed a duty of care, since danger invites rescue Wagner v. Intl. Ry. Co. [1921] NY The principles of rescue apply to cases where PL are injured while attempting to save themselves or their property A rescuer can sue the person being rescued in the event that the person being rescued negligently imperiled him or herself Dufault v Excelsior Mortgage Company [2002] QB
HORSLEY V. MACLAREN [1969] ONHC

If one by his fault creates a situation of peril, he has a duty of care to anyone who attempts to rescue the person who is in danger. Facts: The estates of PLs (deceased) are suing D for negligence. D was the captain of a yacht, and PLs were invited guests. After a day of drinking on the boat, PL.M fell into the water. D backed the boat up, but lost control and had to re-back it, to come closer to PL. At this point, PL.H. got frustrated and jumped in to save PL.M. The water was freezing, and PL.H. instantly died of shock and heart failure. PL.M also sank - cause of death uncertain. Issues: Discussion: A situation of peril was created when PL.M fell overboard, but it was not by any fault on the part of D For D to be responsible for PL.Hs death, there must be such negligence in his method of rescue as to place PL.M in an apparent position of increased danger subsequent to and distinct from the danger to which he had been initially exposed by his accidental fall. Any duty owing to PL.H must stem from the fact that a new situation of peril was created by Ds negligence which induced PL.H to act as he did. In this case, evidence does not justify that any fault of Ds induced PL.H to dive in and die Ruling: Ruling for D
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DUTIES TO THE UNBORN
Pre-conception wrongs: where D carelessly causes a parent to suffer an injury that detrimentally affects a subsequently conceived child. Typically, these cases involve the mother or father being exposed to chemicals that harm their reproductive health. A duty can arise in cases of pre-conception wrongs. Paxton v. Ramji [2006] ONSC Wrongful Birth and Wrongful Life: Usually arises when a doctor carelessly fails to inform a woman that she faces an unusually high risk of giving birth to a child with a disability, or when a doctor negligently performs tests that are designed to detect foetal abnormalities. Because of the doctors failure to inform or negligence, the woman continues the pregnancy that she would otherwise have terminated. A claim brought by a parent is wrongful birth and a claim brought by the child is wrongful life. Wrongful Life claims are seen as bogus, because the claim would succeed only if one accepted that the child had a right not to be born. There is no cause of action available for wrongful life. While a physician owes a duty to a child regarding pre-natal injuries that become manifest on birth, a physician does not owe a duty of care to a child to provide its mother with information that would lead to an abortion. Jones v. Rostvig [1999] BCSC Courts will recognize a mothers wrong birth claim, but she must show that had the physicians duty been appropriately performed, she would have terminated the pregnancy. Arndt v. Smith [1994] BCSC Wrongful Pregnancy: Medical negligence cases where parents have taken medical steps to prevent pregnancy or childbirth (vasectomy, abortion), but due to the negligence of a doctor, a pregnancy occurs or continues. However, the situation becomes more complicated when the woman decides not to terminate the unwanted pregnancy, and then sues after the child is born. For what is the doctor liable? Traditionally, Canadian courts have permitted wrongful pregnancy claims but have limited damages to lost earnings consequential to the pregnancy and delivery, damages for emotional consequences of dealing with an unplanned pregnancy, and any costs specic to raising a child with a disability or because the parents are themselves disabled. Retreating from the traditional position, the court held that damages could be awarded for the cost of raising a healthy child, but only where the parents primary motivation for wanting to limit the size of their family was nancial. Kealey v. Berezowski [1996] ONSC Pre-natal Injuries: Where a child, now born, sues in negligence for injuries sustained in utero. The courts have recognized that a person may owe a duty of care to a foetus to avoid careless actions before birth that may result in a loss upon birth. However, the claim does not crystallize until the birth of the child. For reasons of public policy, the Court should not impose a duty of care upon a pregnant woman towards her foetus or subsequently born child. To do so would result in very extensive and unacceptable intrusions into the bodily integrity, privacy and autonomy rights of womenIn contrast to the third-party defendant, a womans every waking and sleeping moment, in essence, her entire existence, is connected to the foetus she may potentially harm. If a mother were to be held liable for prenatal negligence, this could render the most mundane decisions taken in the course of her daily life as a pregnant woman subject to the scrutiny of the courts. Dobson (Litigation Guardian of) v. Dobson [1999] SCC
A MANUFACTURERS AND SUPPLIERS DUTY TO WARN

A manufacturer of a product has a duty to warn consumers of dangers inherent in the use of its product of which it has knowledge or ought to have knowledge. The duty to warn is a continuing duty, requiring manufacturers to warn not only of dangers known at the time of the sale, but also of dangers discovered after the product has been sold and delivered. The warning required varies with the level of the danger involved in using the product. The more dangerous the product, the more detailed the warning must be. General warnings are insufcient for very dangerous products. While the duty is owed by the manufacturer to the consumer, in certain circumstances a manufacturer may satisfy its duty by providing a warning to a learned intermediary. This rule usually applies when the product is highly technical and will only be used with the supervision of an expert, such as a doctor. In such a case, the manufacturer may satisfy its duty to warn to consumer by warning the learned intermediary who will be expected to pass on the warning.
HOLLIS V. DOW CORNING CORP [1995] SCC

Manufactures have a continuous duty to warn the users or learned intermediaries of all existing and new evidence of hazards.
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Facts: PL gets breast implants made by D, one of which proceeds to explode, causing substantial damage that takes a long time to x. There was a product warning of rupture during surgery, but none for post-surgical explosions. Lower courts found D guilty of negligence in failing to warn of the risks of the rupture, even though there were other instances of it in the past. Issues: Was the limited warning sufcient to absolve D from negligence? Is the breach of duty to warn the proximate cause of her injuries? Discussion: There was some research done that showed that there is a risk of raptures (over 50 reports of ruptures in post-surgical context) At the time of the surgery, despite the evidence, there was no warnings of post-surgical ruptures 2 years after the surgery, a warning is released with new products about the risk of post-surgical ruptures. SCC nds that there was sufcient evidence to warrant a duty to warn at the time of the surgery. D has a duty to convey its ndings concerning both the unexplained rupture phenomenon and the possible harm caused by loose gel inside the body to the medical community much sooner than it did. The duty to warn is a continuing one and manufacturers of potentially hazardous products have an obligation to keep doctors abreast of developments even if they do not consider those developments to be conclusive, or do not know about its exact nature. Where medical evidence exists which tends to show a serious danger inherent in the use of a drug, the manufacturer is not entitled to ignore or discount that information in its warning because it nds it to be unconvincing: the manufacturer is obliged to be forthright and tell the whole story. Ruling: Ruling for PL
NEGLIGENT MISREPRESENTATION
Negligent misrepresentation arises with respect to written or oral communications. For example, communications made by a nancial advisor, business consultant, lawyer, stockbroker or banker, typically in the form of some kind of advice. Historically, the law has refused to recognize a duty of care in such circumstances, arguing that the purpose of tort is to compensate for physical harms not pure economic loss.
HEDLEY V. BURNE [1963] HL

A duty can arise in a situation of negligent misrepresentation that results in pure economic loss. Facts: PL is a rm of advertising agents who wanted to know if it is advisable to extend credit to a customer. PLs bankers asked D (customers banker) to provide a credit rating. D responded that the customer is quite good for the arrangement. PL give a credit, and the customer goes into liquidation without repaying PL. PL claims negligent misrepresentation causing pure economic loss. Issues: Is there a duty of care? Discussion: All of the lower courts turned the case down based on lack of precedent. The rst decision in which a court was willing to impose a duty on the basis of a negligent misrepresentation that gives rise to pure economic loss. However, the D was not liable because of the inclusion of a disclaimer clause in the letter of advice A duty can arise in a situation of negligent misrepresentation that results in pure economic loss, but the actual circumstances in which such a duty might arise were left undetermined. Ruling: Judgement for D
KEITH PLUMBING V. NEWPORT CITY CLUB [2000] BCCA

Mere presence of a disclaimer clause will not automatically prevent liability Facts: D is a bank involved in nancing a development project. PL is a contractor worried about receiving payment and asks D if the funds are available. D gives a written and an oral assurance (with absolutely no research), but including a disclaimer clause that absolves them of liability. The funds are not actually available, and PL is left unpaid. Issues: Does the disclaimer clause save D from having acted negligently? Discussion: Subsequent to Hedley v. Byrne, courts have interpreted disclaimer clauses narrowly, and in the event of ambiguity, against their drafter. As a result, the mere presence of a disclaimer clause will not automatically prevent liability. 32

The disclaimer clause was not upheld on three grounds: It was not well calculated to convey any clear meaning to persons not versed in the mysteries of banking practice in other words, PL could not have been expected to understand its meaning PL had no other means to check on the developers nancial circumstances In the circumstances, it was reasonable for PL to rely on the banks statement. They were, after all, nancing the project. Ruling: Judgement for PL.
HERCULES V. ERNST & YOUNG [1997] SCC

Duty of care in negligent misrepresentation causing pure economic loss. Facts: D is an accountant preparing nancial statements for 2 companies that PL is a shareholder of. PL alleges that D were negligent in their work, causing pure economic loss to the companies and PL. Issues: Is there a duty of care? Discussion: The duty analysis for negligent misrepresentation cases should be no different than in any other cases. Foreseeability: its reasonably foreseeable that if D (accountants preparing an audit report) are careless in preparing report it could cause harm to PL (shareholders). Proximity: Proximity is said to arise in circumstances where the relationship between PL and D is one of reliance. Proximity can be seen to inhere between D representor and a PL representee when two criteria relating to reliance may be said to exist on the facts: (a) that D ought reasonably to foresee that PL will rely on his or her representation; and (b) reliance by PL would, in the particular circumstances of the case, be reasonable. Court relies on ve, non-exhaustive, indicia of reasonable reliance. Its not necessary to show that all of these elements are present: D had a direct or indirect nancial interest in the transaction in respect of which the representation was made; D was a professional or someone who possess special skill, judgment or knowledge; The advice or information was provided in the course of Ds business; The information or advice was given deliberately, and not on a social occasion; The info or advice was given in response to a specic inquiry or request. Public policy negates a duty unless: D knew the identity of PL (or class of PLs) who would rely on the statement at issues; and That the statement itself was used by PL for precisely the purpose or transaction for which it was prepared. In this case, there is proximity and foreseeability, but the duty is negated by having too broad of a class of plaintiffs Ruling: Judgement for D. Concurrent liability: Negligent misrepresentation and contract Where a given wrong supports an action in K and in tort, the party may sue in either or both, except where K indicates that the parties intended to limit or negative the right to sue in tort. In the event that such a limitation exists, the tort duty, a general duty imputed by the law, must yield to the parties superior right to arrange their rights and duties in a different way. However, insofar as the tort duty is not contradicted by the K, it remains intact and can be sued upon. BG Checo v. BC Hyrdo [1993] SCC
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140.4 Negligence: Standard of Care

Standard Of Care
Broadly speaking, the "standard of care" is the standard of behaviour expected of D in the particular circumstances of the case. A breach occurs if the Ds conduct fell below the requisite standard. Underlying the concept of the standard of care is the reasonable person. The judge must determine the standard of care by asking himself how the reasonable person in the circumstances of D would have acted. Standard of Care Test The measure of what is reasonable depends on the facts of each case, in light of: 1. The likelihood or probability of foreseeable harm (an event can be foreseeable even when not probable) 2. The gravity/severity of the harm 3. The burden or cost (both private and social) that would be incurred to prevent the harm.
ARLAND V TAYLOR[1955] ONCA

The standard is the care that would have been taken in the circumstances by a reasonable and prudent man. Facts: PL is injured in the car accident, and the trial judge told the jury that they had to put themselves into the place of D, and ask what they would have done. PL appeals on the grounds that the charge was improper. Issues: What is the standard of the reasonable man? Discussion: The standard of care is not a subjective one, but an objective reasonable person The reasonable man is a creature of law whose conduct is the standard by which the Courts measure the conduct of all persons and nd it to be proper or improper in particular circumstances as they may exist from time to time. He is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general and approved practice. Ruling: New trial ordered
PROBABILITY AND SEVERITY OF HARM BOLTON V. STONE [1951] HL

The reasonable person would take into account the degree of risk and take precautions only where the risk is substantial. Facts: PL is hit by a cricket ball as she walks on a small lane behind the court. The club (D) claims that only 6 balls ew out of the court in the previous 30 years. Furthermore, the lane is mostly empty. Issues: Should D have taken precautions against such accidents? Discussion: The chance of someone being struck is miniscule. It was foreseeable, as balls have own out of the court before. But mere foreseeability is not enough to require D to take precautions. Rather, the focus should be on the likelihood of injury. Is the risk of damage to a person on the road so small that a reasonable man in the position of D would have thought it right to refrain from taking steps to prevent the danger. Consider: how remote is the chance that a person might be struck, how serious the consequences are likely to be if a person is struck, but not the difculty of remedial measures (this is overturned later). Ruling: D was not negligent.
PARIS V STEPNEY BOROUGH COUNCIL [1951] HL

The severity of the damage (considering individual characteristics of the PL) can outweigh the low probability 34

Facts: A one eyed worker suffers an accident and loses his last eye. The accident could have been prevented if the employer provided him with glasses. Issues: Should D have considered the fact that PL is one-eyed when establishing the standard of precautions? Discussion: The risk was slight of splinters breaking off the steel bolt. But the damage could be serious, and especially serious to a one eyed man. In other words, the PLs one-eyed status was relevant to determining the standard of care. The risk was slight, but because the injury would be heightened in the case of a one eyed PL, the severity of injury warranted the provision of goggles. Unlike Bolton, the court considers the cost of avoidance as an important factor. Here, the cost of avoidance was tiny. Ruling: Ruling for PL.
BURDEN/COST OF AVOIDANCE VAUGHN V. HALIFAX-DARTMOUTH BRIDGE COMPANY [1961] NSSC

One has to consider all the possible cheapest precautions. Facts: D is engaged in painting the bridge, under which the PLs car is parked. PLs car gets some paint on it. The only precaution that D takes is employing one person to wipe off the paint from cars. Issues: Were the precautionary measures sufcient/reasonable? Discussion: D argued that it had taken all reasonable measures and that to expect any more from them would lead result in prohibitive cost to them. Court rejected argument: There were straightforward and cheap methods by which D could have met its standard of care. D could have authorities who managed the parking lots, posted warning signs at the parking lots, and/or issued warning via radio or the newspapers. D has warned authorities before, and cars were moved. Ruling: D really fucked the dog on this one.
LAW ESTATE V. SIMICE [1994] BCSC

Public policy can be important when determining the standard of care Facts: PL dies after the hospital failed to provide him with skillful, timely and efcient care, particularly by failing to take a CT scan before surgery. D claims that they were underfunded and did not have sufcient staff and resources to be thoroughly diligent. Issues: Should the doctors have prioritized the patient over the MSP expenses Discussion: All the doctors in question, say that CT was not relied upon because the doctors were constrained by the MSP. Financial restraint is something to be considered by those responsible for the provision of medical care and those who are responsible for nancing it. If it comes to a choice between a physician's responsibility to the patient and responsibility to the medicare system overall, the patient must take precedence in a case such as this. The severity of the harm that may occur to the patient who is permitted to go undiagnosed is far greater than the nancial harm that will occur to the medicare system if one more CT scan procedure only shows the patient is not suffering from a serious medical condition. Ruling: Ds were negligent.
SOCIAL UTILITY
At the same time that the courts considers the burden of taking precautions to D, they also weigh up the social utility (ie, positive public contribution) of Ds actions. If the Ds conduct had some social utility, this should be factored into the gravity, probability, and cost formula in favour of the def. 35

Generally, the courts will consider the social utility of the Ds conduct only where D is a public ofcer or is employed by a public authority (eg, reman, police ofcer).
WATT V. HERTFORDSHIRE CC [1954] CA

You must balance the risk against the end to be achieved. Facts: PL is a reman who was responding to a call that required a special machine, which has not been used for years. The truck that is designed to carry the machine is not around, so it is jack-strapped onto the back of a regular engine. PL rides on the back along with the machine, and when the engine brakes, the straps break and the machine injures PL. PL claims negligence. Issues: Is the re department negligent in not taking proper operating procedures that the machine would have required? Discussion: To measure due care one must balance the risk against the measures necessary to eliminate the risk. You must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency, PL would succeed. But the commercial end to make prot is very different from the human end to save life or limb. The saving of life or limb justies taking considerable risk Ruling: PL is a pussy and needs to shut the fuck up.
Special Standards of Care

DISABLED
A physically disabled D is required to meet only the standard of care of a reasonable person with a similar disability. At the same time, such a person must be aware of his or her limitations and take precautions to avoid injury. Dobbs v. Mayer [1995] ONCA
FIALA V. CECHMANEK; FIALA V MACDONALD [2001] ABCA!

You must balance the risk against the end to be achieved. Facts: D.M freaks out and starts to think that he is God. He runs up to D.Cs car that is stopped at an intersection, climbs the roof and begins choking D.C through the sun roof. D.C involuntarily hits a gas pedal and hits PLs car. After the collision D.M continues ipping out, ailing his arms and yelling dirty comments at PL. It takes several cops to wrestle him to the ground. He is later diagnosed with a severe manic episode. Issues: Is Ds liability waived because of his insanity? Discussion: D was unaware of his mental illness prior to the attack. His attack was unforeseeable Trial judge dismisses DoC by D.M as his insanity was unforeseeable. In order to be relieved of tort liability when D is aficted suddenly and without warning with a mental illness, that D must show either of the following on the balance of probabilities: As a result of his or her mental illness, D had no capacity to understand or appreciate the duty of care owed at the relevant time; OR As a result of mental illness, D was unable to discharge his duty of care as had no meaningful control over his actions at the time that relevant conduct fell below the objective standard. Ruling: D satises both tests and is not liable
CHILDREN JOYAL V. BARSBY [1965] MBCA

The standard of care expected of a child is determined according to what a child of that age, intelligence and experience would have done in the same circumstances.
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Facts: A 6 year old child (PL) runs out on the highway into the side of Ds vehicle and suffers grievous injuries. Issues: Is the infant guilty of contributory negligence? Discussion: The reasonable standard test is relaxed for children. The test appears to have both objective and subjective elements: An objective test to decide whether the infant exercised the care to be expected from a child of like age and intelligence and experience. A subjective test where the court must consider the particular child, all the qualities and defects of the particular child, and all of the opportunities (or lack of them) which the child might have had to become aware of any particular danger or duty of care. If the child is engaged in adult activities such as driving a car, snowmobiling, golng or hunting, the child is required to meet the standard expected of a reasonable adult (Pope v. RGC Management). In this case, PL was no more heedless than any child her age Thus, there is no contributory negligence on her part. Ruling: The appeal is dismissed with costs.
PROFESSIONALS WHITE V. TURNER [1981] ONCA

Standard of care for a professional is determined based on industry specic standards of practice and testimony of experts in the given eld. Facts: D is a plastic surgeon performing a breast reduction on PL. He fucks up, and PLs breasts end up misshaped and gnarly. PL sues D for negligence in both performing the surgery and in disclosing the risks of the surgery. Issues: Was D negligent in surgery? What is the standard of care? Discussion: When determining the appropriate standard of care of a professional, the court must turn to experts in the eld and standard practice. Failure by D to meet the standard practice of the profession is evidence of a breach of the requisite standard of care. Courts have been willing to apply industry specic and professional standards to a wider and wider group of Ds, including most skilled trades and occupations. Ruling: PL is a pussy and needs to shut the fuck up.
CUSTOM TER NEUZEN V. KORN [1995] SCC

Conforming to a negligent practice enshrined as an industry standard is not an excuse. Facts: PL contracted AIDS as a result of articial insemination in 1985, when the risk of infection was not widely known in North America. D was a doctor responsible for screening the donors. He has used the standard medical practices of the time. He was nonetheless found liable. Issues: Was it open to the court to nd that the standard of practice fell below the standard of care? Discussion: Where a procedure involves difcult or uncertain questions of medical treatment or complex, scientic or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury, it will not be open to nd a standard medical practice negligent. As an exception to the rule, if a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary nder of fact, then it is no excuse for a practitioner to claim that he was merely conforming to such a negligent practice. Ruling: New trial ordered to investigate whether the industry standard was adequate.
GROSS NEGLIGENCE
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While the standard of care is a relatively static concept on most occasions we rely on the reasonable person (or the reasonable professional) standard occasionally statutes will alter the standard of care. Eg, Good Samaritan Act In such instances, liability ows only in cases of gross negligence. For practical purpose, gross negligence can be understood as requiring something less blameworthy than criminal negligence but something worse than ordinary tort negligence.
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140.5 Negligence: Causation And Remoteness

Causation
Causation Process: 1. Is the injury divisible or indivisible? 2. What test of causation governs the situation? Does the But For Test apply? Are there any exceptions? 3. Factual Analysis: Can the PL, based on the facts, prove on the balance of probabilities that Ds breach was a cause of his or her loss? Once you have established that D has breached the duty of care he owes to PL, PL must establish that the breach actually caused the harm. Key to the causation analysis is linking the breach with the actual injury. Causation is Cause in Fact (as opposed to Remoteness, which is Cause in Law) PL need not prove that Ds negligence was the sole, immediate, direct, or the most important cause of the loss. PL only has to establish that Ds negligence was a cause. Unlike intentional torts, D is only responsible for the foreseeable injuries. So, ones action can be the cause of the injury, but too remote to be held liable. This is called proximate cause
But For Test

But For Test: If PLs injury would not have occurred but for the defendants negligent act, then the act is the cause of the injury. If PLs injury would have occurred regardless of Ds negligence, the the act is generally held to not be the cause.
KAUFFMANN V. TORONTO TRANSIT COMMISSION [1959] ONCA

The negligence is not the cause of injury as the injury would have happened nonetheless. Facts: PL is severely injured when he was riding an escalator in a subway, and a bunch of people above him fell down, causing a chain reaction and falling on top of him. PL sues the Transit company for installing new type of an escalator with a different type of hand-rail. Trial judge found him responsible. Issues: Is the lack of handrail the cause of PLs injuries? Discussion: There is no evidence that PL would not have fallen if her hands had been grasping the handrail. There is no evidence to justify a nding that the type of handrail used was a contributing cause of the injury. The nding of negligence must be made out by evidence, and not left to the conjecture of the jury. Failure to provide rubber handrail did not cause injury because it would have happened even if the handrail has been there Ruling: Appeal allowed.
BARNETT V. CHELSEA & KENSINGTON HOSPITAL [1969] QB

If the action would not have prevented the injury, then negligence is not the cause. Facts: PL goes to the hospital complaining of stomach pain. Nurse on duty sends him home without having a doctor look at him. He dies of arsenic poisoning 5 hours later. Issues: Is the negligence of the hospital a cause of death? Discussion: Given the time that it would take to admit PL, process him and diagnose him, by the time that arsenic would have been identied, it would be too late to treat him. So, he would have died even if he was admitted. Thus, hospitals negligence is not the cause of death. Ruling: Appeal allowed.
EXCEPTIONS TO THE BUT FOR TEST

Multiple Negligent Defendants If PL can prove that both Ds were negligent, that one of them had to have caused his loss, and that it is impossible to prove which one, the burden of proof shifts to the Ds. Each D will be held liable (ie, causation will be inferred) unless one D can disprove causation on the balance of probabilities. Cook v Lewis [1951] SCC.
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The Learned Intermediary Rule The learned intermediary rule applies in cases where a product is not directly available to the public and reaches the consumer only after passing through an expert. A manufacturer cannot use the learned intermediary rule to shield itself from liability, though contributory negligence can be shown. It is thus not necessary, in order to show causation, for PL to prove that the intermediary would have passed the information on D, Dow Corning, argued that even if Dow had adequately informed the doctor of the risks of the breast implants, they werent liable because PL couldnt prove that her doctor would have passed the warning on to her. The argument failed miserably. Hollis v Dow Corning [1995] SCC Informed Consent Healthcare professionals have a duty to patients to put them in a position in which they can make informed decisions about whether to consent to particular medical treatment. In cases where doctors have negligently failed to provide information that would enable a patient to give informed consent, doctors have argued that even if the patient had been informed of the dangers, they would have consented anyway. PL responds by bringing evidence of what he would have done (ie, subjective analysis) To decrease the subjectivity of the analysis, the court adopted a subjective/objective test of causation, framed in terms of whether a reasonable person in PLs position would have consented if adequately informed. Arndt v Smith [1997] SCC
MODIFICATION TO THE BUT FOR TEST

Material Contribution Material Contribution Test: a contributing factor is material if it falls outside of the de minimis range. Material contribution arises when Ds conduct contributed to the occurrence of the injury, but was not the only cause. The but for test is unworkable in these cases, because we cannot be sure that the injury would not have occurred had D not been negligent. According to Hanke v Resurface Corp [2007] SCC, the material contribution test can be only be applied if two requirements are met: PL must rst establish that it is impossible to prove causation using the but-for test and that this impossibility results from factors beyond PLs control, such as the current limits of scientic knowledge. PL must establish that the Ds breached the standard of care and that the PLs injuries fell within the ambit of the risk created by the Ds breach.
WALKER ESTATE V. YORK FINCH GENERAL HOSPITAL [2001] SCC

If the conduct of the D was a sufcient condition outside of the de minimis range, then D is liable Facts: When Robert M donated blood in 1983, there were no mention of AIDS, nor identication of particular risk groups in the pamphlet (as was done by Red Cross in US). The pamphlet was updated in 1984. Robert M was infected, and claims that he would not have donated blood. The blood then is given to PL, who promptly dies. Issues: Is the Canadian Red Cross failure to follow the standard of US Red Cross a cause of death to PL? Discussion: In cases of negligent donor screening, its impossible to prove hypothetically what the donor would have done had he been properly screened. But we should not leave PLs without a cause of action simply because we cannot answer a question with a denite answer. Thus the question in cases of negligent donor screening should not be whether the CRCs conduct was a necessary condition for PLs injuries using the but for test, but whether that conduct was a sufcient condition. The proper test for causation in cases of negligent donor screening is whether Ds negligence materially contributed to the occurrence of the injury Ruling: D is guilty as material contributor Materially Increased Risk Materially Increased Risk Test: if scientic evidence is lacking, but contribution can be shown to be beyound the de minimis range, the courts will infer causation
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Materially increased risk, as an alternative to but for causation, also arises in situations where (scientic) proof is lacking. The material increase of risk test emerged to deal with those cases where PL couldnt meet the burden of proof because it was impossible to draw a precise (often scientic) conclusion, but it was likely that Ds conduct increased the risk of injury. So an inference of causation is established
SNELL V. FARRELL [1990] SCC

In cases where scientic proof of causation is lacking, materially increased risk is applicable. Facts: D performs an eye operation on PL, and sees bleeding. He stops the surgery for half an hour, and bleeding does not come back. After the surgery, the bleeding returns, and she loses sight in the eye. The bleeding could have been caused either by continuation of the operation, or by natural causes: it is impossible to prove denitely. But D was still still guilty of breach of standard procedure. Issues: Can the D be liable even though there is no possibility of proof ? Discussion: In cases where scientic proof of causation is lacking, one must apply relaxed version of the but for test. Experts must be bold in their statements and it should then be up to the judge to decide whether an inference of negligence should be drawn, applying common sense. Decisions do not need to be based on rm medical opinion. In this case, the experts were unsure about the origins of the injury, but it did increase the risk, and was possibly one of the causes. So material increase of risk is applicable. Ruling: D is guilty. Proportionate Cause While not yet applied in Canada, the proportionate cause approach has emerged in the US as a possible solution to the all or nothing nature of causation. Applying the proportionate cause approach, PL would recover based on a possibility that D was a cause of the loss. Thus, if there was a 35% chance that Ds negligence caused the loss, PL would recover for 35% of his loss.
Multiple Causes and Divisible/Indivisible Loss

Divisible Loss: refers to a loss that is attributable to the actions of a single tortfeasor. If PLs loss or losses can be divided up and each loss can be easily attributed to a single identiable tortfeasor, the loss is considered to be divisible. Indivisible Loss: refers to situations where PL's injury cannot be readily attributed to any single tortfeasor. Rather, the injury is the result of multiple causes, each cause perpetrated by a different tortfeasor. Indivisible losses are divided into two categories: Independent insufcient cause refers to situations where the causes are accumulative, each one being insufcient on its own to have caused the nal loss. The test is But For or Material Contribution Independent sufcient cause refers to cases where each of the two or more causes was sufcient on its own to cause the PLs overall loss. Independent tortfeasors are only liable for injuries that they have caused Joint tortfeasors are liable for the torts committed by their fellow tortfeasors If the Ds are joint tortfeasors, PL need only prove that one of them was a negligent cause, for all of them to be liable. Cook v. Lewis [1951] SCC recognized three situations of joint tortfeasors: Employee committing a tort on behalf of the employer Agent committing a tort on behalf of the principal Two or more individuals agreeing to act in concert to bring about a common end that is illegal, inherently dangerous, or one where negligence can be anticipated.
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INDEPENDENT INSUFFICIENT CAUSE ATHEY V. LEONI [1996] SCC
In independent insufcient causes, as long as D is part of the cause of an injury, D is liable, even though his act alone was not enough to create the injury. Facts: PL, who had a pre-existing back condition, suffered back and neck injuries in a car accident, which was caused by Ds negligence. Later, he was advised by his doctor to begin a workout program. One day, when doing stretches, he suffered a herniated disk, and became crippled. Issues: Can D be fully liable for the nal extent of the injury? Discussion: There is no basis for reduction of liability because of existence of other preconditions (essentially the thin skull rule) D claims that this is a divisible injury - this is wrong Both factors the pre-existing back injury and the car crash were necessary, though individually insufcient, causes of the PLs loss. So, there is a single indivisible injury (the disc herniation), because no one cause can be said to be the sole cause of it. It is not necessary for PL to establish that Ds negligence was the sole cause of the injury. As long as D is part of the cause of an injury, D is liable, even though his act alone was not enough to create the injury. Though the injury was sustained while stretching, mere stretching was insufcient to cause the damage. If the injuries sustained in the accident cause or contributed to the disc herniation, then D is liable for the damages owing from the herniation. PL must prove causation only by meeting the "but for" or material contribution test: BUT FOR pre-existing condition AND accident AND stretching, the injury would not have occurred. The accident is a part of the causation chain in the test It is outside of the de minimis range, so there is material contribution. The nding of material contribution is sufcient to render D fully liable. Ruling: D is liable for damages. Crumbling Skull Rule: If PL has a pre-existing condition, with some sort of an inevitable end point, which is hastened by Ds negligence, D is only liable to take PL where they were prior to the accident - that is back to their deteriorating condition. Whereas under thin skull rule, D simply takes PL as he nds them.
NOWLAN V. BRUNSWICK CONSTRUCTION [1972] SCC

If two or more negligent Ds cause of contribute to an indivisible injury, liability is joint. Facts: D, a contractor, was negligent building PLs house, which suffered rot due to leaks in structure. D argues that no damage would have occurred, but for the architects poor design. Issues: Who does PL get to punch in the gut? Discussion: Poor design was one factor, poor workmanship was another, both contributing to the damage. If design was good, there would be no rot due to poor workmanship If work was good, there would be no rot due to poor design. Where there are concurrent torts, and where the damage would not have occurred in the absence of either, the liability is a joint and several liability and either party causing or contributing to the damage is liable for the whole damage to the person aggrieved. Ruling: D is liable for damages.
INDEPENDENT SUFFICIENT CAUSE

When PLs indivisible loss results from two or more sufcient causes. Under the but-for test, each tortfeasor would be absolved of liability, as PL would have suffered the same loss regardless of each individual tortfeasors negligence. In order to avoid this, the courts apply a signicant factor test. After Hanke this can be framed as the material contribution test. The material contribution or signicant and substantial factor test is also applied when an independent sufcient cause and one or more independent insufcient causes bring about an indivisible loss.
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LAMBTON V. MELLISH [1894]
In independent sufcient causes, D is liable if his conduct is a signicant and substantial factor. Facts: PL live in a house next to an amusement park, where two refreshment stands ran by Ds next to it. Ds and both use organs to entertain visitors, which are together loud as fuck. PL moves for an injunction against Ds to stop playing their organs, as they are a nuisance. One D has a quiet organ, the other has a really loud one. Issues: Are both Ds liable for nuisance? Discussion: A by-passer or a visitor can tolerate the noise for a bit, but one living next to the property will nd it a nuisance. The noise made by each D, taken separately, amounts to a nuisance. But only combined, do they actually bother the PL. Where there are independent sufcient causes the traditional "but for" test should not be applied. Rather, the court should ask whether the Ds conduct was a "signicant or substantial" factor in causing the PLs harm. Ruling: PL gets his injunction
SUCCESSIVE CAUSES OF PARALLEL INJURY

Successive causes of parallel injury refers to a situation where, prior to trial/appeal, PL suffers a second independent injury that causes additional loss. The question raised by these cases is how to determine damages. The rst tortfeasor cannot benet from subsequent culpable behaviour (eg, a second tort), except where the second tort somehow reduces the PLs disability or shortens the period that he would suffer. Otherwise PL would not be compensated in full for the two injuries suffered. Baker v Willoughby [1970] AU HL Where the successive injury is caused by non-culpable behaviour (ie, non-tortious), D can rely on the successive to reduce damages. Penner v Mitchell [1978] AU CA
Remoteness
Even in situations where D breached a duty of care owed to PL and that breach caused PL to suffer harm, if the actual harm suffered by PL was too remote there will be no liability. Remoteness of damages focuses on the foreseeability of the injury itself and is designed to limit the scope of liability. Remoteness is Cause in Law So Remoteness is similar to Causation, but whereas causation deals with the physical nature of causes, remoteness considers legal and policy causes - where do we draw the line on legal responsibility?
FORESEEABILITY DUTY OF CARE Was it foreseeable that negligent conduct of ANY KIND would cause damage of ANY KIND? Was it foreseeable that negligent conduct of THIS KIND would cause damage of ANY KIND?
STANDARD OF CARE
REMOTENESS
Was it foreseeable that negligent conduct of THIS KIND would cause damage of THIS KIND?
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FORESEEABILITY TEST FOR REMOTENESS WAGON MOUND (NO.1); OVERSEAS TANKSHIP LTD. V. MORTS DOCK AND ENGINEERING [1961] AUPC
Foreseeability is the proper test for remoteness Facts: D let oil leak out of their tanker, which was moored in Sydney harbour. The oil oated away, under PLs dock, which was undergoing repairs. The debris from the repairs got soaked in oil, and when someone was welding above, it caught on re, which burned the dock and some vessels moored at it. Issues: Can D be held liable, since the damages were so unforeseeable? Discussion: Re Polemis established directness as the test for remoteness: were the damages directly caused by the actions of D? This is not consonant with the current ideas of justice, as it punishes people for all consequences, however unforeseeable and remote. There must be some limitation imposed upon the consequences for which the negligent actor is to be held responsible. Foreseeability is the appropriate test for remoteness. Unless if the events can be reasonably foresaw, there should be no liability for the negligence. Ruling: D is not responsible for the damages.
HUGHES V. LORD ADVOCATE [1963] HL

The proper question for remoteness is whether the injury is of the kind that is foreseeable. Facts: D is conducting repairs and leaves a manhole open, with parafn lamps around it. A kid comes to look at it, and knocks one of the lamps down. It explodes and the shock-wave knocks the kid down into the manhole, severely burning him Issues: Can D be held liable, since the damages were so unforeseeable? Discussion: The court later rejects the strict approach taken in Wagon Mound. The correct question for remoteness is whether the actual harm (severe burns) is of the same kind as that which was foreseeable (burns)? Thus, the question is not whether the exact injury and its circumstances are foreseeable, but whether the injury is of the kind that is foreseeable. Thus the damage was not too remote. Ruling: D is responsible Thin Skull Rule: A tortfeasor must take his victim as he nds them. This follows from the decision of Dulieu v. White [1901]
SMITH V. LEECH BRAIN & CO. [1962] QB

The proper question for remoteness is whether the injury is of the kind that is foreseeable. Facts: PL works in a galvanizing plant, where he is splashed by some molten metal. His burn is treated, but several years later it turns into cancer and PL dies. It is found that the burn promoted cancer in tissues which were already affected by a pre-malignant condition as a result of PLs exposure to tar fumes at work. Issues: Should PLs pre-disposition to cancer discount the damages that D owes his estate? Discussion: It is always been the rule that Ds take PLs as they nd them So why would be change it now? Court in Wagon Mound did not intend to limit the thin skull doctrine Thus, the test is not whether D could reasonably have foreseen that a burn would cause cancer and that PL would die. The question is whether D could have reasonably foreseen the type of injury which PL suffered, namely, a burn. From this all the rest of damages ow in full. Ruling: D is responsible in full The thin skull rule should be distinguished from the crumbling skull rule which applies to pre-existing injuries where it is just a matter of time before they would manifest themselves.
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In a crumbling skull case, the issue is whether D should be held responsible for hastening the onset of an injury that would have occurred in any event. The answer is that damages are available, but only to the extent that D worsened PLs condition. So if Ds conduct caused PLs skull to crumble two years earlier, D is responsible for that two year period only.
POSSIBILITY OF INJURY WAGON MOUND (NO.2); OVERSEAS TANKSHIP LTD. V. MILLER STEAMSHIP CO. [1967] AUPC
Injury must be reasonably foreseeably possible, not probable. Facts: D let oil leak out of their tanker, which was moored in Sydney harbour. The oil oated away, under a dock, which was undergoing repairs. The debris from the repairs got soaked in oil, and when someone was welding above, it caught on re, which burned the dock and PLs vessels that were moored at it. Issues: Can D be held liable, since the damages were so unforeseeable? Discussion: Evidence shows that the discharge of so much oil on to the water would have taken a considerable time, and a vigilant ships engineer would have noticed the discharge at an early stage. So some risk of re was present. But was it foreseeable? No matter the size of the risk, a reasonable man would only neglect a risk only if there is a valid reason for doing so such as expense to eliminate it. In this case, the risk was present and real, and there is no justication for failure to prevent. Wagon Mound No 2 has arguably relaxed the foreseeability standard for remoteness articulated in Wagon Mound No 1. That the injury was possible, though not probable, was treated as sufcient to satisfy remoteness. Ruling: D is responsible for the damages.
ASSINIBOINE SOUTH SCHOOL DIVISION V. GREATER WINNIPEG GAS CO. [1971] SCC
Injury must be possible, not probable Facts: Father alters a snow-mobile so that his 11-year old kid can start it on his own, albeit it is necessary to always start it in high gear. The kid does so, loses control, and the snow-mobile takes off, hits a snow bank, catches air, and hits a gas-riser pipe on the side of a small building. The pipe raptures, ows up into the boiler room of the school, and upon hitting a pilot light causes an explosion, which burns the school. Issues: Was the damage foreseeable? Does the Wagon Mound rules apply in Canada? Discussion: It is foreseeable that a boy operating an altered snow-mobile would lose control and do damage. But is it foreseeable that it would do THIS kind of damage? The damage from impact is reasonably foreseen, but the damage of re is a bit more of a difculty. The extent of the damage and its manner of incidence need not be foreseeable, as long as the physical damage of the kind is foreseeable. (Hughes principle) In this case, property damage was foreseeable, no matter whether it was by collision or re. Recovery may be had, if the event causing the damage is not impossible, even though it extremely unlikely. The test of foreseeability of damage is a question of what is possible rather than what is probable (impossible?) Ruling: The kid is guilty and is off to the slammer.
INTERVENING CAUSES
D remains liable despite an intervening act, as long as the intervening act is a foreseeable consequence of Ds original negligence. Intervening causes refers to situations where PLs loss is caused by Ds breach AND a subsequent intervening act. For example, a negligent driver hits PL and PL must attend hospital where she is negligently given the wrong drug and killed. The question is whether the intervening act of the negligent doctor should protect the negligent driver from liability for PLs death: does the intervening act render PLs injury too remote. If the intervening act was a foreseeable consequence, damages will be apportioned according to each parties contribution to the harm. If the intervening act was not a foreseeable consequence, then it s too remote.
BRADFORD V. KANELLOS [1973] SCC

An intervening cause will not break the chain of causation if it is a consequence of the original negligence 45

Facts: PLs are customers at Ds restaurant. Whilst they are there, the grill catches re - clearly due to Ds negligence. The re caused no harm. The re extinguisher makes a funky noise, so one customer freaks out and starts yelling that it is a gas leak. In the ensuing shitshow, PL is injured. Issues: Was the customers freakout a sufcient foreseeable intervention? Discussion: The practical view to be taken from the facts here leads to the conclusion that it should not be held that the person guilty of the original negligence resulting in the re on the grill ought reasonably to have anticipated the subsequent intervening act or acts which were the direct cause of the injuries and damages suffered by PLs The panic was not foreseeable as a consequence of the re Nowadays it is no longer open to serious question that the operation of an intervening force will not ordinarily clear D from further responsibility, if it can fairly be considered a not abnormal incident of the risk created by him [sic]. Ruling: D is negligent in causing the re, but not the injuries to PL.
Price v. Milawski [1977] ON CA

An intervening cause will not break the chain of causation if it is a reasonably foreseeable consequence of the original negligence Facts: PL injures his ankle while playing soccer and goes to the doctor, who orders an x-ray on the foot, not the ankle. The doctor looks at it, and sees nothing wrong and sends PL home. PL still feels pain, goes to an orthopedic surgeon, who contacts the hospital for x-ray info, which tells him that there is nothing wrong. In the end, the damage to the ankle is found by a third surgeon, but by that point, PL suffers permanent disability. Issues: Is the intervening action of the second doctor enough to make the negligence of the rst one too remote? Discussion: In this case, it was reasonable foreseeable by the rst doctor, that once the information generated by his negligent error got into the hospital records, other doctors subsequently treating PL might well rely on the accuracy of that information. It was also foreseeable that some doctors might do so without checking, even though to do so in the circumstances might itself be a negligent act. The history is always one factor in a subsequent diagnosis and the consequent treatment. Such a possibility was not a risk which a reasonable man (in the position of Dr Murray) would brush aside as far-fetched. Ruling: Both doctors are liable.
Price v. City of Red Deer [1977] ON CA

An intervening cause will not break the chain of causation if it is a reasonably foreseeable consequence of the original negligence Facts: D is operating a tractor used to move gravel by driving it up to the pile and depositing it there. He takes a break and leaves the tractor on top. He lowers the blade and turns off the tractor, while leaving the keys in the ignition, and does not the cabin. He comes back to nd the tractor gone and driven into the side of a house two and a half blocks away, engine running. Looks like someone started it, put it into high gear and let it go off on its own. Issues: Is the negligence of the operator too remote of a cause for the damage to PLs house? Discussion: The pile was within two blocks away from a nearby college It was easily accesible to any person driving on the road running by it. It was reasonably foreseeable that anyone might become aware that the tractor is left unattended It was also reasonably foreseeable that such a person would be tempted to put it in motion So PL is negligent and the chain of causation is note broken. Ruling: The operator is liable. In Tong v. Bedwell [2002] ABQB D who left the keys in his car, was not held liable for having that car get into an accident after being stolen. The court found that it was foreseeable that someone would steal the car with the keys in it, but it was not foreseeable that the thief would drive recklessly.
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140.6 Defenses and Damages

Vicarious Liability
VL enables an employer (or principal) to be held liable for the torts of his or her employees or agents. For VL to be imposed, a tort must have been committed. So the rst step is always to show that the employee has in fact committed a tort. A court can hold an employer VL and an employee personally liable. That is, while the doctrine of VL provides PL with an alternative source of relief, it does not relieve the employee of responsibility. At the same time, an employer can be personally liable for his or her own tort. For example, if an employer fails to adequately supervise employees, doesn't provide appropriate equipment, doesn't conduct record checks etc, the employer can be personally liable in negligence as well. Vicarious liability comes in several forms: (a) Statutory vicarious liability; (b) Principal-agent relationship; (c) Employer/employee relationship (formerly master/servant relationship).
VICARIOUS LIABILITY IN EMPLOYER/EMPLOYEE CONTEXT

VL in the employer/employee context requires that three elements be met: 2.1. A tort must have been committed 2.2. The tortfeasor must be an employee of D (or be in an employment-like relationship) 2.3. The tort must be committed in the "course and scope of employment" Whether the individual is in an "employment-like relationship" turns on whether the employer exercises "control" over the alleged employee. Evidence of control can be found in: whether the worker provides his/her own equipment; whether the worker hires his/her own helpers, the worker's personal level of nancial risk, the worker's responsibility for management and investment, the worker's opportunity for prot. The more independent the worker, the less likely it is an employer/employee relationship. The Salmond test has been revisited in Bazley v Curry. However, there is some doubt as to whether Bazley applies only to intentional torts and not negligence. Salmond Test: An employee's wrongful conduct is said to fall within the course of his or her employment where it consists of either: Acts authorized by the employer OR Unauthorized acts that are so connected with acts that the employer has authorized that they may rightly be regarded as modes (though improper modes) of doing what has been authorized.
WEST & WEST V MACDONALD'S CONSOLIDATED LTD & MALCOLM [1931] AB SC

One can mix private business with their employment, and still be acting in the course of the employment. Facts: The employee is accustomed to returning the company truck to the employers facility at the end of the day. He takes a small detour to pick up a wench. On the way back, he is involved in an accident, of which he is negligent. Issues: Is he acting on his own, or is he engaged in something that is related to his employment? Discussion: "If the servant was doing something appertaining to the course of his [sic] employment, even if at the same time her may be also carrying out a purpose of his own, or, to put the matter in another form, unless the proper nding is that the servant was on an independent and separate journey of his own, unconnected with the work for which he was employed, the master [employer] is liable. It is immaterial that the servant may also be going on private business of his own if he is also on his master's business. Ruling: The Employer is liable.
WILLS V. BELL ICE [19??] ??

One cant mix private business with their employment, and still be acting in the course of the employment. Facts: The employee delivers ice, and is supposed to return the cart back at the end of the day. He stops at the bar, get tanked, drives the cart back and hits someone.
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Issues: Is he acting on his own, or is he engaged in something that is related to his employment? Discussion: The PL is found to have been on the frolic of his own. But the difference between the case above seems to be the presence of alcohol, and the extra time spent at the bar (as opposed to the instantaneous pick up of the wench) Ruling: The Employer is not liable. The theme unifying vicarious liability cases is the notion of enterprise risk. The idea of enterprise risk derives from the idea that where the employees conduct is closely tied to a risk that the employers enterprise has placed in the community, the employer may justly be held vicariously liable for the employees wrong. In other words, if the employers enterprise fosters or encourages the environment/context in which the tort could occur, they are vicariously liable if it does.
BAZLEY V. CURRY [1999] SCC

Salmond Test is overruled for intentional torts. Facts: D is an employee of the Childrens foundation that ran the facility. He passed the criminal check, which was the standard procedure. After this, he proceeded to molest the children, including PL. Issues: Is the institution running the facility vicariously liable? Discussion: Vicarious liability is all about public policy It is about risk, which the employer undertakes engaging in a prot making enterprise, and thus they should be responsible for the risk. The test should be replaced with a contextualized, policy oriented three staged process: a. Should there be liability based on public policy? b. Whether the wrongful act of the employee is sufciently connected to the contact authorized by the employer to justify the nding of liability? The focus is not on the scope of the employment, but whether the employer created or enhanced the possibility of the risk. c. In determining the sufciency of the connection between the employers creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. When related to an intentional tort they may include, but are not limited to: The opportunity the enterprise afforded the employee to abuse his or her power; The extent to which the wrongful act may have furthered the employers aims The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employers enterprise The extent of the power conferred on the employee in relation to the victim Applicable to the facts of the case, the Foundation is vicariously liable, due to its creation of the semi-parental control and private relationship between the children and the teachers. Ruling: The Employer is not liable. So this overrules the Salmond Test in intentional torts But in cases of negligence, the courts have largely continued to apply the Salmond test Thus far, the new Bazley analysis has been conned to institutional abuse cases.
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Contributory Negligence
Once all of the elements of negligence have been made out (or not, as the case may be), you must consider whether D has any defences available to him. D bears the burden of proving a defence. Traditionally contributory negligence was an all or nothing defence. If PLs negligent conduct had contributed even the smallest amount to his injury, D bore no liability. The traditional approach was replaced with the introduction of apportionment legislation. Blame can now be apportioned between PL and D where both were negligent. Contributory negligence can take a multitude of forms. PL may carelessly enter into a dangerous situation (eg, get into a car with a drunk driver, carelessly contribute to the cause of an accident (eg, by distracting the driver of a car), or contribute to the extent of the resulting harm (eg, by failing to wear a seatbelt).
WALLS V. MUSSENS LTD [1969] NBCA

In nding contributory negligence, PL should not be expected to meet the same standard of care required of D. Facts: Ds employee runs a vehicle to a garage owned by PL. As he is repairing it, a match ignites a pool of oil that was leaked from the vehicle. The re is thus negligently caused by the Ds employee in the course of his work. Ds employee and a few others try to put it out by shoveling snow, forgetting the there are re extinguishers around. PL rushes tot he scene and helps them out, but the re extinguishers are still forgotten. The re grows and burns down the garage. If extinguishers were used, the re would have most likely have been put out. Issues: Is the failure of PL to use re extinguishers contributory negligence on his part? Discussion: There is no negligence on the side of PL in causing the re But what about his negligence during the putting out of the re? The test to be applied is not whether PL exercised a careful and prudent judgment in doing what he did, but whether what he did was something an ordinarily prudent man might reasonably have done under the stress of the emergency [or in the agony of the moment]. The agony of the moment reduces the level of responsibility by the PL. The standard of care within the test will include age, disability, and professional training of the PL. Ruling: The PL is not contributorily negligent.
GAGNON V. BEAULIEU [1977] BCSC

Failing to wear a seatbelt is contributory negligence if the injuries could have been prevented by wearing it. Facts: PL was a passenger in a car driven by D. In a car accident, the PL ew through the front window and got severe damages. He was not wearing a seatbelt. Issues: Is the fact that PL was not wearing a seatbelt contributory negligence? Discussion: A three part test applies to situations in which PLs fail to wear a seatbelt (and possible failure to take other kids of precautions?) D must show: That PL knew or ought to have known that wearing the seatbelt [or other safety device] provided would reduce the possibility of being injured in a collision. That PL wasnt wearing the seatbelt. That had PL been wearing the seatbelt, the injuries would have been prevented or their severity lessened. In this case all three elements are satised. Ruling: The Employer is not liable.
APPORTIONMENT OF LOSS
Apportionment statutes permit the courts to divide responsibility for damages between the parties according to their relative degree of fault. The apportionment statutes do three key things for our purposes:
49

Joint and several liability: They establish that in cases where two or more Ds are at fault, both Ds are jointly and severally liable to PL. That is, PL can sue either or both. Between the Ds however, contribution or indemnity can be sought Contributory negligence: They establish that in a situation where D is found negligent but PL has also negligently contributed to the damages, the court shall apportion damages in proportion to the degree of negligence of each party. If it is impossible or impractical on the evidence to determine the respective degree of fault of PL and D, the parties will be deemed equally negligent. However, courts try to avoid this situation.
MORTIMER V CAMERON [1994] ONCA

Apportionment is a nding of fact and appellate courts should rarely interfere with a trial judges apportionment of liability. Facts: D and PL were engaging in friendly horseplay, when they fell down the stairs. They crashed into a wall, which gave out, and they fell several stories down. D is paralyzed as a result. Trial judge found that both were negligent, but the test failed at remoteness. Judge found negligence by the city ( 80% for failing to keep the building up to the Building Code) and the owner of the building (20% for failing to upkeep the building) Issues: Is this apportion of damages sound? Discussion: Both PL and D did engage in horseplay and were negligent, but the reasonable apprehension of risk was that of crashing into the wall a few steps below. It was unforeseeable that they would end up going through the wall, thus neither is liable. The liability lies on the city and the building owner. The city is not as responsible, because after the initial inspection, it had to way of enforcing the upkeep of the building The owner was the one responsible for maintaining the building in a structurally sound state. Ruling: The damages are revise 40% city and 60% owner.
Other Defenses
VOLUNTARY ASSUMPTION OF RISK
Volenti non t injuria roughly translates as to one who is willing no harm is done. Volenti is invoked by D in cases where PL has, by word or deed, voluntarily assumed the risk of D negligence. Volenti is a complete defence. As a result, courts have applied it extremely narrowly. Miller v. Decker [1957] & Schwindt v. Giesbrecht [1958], where volenti was successfully invoked because PL and D had a shared purpose and PL had incited and instigated D to take the risk. Volenti usually fails in sporting context: though in intentional torts, it is possible to assume the dangers of the game, one cannot assume the dangers of negligence. The only way that volenti would apply to sports, is if PL has expressly signed away the liability through the waver.
DUBE V. LABAR [1986] SCC

PL must not merely know the risk, but consent that he intended to take on the whole risk. Facts: PL and D are construction workers drinking after work one day. They resume drinking the next day, and decide to get Ds car that they misplaced the night before, and to pick up two women that they lost at the bar. They nd the women, and drive them to Whitehorse. Driving home, they continue drinking, and stop by to pick up hitchhikers. At this point, PL leaves the wheel, and D starts driving. He is drunk, and he crashes the car. D is negligent in crashing the car. Issues: Did PL voluntarily assume the risk? Discussion: The trial judge nds contributory negligence - PL was drinking with D, and both were equally negligent in driving. The trial judge also nds voluntary assumption of risk. SCC questions what the charge to the jury must have been? D must show that PL gave an express or implied consent to accept or assume the whole risk of Ds negligence. Thus, the question is not simply whether PL knew of the risk, but whether the circumstances were such that a court can conclude that the whole risk was voluntarily consented to by PL. Merely getting in the car is not enough. So volenti will rarely arise in drunk driving cases. Volenti can only be invoked by D where there can truly be said to be an understanding between both parties that D assumed no responsibility to take due care for the safety of PL, and that PL did not expect him to. 50

But in this case, SCC gives deference to the trial decision, because the trial court had more factual evidence to consider. Ruling: Judgement for D.
PARTICIPATION IN A CRIMINAL OR IMMORAL ACTIVITY

The doctrine of ex turpi translates roughly to a dishonorable cause does not give rise to an action. Ex turpi is a complete defence and has thus been applied narrowly (and increasingly rarely).
HALL V. HEBERT [1993] SCC

Those participating in criminal activity can still seek relief in tort. Facts: PL and D are drunk at a party. D stalls his car on the edge of a cliff (?). PL proposes that he try a rolling start, which he does, but forgets to stop and rolls the car off the cliff, along with him in it. PL sues D for negligently letting him drive while drunk. Issues: Is the fact that both PL and D were participating in illegal drunk driving of any relevance? Discussion: Some jurisdictions have abolished the defense altogether and moved the criminal consideration to the policy analysis section of duty of care. But if such would happen here, criminals would almost never succeed in tort. This will undermine the concept of justice and tort - because the criminals deserve the same protection than boring normal people. The integrity of the legal system requires that PL not prot from engaging in criminal activity. Compensation for personal injury does not fall within the realm of prot. PLs who are injured while engaging in criminal acts can be compensated for actual losses (eg, medical costs) and costs of future care. However, they may be barred from claiming damages for lost earning capacity where those earnings were being made through criminal activity. (so one cant claim loss of income, if the income was illegal) PLs may also be barred from claiming aggravated or punitive damages. Ruling: PL gets some money, but loses most through contributory negligence.
BC V. ZASTOWNY [2008] SCC

Damages for criminal activity cannot clash with the principles of justice and criminal system. Facts: PL is in jail for a break and enter, and is prison raped several times by a guard. Prior to the rapes, PL was a clean, young kid, with no criminal record. After the jail he becomes a heroin addict and a repeat offender, spending many more times in jail. After a while, the guard is investigated for multiple rapes, and found guilty criminally. Issues: Can PL recover damages? Discussion: PL claims damages for personal injury: he gets them for physical and psychological damages. PL also claims for loss of wages while in prison, as he spent his subsequent times in prison due to the original assaults that sent him on the wrong track. SCC denies him this: PL should not be compensated for loss of wages while in prison because such compensation would constitute a rebate of the consequences of his criminal acts. He is not entitled to compensation for unemployment due to incarceration for conduct which the criminal law has determined worthy of punishment and the consequences of that punishment. To hold otherwise would create a clash between the criminal and civil law which would compromise the integrity of the justice system. Ruling: Almost there.
INEVITABLE ACCIDENT
If D can provide factual evidence that there was nothing that he should have done to prevent the accident These cases rarely get to the defense stage, because they usually get shut down at some stage during the analysis
RINTOUL V. X-RAY AND RADIUM INDUSTRIES [1956] SCC

There is a good reason why this defense never comes up. 51

Facts: D is driving a truck, the brakes fail and D runs into the back of a PLs car. Issues: Was this an accident? Could it have been avoided? Discussion: D argues that brakes failed without warning and that they have taken all reasonable precautions taking care of the brakes. So, the accident was unexplained and unavoidable A person relying on the defence of inevitable accident must show that something happened over which D had no control, and the effect of which could not have been avoided by the greatest care and skill. But D fails, because they fail to provide an evidence of this. Ruling: D fails in their defense.
Damages
There are many different types of damages but they all address two specic forms of loss: I. Pecuniary (monetary) losses (also known as special damages); and II. Non-pecuniary (non-monetary) losses (also known as general damages). Special damages: pre-trial pecuniary losses, such as expenses incurred and income lost prior to trial. General damages: pre-trial non-pecuniary losses and all post-trial losses, such as pain and suffering, future expenses, and future lost income. Nominal Damages: usually awarded in a token amount to address a violation of a legal right that the law deems worthy of protection, even in the absence of actual harm. Vindicate a pl's rights in situations where no injury has been suffered. Negligence requires loss damage so nominal damages are not awarded. Rarely awarded. Compensatory Damages: compensate PL for loss (whether pecuniary or non-pecuniary.) and put him back in the position he was in before tort was committed. Primary award in negligence. Aggravated Damages: A type of compensatory damages, compensating PL for additional injuries to dignity, such as humiliation and distress. Often referred to as pain and suffering damages. Awarded when Ds conduct is so outrageous that the harm done is worse than it otherwise would have been. Sometimes ordered in negligence action, but mostly in intentional torts such as sexual assault. Punitive (or exemplary) damages: Punitive damages have, as their general objective, punishment, deterrence and denunciation (ie, they are not compensatory). They are usually awarded in cases where D has demonstrated blatant disregard for PLs safety. Similar to a quasi-criminal ne. Rarely ordered in negligence, because most def's have simply acted carelessly. However, if there is some evidence of more than carelessness punitive damages may be awarded. The PL bears the burden of showing that he has suffered a loss and establishing the appropriate quantum of damages on the balance of probabilities. PL is under an obligation to act reasonably in all the circumstances of the case to mitigate his or her loss (Janiak v. Ippolito). Failure to mitigate is often treated as contributory negligence. D can set-off against the PLs damage claim any parallel expenditure that PL would have incurred had the tort not been committed. Damages awards are always paid in a one time lump sum for all the losses PL has suffered and will likely suffer in the future. PLs who receive lump sum payments are expected to invest wisely. The limitation period in BC is 2 years, but it only starts running when PL becomes aware of the identity of D, and of the fact that a cause of action is possible
ANDREWS V. GRAND & TOY ALBERTA [1978] SCC

PLs can make reasonable (non-extravagant) choices in regard to their future care. Facts: PL is severely crippled and paralyzed by an accident that Issues: How much damages does PL get? Discussion: 52

How much future care can PL claim? PL wants to have a live-in care taker, but D says that he should live in a institution (which is much cheaper and would lead to much smaller future care awards) Future care awards cannot be based on compassion alone, but PLs do have a say in what sort of care they would want. In this case, it is a reasonable that PL wants to live at home. D also claims that PL should move in with his parents, thus forgoing D the expense of a live-in caretaker. This is bullshit, as it would impose an undue burden on his parents, and would force him to live with someone who he is not too close to. It is important that PL is mentally sound and can make reasonable choices. Contingencies: Can be considered in relation to both future care and lost earning capacity Not all contingencies are negative, but the positive ones never seem to be applied. Ruling: PL get the green. Following Andrews, damages are now quantied under the following headings: Pecuniary loss Future Care: the cost of future care is a pecuniary claim for the amount which may reasonably be expected to be expended in putting PL in the position he would have been in had he not sustained the injury. Lost Earning Capacity: the court must consider age, projected wage rates, length or working life, contingencies (eg, unemployment, poor economy). Considerations relevant to both: The award should be self-extinguishing -calculated as to not leave any residue after the death of PL. Creating an estate is not the duty of the courts. How the award should take into account factors such as the interest rate the lump sum will attract, ination and the impact of taxation ( all the more contingencies). The court should not calculate what PL is likely to receive as interest, but also take into account ination. But the two are usually related, and cancel each other. Though the award itself is not taxable, the interest it, and the taxes should be considered. Non-pecuniary loss: The correct approach to evaluating non-pecuniary losses is the "functional approach", which attempts to assess the compensation required to provide the injured person "with reasonable solace for his misfortune". Large non-pecuniary awards should not be granted once a person has been properly provided for in terms of future care. "There is no medium for the exchange of happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution." After Andrews, $100,000 is taken as a reasonable limit to non-pecuniary loss, requiring an exceptional case to go higher than that.
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Law 140 Law of Torts Fiona Kelly 2008-2009

By Ilia Von K orkh

140 Torts: Fiona Kelly 2008 - 2009

Intentional Interference With The Person

ELEMENTS OVERVIEW DEFENCES BETTEL V. YIM [1978] ONCA

ELEMENTS OVERVIEW HOLCOMBE V. WHITAKER [1975] ABSC

POLICE V. GREAVES [1964] NZCA

ELEMENTS OVERVIEW BIRD V. JONES [1845] QB

CAMPBELL V. SS KRESGE [1976] NSTD

HERD V. WEARDALE STEEL [1915] HL

Intentional Infliction of Nervous Shock

ELEMENTS (CANADIAN) WILKINSON V. DOWNTON [1897] QB

140 Torts: Fiona Kelly 2008 - 2009

RADOVIS V. TOMM [1957] MBSC

Intentional interference with real property (trespass)

ELEMENTS OVERVIEW PUBLIC/PRIVATE DISTINCTION ENTICK V CARRINGTON [1795] CP

TURNER V THORNE[1960] ONHC

PENNEY V GOSSE [1974] NFSC

HARRISON V CARSWELL [1976] SCC

Chapter 4: Defences Consent

AGAR V CANNING [1966] MBCA

CONSENT IN FIGHTS COMPETENCY TO CONSENT

UNDUE INFLUENCE/PUBLIC POLICY NORBERG V WYNRIB [1992] SCC

140 Torts: Fiona Kelly 2008 - 2009

Consent to Medical Treatment

COMPETENCY TO CONSENT TO MEDICAL TREATMENT SUBSTITUTE CONSENT

The Elements Of The Tort

ANNS V. MERTON LONDON BOROUGH [1977] HL

COOPER V. HOBART [2001] SCC

PROXIMITY FORESEEABILITY MOULE V. NB ELECTRIC POWER CO [1960] SCC

AMOS V. NB ELECTRICAL POWER CO [1976] SCC

PALSGRAF V. LONG ISLAND RAILWAY CO [1928] NYCA

Special Duties of Care

MATTHEWS & HORSLEY V. MACLAREN [1969] ONHC

STEVENSON V. CLEARVIEW RIVERSIDE RESORT [2000] ONSC

140 Torts: Fiona Kelly 2008 - 2009

DUTY OF CARE OWNED TO THE RESCUERS HORSLEY V. MACLAREN [1969] ONHC

NEGLIGENT MISREPRESENTATION HEDLEY V. BURNE [1963] HL

KEITH PLUMBING V. NEWPORT CITY CLUB [2000] BCCA

HERCULES V. ERNST & YOUNG [1997] SCC

PROBABILITY AND SEVERITY OF HARM BOLTON V. STONE [1951] HL

PARIS V STEPNEY BOROUGH COUNCIL [1951] HL

BURDEN/COST OF AVOIDANCE VAUGHN V. HALIFAX-DARTMOUTH BRIDGE COMPANY [1961] NSSC

LAW ESTATE V. SIMICE [1994] BCSC

SOCIAL UTILITY WATT V. HERTFORDSHIRE CC [1954] CA

Special Standards of Care

140 Torts: Fiona Kelly 2008 - 2009

PROFESSIONALS WHITE V. TURNER [1981] ONCA

CUSTOM TER NEUZEN V. KORN [1995] SCC

Causation But For Test

BARNETT V. CHELSEA & KENSINGTON HOSPITAL [1969] QB

SNELL V. FARRELL [1990] SCC

Multiple Causes and Divisible/Indivisible Loss

NOWLAN V. BRUNSWICK CONSTRUCTION [1972] SCC

INDEPENDENT SUFFICIENT CAUSE LAMBTON V. MELLISH [1894]

SUCCESSIVE CAUSES OF PARALLEL INJURY

HUGHES V. LORD ADVOCATE [1963] HL

SMITH V. LEECH BRAIN & CO. [1962] QB

140 Torts: Fiona Kelly 2008 - 2009

INTERVENING CAUSES BRADFORD V. KANELLOS [1973] SCC

WILLS V. BELL ICE [19??] ??

BAZLEY V. CURRY [1999] SCC

APPORTIONMENT OF LOSS MORTIMER V CAMERON [1994] ONCA

PARTICIPATION IN A CRIMINAL OR IMMORAL ACTIVITY HALL V. HEBERT [1993] SCC