LAW 5145: Torts Long Summary (1L Spring)

Introduction to the Law of Negligence ......................................................................................................... 4

Historical Development of Negligence ..................................................................................................... 4
The Elements of a Negligence Action ....................................................................................................... 5
(i) Duty of care ...................................................................................................................................... 5
(ii) The Standard of Care and its Breach ............................................................................................... 5
(iii) Causation ........................................................................................................................................ 5
(iv) Remoteness of Damages ................................................................................................................ 5
(v) Actual Loss ....................................................................................................................................... 5
(vi) Defences ......................................................................................................................................... 5
Duty of Care .................................................................................................................................................. 7
An Introduction to the Duty of Care ......................................................................................................... 7
The Classical Approach ......................................................................................................................... 7
The General Duty of Care Test .............................................................................................................. 7
The Development of the Modern Law of Duty ..................................................................................... 8
Developments Since Cooper v Hobart ................................................................................................ 11
Application of the Duty of Care Test ....................................................................................................... 12
Foreseeable Risk of Injury ................................................................................................................... 12
Foreseeable Plaintiff ........................................................................................................................... 13
Special Duties of Care ................................................................................................................................. 16
Duties of Affirmative Action ................................................................................................................... 16
The Duty to Rescue ............................................................................................................................. 16
The Duty to Control the Conduct of Others ........................................................................................ 20
(a) Liability for the Intoxicated ..................................................................................................... 20
(b) Other Duty to Control Situations ............................................................................................ 23
The Duty to Perform Gratuitous Undertakings ................................................................................... 24
Miscellaneous Categories ....................................................................................................................... 28
The Duty of Care Owed to Rescuers ................................................................................................... 28
Psychiatric Harm ................................................................................................................................. 31
(a) Commonwealth Developments .............................................................................................. 32
(b) The Canadian Position............................................................................................................. 36
A Health Professional's Duty to Inform............................................................................................... 40

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 A Manufacturer's and Supplier's Duty to Warn .................................................................................. 45
Negligent Misrepresentation .................................................................................................................. 50
Negligent Misrepresentation Causing Pure Economic Loss ................................................................ 52
Pre-Contractual Misrepresentations .................................................................................................. 56
Recovery of Pure Economic Loss ............................................................................................................ 58
New Categories of Pure Economic Loss .............................................................................................. 59
Negligent Performance of a Service.................................................................................................... 63
Relational Economic Loss .................................................................................................................... 65
Standard of Care ......................................................................................................................................... 70
The Common Law Standard of Care: The Reasonable Person Test ........................................................ 70
Factors Considered in Determining Breach of the Standard of Care...................................................... 72
Probability and Severity of the Harm.................................................................................................. 72
Cost of Risk Avoidance ........................................................................................................................ 75
Social Utility ........................................................................................................................................ 77
An Economic Analysis of the Standard of Care ....................................................................................... 79
Special Standards of Care ....................................................................................................................... 80
The Standard of Care Expected of the Disabled ................................................................................. 80
The Standard of Care Expected of Children ........................................................................................ 82
The Standard of Care Expected of Professionals ................................................................................ 83
Degrees of Negligence ............................................................................................................................ 86
Custom .................................................................................................................................................... 86
Causation .................................................................................................................................................... 88
Introduction ............................................................................................................................................ 88
The But-For Test...................................................................................................................................... 88
Established Exceptions to the But-For Test ............................................................................................ 90
The Multiple Negligent Defendants Rule ............................................................................................ 90
The Learned Intermediary Rule .......................................................................................................... 90
Informed Consent ............................................................................................................................... 91
Recent attempts to modify the but-for .................................................................................................. 91
Material Contribution ......................................................................................................................... 91
(i) Limiting the Material Contribution Test ......................................................................................... 93
Materially Increased Risk .................................................................................................................... 93
Proportionate Cause and Loss of Chance ........................................................................................... 97

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 Multiple Causes....................................................................................................................................... 98
Independent Insufficient Causes ........................................................................................................ 99
Independent Sufficient Causes ......................................................................................................... 101
Issues in Assessing the Plaintiffs Loss ................................................................................................... 102
Successive Causes of Parallel Injury .................................................................................................. 102
Devaluing the Plaintiff's Loss ............................................................................................................ 104
Remoteness .............................................................................................................................................. 104
Directness Versus Foreseeability .......................................................................................................... 105
The Directness Test ........................................................................................................................... 105
The Foreseeability Test ..................................................................................................................... 105
Modifications to the Foreseeability Test .............................................................................................. 106
The Kind of Injury .............................................................................................................................. 106
The Thin-Skulled Plaintiff Rule .......................................................................................................... 107
The Possibility of Injury ..................................................................................................................... 110
Intervening Causes ................................................................................................................................ 113
Actual Loss ................................................................................................................................................ 118
Defences in Negligence ............................................................................................................................. 118
Contributory Negligence ....................................................................................................................... 118
The Developments of the Defence ................................................................................................... 118
Conduct Constituting Contributory Negligence ................................................................................ 119
Apportionment of Loss ..................................................................................................................... 121
Voluntary Assumption of Risk ............................................................................................................... 124
Participation in a Criminal or Immoral Act............................................................................................ 125
Inevitable Accident ............................................................................................................................... 126
Proof of Negligence................................................................................................................................... 127
The Burden of Proof in a Negligence Action ......................................................................................... 127
Exceptions to the General Principles Governing the Burden of Proof ................................................. 128
Statutes and Shifting Burdens of Proof............................................................................................. 128
Directly Caused Injury: Unintended Trespass ................................................................................... 129
Multiple Negligent Defendants ......................................................................................................... 129
Res Ipsa Loquitur................................................................................................................................... 132
Statutory Provisions and Tort Liability ...................................................................................................... 134
Express Statutory Causes of Action ...................................................................................................... 135

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 The Use of Statutes in Common Law Negligence ................................................................................. 137
Breach of Statutory Duty and Common Law Standard of Care ........................................................ 140

Introduction to the Law of Negligence

 broad sense of "negligence": cause of action that constitutes a branch of tort law concerned
with liability for careless conduct
 narrow sense of "negligence": one particular element within that cause of action - whether the
defendant's conduct met the standard of care
 not an intentional tort, so it has some predetermined boundaries: scope depends on judicial
interpretation of core concept of duty of care

Historical Development of Negligence

 origins in writ system
o trespass vi et armis: strict liability for direct, forceful interferences with person or
property (defendant would be liable unless they could prove the injury happened
without their fault)
o trespass on the case: provided remedy for losses that were not directly and forcefully
inflicted (plaintiff required to prove that he/she had suffered actual loss and that the
defendant's conduct was either intentional or negligent)
 first actions on the case involved defendants in public callings (apothecaries, surgeons, common
carriers, innkeepers) would were alleged to have breached the standards of customary practice
 by early 19th centuy, action on the case was also being used by plaintiffs who had been
carelessly run down on public road, or who had been injured through mismanagement of fire or
animals
 judges came to recognize legal duties of care in absence of contract or any prior relationship
between the parties
 judges began to articulate a "fault" theory of liability > eventually held that plaintiff was entitled
to relief only if a defendant was at fault (i.e. if defendant failed to conform to the standard of
care required in the circumstances)
 series of cases in mid and late 19th century: plaintiffs' lawyers tried to extend concept of legal
duty of care beyond established categories > unsuccessful
 Heaven v Pender: Brett MR tried to promulgate a general theory of the legal duty to take care
that would apply i any circumstances where the actions of one party created a foreseeable risk
of harm to another > rejected
 M'Alister (or Donoghue) v Stevenson (HoL, 1932):
o Facts: plaintiff alleged that she got sick after consuming the remnants of a decomposed
smail in the defendant manufacturer's ginger beer
o Lord Atkin said: "in ENglish law there must be, and is, some general conception of
relations giving rise to a duty of care...liability for negligence...based upon a general
public sentiment of moral wrongdoing for which the offender must pay...rules of law
arise which limit the range of complainants and the extent of their remedy...must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure you neighbour...neighbour = persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as being so

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 affected when I am directing my mind to the acts or omissions which are called in
question"
o seminal case in modern negligence law - established a basic framework that could be
used for determining when to recognize a duty of care
o Atkin's test became widely accepted as governing liability for negligent acts causing
physical injury/property damage
 4 areas of early common law from which modern negligence action evolved:
o liability in nuisance
o liability based on the control of dangerous things
o duties voluntarily undertaken in assumpsit
o duty cast upon bailees and persons pursuing a common calling

The Elements of a Negligence Action

[plaintiff usually has burden of proving first 5, defendant has burden of proving the sixth]

(i) Duty of care

 court must decide whether defendant had duty of care
 duty of care = any legal obligation to exercise care with respect to plaintiff's interests in the type
of case under consideration

(ii) The Standard of Care and its Breach

 ordinarily, it's the standard of care that would be exercised by a reasonable person in all the
circumstances of the case
 but some professionals who had special training or qualifications are expected to meet the
standard of their professional colleagues

(iii) Causation
 defendant will not be held liable unless the careless conduct was a casue of the plaintiff's loss

(iv) Remoteness of Damages

 whether the relationship between the breach and the injury is too tenuous/remote to warrant
recovery
 liability limited to those losses that were foreseeable consequences of the defendant's negligent
act

(v) Actual Loss

 negligence not actionable per se
 plaintiff must show that he/she suffered legally-recognized injuries and losses, and nature and
extent of losses

(vi) Defences
 plaintiff's damages may be reduced/eliminated on account of his/her own conduct (contributory
negligence, voluntary assumption of risk or illegality) or other considerations (inevitable
accident)
 also general defences, like lapse of limitation period

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 Dunsmore v Deshield (1977, SKQB)
Facts:
 plaintiff was playing touch football, collided with another player, one lens of his glasses broke
and injured right eye
 defendants:
 Deshield: optometrist who supplied the glasses
 Imperial Optical: manufactured the lenses
 plaintiff ordered Hardex lenses from Deshield
 Hardex: specially treated by Imperial in hot and cold process to make it more impact-resistant
than ordinary glass lenses
 Imperial told Deshield the lenses were Hardex, Deshield told plaintiff same
Plaintiff's Claims:
 against Deshield: breach of contract - alternatively, negligence
 against IMperial: negligence
Defendants' Defences:
 contributory negligence (they must prove that plaintiff caused/contributed to injury; must
prove that touch football is as violent as ordinary football on balance of probabilities) -
defence failed
 both defendants made claim agaisnt the other for indemnity (compensation)
Issues:
 were the lenses Hardex lenses?
Held:
 lenses were not Hardex, on balance of probabilities
 defendants are liable
 general damages: $7500
 special damages: $646.50
Ratio:
Reasoning:
 Imperial and Deshield had duty of care towards plaintiff (didn't say why)
 Imperial and Deshield did not meet standard of care (Imperial did not check the lenses with
colmiscope for the Maltese cross pattern to check if Hardex before sending to Deshield;
Deshield did not have colmiscope and so did not check, but he had duty to check and didn't)
 causation: plaintiff would have to prove that the impact would probably not have been
sufficient to break a Hardex lens
o Imperial has machine that drops steel ball on Hardex lens to test Hardex
o plaintiff has to show (on balance of probabilities) that the touch football impact was
less than the steel ball drop test impact
o can't show exactly, but steel ball drops a lot of force on one point of the lens, while
the touch football impact was diffused (all the force of the impact was not on the
lens)
 remoteness of damages (was the loss a foreseeable consequence of the defendant's negligent
act?): "the defendants by their error failed in their duty to protect the plaintiff against the risk
of breakage of ordinary lenses. the risk was foreseeable whether or not they knew that he
had athletic pastimes."
 actual loss: vision in right eye went from 20/20 to 20/25; few days in hospital, six days off
work; right eye tires easily (and plaintiff works in govt, required to do much reading, etc.)

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  indemnification between defendants: Deshield gets indemnification from Imperial for entire
judgment plus costs because Deshield was entitled to rely on Imperial's duty to supply Hardex
lenses notwithstanding Deshield's own duty to plaintiff

Duty of Care
An Introduction to the Duty of Care
The Classical Approach
 first premise: legal responsibility for negligence did not flow inexorably from moral responsibility
o classical lawyers respected absence of precedent: if common law hadn't established a
particular legal duty of care, that was reason enough to doubt its desirability
 second premise: as unelected bodies witin representative democracies, courts were seen a
having a limited role in imposing liability outside the confines of common law precedent (even if
broader duty of care required, legislators should enact)
 third premise: acts were seen to be more culpable than omissions, so judges drew distinction
between misfeasance and nonfeasance (courts much more likely to impose liability if the
defendant did something that hurt the plaintiff than if the defendant merely failed to do
something that would have helped the plaintiff)
 fourth premise: classical view rested on assumtions about the value of various interests (physical
injuries [more tangible, measurable] were broadly compensable, but emotional harms and loss
of commercial profits were not)

The General Duty of Care Test

Donoghue v Stevenson (HL, 1932)
Facts:
 plaintiff drank out of a dark, opaque bottle of ginger-beer and discovered a decomposed snail
in the bottle
 plaintiff sued manufacturer, alleging shock and severe gastroenteritis
Issue:
 whether the manufacturer of an article of drink sold by him to distributor, in circumstances
which prevent distributor/ultimate purchaser/consumer from discovering defects, is under
any legal duty to the ultimate purchaser/consumer to take reasonable care that the article is
free from defect likely to cause injury to health
 whether the defender owed any duty to the pursuer to take care
Held:
 duty of care exists
Ratio:
 a manufacturer of products, which he sells in such a form as to show that he intends them to
reach the ultimate consumer in the form in which they left him with no reasonable possibility
of intermediate examination, and with the knowledge that the absence of reasonable care in
the preparation or putting up of the products will result in an injury to the consumer's life or
property, owes a duty to the consumer to take that reasonable care
Reasoning:
 in order to support an action for damages for negligence the complainant has to show that he
has been injured by the breach of a duty owed to him in the circumstances by the defendant
to take reasonable care to avoid such injury

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  how to determine if duty exists? Courts have determined particular relationships give rise to
duty of care, but no general rule
 principle in Heaven v Pender: duty of care arises when peron ot property of one was in such
proximity to the person or property of another that, if due care was not taken, damage might
be done by the one to the other
 proximity should extend to such close and direct relations that the act complained of directly
affects a person whom the person alleged to be bound to take care would know would be
directly affected by his careless act (ex.// goods supplied to be used immediately/used at
once before reasonable opportunity of inspection by particular person(s)/one of a class of
persons
Dissent:
 authorities don't agree with Atkin's (majority) decision
 principle should be: manufacturer of an article, apart from contract, owes a duty to any
person by whom the article is lawfully used to see that it has been carefully contructed
(contractual rights must be excluded from consideration)
 as per Mullen v Barr: "where the goods of the defenders are widely distributed throughout
Scotland, it would seem little short of outrageous to make them responsible to members of
hte public for the condition of the contents of every bottle which issues from their works. It is
obvious that, if such responsibility attached to the defenders, they might be called on to meet
claims of damages which they could not possibly investigate or answer"

 prior to Donoghue, lack of contractual privity made it extremely difficult for consumers to sue
manufacturers in negligence
 exception to privity requirement was found in cases involving articles that were dangerous per
se

The Development of the Modern Law of Duty

 Lord Atkin's formulation of duty of care concept (from Donoghue v Stevenson) has been used to
support proposition that negligence law potentially extends to any act that causes physical
injury (as opposed to other forms of loss)
 principle so deeply entrenched that courts often simply assume that negligence applies, will
rarely make more than passing reference to duty of care
 1960s: appellate courts began to use Donoghue v Stevenson to overturn traditional,
fundamental assumptions regarding duty of care
 Hedley Byrne & Co. v Heller & Partners Ltd. (1964): HL held that in certain situations a duty of
care could be imposed for negligent advice
 Home Office v Dorset Yacht Co (1970): HL held that public authorities could be held liable in
negligence with respect to their statutory functions and operations
 Lord WIlberforce in Anns v Merton London Borough Council (1977, HL): in order to establish
duty of care, not necessary to show that situation is similar to existing duty of care case -
instead: (1) whether there is sufficient relationship of proximity/neighbourhood between
wrongdoer and victim such that carelessness could have been reasonably expected to cause
damage, (2) whether there are any considerations which ought to negative/reduce/limit the
scope of duty/the class of person to whom it is owed or the damages to which a breach of it may
give rise

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  England aftermath of Anns: HL overruled Anns case in Murphy v Brentwood District Council
(1991)
o leading case in England now: Caparo Industries plc v Dickman (1990, HL): necessary
ingredients to give rise to duty of care: foreseeability of damage, relationship of
proximity/neighbourhood between the parties, and situation should be such that courts
consider it fair, just and reasonable that that hte law should impose a duty of a given
scope upon one party for the benefit of the other
o so 3 part test: to prove that duty of care exists, must prove that (i) the plaintiff's loss
was a reasonably foreseeable consequence of the defendant's conduct, (ii) there was a
sufficiently proximate relationship between the parties, and (iii) it is "fair, just and
reasonable" for hte court to impose a duty of care in light of the applicable policy
considerations
 Australia aftermath of Anns: also rejected Anns case
 Canada aftermath of Anns: Canadian judges have been, and to some extent continue to be,
unusually receptive to Anns case
o leading case for many years: Kamloops (City) v Nielsen (1984, SCC): to determine duty of
care:
(i) is three a sufficiently close relationship between the parties so that defendant would
have reasonably contemplated that carelessness might cause damage to plaintiff
(ii) are there any considerations which ought to negative or limit (a) the scope of the
duty and (b) the class of persons to whom it is owed or (c) the damages to which a
breach of it may give rise
o Anns/Kamloops approach was notable for its flexibility and expansiveness, also
characterized by departure from the traditional, category-by-category evolution of the
duty of care in favour of a more general test
o in Cooper v Hobart (2001, SCC): SCC re-visited and re-stated Anns/Kamloops

Cooper v Hobart (2001, SCC)

Facts:
 plaintiff invested money with Eron Mortgage Corp.
 defendant (Registrar of Mortgage Brokers) could investigate complaints, freeze funds, and
suspend licenses of brokers (as per Mortgage Brokers Act)
 defendant suspended Eron's licence
 plaintiff lost investment and sued defendant for negligence
 plaintiff's claim: if defendnat had acted more quickly in suspending licence, she would not
have suffered same magnitude of loss
Issue:
 whether defendant owed a duty of care to the plaintiff
Held:
Ratio:
 sets out latest version of Anns/Kamloops test
o reasonable foreseeability and proximity
 was the harm the reasonably foreseeable consequence of the defendant’s
act?
 Was there a sufficient relationship of proximity to impose a duty of care? Are
there reasons, not withstanding the proximity between the parties

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 established in the first part of this test, that tort liability should not be
recognized?
o Residual policy matters (the burden rests on D to establish that policy conerns should
reduce/negate the prima facie duty established)
Reasoning:
 in Donoghue v Stevenson: liability for negligence will arise where (i) a reasonable person
would have viewed the harm as foreseeable, (ii) there is a close and direct relationship of
proximity or neighbourhood (relationships of proximity not closed)
 in Anns: HL said that duty of care required (i) finding of proximity sufficient to create a prima
facie duty of care, followed by (ii) consideration of whether there were any factors negativing
that duty of care (first time that policy component is expressly recognized)
o "the Anns two-stage test, properly understood, does not involve duplication [ofpolicy
considerations] because different types of policy considerations are involved at the
two stages
 JCPC in Yuen Kun Yeu v AG of Hong Kong (1988): to find a prima facie duty of care at the first
stage of the test, there must be reasonbale foreseeability of the harm plus something more;
second branch of Anns test would seldom ocme into play
 Anns analysis is best understood as follows:
o at first stage, pro proximity analysis focuses on factors arising from relationship
between plaintiff and defendant:
(i) was the harm that occurred the reasonably foreseeable consequence of the
defendant's act?
(ii) are there reasons, notwithstanding the proximity between the parties established
in the first part of this test, that tort liability should not be recognized here?
o at second stage:
(i) whether there are residual policy considerations outside the relationship of hte
parties that may negative imposition of a duty of care
 in first stage, what is meant by proximity?
o generally used to characterize the type of relationship in which a duty of care may
arise (historically, used to describe the type of relationship in which a duty of care to
guard against foreseeable negligence may be imposed; Lord Atkin said: "close and
direct" relationship; may involve looking at expectations, representations, reliance,
and the property or other interests in volved)
o sufficiently proximate relationships are identified through the use of categories (not
closed); categories in which proximity has been recognized:
o situation where the defendant's act foreseeably causes physical harm to the
plaintiff/the plaintiff's property (has been extended to nervous shock, as per Alcock v
CHief Constable of the South Yorkshire Police, 1991 HL)
o liability for negligent misstatement (Hedley Byrne & Co v Heller & Partners Ltd, 1963
HL)
o misfeasance in public office
o duty to warn of the risk of danger (Rivtow Marine Ltd. v Washington Iron Works, 1974
SCC)
o municipality owes duty to prospective purchasers of real estate to inspect housing
developments without negligence (Anns, Kamloops)

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 o govt'l authorities who have undertaken policy of road maintenance have been held to
owe duty of care to execute the maintenance in a non-negligent manner (Just v BC,
1989 CC)
o relational economic loss (related to a contract's performance) may give rise to a tort
duty of care (in certain situations: if claimant has possessory/proprietary interest in
the property, the general average cases, and cases where the relationship between
the claimant and the property owner constitutes a joint venture)
 in second stage, residul policy considerations:
o not concerned with relationship between the parties, but with the effect of
recognizing a duty of care on other legal obligaitons, the legal system and society
more generally
o ex.// does the law already provide a remedy? would recognition of the duty of care
reate the spectre of unlimited liability to an unlimited class? etc.
 application of test to this case:
o did the circumstances disclose reasonably foreseeable harm and proximity sufficient
to establish a prima facie duty of care?
 does the case fall within/is the case analogous to a category of cases in which
a duty of care has previously been recognized? no
 is this a situaiton in which a new duty of care should be recognized?
remember, mere foreseeability not enough, there must also be proximity (a
"close and direct" relationship) - no, because the statute (which the source of
duties of the Registrar) does not impose duty of care on REgistrar to investors
- Registrar's duty is to the public as a whole
 so even though Registrar might reasonably have foreseen the losses to investors, there was
insufficient proximity between the Registrar and the investors to ground a prima facie duty of
care
 no need to go to second branch of Anns test, but if second branch were analysed:
o there are overriding policy reasons that would negate duty of care
o decision to suspend licence requires Registrar to balance the public and private
interests - agent of the exeutive branch of govt plus decision is quasi-judicial
o a duty of care to investors would undermine Registrar's obligations
o plus taxpayers did not agree to assume the risk of private loss to persons in the
situation of the investors

Developments Since Cooper v Hobart

 case of Odhavji Estate v Woodhouse (2003, SCC): Iacobucci provided summary of tests from
Anns and Cooper: to be successful, plaintiffs need to establish:
(i) that the harm complained of is a reasonably foreseeable consequence of the alleged
breach
(ii) that there is sufficient proximity between the parties that it would not be unjust or unfair
to impose a duty of care on the defendants
(iii) that there exist no policy reasons to negative or otherwise restrict that duty
 case of Childs v Desormeaux: McLaughlin clarified the burden of proof:
o plaintiff must establish prima facie duty of care, then evidentiary burden of showing
countervailing policy considerations shifts to teh defendant (general rule: party
asserting a point should be required to establish it)

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  Childs v Desormeaux also provided assistance on treatment of established categories under the
test from Cooper: the reference to categories simply captures the basic notion of precendent (if
case is similar to existing case, it can be inferred that sufficient proximity and foreseeability is
present, but if case is not similar, then it is necessary to carefully consider whether proximity is
established) - so proximity analysis does not apply to established categories
 cases since Cooper v Hobart are usually decided at the "proximity" stage of analysis
o particular: where defendant is public authority whose duties are grounded in
stattute,courts have found there is insufficient proximity (beause the statutes often
require defendant to balance competing interests/consider the broader public interest,
so relationship is not sufficiently "close and direct")
 resort to second stage of Anns test is less frequent - often just obiter dicta
o most substantial application of second stage: Hill v Hamilton-Wentworth Regional Police
Services Board (2007, SCC): plaintiff was wrongly convicted after allegedly neligent
police investigation - defendant raised lots of policy arguments against recognizing duty
of care (interference with exercise of discretion during investigaitons, chilling effect on
police behaviour, flood of claims by those accused of crimes) - court rejected these
policy considerations, cautioned against rejecting a duty of care based on mere
speculation; court also considered the positive implications of imposing duty of care
(would raise standards of police investigations)
 general guide to determine if duty of care exists:
(i) is alleged duty of care within/analogous to established category? then no need to go
through analysis, but if novel duty of care, go on
(ii) was the harm reasonably foreseeable?
(iii) was there a sufficient relationship of proximity between the parties to make it just
and fair to impose a duty of care on the defendant? court will consider policy
considerations; factors to consider: expectations, representations, reliance, types of
interests involved (physical, economic, emotional, etc.), any statutory or contractual
framework
(iv) if foreseeable harm and sufficient proximity, then prima facie duty of care exists,
and evidentiary burden shifts to defendant to raise any residual policy considerations
that might negative/limit the scope of the duty of care; policy considerations pertain to
the decision's effects on the legal system or society more generally (ex.// is ther
alternative remedy available, will duty of care give rise to indeterminate liability, or does
case involve govt policy decisions that should be immune from negligence liability?) -
but generally should not be merely speculative

Application of the Duty of Care Test

Foreseeable Risk of Injury
Moule v NB Elec. Power Comm. Amos v NB Elec. Power
(1960, SCC) Comm.
(1976, SCC)
Facts  kid climbed a spruce tree (by way of planks/ladder on  kid climbed a poplar
side of tree) tree near power line
 there was platform connecting spruce to a maple tree  weight of kid swayed
near power line the branch, branch hit
 kid crossed platform, starting climbing maple tree power line
 kid stepped on dead/rotten branch, fell  kid got electrocuted

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  kid got electrocuted
Issue Was the harm reasonably foreseeable? Was the harm reasonably
foreseeable?
Held Harm was not reasonably foreseeable Harm was reasonably
foreseeable
Ratio  RF is dependent on judicial intuition.  Nearer proximity
correlates with more
reasonable
foreseeability
Reasoning  it is reasonably foreseeable that children will climb  poplar is fast-growing
trees, and that they might fall  poplar stood directly
 but this accident was a series of unfortunate events: beneath the power
presence of cleats on both trees, the platform lines
between the trees, the unusual height to which the  only precautions
boy climbed, the fact that kid has misfortune to put taken by appellant:
weight on dead branch trimmed tree every 4-
 "sequence of events which was so fortuitous as to be 7 years
beyond the range of the foreseeable results which a  foliage of the tree
reasonable man would anticipate as a probable covered the power
consequence of the presence of the high tension lines
wires, isolated as they were from normal human  this is not a long
contact, in the area in question" series of events like in
 respondent took adequate precautions: placed the Moule case
wires 33'6" from the ground, had the adjacent trees
limbed near the wires

Foreseeable Plaintiff
Palsgraf v Long Island Ry. Co. (1928, NYCA)
Facts
 2 men running on platform to catch train
 one man got on without incident
 other man was holding package, jumped aboard hte train, seemed unsteady
 guard on car pulled man in, guard on platform pushed man in
 during this, the package the man was holding fell upon the rails
 package contained fireworks, but nothing in appearance indicated this
 fireworks exploded when they fell
 shock of the explosion caused scales at other end of platform to fall, striking plaintiff
 caused injury, plaintiff suing
Issue
 did the defendant owe the plaintiff a duty of care?
Held
Ratio
 one only owes a duty of care to kinds of people who might be said to have been reasonably
foreseeable as put in risk of harm by a party’s possibly negligent dangerous activity
Reasoning (Cardozo Pound, Lehman, Kellogg)

13
  negligence is not a tort unless it results in the commission of a wrong (i.e. the violation of a
right)
 in this case: the right to be protected against interference with one's bodily security
 but bodily security is only protected against some forms of interference/aggression, not all
 the difference between tort and crime: in tort, the plaintiff sues for breach of a duty owing to
himself
Dissent (Andrews, Crane, O'Brien)
 depends on how you see negligence, whether it is:
o relative, in that there is a breach of some duty owing to a particular person(s)
o more concerned with proximity (where there is an act which unreasonably threatens
the safety of others, such that doer is liable for all proximate consequences)
 if second view is adopted, only need to look at relation between cause and effect
 owing a duty to a particular person/class of persons is too narrow
 instead: every one owes to the world at large the duty of refraining from those acts that may
unreasonably threaten the safety of others
 the defendant should be liable for the proximate consequences of a negligent act (knocking
an apparently harmless package onto the platform)
 there was a natural and continuous sequence (thus, a direct connection)

 Cardozo's approach has been accepted by English and Canadian courts

o plaintiff must prove both that the defendant's conduct gave rise to a duty and that the
duty was owed to him/her
o does not mean that individual plaintiff must be foreseeable, but that plaintiff must
belong to a class of persons foreseeably at risk
o as per Can. Gen. Elec. Co. v Pickford & Black Ltd (1971, SCC)

 the breadth of the foreseeable plaintiff test varies considerablywith the type of interest at stake
o ex.// broad test applied in cases of rescuers
o narrower test aplied in nervous shock cases
o by manipulating foreseeable plaintiff tset, courts have been able to control the ambit of
recovery in negligence

Nespolon v Alford (1998, OntCA)

Facts
 intoxicated teenager had fallen on highway
 plaintiff struck and killed teenager while driving
 plaintiff suffered nervous shock, sued teenager's estate and teenager's acquaintances (who
had told police they would take teenager safely back to hometown)
 acquaintances had dropped teenager off at roadside, at teenager's request, near a house that
he recognized as a friend's
 plaintiff claim: it was reasonably foreseeable that if intoxicated teenager were abandoned
near a highway, he would stumble onto road, posing risk to himself and others
Issue

Held
 claim dismissed

14
Ratio
Reasoning
 it was unforeseeable that dropping the intoxicated teenager off would eventually cause
nervous shock to someone in plaintiff's position

 Smith criticizes majority opinion in Palsgraf:

o courts have created doctrine of privity in law of negligence: privity of fault
o confuses questions of risk of harm with problems of remoteness
o often people who are not the prime sbjects of the risk are harm as well as a result of
negligence (ex.// someone whose presence could not have been anticipated, person
who suffers a nervous shock as a result of witnessing the main harm, a rescuer who is
trying to prevent the harm)
o legal issue is whether the damage suffered by these persons is too remote from the
original risk which the foundation of the finding of negligenec
o no event stands in a causal isolation; injurie to one person will often result in, or bear a
causal connection to , other people
o just have to place limits on how much of the harm the defendant will be required to
compensate

Haley v London Electricity Board (1964, HL)

 question of foreseeability when the plaintiff is unusually vulnerable to harm
Facts:
 defendant's workmen dug trench outside plaintiff's house
 intended to refill it by nightfall
 surrounded it with a barrier about nine inches tall
 plaintiff was blind, tripped over the barrier, hit his head, rendered deaf
 plaintiff sued in negligence
 defendant's claim: no duty of care owed to plaintiff; only obliged to take precautions suitable
for able-bodied people, so barrier was adequate
Issue
 did the defendant owe the plaintiff a duty of care
Held
 plaintiff's injury did fall within the scope of the reasonable foreseeability test, so defendant
owed duty of care, so defendant is liable
Ratio
 court found that there is a single standard for the appropriate duty of care, but it includes
people with physical disabilities – in other words, higher barriers in this case
Reasoning
 defendant's argument would mean that blind/inform person who goes out alone goes out at
his peril
 there are places where it is not reasonably foreseeable that blind person would be walking
alone, but city pavement or residential street is not one of them
 proportion of London population that is blind: 1 in 500
o the number of blind people that habitually go out alone must be very large, so it is
reasonably foreseeable that a blind person may pass along a particular pavement on
a particular day

15
  to know what is considered adequate protection, one must have regard to common
knowledge
 one is entitled to expect of a blind person a high degree of skill and care if they're going out
alone
 blind people do safely avoid all ordinary obstacles on pavements
 but a low obstacle in an unusual place is a grave danger
 a light fence that was 2 feet high would have been adequate warning

Special Duties of Care

 some types of situations raise special [policy] concerns regarding either the relationship
between the parties or larger societal interests

Duties of Affirmative Action

 common law distinction: misfeasance (positive acts) vs nonfeasance (failures to act)
 generally, courtswilling to impose liability for losses caused by misfeasance, but not by
nonfeasance
 duties of affirmative action sometimes recognized if parties shared "special relationship" or if
defendant had contractual/statutory obligation to intervene
 why?
o English courts back in the day may have been too overburdened with cases of
misfeasance to take much interest in nonfeasance
o duty to rescue did not sit well with English character
o rise of capitalism and laissez-faire ideologies further fostered belief that "the struggles
of selfish individuals automatically produces the common good of all"
o positive obligations are necessarily more intrusive than negative ones
o difficult to define scope of positive obligations

The Duty to Rescue

Osterlind v Hill (128, Mass SC)
Facts
 defendant rented a canoe to the intestate (action being brought by intestate's estate) &
another person (Ryan)
 intestate and Ryan were intoxicated, and defendant knew they were intoxicated
 canoe overturned on the water, intestate hung on for half an hour, calling for help
 defendant heard the calls and ignored them
 intestate was unable to hold on any longer and let go and drowned
Issue
 was there a duty to rescue?
Held
 no duty to refrain from renting canoe to intoxicated person, no duty to rescue
Ratio
Reasoning
 case of Black v New York, New Haven & Hartford Railroad: says that railroad workers had duty
to rescue intoxicated plaintiff that fell on the tracks (arms at side, helpless)

16
  but in this case, the intestate was not helpless, he held onto the boat for half an hour and
made loud calls for help (was able to take steps to protect himself)
 there is no duty to refrain from renting a canoe to an intoxicated person
 no legal right of the intestate was infringed

 there are situations where common law has created duty to rescue:
o where defendant has innocently or negligently created the plaintiff's perilous situation
(Oke v Weide Transport 1963, MB CA)
o where defendant denies the plaintiff other opportunities for aid, or induce the plaintiff
to rely upon them to the plaintiff's detriment

Matthews v MacLaren; Horsley v MacLaren (1969, Ont HC)

Facts
 Matthews and Horsley (both dead now) were gratuitous passengers/invited guests of the
defendant on his boat (the Ogopogo)
 water was a bit choppy
 Matthews was walking on narrow catwalk on port side of the boat and fell overboard
 rescue operation began
 defendant reversed the boat, backed towards Matthews, shut the engines off when he got
close
 Jones (another passenger) threw life ring to Matthews, Marck (another passenger) was
attempting to hook Matthews with pikepole
 Matthews was apparently unconscious (but with eyes open?)
 MacLaren turned the engines on again to get closer to Matthews
 Horsley jumped into water to try and save Matthews
 Mrs. Jones also jumped in to try and save Matthews
 Matthews had gone under starboard quarter and could not be helped
 Mrs. Jones and Horsley were pulled out, Horsley was pronounced dead later
 Horsley cause of death: sudden shock of being immersed in cold watter cased cardiac failure
Issue
 whether there existed a legal duty on the part of the defendant to come to the rescue of a
passenger who fell overboard by reason of his own misfortune or carelessness, and without
any negligence on the part of hte defendant or any person for whom the defendant would be
vicariously responsible
Held
 there was duty to rescue
 MacLaren did not meet standard of care
 but this does not constitute actionable negligence because MacLaren was not the effective
cause of Matthews falling overboard
Ratio
Reasoning (Matthews' claim)
 case of Vanvalkenburg v Northern Navigation Co (1913, Ont CA): seaman fell overboard -
court said: seaman was put in position of danger by his own negligence - just because the
only way to save him was for the defendant to intervene does not mean there was legal
obligation on the defendants' part to stop the ship or adopt other means to save the
deceased

17
  but then after case: amendment to Canada Shipping Act: s.526(1): person in charge of a
vessel shall (to extent that there is no danger to vessel, crew, passengers) render assistance
to every person who is found at sea and in danger of being lost - failure to do so results in fine
not exceeding $1000
 reluctance of common law to recognize as a legal duty the moral obligation to assist fellow
human being has been overcome in cases where special relation exists, such as that of a
carrier to a passenger in peril overboard, by thinly disguising the moral obligation as an
"implied contract"
 modern law of negligence: no general duty to rescue, but there is strong support for duty of
affirmative incidental to certain special relations (employer/employee, carrier/passenger,
occupier/lawful visitors, etc.)
 this quasi-contractual duty of carrier to passenger can be extended to this situation
 plus Prosser on Torts says: "if the defendant attempts to aid him, and takes control of hte
situation, he is regarded as entering voluntarily into a relation of responsibility and hence
assuming a duty. Thereafter he will be liable for any failure to use reasonable care in dealing
with him, until the emergency has ended, and particularly if he abandons him in a position of
danger"
 so there is legal duty to rescue here (voluntary assumption of duty)
 but did MacLaren meet standard of care?
o what would an ordinary, prudent, reasonable boat operator have done in the
circumstances?
o there are no statutory regulations or guidelines, but this is a common emergency
calling for the common sense of a prudent seaman
o the procedure to follow should be that the boat is turned around, not reversed, then
a life ring is cast
o this procedure is taught to students, and MacLaren knew this procedure and
practised it on previous occasions
o defendant's adoption of the wrong procedure was negligent
 but liability does not follow finding of negligence unless the defendant's conduct is the
effective cause of the loss
 in this case, the defendant is not responsible for Matthews falling overboard, and there is
nothing to indicate that he was alive after he hit the water (if Horsley died of shock, then
Matthews probably did too, being 16 years older)
 it has not been shown on balance of proabbilities that Matthews life could have been saved

Stevenson v Clearview Riverside Resort (2000, SCC)

Facts
 plaintff dived into shallow water, was floating face down
 friend of plaintiff entered water and turned plaintiff over so he wouldn't drown
 2 friends then pulled plaintiff out of water, possibly causing more spinal damage
 defendant was off-duty ambulance attendant who observed incident but did not advise that
plaintiff should be left in water to avoid further spinal damage
Issue
 was there duty to rescue/to advise civilian rescuers on the roper method of stabilizing the
victim of a suspected spinal injury
Held
 there was no duty of care

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Ratio
Reasoning
 there is no special relationship between off-duty ambulance attendant and a party requiring
assistance
 at the time, defendant was simply a private party who had no duty to assist in the rescue

Lowns v Woods (1996, NSWCA)

Facts
 doctor's patient was suffering a severe and prolonged epileptic seizure several hundred
metres away
Issue
 did doctor have duty to help patient?
Held
 doctor was held to owe a duty of care to leave his office and render assistance to the plaintiff
Ratio
Reasoning
 court emphasized that legislation in New South Wales imposed a clear ethical obligation on
doctors to respond to requests for assistance in emergencies

 courts have recognized that health professionals cannot “abandon a patient”

 also, doctor can’t discontinue care without making adequate arrangements for the patent’s
ongoing medical treatment

Kent v Griffiths (2000, EngCA)

Facts
 plaintiff suffered an asthma attack in home
 plaintiff called English equivalent of 911
 defendant (operator o ambulance services) indicated that help would arrive immediately
 ambulance didn't arrive until 40 minutes later
 because of delay, plaintiff suffered respiratory arrest
Issue
 was there duty of care?
Held
 CA held cautiously that duty of care arose in circumstances
Ratio
Reasoning
 the ambulance service was part of the health service, and therefore was more akin to a
hospital than to a police or firefighting service
 there was no conflict between the plaintiff's interests and the interests of the larger public
 there was no question of resource allocation

Criminal Code
 contains only narrow provisions that require an individual to stop and render aid

19
  s. 129(b): requires individual, unless he/she has reasonable excuse, to comply with an
officer's request for assistance in making an arrest/preserving hte peace
 s.252: requires driver who is involved in accident to stop and offer assistance if a person is
injured (except in unusual circumstances)

Quebec's Charter of Human Rights and Freedoms

 s.2: anyone who is aware of another's peril and is able to assist without risk to himself/herself
has a duty to do so

 alternative means of encouraging rescue

o legislation that provides rescuers with partial immunity from civil proceedings or a
statutory right to compensation
o “agony of the moment” rule
o Rewards by means of restitutionary or salvage awards (Coopersmith v Air Canada 2009:
plaintiff was doctor, was asked to provide medical assistance to passenger during flight,
doctor claimed compensation for medical services and lost enjoyment of the flight and
got $1000)

Good Samaritan Act (2001, SO)

 s.2(1): someone who voluntarily provides emergency first aid services is not liable for
damages that result from the person's negligence in acting/failing to act while providing the
services, unless damages were caused by gross negligence of the person

The Duty to Control the Conduct of Others

(a) Liability for the Intoxicated
Crocker v Sundance Northwest Resorts Ltd (1988, SCC)
Facts
 Sundance = ski resort
 Sundance held tubing competition
 Crocker went skiing at Sundance with friend, went to bar at resort to drink
 at bar, video of previous year's race was shown, showed people being thrown from inner
tubes (but Crocker and friend did not watch much of video)
 Crocker and friend decided to enter competition to win $2500 prize money
 igned entry and waiver form, paid $15 entry fee, but Crocker did not read the form and did
not appreciate that it was a waiver
 race was 2 days later
 Crocker and friend drank their own alcohol, also bought drinks from bar at resort (were
wearing bibs that identified them as competitors when they bought drinks)
 Crocker and friend won first heat
 during first heat, Crocker was thrown from inner tube, got cut above eye, was offered 2 large
swallows of brandy by Molson beer van and was sold 2 more drinks at bar

20
  owner of Sundance saw Crocker between first and second heats, noticed Crocker's condition,
asked if he was in any condition to compete, Crocker said yes, owner did nothing further to
dissuade
 Crocker fell down at top of hill before 2nd heat and inner tube slid down hill, competition
organizers got another tube for him
 manager of Sundance suggested that Crocker not compete, Crocker insisted
 during 2nd heat, Crocker and friend flipped out of inner tube, Crocker injured neck and was
rendered quadriplegic
 trial judge: sundance held to be liable for 75% of damages, and Crocker contributorily
negligent
Issue
 whether the ski resort had a positive duty at law to take certain steps to prevent a visibly
intoxicated persno from competing in the resorts "tubing" competition
Held
 there was duty of care
 sundance failed to meet standard of care
 trial judgement restored
Ratio
 positive duty to control the conduct of intoxicated patrons in some cases so they don’t harm
themselves or others under certain conditions: commercial, inviting people in, knowledge of
intoxication
Reasoning
 Jordan House Ltd v Menow (1973, SCC): leading SCC authority on the imposition of a duty to
take positive action to protect another (court held that tavern owed duty of care to
intoxicated patron who was ejected from tavern and struck by car on the way home - labelled
the relationship as one of invitor-invitee - said that tavern knew Menow was intoxicated and
that there was probable risk of personal injury to Menow - plus there was close enough
relationship between Menow and tavern operator)
 general rule: one is under a duty no to place another person in a position where it is
foreseeable that that person could suffer injury
 relationship between Sundance and Crocker: Sundance set up inherently dangerous
competition, Sundance employees served alcohol to Crocker and knew that Crocker was
intoxicated, owner and manager questioned Crocker about ability to continue competing
 Sundance must accept responsibility as promoter of a dangerous sport for taking all
reasonable steps to prevent a visibly incapacitated person from participating
 standard of care: what are sufficient steps?
o Sundance could have disqualified Crocker, could have tried to prevent him from
competing, did not have to provide a new tube, could have brought home the risk of
serious injury to Crocker
o Sundance only made mild suggestions
o failed to meet standard of care
 voluntary assumption of risk
o only applies in situations where the plaintiff has assumed both the physical and the
legal risk involved in the activity
o could say that Crocker assumed the physical risk by participating in the competition,
but judgment was clouded by alcohol

21
 o signing the waiver is not enough to show that Crocker assumed the legal risk (no
attempt was made to draw the waiver to Crocker's attention, Crocker did not read
the waiver, Crocker did not even know of existence - just thought it was application
form)

 series of cases which broadened the common law duty to control the conduct of the intoxicated
person
o Picka v Porter (1980, OntCA) & Schmidt v Sharpe (1983, OntHC): courts held alcohol
provider liable even though it did not have actual knowledge of the patron’s intoxication
o Hague v Billing (1993, OntCA): once the staff realized that Billings was intoxicated and
intended to drive, they had a legal duty to take all reasonable steps to stop him; if they
failed, they had legal duty to tcall the police; Billings’ drinking buddies were equally
liable because all had agreed in advance to go drinking and driving
o Donaldson v John Doe (2009, BCCA): organizers of an Oktoberfest event owed a duty of
care to persons who might be foreseeably injured by intoxicated attendees (plaintiff
suffered facial injuries when intoxicated man struck him in face with souvenir glass)
 Trend towards broadening scope of alcohol-related liability checked
o Stewart v Pattie (1995, SCC): serving patrons past the point of intoxication does not, in
itself, pose a foreseeable risk; there has to be some additional risk factor (in this case,
intoxicated person was accompanied by 3 sober adults, so not foreseeable that
intoxicated one would drive)
o Calliou Estate v Calliou (2002, ABQB): for there to be a duty of care, alcohol provider has
to know about the intoxication; facts: hockey team organized tournament, provided
beer, number of people died as a result of car accident caused by intoxicated player;
judge said this is between social host model and commercial establishment model, but
either way, nothing indicates that defendant knew that driver was drunk
o liquor licence legislation (Liquor LIcence Act RSO 1990): generally creates narrower
cause of action than common law
 social host liability
o Baumeister v Drake (1986, BCSC): claim against defendant homeowners dismissed
because they had not provided any alcohol to intoxicated driver
o Childs v Desormeaux (2006, SCC): facts: NYE party, guests supplied and served their own
alcohol, defendant's knew that Desmond Desormeaux was alcoholic with several
convictions for drunk driving, D became obviously intoxicated but defendants took no
steps to dissuade him from driving home, D caused a crash that left plaintiff a
paraplegic; SCC decided that allowing guests to become intoxicated in a private
residence and then leave in their vehicles did not pose foreseeable risk of harm to other
users of the highway
 social host vs commercial host: CH has greater ability to monitor alcohol
consumption of patrons, SH are not heavily regulated like those who have liquor
licences, SH do not profit from sale of alcohol
o Richardson v Sanayhie (2010, SCC): designated driver does not owe duty of care to
prevent passenger from becoming intoxicated
o courts may be more likely to impose SH liability where hosts provide alcohol to/facilitate
alcohol consumption by minors (wince v Ball 1996 AB QB)

22
 o members of the hospitality industry and private social hosts have long been held liable
under principles of occupiers' liability for alcohol-related injuries that occur on their
property (Lehnert v Nelson 1947 BCSC)
 employer liability
o courts have begun, in some circumstances to impose a riourous duty on employers to
control the conduct of employees who may be intoxicated (Barrett v Ministry of
Defence 1995)
o Hunt (Litigation Guardian of) v Sutton Group Incentive Realty (2001, Ont SCJ): plaintiff
got drunk at employer's xmas party, attempted to drive herself home, stopped for 2
more drinks at pub, then lost control of vehicle and was severely injured; court said
employer owed employee duty to safeguard from harm
o John v Flynn (2001, Ont CA): employer knew employee had drinking program, employee
was enrolled in employee assistance program because of drinking problem, returned to
work under a "last chance agreement", but continued to drink to company's knowledge,
was drinking on day in question, got home from work without incident, drank some
more, then got back into car and caused crash that resulted in injury to plaintiff; trial
judge split responsibility between employee and employer 70-30; Ont CA said: no duty
of care from employer to all members of public that come in contact with employees,
the fact that employee was involved in EAP and that employer was aware of some
drinking on company premises is not enough to establish expansive duty of care;
employer did not know that employee was intoxicated on night in question, did not
provide alcohol, and did not condone driving while intoxicated

(b) Other Duty to Control Situations

 relationship of control is not sufficient to trigger doctrine of vicarious liability (ex.// parents
normally not VL for torts committed by children; typically only liable if, by failing to supervise
children, they also failed to fulfill a duty of care that they separately owed to the victims of their
children's misconduct)
 must understand situations in which one person will owe a duty of care to another person with
respect to the behaviour of a third (Parent/child, master/servant, employer/employee,
occupier/entrant, police/prisoner, instructors/students)
 duty of care is imposed on those supervising prisoners to ensure that they do not injure
themselves, each other or members of hte public
o WIlliams v NB (1985, NBCA): prisoner set fire that killed 21 inmates
o Funk Estate v CLapp (1988, BCCA): prisoner committed suicide
o Smith v BC (AG) (1988, BCCA): prisoner was beaten by other prisoners in drunk tank
o Home Office v Dorset Yacht Co (1970, HL): prisoners escaped and damages plaintiff's
property
 similar principles apply to those responsible for supervising institutionalized mental health
patients
o Shackleton v Knittle (1999, AB QB): discussion of duty and standard of care expeced of
ambulance attendants in transporting patients with mental illnesses
o but: Smorag v Nadeau Estate (2008, AB QB): court found that no duty was owed by
guardian of dependant adult who lived in extended care facility and who attacked

23
 plaintiff (staff member); guardian not liable for refusing to consent to increase in
medication which allegedly would have controlled patient's violent behaviour
o but there are also cases where health professionals were absolved of liability where
non-custodial mentally ill patients were injured/committe suicide or acts of violence
against 3rd parties
 Stuart v Kirkland-Veenstra (2009, HCA): facts: 2 police officers came upon man trying to commit
suicide in car with hose attached to exhaust, officers questioned the man, he declined offers of
assistance, removed hose from exhaust pipe, officers believed that man was acting rationally
and was not suffering from mental illness, allowed him to drive away, he committed suicide
later that day; High court of Australia: found that officers did not owe duty of care to the man
because they were not in position to exercise control over him (they have legislative power to
detain someone they believe to be mentally ill and at risk of suicide, but they did not believe
that to be the case here); also imposing duty to prevent self-harm would undermine individual
autonomy
 Irvine v Smith (2008, Ont SCJ): judge held that no duty of care owed by practising physician to
control his adult son, who was exhibiting erratic behaviour; son was ultimately struck and killed
by plaintiff's truck, plainitff suffered nervous shock; despite professional experise, father did not
have duty to take son for mental evaluation, and nervous shock was unforeseeable
 employer may be held VL if it fails to prevent abuse or harassmet in the workplace (Clark v
Canada 1994)
 coaches/instructors/supervisors may be sued on several grounds, including failure to control the
participants and failure to provide adequate warnings, instruction and equipment
 Bradford-Smart v WEst Sussex County Council (2002, Eng CA): school may owe a duty of care to
protect a student from bullying, not only on school property, but also, in exceptional
circumstances, outside the school as well
 Cliche c Baie-James (Commission Scolaire) (2005; aff'd 2007 QC CA): municipality liable for failing
to provide enough lifeguards to supervise a class trip to a municipal pool for 36 kindergarten
students (plaintiff's child found unconscious in deep end by teacher, child died the next day)
 Vowles v Evans (2003, Eng CA): amateur referee of rugby match found to owe a duty of care to
players to enforce the rules for their safety
 parental duty to control
o Ingram v Lowe (1974, AB CA): nine yo allowed to have a pellet gun
o Michaud v Dupuis (1977, NB QB): 11 yo had propensity to throw rocks
o Migliore v Gerard (1987, Ont HC): children injured because they were not required to
wear seatbelts
o LaPlante (Guardian ad litem of) v LaPlante (1992, BCSC): 16 yo with physical and mental
impairments was permitted to drive

The Duty to Perform Gratuitous Undertakings

 Common law did not generally require individual to honour gratuitous promise
o Failure to fulfil promise was seen as nonfeasance
o Remedy, if any, was in contract, not tort

Thorne v Deas (1809, NY)

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Facts
 defendant twice assured plaintiff he would get insurance on boat that was jointly owned
 plaintiff relied on promise and did nothing further
 boat was wrecked, plaintiff found out it hadnt been insured, sued defendant in tort
Issue
Held
 action dismissed
Ratio
Reasoning
 "by the common law...one who undertakes to do an act for another without reward, is not
answerable for omitting to do the act, and is only responsible when he attempts to do it, and
does it amiss"
 once gratuitous undertaking is begun, defendant could be liable for negligence if they
positively injure plaintiff, but no common law duty to complete the undertaking
o exception: if defendant somehow worsened the plaintiff's original position (ex.//
defendant lulled plaintiff into false sense of security, denied the plaintiff other
opportunities for aid, put plaintiff in more precarious physical position)
 Thorne rule criticized, but rarely rejected
o courts can skirt issue by classifying defendant's conduct as misfeasance rather than
nonfeasance
o tort and contract have developed since 1809 to cover situations in which Thorne
denied relief (ex.// promissory estoppel)
 gratuitous undertaking principles first established in Coggs v Bernard (1703, ENg), then more
clearly stated in Thorne case, then Baxter & Co. v Jones was first Canadian case in which these
issues were addressed, so courts in Canada generally cite Baxter

Smith v Rae (1919, Ont CA)

Facts
 action brought by married woman against doctor
 plaintiff was expecting child
 plaintiff and husband called upon defendant, defendant undertook and agreed to attend her
(but contract was with husband)
 birth expected to take place mid-November, didn't happen until Dec.2
 defendant did not attend plaintiff, child died during delivery
 cause of action: breach of duty
Issue
 whether defendant owed plaintiff duty of care
Held
 appellant doctor not negligent in failing to attend the birth
Ratio
Reasoning
 not technically a gratuitous undertaking, it's a contract, but that's legally irrelevant to her
claim; so from the standpoint of the wife, it's a gratuitous undertaking
 contract was with husband, action is by wife - but wife can't sue on the contract, her claim
must be based upon tort

25
  if there had been misfeasance, she could recover in tort, but this is nonfeasance, so it would
have to be in contract
 the argument would be: wife is relying on the doctor to show up; having arranged for doctor
to come, she was not going to arrange for someone else to come
 but the doctor doesn't act negatively, he simply promises to come and then doesn't
 in contrast with Zelenko: both cases there is position of reliance on defendant, but the
distinction is that in Zelenko the undertaking and begun to be performed
 why don’t we say that detrimental reliance is enough to impose liability? tort law has
historically be resistent, don’t want to be inconsistent with contract law as well, need
synchronicity between contract and tort

Zelenko v Gimbel Bros Inc (1936, NY SC)

Facts
 plaintiff's intestate was taken ill in defendant's store (female plaintiff, defendant is dept store)
 defendant undertook to render medical aid (undertook by taking her to infirmary)
 defendant kept the deceased for 6 hours in infirmary without medical care
 if defendant had left deceased alone, bystander would have called ambulance
 defendant characterized it as gratuitous undertaking (they say they had no legal obligation to
act, can't be held accountable)
Issue
 whether defendant owed the deceased a duty of care
Held
 defendant did owe duty of care because they undertook to help
Ratio
Reasoning
 general rule: if defendant owes plaintiff no duty, then refusal to act is not negligence
 but if defendant undertakes a task (even if under no duty to undertake it), the defendant
must not omit to do what an ordinary man would do in performing hte task
 having chosen to help, then must act reasonably (can't be negligent; they delivered aid
negligently)
 today: there is body of law of occupier's liability (can't carelessly maintain space), but apart
from that
o there are exceptions to osterlind v hill
o matthews v maclaren - thre was sufficient relationship between the captain and the
victim
o could say, in store situation, that there is sufficient relationship between store owner
and customer
 2 ways of thinking about this:
o they undertook obligation , so they have duty to act responsibly
o they deprive her of being helped by another person

Soulsby v Toronto (1907, Ont HC)

Facts
 plaintiff is driver of baker's delivery wagon
 was delivering bread

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  went through High Park
 within park and near railway crossing, the city built gates and has a watchman at the gates
during season when park is most frequented
 watchman closes gates when train is approaching to make sure no one tries to cross
 on the day in question, the gates were open, so plaintiff crossed train tracks, and was hit by
train and seriously injured
 bringing action in negligence
Issue
 is defendant guilty in negligence?
 was there duty of care owed to plaintiff?
Held
 no duty of care owed to plaintiff
Ratio
Reasoning
 the watchman wasn't there, which should have told plaintiff that the gates were not open as
an invitation to cross
 plaintiff knew there was a railway, knew of the ordinary dangers of railway crossings
 the watchman not being there means that the defendant was not undertaking to do the act,
so no duty of care

Ross v United States (1990)

Facts
 12 yo boy fell off a deteriorating breakwater, immediately sank below surface
 several municipal rescue professionals and 2 civilian scuba divers appeared on scene, wanted
to rescue
 county's Deputy Sheriff arrived in patrol boat, informed would-be rescuers that all rescues
were to be performed by the county
 rescuers insisted, sheriff threatened to arrest
 county divers arrived 20-30 minutes later, boy had already died
Issue
 county liable in negligence?
Held
 county liable in negligence
Ratio
Reasoning
 county liable not because they failed to rescue, but because its policy of being the sole
provider of rescue services prevented the plaintiff from receiving alternative assistance

Mercer v South Eastern & Chatham Ry. Co.' Managing Committee (1922, KB)
 court held that defendant's regular practice of closing the gate when a train approached
constituted tacit invitation to cross the tracks when gate was up
 defendant held liable for injuries sustained by the plaintiff when he acted upon this invitation
and was struck by train
 how to reconcile with Soulsby?
o perhaps the fact that it was a regular practise, and not just during peak season

27
 Section 217 of Criminal Code
 imposes criminal law duty on an individual who "undertakes to do an act" to complete it, if an
omission to do so is/may be dangerous to life

Miscellaneous Categories
 as per Cooper v Hobart: novel duties of care established by looking at questions of
foreseeability, proximity, and policy
 some already-established duties have specialized analytical frameworks that predate Cooper
and still apply
o ex.// negligent infliction of psychiatric harm: harm must be foreseeable in the
circumstances, and this may be a function of the plaintiff's proximity in time, space and
relationship to the even that causes such injury
o ex.// injuries to unborn children: involve complex policy arguments about maternal
autonomy and the value of life

The Duty of Care Owed to Rescuers

 why is this a special duty?
o to get around theproximity issue - impose a common law duty to rescuers
o Denning's statement (note 3 on p.379): "any person" (not any reasonably foreseeable
person)
o note 2 on p.379: not even broad test - no test of foreseeability
o this body of cases disregards proximity and foreseeability
o why? McLaughlin says: high redeeming social value
o equity's darling: bona fide purchaser for value without notice
o commentators have said that tort law's darling is the rescuer, it favours rescuers, by
adopting a very loose test for when we will say that a person owes duty of care to a
rescuer

Horsley v MacLaren (1972, SCC)

 duty of care that maclaren had to rescue matthews: trial judge said there was duty to rescue;
SCC agrees there was duty of care to rescue Matthews
 was that duty breached ? yes, he did not meet standard of care, did not follow normal
procedure (turning boat around vs reversing)
 was maclaren found liable by the judge? no, there was causation issue, not sure if matthews
died when he hit the water or later, as a result of hte breach of standard of care
 court of appeal reversed trial judge's decision about hte standard of care, though, said the
rescue was not perfect but good enough
 dissent (laskin): ends up agreeing with trial judge
 but all of that is vis-a-vis matthews
 horsley jumps in after matthews to rescue him
 why would maclaren owe a duty to horsley? based on what Denning said in Videan case (in
majority reasoning)

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  the test about whether you owe a duty to a rescuer is whether you have created the situation
that gives rise to the rescue attempt
Facts
 see above
Issue
 whether MacLaren owed duty of care to Horsley, who was trying to save Matthews
Held
 MacLaren did not owe duty of care to Horsley
Ratio
Reasoning (majority: RItchie)
 Denning in Videan v British Transport Commission (1963, QB): "if a person by his fault creates
a situation of peril, he must answer for it to any person who attempts to rescue the person
who isin danger. He owes a duty to such a person above all others. The rescuer may act
instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is
not wanton interference, if the rescuer is killed or injured in the attempt, he can recover
damages from the one whose fault has been the cause of it."
 any duty owing to Horsley must stem from the fact that a new situation of peril was created
by MacLaren's negligence which induced Horsley to act as he did
 although the procedure followed by MacLaren was not the most highly recommended one,
the evidence does not justify a finding that it was MacLaren's fault that induced Horsley to
risk his life by diving as he did (his procedure did not take longer than the recommended
procedure)
 the duty to rescue a man who has fallen accidentally overboard is a common law duty, not
dependant on s.526(1) of the Canada Shipping Act RSC 1952
Dissent (Laskin)
 original principle on which "rescue" cases were founded: recognition of a duty by a negligent
defendant to a rescuer coming to the aid of the person imperilled by the defendant's
negligence (what Denning said above)
 defendant is subject to liability at the suit of the rescuer as well as the suit of the imperilled
person, provided, in the case of the rescuer, that his intervention was not so utterly foolhardy
as to be outside of any accountable risk, and thus beyond even contributory negligence
 cause of action of the rescuer in arising out of the defendant's negligence is based in its
tendency to induce the rescuer to encounter the danger (so the duty to the rescuer is
independent of the duty to the imperilled person - so even if defendant is not liable to the
imperilled because his negligence did not cause the injury, he could still be liable to the
rescuer)
 MacLaren was owner and operator of the boat, and he invitd the guests, so he was under
legal duty to take reasonable care for their safety (independent of contract of carriage)
 already established that MacLaren owed duty of care to Matthews, and that he did not meet
the standard of care
 the causation issue that makes MacLaren not liable for negligence towards Matthews has no
bearing here
 Horsley saw that MacLaren was failing in his attempt to rescue Matthews, and was induced to
jump overboard to save Matthews - was not foolhardy

Videan v British Transport Comm. (1963, Eng CA)

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Facts
 stationmaster's young son wandered onto the tracks
 stationmaster attempted to rescue
 driver was not keeping proper lookout, could not stop
 stationmaster was killed, son was badly injured
Issue
 was duty of care owed to rescuer (stationmaster)
Held
 duty of care was owed
Ratio
Reasoning
 child's claim dismissed (as trespasser, his presence was not foreseeable)
 driver ought to have foreseen that his conduct might create an emergency of some kind
 stationmaster's presence as rescuer was foreseeable, and he was owed duty of care

 Cardozo in Wagner v Int. Ry. Co. (1921, NY): "danger invites rescue"
 courts have occasionally held rescuers to be contributorily negligent, but it's rare (rescuers
confronting sudden emergency are not held to same standard of care as those acting in less
extreme circumstances)
o Meyer v Parker (1995, BCSC): plaintiff was called to convenience store by friend who
was in argument with 3 youths, plaintiff convinced the youths to leave the store, plainitf
followed them and told friend to lock the doors, plaintiff was beaten and lost left eye;
court held that plaintiff could not rely on rescuer doctrine because he left place of safety
and deliberately put himself at risk by confronting the youths outside - he did not take
reasonable care for his own safety
 defence of voluntary assumption of risk has been all but eliminated in rescue cases
o Urbanski v Patel (1978, MB QB): defence of voluntary assumption of risk was dismissed;
court said defence was inapplicable where the plaintiff consciously faces a risk in an
attempt to rescue another who has been imperilled by the defendant's negligence
(facts: plaintiff donated kidney to daughter after defendant surgeon negligently
removed her only kidney)
 "fireman's rule"
o in US: police officers, firefighters, and other professional rescuers are denied recovery
from tortfeasors for injuries sustained in rescue efforts (based in part on voluntary
assumption of risk)
o Ogwo v Taylor (1987, HL): rule has no place in English law
o Canada: rule also does not apply here; professional rescuers can recover for injuries
sustained during rescue attempts
 since rescuer's claim is independent of claim of the imperilled, rescuer may recover for injuries
sustained in assisting those who have negligently imperilled themselves
 general principles governing rescuers also apply to cases in which plaintiffs are injured while
attempting to save themselves or their own property (Prescott v Connell (1893, SCC)
o but duty of care may be refused if plaintiff was attempting to protect purely economic
interest (Saccone v Fandrakis (2002, BCSC): plaintiff saw from distance that his van had

30
 been damaged, ran to scene because he was afraid that the defendant (responsible for
accident) would leave the scene and that this would affect insurance claim, plaintiff
slipped and fell while running; court held that defendant did not owe plaintiff a duty of
care
 courts have interpreted meaning of "rescuer" broadly
o Urbanski v Patel: kidney donor
o Bridge v Jo: 911 caller
o Emerson v Insurance Corporation of BC (2003, BCSC): woman who helped elderly couple
get out of their car after it left the road)
o BUT Joudrey v Swissair Transport Company (2004, NS SC): member of armed forces
attended to wreckage of Swissair Flight 111, suffered nervous shock after, but court
held that Swissair did not owe him duty of care as he was not rescuer (it was clear from
wreckage that there were no survivors, the rescue operation was actually a recovery
operation) - in order to qualify as rescuer, the plaintiff must have been "engaged in the
process of attempting to save someone who is in danger at the time of the purported
rescue"

Psychiatric Harm
 Why is this special?
o harder to classify, quantify, etc.
o it would be too easy to recover for psychiatric harm if we're just looking at reasonable
foreseeabiliy
o using Anns as test for duty care might trigger too much liability (opposite of duty to
rescuers: where we wanted to make it esaier to make a claim)
o reasonable foreseeability is not enough
 in court, the term "nervous shock" is used ("psychiatric harm" is the more modern term)
o medical sense: anachronism (olden term), overly broad, encompasses many different
species of psychiatric illness, inaccurate
o legal sense: has never encompassed many of hte day-to-day emotional upsets (anger,
disappointment, frustration, disgust); also doesnt encompass the feelings of grief and
sorrow; something more, by way of a "recognized psychiatric illness", is required for the
purposes of liability
 courts have been cautious with imposing liability for infliction of nervous shock:
o judges worried that nervous shock was easy to feign
o assessment of damages for mental illness particularly difficult to figure out
o sense that damage to one's psyche was less worthy of protection than damage to one's
body
o common law's conception of "reasonable man" did not include someone who would
complain about emotional upset
o courts worried about opening floodgates of liability (physical harm limited in time and
space, but potential triggers for nervous shock are more far-ranging)
 ENglish and most canadian courts have defined "nervous shock" narrowly to exclude claims for
minor emotional upset; plaintiff must prove that nervous shock manifested iteslf in some form
of physical, psychiatric or psychological disorder (Hinz v Berry); claimants must also be "of

31
 reasonable fortitude and robustness" or "customary phlegm" (hypersensitive individuals are not
reasonably foreseeable) (Hay (or Bourhill) v Young)
 CLark v Scotiabank (2004, Ont SCJ): plaintiff suffered depression after he was denied a loan
based on a negligent report of his credit status by the defendant; court recognized that he
suffered a recnognizable psychiatric illness, but said that a person of reasonable fortitude would
not have suffered such illness as the result of an erroneous credit report, so illness was not
reaonably foreseeable
 Hay (or bourghill case): court moved towards saying reasonable foreseeability of harm would be
sufficient
 mclaughlin v brian: court said reasonable foreseeability of harm is sufficient
 so there have been moves in english law where reasonable foreseeability of harm is enough, but
the moves int eh other direction have been more dominant

Greatorex v Greatorex (2000, QB)

Facts
 young man seriously injured in car accident that he had carelessly caused; firefighters called
to rescue him because he was trapped inside his vehicle; one of the firefighters was father,
who suffered psychiatric disorder as a result of hte accident
Issue
 whether the victim of a self-inflicted injury owed a duty of care to not thereby cause nervous
shock to a third party
Held
 no duty of care
Ratio
Reasoning
 recognition of such a duty was impose a significant restraint on a person's freedom of choice,
and would open the doors to a particularly undesirable form of intra-familial litigation

(a) Commonwealth Developments

 Commonwealth courts have historically sought to create rules to limit liability
 began with idea that a plaintiff could not recover unless the nervous shock was precipitated by
some physical impact (as per Victoria Railways Commissioner v COultas 1888 JCPC)

Victoria Railways Commissioner v Coultas (1888, JCPC)

Facts
 plaintiff suffered severe shock when, as a result of defendant's carelessness in raising a gate,
she was nearly hit by a train
 lower courts imposed liability
Issue
Held
 don’t agree with lower courts
Ratio
Reasoning
 where an accident caused by negligence had given a person a serious nervous shock, there
might be a claim for damage on account of mental injury

32
  but damages arising from mere sudden terror unaccompanied by any actual physical injury,
but occasioning a nervous or mental shock, cannot be considered a consequence which, in
the ordinary course of things, would flow from the negligence of the gatekeeper

 but over time, the so-called "impact rule" became unsustainable

Dulieu v White & Son (1901, KB)

Facts
 plaintiff suffered nervous shock when the defendant crashed his horse-drawn carriage into
the public house in which she was working
 plaintiff didnt actually suffer any impact
Issue
Held
 allowed to recover
Ratio
Reasoning
 nervous shock was triggered by "a reasonable fear of immediate personal injury to [herself]"
 replaced impact rule with new restriction on liability: plaintiff must suffer shock as a result of
fear of immediate person injury to him/herself

Hambrook v Stokes Brothers (1924, KB)

Facts
 woman suffered nervous shock when she saw a runaway truck speeding down a hill toward
the place where she had left her children to walk to school
 she rushed to scene of accident, was told that a girl matching daughter's description had been
injured
 she suffered nervous shock, subsequently gave birth to stillborn child, and died a few months
later
 husband brought claim, but claim wa questionable because wife had not been in any physical
danger and she had not feared that she would suffer personal injury
Issue
Held
 liability possible if the shock was due to a reasonable fear of immediate personal injury either
to herself or to her children
Ratio
Reasoning
 but court was also careful to limit recovery to situations where the shock occurred because of
something the claimant "either saw or realized from her own unaided senses, and not from
something which someone told her"
 - new limitation on recovery: plaintiff had to witness the shocking incident with his/her own
senses; it was not sufficient if ht plaintiff heard about the accident from someone else

McLoughlin v O'Brian (1982, HL)

Facts
 plaintiff was married with 3 children

33
  defendant carelessly caused a traffic accident that killed one of hte children, injured hte other
2, also injured plaintiff's husband
 plaintiff was told of the accident 2 hours later, went to hospital and got details, went into
shock
Issue
Held
Ratio
Reasoning
 HL imposed liability largely on the basis that the plaintiff's psychiatric injury was, in all of the
circumstances of the case, reasonably foreseeable (although not present at the accident, she
attended to the aftermath and saw injured family with her own eyes)
 foreseeable that a mother in this situation would suffer psychiatric injury
 Lord Bridge: no reason to continue distinguishing psychiatric injury from physical injury;
argued that reasonable foreseeability would be enough to impose a duty of care
 - Lord Wilberforce's leading opinion: as a matter of policy, some boundaries on recovery had
to be drawn; 3 particularly important considerations: the class of persons whose claims
should be recognised, the proximity of such persons to the accident, and the means by which
the shock is caused

 there are indications that the strict definition of "aftermath" may be relaxed: W v Essex
County Council (2000, HL)

W v Essex County Council (2000, HL)

Facts
 plaintiffs had 4 kids, also took foster kids, told local authority they didnt want foster child who
posed risk of sexual assault
 local authority knowingly disregarded request, secretly placed 15 yo accused of sexual abuse
 15yo assaulted plaintiff's children
 plaintiffs suffered psychiatric illnesses
 at trial and appeal courts, plaintiffs claims dismissed because they hadnt witnessed the
alleged assaults or the immediate aftermath with their own senses
 HL reversed
Issue
Held
Ratio
Reasoning
 concept of "the immediate aftermath" of the incident has to be assessed in the particular
factual situation
 in a situation like this case, parents do not have to come across the abuser/abused
immediately after the sexual incident has terminated
 - all incidents here happened in the period of four weeks before the parents learned of them

 concept of "aftermath" has also been relaxed in cases involving infants who are
injured/killed during birth, resulting in psychiatric harm to mothers (mother may be

34
 unconcscious/separated from baby at relevant time and only suffers shock when she is told)
(Farrel v Sutton and Wandsworth Health Authority (2000)

 some canadian cases where plaintiffs have been allowed to recover for the nervous shock
recovered in seeing their deceased loved ones at the hospital (Grzywacz v Vanderheide)

 extent of shock caused by tv broadcast: Piper v Mitsubishi Heavy Industries Ltd (2009, BS
SC): widow (who was already informed of husband's death in plane crash) tried to claim that
watching numerous broadcasts on news channels caused psychological trauma; claim
denied on basis that it was not reasonably foreseeable that she would suffer shock, and that
the broadcasts could not be described as "alarming, horrifying, or shocking" events
o but on the other hand: Teresa Klein v The State of New South Wales (2004, NSWSC):
family was allowed to claim damages for psychological harm suffered after viewing
the events leading up to the shooting of their relative by the police

White v Chief Constable of South Yorkshire Police (1999, HL)

Facts
 police officers who witnessed the HIllsborough tragedy first hand claiming damages for
psychiatric illnesses as a result of being involved in the gruesome events
Issue
Held
Ratio
Reasoning
 perceived need to limit the scope of liability, but also recognition that the line-drawing
exercise was, perhaps inevitably, arbitrary
 court applied the Alcock test and denied liability on the ground that the claimants had not
shared a close relationship with the victims (distinguished, somewhat unconvincingly, older
authorities that appeared to create special rules for rescuers within the area of nervous
shock; according to the earlier decisions, a rescuer might be entitled to relief even if he/she
had not been exposed to physical danger and even if he/she had not been closely connected
to any of the victims; Chadwick v British Railways Commission; Bechard v Haliburton Estate)

Page v Smith (1995, HL)

Facts
 defendant carelessly caused car accident with plaintiff
 no physical injury suffered, but as a result of the accident, the plaintiff relapsed into chronic
fatigue syndrome
Issue
Held
Ratio
Reasoning
 distinction between "primary victims" (people placed in physical danger) and "secondary
victims" (people not placed in physical danger)
 with respect to primary victims: liability for psychiatric injury is possible as long as it was
reasonably foreseeable that the plaintiff might suffer a physical injury as a result of the
defendant's carelessness

35
  so even if, in this case, the foreseeable physical injury never materialized, and even if the
psychiatric harm was not reasonably foreseeable, the plaintiff can still recover damages
 with respect to "secondary victims": no liability for careless infliction of nervous shock unless
psychiatric illness itself was reasonably foreseeable and Alcock's three-part test of proximity
is satisfied

(b) The Canadian Position

 lessons to be drawn from England and Commonwealth:
(i) the scope of the duty of care is apt to shift from time to time in response to the judicially
perceived need t expand/limit the scope of liability
(ii) there is always some need to impose restrictions on the application of general negligence
principles
(iii) the formulation of such restrictions tends to be, perhaps inevitably, arbitrary
 few appellate level decisions on negligent infliction of psychiatric harm in Canada, so difficult to
gauge
 SCC decision in Mustapha v Culligan of Canada did little to clarify - asserted that relevant duty of
care was wa a straightforward example of a manufacturer's duty toward consumers (think
Donoghue v Stevenson), and resolved the case on the issue of remoteness
o out of step with Canadian and COmmonwealth authorities in the area, which
overwhelmingly charaterize the scope of recovery for psychiatric harm as a duty issue
o SCC didnt explicitly criticize previous canadian decisions that analysed psychiatric harm
in terms of duty of care, so it seems reasonable to assume that the earlier cases
continue to be isntructive
 after Mustapha decision, OntCA interpreted the decision (in Healey v Lakeridge Health
Corporation (2011)): "Where there is a duty to avoid physical harm to person or property, that
duty embraces the category of claims for nervous shock"

Mustapha v Culligan of Canada Ltd (2006, OntCA)

 arguably, the leading case we have no in cdn law for recovery of psychological harm is
Mustapha v Culligan of Canada
 leading case on doctrine for recovery for psychiatric harm
 no difference in outcome between OntCA and SCC
 in the textbook, it's the CA decision (because SCC decided the issue on remoteness rather
than on duty of care; but SCC also held that there was a duty of care, it's the same issue as
DOnoghue v Stevenson)
 Donoghue actually suffered physical harm
 OntCA is aware of Donoghue v Stevenson, but well established principle of law says you dont
use D v S in nervous shock cases - far more complex than D v S
 psychological is not handled by looking at duty of care question, but at remoteness stage in
SCC
 SCC seems to be saying that psychological harm is the same as physical harm at hte duty of
care stage, and move onto psychological harm question at remoteness stage
 so why bother with the OntCA decision? if there isnt an already recognized duty, the body of
law to answer that question would come from Rhodes and OntCA decision of Mustapha

36
  what's the paradigm case where there wont be a ch.10 type, easy to establish duty of care
already otherwise owed
Facts
 Mr. Mustapha was replacing an empty bottle of Culligan water on the dispenser
 in the new, unopened replacement bottle, Mr & MRs Mustapha saw a dead fly and part of
another dead fly
 did not drink from bottle
 Mrs Mustapha vomited immediately, complained of stomach cramps and pain (trial judge
said this is not enough for psychological harm)
 but Mr Mustapha became obsessed with thoughts about the dead fly in the water and the
potential implications for his family's health of their having possibly been drinking unpurified
water supplied in the past (lost sleep, unable to drink water, lost his sense of humour and
became argumentative and edgy, has been constipated, can no longer enjoy showers, after
lengthy treatment he still takes perfunctory showers, it took lengthy treatment before he
could drink coffee made with water, has to take a variety of medications, has lost clients
because of change in mood, has lost interest in and ability to perform sexually)
 dead fly triggered major depressive disorder, with associated phobia and anxiety, in Mr
Mustapha
 trial judge awarded $341,775 for psychiatric injuries suffered
 Culligan appealing
Issue
 whether a defendant may be liable for damages for psychiatric harm where the harm, by any
objective measurement, consists of an exaggerated reaction by an obsessive person of
particular sensibilities to what, in reality, is a relatively minor or trivial incident
Held
 appeal allowed, trial judgment set aside
Ratio
Reasoning
 trial judge recognized that Mr. Mustapha's reaction was certainly and objectively bizarre; a
function of M's specific cultural background and personal sensibilities, and the particular
circumstances of this case
 in UK common law: distinction between "primary victim" case (case in which injured plaintiff
was involved, either mediately or immediately, as a participant) and "secondary
victim"/"bystander" case (plaintiff was no more than the passive and unwilling witness of
injury caused to other) is important to determine which test of foreseeability will apply
[introduced in Alcock case, crystallized in Page v Smith; not yet adopted in Canada]
 in UK: White v Chief Constable of South Yorkshire: confirmed that in addition to reasonable
foreseeability of psychiatric injury in a person of normal fortitude, it was necessary for a
plaintiff seeking damages for psychiatric illness to establish a relationship of proximity
between the plaintiff and defendant; HL acknowledged that that requirement of proximity
was a "control mechanism" to limit the ambit of the remedy in such cases (in primary victim
case, proximity is easily demonstrated; in secondary victim case, foreseeability of injury by
sock is insufficient)
 law in UK requires the following proximity indicators be satisfied: (i) relational proximity:
close ties of love and affection must exist between the plaintiff and the victim, (ii) locational
proximity: the plaintiff must have been present at the accident or its immediate aftermath,

37
 (iii) temporal proximity: the psychiatric injury must have been caused by direct perception of
the accident or its immediate aftermath, and not after hearing about it from someone else
 in Ontario: no express reference to primary/secondary victims, but in within the context of
bystander/secondary victim situations, OntCA has said that "reasonable foresight of nervous
shock to the plaintiff is the touchstone of liability" for damages for nervous shock (as per
Haliburton Estate case)
 as per Vanek, foreseeable consequences are consequences that the "event and its aftermath
might engender in the reasonable person" (as opposed to a hypersensitive person)
 Vanek case is factually similar to this one (apart from the fact that it is a bystander case and
not primary victim): Vanek child drank a small amount of juice at school with toxic fluid,
regurgitated some of it (didn't vomit or lose consciousness), school called parents, parents
took kid to hospital, hospital said kid was fine, no long-term effects, parents received same
assurances from different govt and health authorities, child showed no further symptoms, but
parents became obsessed with the possibility that the child might suffer harm in the future,
parents sued distributor of the drink and its manufacturer; at trial, they recovered damages,
but decision was reversed on appeal because parents were hypersensitive (reaction of
parents was not that of average parents, and defendants could not have reasonably foreseen
the parents' highly unusual reaction and the psychiatric damages engendered by it)
 true, Mustapha is primary victim, but primary/secondary victim (and the different
foreseeability tests) should not be adopted in ontario because:
o fundamental principle of tort law: the particular type of injury must be foreseeable
(this does not happen in primary victim foreseeability test)
o distinction between primary/secondary victims is artificial, disguises policy choices
that have to be made, is problematic in application
o majority in Page misunderstood the thinskull plaintiff principle: related only to
quantum of damages once liability has already been established (thinskull principle is
only true on the condition that the wrong has been established or admitted)
 distinction between primary/secondary victim is artificial:
o even a plaintiff who was involved in the incident must demonstrate reasonable
foreseeability of psychiatric illness in order to recover in tort
o mechanism constructed and deployed by the courts to put limits, for policy reasons,
on the scope of recovery in psychiatric harm cases (although dichotomy is artificial,
policy reasons should still be considered, à la Anns test- Anns/Kamloops collapses
proximity into foreseeability - old Anns test never thought to be enough to have
reasonable foreseeability of psychiatric harm)
 in secondary victims cases, have to show reasonable foreseeability and proximity (the 3
classes): as per Alcock, have to show relational proximity, temproal proximity and locational
proximity
 in primary victim cases, it's the same 3 types, it's just a lot easier to prove, pretty obvious, so
court doesnt talk about it
 makes sense, since at the policy level, we want to limit claims for psychiatric harm, and the
ones we want o limit the most is the seconday victim cases
 there is policy consideration: what is the ambit of liability in psychiatric harm cases where the
harm suffered (a) is significantly disproportionate to the relatively inconsequential nature of
hte incident in question, and (b) is a function of hte particular sensibilities of hte plaintiff
rather than a function of the sensibilities that a person of normal fortitude would
demonstrate?

38
 test for existence of duty of care, and therefore, for liability, in cases of psychiatric harm is
whether it is reasonably foreseeable that a person of normal fortitude or sensibility is likely to
suffer some type of psychiatric harm as a consequence of the defendant's careless conduct
(test applies regardless of primary/secondary distinction)
 objective elements are essential to the psychiatric harm analysis: the appellant's reaction was
"abnormal", a product of his "particular hypersensitivity" (Duwyn), not the response of the
"average sensitive" person (Haliburton Estate), not the response of a person of "reasonable
fortitude and robustness" (White, Vanek)
 trial judge failed to take into account the objective component of hte test for reasonable
foreseeability in such circumstances
 trial judge also erred by looking at whether there was a foreseeable possibility of damage,
rather than reasonable probability of damage
Aftermath: SCC
 they don’t change what OntCA says, they just say this is an easy duty case and decide the case
on remoteness
 so if you were going to handle it as a duty issue rather than remoteness issue, the OntCA is
still right, still the leading case

 as defendant, you can harm plaintiff directly or indirectly (primary/secondary distinction)

 do we need to distinguish? it could matter to the test for duty of care (duty of care could be
found more easily in the direct cases rather than indirect cases)
 in a direct case, we might think that all we need is reasonable foreseeability of injury
 ENglish case of Page v Smith (talked about in OntCA Mustapha case): takes things further: says
that in case of directly caused psychiatric harm, all the plaintiff needs to show for duty of care is
reasonabel foreseeability of physical injury (dont need to show reasonable foreseeability of
psychiatric harm)
 OntCA in Mustaphs is grappling with what the canadian answer will be to that question - are
they going ot follow page v smith?
o no, they reject english idea that test should be different for primary/secondary victim
o resonable foreseeability of physical harm is definitely not enough, minimum should be
reasonable foreseeability of psychiatric harm
o need to add policy considerations as well

Rhodes v CNR (1990, BC CA)

 mom hears on radio of train crash, thinks son may have been in it, is not allowed to see crash
site for a week
 defendant harms somebody else, and as a result she suffers psychiatric harm
 thats the fact pattern where it could be said there isnt an already established duty of care
(duty to bystanders)
 so even if SCC is right that there is a duty of care in Mustapha: if there isnt an already
recognized duty, the body of law to answer that question would come from Rhodes and
OntCA decision of Mustapha (bystander cases would be the most obvious example of this)
Facts

39
  plaintiff's son killed in train crash negligently caused by defendant
 plaintiff heard about crash on the radio, travelled from home on Vancouver Island to Hinton,
AB to see if son had been killed
 defendant's employees denied her access to the crash site for 8 days
 plaintiff realized after several days that son had been killed, but never saw body because it
had been consumed by fire in crash
 made claim to recover for psychiatric injury
Issue
Held
 claim denied
Ratio
Reasoning
 psychiatric injury was not a foreseeable consequence of the defendant's negligence
 she had close ties of affection, but did not witness the accident or its aftermath with her own
unaided senses

 broad range of fact situations where nervous shock claims have arisen, not just
automobile/industrial/household accidents
o Kendrew v McDonald (2008, SK QB): contaminated food products
o Guay v Sun Publishing (1953, SCC): false newspaper report of husband's and children's
death
o Cook v S (1967, EngCA): solicitor's negligence in divorce proceedings
o McMullin v FW Woolworth (1974, NB QB): diseased turtle infecting plaintiff's children
o Brooks v CPR (2007, SK QB): plaintiffs evacuated as a precaution after train derailment in
area
o except in food products cases, the courts held that the plaintiffs were not owed a duty
of care because nervous shock was unforeseeable

A Health Professional's Duty to Inform

 distinguish from health professional's duty to competently perform their function
 this is not the trreament itself, this is duty to tell the patient things before treatment
 duty to take care in treating the patient isnt in the chapter
 what's special about this duty, why is it in this chapter?
o it's an affirmative duty, positive duty
o take it as a given that because of the doctor/patient relationship, there is duty to
inform; looks more mandated than most of hte other duties of care, where threshold is
to ask wehter there is duty of care
 what's going on in this section is mostly whether the doctors have met the standard of care;
whether there was a duty was taken as a given
 analysis looks a lot more like standard of care analysis than a duty of care analysis
 causation also arises: theres a different causation analysis in breach of duty to inform
o normal test for causation in negligence: but-for test (but for the breach, would hte
plaintiff have otherwise been uninjured?)
o how do we approach the but-for test in cases that turn on decision choices made by the
plaintiff?

40
  subjective: but for the doctor's information, would hte plaintiff (this particular
plaintiff, not a reaosnable plaintiff) have decided to undergo the procedure?
 but this is the one area where, instead of doing subjective analysis, we have to
do subjective/objective: would a reaasonable person in the position of hte
patient have made the same decision as plaintiff? (as per Reibl v Hughes)
 why not just subjective test? too hard for court to evaluate, plaintiff could make
self-serving testimony; but more than that, this is a test deisnged to protect
doctors from liability
 if we go to Hollis:
o defendant wanted to use subjective/objective test for causation because it was a
medical product at issue, but court stuck with subjective test
o so the subjective/objective test is so narrower: it only applies to this one case, doesnt
even spill over intp risk in medical products
 why is Reibl v Hughes test so problematic if you're plaintiff?
o it's harder to prove
o this is a failure to properly warn, not neglgient performance of the medicine
o sometimes the surgery is necessary...
o plaintiffs lose because they cant establish that reasonable person would not have gone
ahead with the procedure because of hte risks

Reibl v Hughes (1980, SCC)

Facts
Issue
Held
Ratio
Reasoning
 doctor's liability in battery cases limited to cases where the patient did not consent at all, the
consent was exceeded, or the consent was obtained fraudulently
 once the patient is aware of the general nature of the proposed treatment and consent to it,
the doctor's failure to inform will not vitiate the consent and give rise to liability in battery
 but doctor may be held liable in negligence for breaching an affirmative duty to disclose the
risks of hte proposed treatment
 special duty of care that arises independently of doctors' general duty to exercise reasonabel
care in treating patients
 doctors must disclose all material risks of the proposed treatment
 "material risk" includes low percentage risk of a serious consequence (ex.// 4% chance of
death, 10% chance of paralysis); also includes relatively minor consequence of high
probability
 doctors also have an obligation to disclose non-material risks they know, or ought to know,
would be of particular concern to the patient (ex.// no need to tell accountant there is 5% risk
of minor residual stiffness in shoulder, but would have to tell professional tennis player)
 the decision not to be fully informed is the patient's to make (and he/she msut clearly
communicate decision to doctor)
 doctors who do not meet these disclosure requirments will be held to have breached the
requiste standard of care

41
  but patients must also prove that the failure to inform was a cause of their loss (would have
to prove that, had they been adequately informed, they would not have proceeded with the
treatment)
 SCC rejected commo law test of causation and adopted a special objective/subjective test of
causation: plaintiff must prove that a reasonable person in the plaintiff's position would have
refused the procedure if properly informed

 courts have broadened the duty to inform considerably since Reibl

o now, doctor is required to provide the patient with sufficient information to make an
informed decision
o now, definition of material risk has been broadened to include very remote risks of
death or serious injury
o now, the principles governing the duty to inform appears to apply to all health
professionals and care givers

Haughian v Paine (1987, SK CA)

Facts
 plaintiff underwent disc surgery, it left him paralyzed
 second operation partially alleviated paralysis
 plaintiff brought action against defendant surgeon for failing to obtain informed consent
 trial: action dismissed
 plaintiff appealing
Issue
Held
 appeal allowed, judgment for plaintiff
Ratio
Reasoning
 adding to SCC conslusions from Reible and Hopp v Lepp (1980, SCC): surgeon must also,
where the circumstances require it, explain to the patient the consequences of leaving the
ailment untreated, and alternative means of treatment and their risks (surgeon did not do
this in this case: appellant was not told that the prospect was that the condition might ,in a
matter of months, very well improve, albeit with the possibility of recurrence from time to
time)
 respondent also failed to warn the appellant of the possibility of total paralysis (risk
materialized in this case) (consensus amongst neurosurgeons giving evidence is that the risk
of paralysis in a surgery such as this was notmore than 1 in 500; respondent's practice was
not to give any warning if the risk was less than 1 in 100)
 facts are similar to Hopp v Lepp (both involve disc surgery); but in Hopp v Lepp, doctor not
liable, and he told patient less of the risks than respondent in this case; but also in Hopp v
Lepp, there was no alternative (like conservative management) like there was in this case; so
Hopp v Lepp is distinguished
 just because risk is 1 in 500 does not mean it is not material (material risk cannot be
measured just using statistics)
 deficiencies in disclosure in this case:

42
 o failure to advise adequately/at all of availabel options of no treatment or
conservative management (patient was entitled to be advised that these
alternatives were open to him)
o failure to advise of the risk of paralysis (risk was small, but given that non-surgical
treatment was available, with lack of risk, a significant chance of success, and the
paucity of evidence that the condition diabled the appellant significantly,
disclosure should have been made)
 one cannot make informed consent without knowing alternatives

 scope of what constitutes a material risk has been progressively broadened since Reibl
o Buchan v Ortho Pharmaceutical (Canada) Ltd (1986, OntCA): very rare chance of stroke
as a result of taking oral contraceptives)
o Feist v Gordon (1989, AB QB; aff'd 1990 AB CA): 1 in 40,000 risk of puncturing eyeball
with cortisone treatment
o Rolof v Morris (1990, AB QB): 1 in 1000 risk of an intra-uterine contraceptive device
leaving the uterus and requiring surgical removal
o Meyer Estate v Rogers: 1 in 40,000-1 in 100,000 chance of death as a result of a severe
reaction to a diagnostic dye
o Leung v Campbell (1995, Ont Gen Div): rare risk of stroke during neck manipulation by a
chiropractor
o Martin v Inglis (2002, SK QB): a mere possibility of stomach perforation and death from
gastric surgery
o Brock v Anderson (2003, BCSC): very small likelihood of damaging a major blood vessel
which, if it occurred, posed a significant risk of death
o Bovingdon (LItigation Guardian of) v Hergott (2008, OntCA): possibiity of having multiple
pregnancies when prescribing Clomid
o Carlson v Steeves (2008, BCSC): increased risk of pancreatitis stemming from grossly
elevated triglyceride levels
 but on the other hand:
o DeFerrari v Neville (1998, Ont Gen Div): 1 in 800,000 chance of permanent numbness
arising from dental naesthetic found not to be a material risk
o Munir v Jackson (2006, SCC): 3 in 10,000 chance of permanent tracheotomy found not
to be a material risk

 disclosing some material risks, while not disclosing others, is insufficient (Tremblay v
McLauchlan 2001 BCCA)
 doctor does not have to inform patients that he/she will be assisted by a resident/other
treatment professional (less clear if patient must be informed that intern/resident will be
performing procedure/major part of procedure)

Halkyard v Mathew (1998, AB QB)

Facts
 doctor was epileptic
Issue
Held

43
Ratio
 practitioners do not need to disclose personal medical conditions that do not affect their
capacity to provide the proposed treatment
Reasoning

 Canadian courts have repeatedly held that, if the patient has a particular concern, it is his/her
responsibility to raise this with the doctor
o Videto v Kennedy (1981, OntCA): patient desired minimal scarring so that others would
not know she had undergone surgical sterilization
o Augustine v Lopes (1994, Ont Gen Div): patient did not want to stop menstruating
because it carried social stigma in her ethnic community
o Bosard v Davey (1991, MB QB): parents failed to inform doctor that they were first
cousins, which increased risks of congenital disabilities to their baby
 health professional must answer a patients's questions fully, even if they relate to minor aspects
of the procedure (SInclaire v Boulton 1985 BCSCB; Hartjes v Carmen 2003 OntSCJ)
 healthcare professionals must explain the material risks of a proposed treatment in language
that the patient can understand; it is more important for the patient to understand the
substance of the risks than the precise medical terminology
o Martin v Findlay (2008, AB CA): court found that defendant surgeon had adequately
informed the patient of the risks of death, speech impairment and paralysis stemming
from surgery to remove a brain tumour, and that it did not matter that the surgeon
failed to use the specific term "stroke" in describing the risks

 numerous situations in tort law in which the plaintiff's claim turns on proving that he/she relied
upon the defendant's advice, yet in these cases no special causation test is adopted
o Arndt v Smith (1997, SCC): three of the nine justices rejected the objective/subjective
test of causation in informed consent cases in favour of the subjective test of causation
that generally applies in negligence (so not a majority, but some people seem to think
that subjective test is better in this area)
o Chappel v Hart (1998, HCA): court held that subjective test of causation should be
applied in medical duty to nform cases
o other commonwealth countries (australian, english) use normal subjective test, not
subjective/objective test
o but Canadian courts continue to apply the objective/subjective test of causation

Health Care Consent Act (1996, SO)

 s.1: for consent to be valid, it must be "informed"
 section then defines "informed" consent in terms very similar to the preceding common law
principles

 obligation to inform patients is applied more vigorously in the case of medical research and
experimental or unconventional therapies
o Weiss v Solomon (1989,QC SC)

44
A Manufacturer's and Supplier's Duty to Warn
 why is this a special duty?
o very similar to reasoning behind why healthcare practitioner's duty to advise about risks
is special duty
o affirmative duty (nothing wrong with the product, no misfeasance, it's a positive
obligation)
o knowledge imbalance in relationship (manufacturer is better positioned to know about
problems with regards to a product)
o almost like a rule, a matter of course (dont bother with foreseeability, etc.)
 what is the court looking at in these cases to figure out whether manufacturer has met
standard? what are the relevant factors?
o adding new warnings when you get new information
o reasonably foreseeable misuse
o think about who the warning is to (end user consumers, intermediary, etc.) (the nature
of a warning to an intermediary: the knowledge imbalance is different; product is being
supplied to someone who has knowledge/expertise, doesnt need to be warned about
the same level of things)
o contradictory messaging (like car ad with crazy stunts and warnings saying don't do this
at home)
o specialty store vs normal store, etc.

Hollis v Dow Corning Corp (1995, SCC)

Facts
 plaintiff underwent breast implant surgery in 1983
 implants manufactured by defendant, DOw COrning
 after 17 months, one of the implants ruptured, plaintiff required to undergo several
operations to remove silicone gel and implant coverings
 literature accompanying the product warned of the risk of rupture during surgery, but not of
any risks of post-surgical rupturing "from ordinary, non-traumatic, human activities"
 plaintiff sued surgeon and DOw Corning
 trial: claim against surgeon dismissed (risk of injury that materialized was not well-known
among surgeons at the time); Dow Corning held liable on basis that the implant had been
negligently manufactured
 BCCA: allowed plaintiff's appeal, ordered new trial on surgeon's liability; Dow Corning held
liable on basis that it had failed to warn of the risks of post-surgery rupture even though it
had received about 50 reports of ruptures by 1983
 DC appealing to SCC
Issue
 whether the CA erred in finding Dow liable to te respondent Ms Hollis for failing adequately
to warn the implanting surgeon, Dr Birch, of the risk of a post-surgical implant rupture inside
Ms Hollis' body
Held
 CA did not err, appeal dismissed

45
  Dow breached its duty to warn Dr Birch about risk of rupture and is liable because of failure
to warn
Ratio
Reasoning
 established principle in Canadian law: manufacturer of a product has a duty in tort to warn
consumers of dangers inherent in the use of its product of which it has knowledge or ought to
have knowledge (Lambert v Lastoplex Chemicals 1971 SCC)
 duty to warn is continuing duty (manufacturer must warn of dangers known at time of sale,
but also dangers discovered after the product has been sold and delivered)(Rivtow Marine Ltd
v Washington Iron Works 1973)
 rationale for duty to warn: "neighbour principle" from Donoghue v Stevenson:when
manufacurers sell products, they create relationship of reliance with consumers who have
less knowledge of inherent dangers of product and can be at risk if product is not safe
 duty to warn corrects knwoledge imbalance, alerts consumers to dangers and allows them to
make informed decision about safe use of product
 nature and scope of manufacturer's duty to warn varies with level of danger entailed by the
ordinary use of the product (if significant danger, warnings must be sufficiently detailed)
o Lambert v Lastoplex Chemicals: court imposed liability on manufacturer of fast-drying
lacquer sealer who failed to warn of the danger of using the highly explosive product
in the vicinity of furnace pilot light (there were some wanrnings, consumer turned
down thermostat but not off so pilot light was still on in furnace)
 in the case of medical products (like this case), standard of care is high (risks are substantial
since they are designed for bodily ingestion/implantation)
 because of high risk with medical products, there will be heavy onus on manufacturers of
medical products to provide clear, complete and current information concerning the dangers
inherent in the ordinary use of their product
 general rule: duty to warn is owed directly by manufacturer to ultimate consumer
o but in exceptional circumstances (either where product is highly technical and
intended to be used only under the supervision of experts, or where the nature of the
product is such that the consumer will not realistically receive a direct warning from
the manufacturer before using the product, and where an intermediate inspection of
the product is anticipated/where a consumer is placing primary reliance on the
judgment of a "learned intermediary"): manufacturer may satisfy informational duty
to the consumer by providing a warning to a "learned intermediary", rather than
directly to consumer
o even with the exception, the ultimate consumer still has a right to full and current
information about any risks inherent in the ordinary use of the product
o so manufacturer has only been discharged of duty when they have fully informed the
"learned intermediary", and then the "learned intermediary" has a duty to the
consumer which approximates that of the manufacturer
 "learned intermediary" rule is applicable in this case (since consumer never actually gets the
packaging for breast implants, its the surgeon that gets the product from the manufacturer
and is in the best positiont o read warnings on the packaging)
o CA correct in finding that DC's warning to Dr Birch was inadequate
o plaintiff in this case got the 1976/1979 "Silastic I" model of implants: only warned of
risk of post-surgical rupture in case of "abnormal squeezing or trauma"

46
 o the 1985 Silastic II model was developed with a thicker envelope and greater
durability than SIlastic I, yet DC warned physicians of possibility of rupture due to
normal, non-traumatic activity on the packaging
o the 1985 warnings are far more explicit, warn about ruptures as a result of "excessive
stresses or manipulation as may be experienced during normal living experiences"
such as "vigorous exercise, athletics, and intimate physical contact"
o 1985 warnings made it clear that patient who received implat would have to consider
altering her lifestlye to avoid rupture; significant to Hollis because she decided to
enrol in baker's court, which involved egular and heavy upper body movements (not
"trauma", but definitely risk of "excessive stresses or manipulation"
o not to say that Dow's warning practices in 1983 should be measured by knowledge it
had in 1985, but evidence shows that in 1983, Dow had knowledge of 1985 risks
when Hollis had implants in 1983
o by late 1983, Dow had received 48-61 unexplained upture reports; nature and
quantity of information available to Dow did not change significantly between late
1983 and early 1985
o even as early as 1979, Dow was aware that implant ruptures could cause adverse
reactions in the body arising from loose gel
o Dow had duty to convey findings about the unexplained ruptures and possible harm
of loose gel inside body to medical community much sooner than it did
o unacceptable that it took Dow over 6 years to warn medical community, given the
high risk and high onus on Dow to be forthcoming with information
o as per Buchan: "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 finds it to be unconvincing; the
manufacturer is obliged to be forthright and to tell the whole story
o so Dow did not discharge duty to Hollis by properly warning Dr Birch concerning risk
of post-surgical implant rupture
 causation issue: did Dow's breach of duty to warn cause Hollis; injury?
o would Hollis have consented to the operation if properly warned of the risk?
 trial judge used modified objective test from Reibl: would a reasonable
woman in Hollis' particular circumstances have consented to the surgery if
she had known all the material risks?
 but in Buchan, judge found Reibl test to be inapplicable to products liability
cases, and instead applied subjective test: in the case of a manufaturer, there
is greater likelihood that the value of a product will be overemphasized and
the risk underemphasized, so from a policy perspective it's desirable to hold
manufacturer to a strict standard of warning consumers of dangerous side-
effects to these products
 applying subjective test: Hollis testified clearly at trial that, had she been
properly warne by Dr Birch of the risk of rupture, she would not have had the
surgery
o would dr birch have warned Hollis of the risk of rupture is Dow had properly warned
him about the risk?
 in 1983, the average plastic surgeon in BC did not in fact know about the
possibility that rupture of Silastic implants could be a factor of any
significance

47
  plus, when Dow began circulating more extensive warnings in 1985, Dr birch
adapted his practice and by 1989, he was warning all his patients of hte risk of
rupture
 actually, plaintif doesnt even have to prove this hypothetical for
manufacturer to be liable
 manufacturer should not be able to escape liability for failing to give a warning it was under a
duty to give, by simply presenting evidence tending to establish that even if the doctor had
been givent he warning, he/she would not have passed it onto the patient, let alone putting
an onus on the plaintiff to do so
Dissent (Sopinka, McLachlin)
 plaintiff not entitled to succeed unless she could establish that a resaonable person would
have refused the implant if properly warned and that her surgeon would have passed the
warning on to her if he had been properly informed
 subjective approach fails to address the inherent unreliaility of the plaintiff's "self-serving
assertions" or the fact that hte plaintiff's opinion is likely to be coloured by the injur he/she
has suffered

Austin v 3M Canada Ltd (1974, Ont Co Ct)

Facts
 plaintiff (auto-body repairman) was injured by defendant's grinding disc which disintegrated
while being used at 9,200 rpm
 no warnings provided abou speeds at which discs should be used
Issue
Held
 defendant not negligent in failing to warn plaintiff of danger
Ratio
Reasoning
 any reasonably competent repairman would have know it was hazardous to use the discs at
more than 8,000 rpm

 duty to warn is specific to the primary user of the product, so manufacturer must be careful not
to assume that a risk is obvious in circumstances where a child/young person is likely to be
primary consumer (Amin (Litigation Guardian of) v Klironomos (1996, Ont Gen Div))
 *as per Cominco Ltd v Westinghouse Can Ltd (1981, BCSC): held that a manufacturer who hears
of a new risk after its product is distributed has a duty to warn users as soon as possible; plaintiff
did not have to prove that the manufacturer had actual knowledge, provided the manufacturer
ought to have been aware of the new risk

Beshada v Johns-Manville Products Corps (1982, NJ)

Facts
Issue
Held
 defendant liable for failing to warn of asbestos-related illness, despite the medical
community's "presumed unawareness" of such risks at the time
Ratio

48
Reasoning
 burden of illness from dangerous products such as asbestos should be placed upon those who
profit from its production and, more generally, upon society at large, which reaps the benefits
of the various products out economy manufactures

 supplier's duty to warn of risks int he use of its products is lrgely the same as that of hte
maunfacturer
 it is the manufacturer's and supplier's duty to warn of risks arising from the misuse of a product
(Lem v Borotto SPorts Ltd)
 a manufacturer who complies with federal or provincial warning legislation may still be held
liable for failing to adequately inform (as per Buchan case)

Good-Wear Treaders v D & B Holdings Ltd (1979, NSCA)

Facts
 appellan supplier warned a purchaser that the re-treaded tires he wanted were unsuitable for
the front wheels of a heavy gravel truck
 ppellant knew that the purchaser was going to ignore the warning, he completed the sale
 one of the tires failed, truck crossed the centre line, dmeolished oncoming car, killed driver
and 2 kids
 widow sued purchaser and supplier
 widow succeeded at trial
Issue
Held
 appeal dismissed, i assume
Ratio
 warnings absolved the supplier of liability to the purchaser, but not to third parties
Reasoning
 supplier should not have sold the tires to someone he knew would misuse them and thereby
endanger other users of the road

Walford v Jacuzzi Canada Ltd

Facts
 plaintiff (customer) purchased used pool slide elsewhere, but sought advice from store
employees as to whether it was safe to use in 4ft. deep pool
 employees said it was "ok" to use
 plaintiff's daughter rendered quadriplegic when she used the slide and entered the water
head-first
 instructions printed on slide advised feet-first entries only
Issue
Held
 pool supply store owed a duty of care toward the plaintiff
Ratio
Reasoning
 head-first entried were a common isuse by pool users

49
  - store liable for failing to draw plaintiff's attention to the serious risk of catastrophic injury
posed by installing the slide in her pool

Negligent Misrepresentation

 previous chapters: duty of care as it pertains to actions/omissions

 this chapter: duty of care that arises with respect to written/oral communications
 actions =/= statements
 people tend to be more careful about actions (because potential for damage is more apparent)
 as per Lord Pearce in Hedley Byrne & Co v Heller & Partners Ltd: with actions, injury arises
almost immediately and in close proximity, but with statements, thre is greater durability and
proximity; actions trigger injury once, but words can trigger injury multiple times
 concern: recognizing duty of care for negligent misrepresentation can lead to "liability in an
indeterminate amount for an indeterminate time to an indeterminate class" (as per Ultramares
Corp v Touche, NYCA 1931)
 another concern: imposing duty of care for negligent misrepresentation may undercut freedom
of speech
 to get rid of problem of indeterminacy: distinction between physical injury (covers personal and
property damage) and pure economic loss (no personal injury or property damage, but
economic loss)
o scope of physical injury is naturally limited
 preferred view: liability for physical injury resulting from careless statements has long fallen
under basic approach articulated in Donoghue v Stevenson
o so when personal injury or property damage occurs, no substantial difference between
negligent actions an negligent word (Robson v Chrysler Canada Ltd. 1962 ABCA:
defendant told plaintiff (model) to take a step back, she fell and was injured, defendant
liable because of careless advice)
 when it comes to pure economic loss, courts take more restricted view of liability, es. for
negligent misrepresentation
o traditionally, courts refused to recognize duty of care for negligent misrepresentation
(so defendant couldnt be held liable unless plaintiff proves that words amounted to
breach of fiduciary duty/breach of contract/deceit (Derry v Peak 1889 HL)
 but then in Hedley Byrne case, HL signalled new approach

Hedley Byrne & Co. v Heller & Partners Ltd (1963, HL)
Facts
 plaintiff (firm of advertising agents)'s bankers asked defendant (Easipower's defendant) to
provide Easipower's credit rating to see if it would be advisable to extend credit to Easipower
 defendant said Easipower was "quite good for the arrangements"
 plaintiff extended credit to Easipower
 Easipower went into liquidation without reimbursing plaintiff
 plaintiff brought action against defendant, said that it had suffered pure economic loss as a
result of negligent misrepresentation
 lower courts said: no duty of care

50
Issue
Held
 no liability because defendant had expressly given advice "without responsibility"
Obiter Dicta
 but for the disclaimer, recovery was possile in certain circumstances
 recognized that a duty of care can arise with respect to careless statements that cause pure
economic loss
Reasoning

Keith Plumbing & Heating Co v Newport City Club Ltd (2000, BCCA)
 in Hedley Byrne, disclaimer clause was effective, but such provisions are interpreted narrowly
and, in the event of ambiguity, against their drafter, so they may not always preclude liability
Facts
 defendant bank financed a development project
 plaintiff contractor asked bank if there would be enough money to pay them
 bank sent letter saying there was enough money, included disclaimer clause
 contractor asked again after a payment had been missed
 bank gave oral assurance that there was enough money
 project collapsed, contractor didn't get paid, sued for negligent misrepresentation
Issue
Held
 disclaimer clause does not apply to initial written communication
Ratio
Reasoning
 disclaimer clause was "not well calculated to convey any clear meaning to persons not versed
in the mysteries of banking practice"
 plaintiff had no other means by which to check the developer's financial condition
 - reasonable for plaintiff to rely on defendant's statement

Border Enterprises Ltd v Beazer East Inc (2002, BCCA)

 court may refuse to recognize a duty of care if it was not reasonably foreseeable that the
plaintiff would rely on the representation
Facts
 corporation held lease over environmentally contaminated land
 after clean-up effort, govt told corporation that the site was clean
 plaintiff bought shares in corporation
 govt issued order requiring more costly cleanup
 plaintiff said they suffered financial loss as a result of acting in reliance on the govt's initial
representation
Issue
Held
 plaintiff's claim in negligence should be struck out on the ground that a duty of care did not
arise in the circumstances
Ratio
Reasoning

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  plaintiff was not a reasonably foreseeable victim of the defendant's allegedly careless
statement

 plaintiff's reliance on the defendant's negligent misstatement needs to be not only reasonably
foreseeable, but also reasonable
o Conversions by Vantasy Lts v General Motors of Canada Ltd (2006, MBCA): court held
that plaintiff's own knowledge of hte defendant's operations, plus the fact that 3 years
had passed since statement was made, meant that it was not reasonable for plaintiff to
have relied on statement
o Hub Excavating Ltd v Orca Estates Ltd (2009, BCCA): "Reliance is a question of fact as to
the plaintiff's state of mind. It will be sufficient for the plaintiff to prove that the
misrepresentation was at least one factor that induced him to act to his detriment.
Where a misrepresentation was calculated or would naturally tend to induce the
plaintiff to act on it, reliance may be inferred"

 damages for negligent misrepresentation

o as per Rainbow Industrial Caterers Ltd v Canadian National Railway (1991, SCC):
measure of damages for negligent misrepresentation aims to put the plaintiff into the
position he/she would have been in had the representation not been made; it does not
aim to put the plaintiff in the position he/she would have been in had the
representation been correct

Negligent Misrepresentation Causing Pure Economic Loss

 pure economic loss: no personal injury, no property damage, but still suffers economic loss
 consequential economic loss: for example, damage to commercial property and you lose profit
as a result; or, you injure someone and they can't work for sometime and lose income
 why does the distinction matter?
o how do we analyze duty of care for consequential loss cases? based on the cooper v
hobarts test, there's nothing special about it, itll just be a personal injury/property
damage case (at most, the economic loss will be dealt with at the remoteness stage)
o pure economic loss cases are different because: there are a lot of potential plaintiffs,
and the claims could be very big (policy concerns about unlimited liability to unlimited
number of plaintiffs in unimited number of situations) - concerned with narrowing the
scope of liability - hostility towards pure economic loss

Hercules Managements Ltd v Ernst & Young (1997, SCC)

Facts
 respondents were accountants, prepared audited financial statements for 2 companies (NGA
& NGH)
 financial statements were required by statute
 appellants were shareholders in NGA and NGH
 appellants brought claim for negligent misrepresentation
 claimed that the negligent misstatements caused them to

52
 o suffer economic loses as a result of relying upon the statements in deciding to
make additional investments in the companies
o suffered economic losses based on their existing shareholdings
 at trial court and MBCA: case dismissed because appellants not owed a duty of care
Issue
 whether the respondents owed the appellants a duty of care
Held
Ratio
Reasoning (La Forest)
 can use Anns/Kamloops test to determine if duty of care exists, no need to create separate
"pocket" for negligent misrepresentation cases
 first branch of Anns test: establish if there is prima facie duty of care (whether there is
sufficiently close relationship between the plaintiff and the defendant that in the reasonable
contemplation of the latter, carelessness on its part may cause damage to the former - so
whether the defendant-representor and the plaintiff-representee can be said to be in a
relationship of proximity or neighbourhood)
o meaning of "proximity" as it was used in Anns: relationship between plaintiff and
defendant is of such a nature that the defendant may be said to be under an
obligation to be mindful of the plaintiff's legitimate interests in conducting
his/her affairs
o so for neg. misrep. cases, there must be some relationship of reliance
o 2 criteria to determine if there is relationship of proximity:
 defendant ought reasonably to foresee that the plaintiff will rely on
his/her representaiton
 reliance by the plaintiff would, in the particular circumstances of the case,
be reasonable (in cases that are not neg. misrep., this is usually a
given/implicit, but for neg. misrep. cases, the plaintiff's claim stems from
detrimental reliance on defendant's statement, and the reliance may not
always be reasonable)
 second branch of Anns/Kamloops test: policy reasons that would negate prima facie duty of
care
o fundamental policy concern in neg. misrep. cases: "liability in an indeterminate
amount for an indeterminate time to an indeterminate class" (as per Cardozo in
Ultramares Corp v Touche NYCA 1931)
o in the case of auditors: the fact that audit reports will be relied on by many
different people (ex.// shareholders, creditors, potential takeover bidders,
investors, etc.) for a wide variety of purposes will almost always be reasonably
foreseeable to auditors themselves
o deterrence of negligent conduct is an important policy consideration with respect
to auditors' liability, but it is outweighed by the socially undesirable
consequences to which the imposition of indeterminate liability on auditors
might lead
o problems with indeterminate liability:
 successful negligence actions against auditors could potentially be
limitless
 auditors would expend more resources trying to protect themselves from
liability (ex.// insurance premiums would rise since insurers would

53
 anticipate more frequent claims; auditors would rely more heavily on
exclusion clauses and thus would need to pay more for lawyers)
 auditors' opportunity costs would increase (more time spent preparing
for litigation means less time doing stuff that actually generates revenue)
o some say indeterminate liability problems are overstated/exaggerated, since
proof of neligence and reliance are barriers to liability (but that just means that
claims wont be successful, doesnt mean claims wont be brought)
 so,in general, policy considerations will negate prima facie duty of care for auditors
 but there will be exceptions where the prima facie duty of care is not negated by policy
considerations because problems of indeterminate liability do not arise (will depend on
specific factual matrix of a case)
o worries stemming from indeterminacy should not arise, and scope of potential
liability is sufficiently delimited if:
 there is "knowledge of the plaintiff (or an indentifiable class of plaintiff)
on the part of the defendant:
 there is "use of the statements at issue for the precise purpose or
transaction for which they were prepared"
 in this case:
o prima facie duty of care was owed to the appellants by the respondents (criterion
of reasoanble foreseeability: respondents must have reasonably foreseen (i) the
possibility that the appellants would rely on the audited financial statements in
conducting their affairs and (ii) that they may suffer harm if the report were
negligently prepared)
o appellants' reliance on the audited statements was reasonable
 some indicia from Prof. Feldthusen of reasonableness (not a test, just
helpful):
(i) defendant had direct/indirect financial interest in the transaction in
respect of which the representation was made
(ii) defendant was a professional or someone who possessed special skill,
judgment or knowledge
(iii) the advice or information was provided in the course of the
defendant's business
(iv) the information or advice was given deliberately, and not on a social
occasion
(v) the information/advice was given in response to a specific enquiry or
request
o but there are policy considerations that negate the prima facie duty of care
 might seem like there are no problems of indeterminate liability
(respondents knew the identity of the appellants), but use of the
defendant's statement/audit report for a purpose or transaction other
than that for which it was prepared could still lead to indeterminate
liability (the audit report was prepared to allow the shareholders, as a
group, to supervise management and to take decisions ith respect to
matters concerning the proper overall administration of the corporations;
but the audit reports were used to allow the shareholders, as individuals,
to monitor management so as to oversee and protect their own personal
investments)

54
 American and Commonwealth courts have used various tests to control the ambit of liability
o have emphasized defendant's knowledge of class of potential plaintiffs, knowledge of
contemplated use of the information, or both
o most cases use rule derived from Glanzer v Shepard (1922, NYCA)
o Glanzer: defendant liable for lossess which he knew or ought to have known were
related to the "end and aim" of the transaction giving rise to the misrepresentation
o Caparo Industries plc. v Dickman (1990, HL): advice is tendered with specific purpose in
mind, and liability must be restricted to losses incurred in transactions related to that
purpose
 Cardozo in Ultramares case: ordinary rules of negligence might expose accountants to "liability
in an indeterminate amount for an indeterminate time to an indeterminate class"
o indeterminate time: WIlliams v Polgar (1974, SC Mich) [abstract of land title negligently
issued, defect was discovered 33 years later] court said that the tort limitation period
had not begun to run until the plaintiffs discovered the negligence (so defendant's duty
ran to any successor un title who relied on the abstract)
o indeterminate class: issue of whether there is sufficient relationship between the
plaintiff and the defendant to warrant imposing liability: Beebe v Robb (1977, BCSC)
[boat owner commissioned defendant marine surveyor to evaluate boat to get bank
loan, boat owner used assessment to get prospective purchaser to buy the boat,
prospective purchaer relied on assessment to his detriment]: relationship between the
parties wa insufficient to justify recognizing a duty of care
 application of Hercules case
o Deraps v Coia (1999, OntCA)
o woman and gravely ill husband sought advice from benefits counsellor employed by
husband's trade union
o due to careless omission by counsellor, woman did not realize that by signing a waiver,
she would lose all her benefits when husband died
o woman signed waiver, hisband died 8 months later, woman realized she had no benefits
o OntCA imposed liability: failure to divulge information may be just as actionble as the
providings of positively misleading advice
 Premakumaran v Canada (2006, FCA)
o plaintiff alleged that govt had negligently misrepreented to potential immigrants the
extent to which accountants could get work in Canada
o plaintff had come to canada, but was unable to find work
o court dismissed claim: no special relationship of proximity or reliance between the
parties; the information provided by the govt was "merely general material" or potential
immigrants to consider; also not clear if statements were negligent or if plaintiff had
actually relied on them
 Baldwin v Daubney (2006, OntCA)
o plaintiffs wanted to supplement their income, had limited financial resources
 financial advisors referred them to program that let them borrow money for investments
o investments decreased in value, plaintiffs sued advisors and lenders that had loaned the
money (argued that providing the loans was direct cause of financial loss)

55
 o court said there was no claim against the lenders (lenders gave no advice, just money;
plus no special relationship)
 issue in Hercules: intended audience for a statement
o B. Cusano Contracting Inc v Bank of Montreal (2006, BCCA)
o defendant bank provided representation to bonding company as t financial situation of
developer
o contractor relied on fact that representation had been provided and contracted with
developer
o developer ended up unable to pay contractor more than $1 million, contractor sued the
bank for negligent misrepresentation
o court: representation was made to bonding company, was not intended for contractor

Pre-Contractual Misrepresentations

Queen v Cognos Inc (1993, SCC)

 SCC addressed the existence of a duty of care to avoid negligent misrepresentations during
pre-contractual negotiations
Facts
 respondent computer software company advertised accounting position in Ottawa
 appellant was chartered accountant, held well-paying and secure position in Calgary
 appellant applied for position with respondent company, was granted an interview
 during interview, manager of company made several representations regarding nature of
employment opportunity
 manager also said position was associated with project that would be developed over 2 years,
that prospects for employment after that time were very positive (but did not reveal that
funding for the 2-year project had not been secured)
 appellant took the job, moved family from Calgary to Ottawa, but then respondent company
decided to reduce scope of the project, terminated appelalnt's employment after 18 months
 appellant sued company for negligent misrepresentation that resulted in economic loss
Issue
 was there a duty of care
 was there a breach of this duty
Held
Ratio
Reasoning (La Forest, L'Heureux-Dube, Gonthier)
 the tort here was independent of the contract and the liability was not limited by a exclusion
clause in the contract
Reasoning (Iacobucci, Sopinka, McLachlin)
 Hedley Byrne should be extended to representations made by an employer to a prospective
employee in the course of an interview
 required elements for successful Hedley Byrne claim:
o there must be a duty of care based on a "special relationship" between the
representor and the representee
o the representation in question must be untrue, inaccurate or misleading
o the representor must have acted negligently in making said misrepresentation

56
 o the representee must hae relied, in a reasonable manner, on said negligent
misrepresentation
o the reliance must have been detrimental to the representee in the sense that
damages resulted
 trial judge found all elements in case at bar
o respondent misrepresented nature and existence of employment opportunity
o appellant had relied to his detriment on those misrepresentations
 CA agreed, respondent doesnt challenge this
o so 2nd, 4th, and 5th requirements are not at issue
 respondent's submissions
o respondent concedes that "special relationship" existed between itself and appellant
so a to give rise to duty of care, but that the duty was negated by disclaimer in
employment contract signed by appellant signed more than 2 weeks after the
interview
o any misrepresentations made during the interview were not made in a negligent
manner
 both submissions fail
 this case is clearly distinguishable from BG Checo case (where Iacobucci's conclusion was
opposite)
o in BG Checo: alleged pre-contractual misrepresentation had been incorporated
verbatim as an express term of the subsequent contract; so common law duty of care
relied on by plaintiff in tort action was co-extensive with duty imposed on the
defendant in contract by an express term of their agreement; so plaintiff was barred
from exercising a concurrent action in tort for alleged breach of said duty; view
reinforced by commercial context
o in this case: employment agreement does not contain express contractual obligation
co-extensive with duty of care the respondent is alleged to have breached; relevant
provisions contain contractual duties clearly different from, not co-extensive with, the
common law duty invoked by the appellant in his tort action
o in this case appellant's claim is not that the respondent breached common law duty
of care by negligently misrepresenting security of employment; rather, appellant
argues that respondent negligently misrepresented the nature and existence of the
employment opportunity being offered; the employment agreement contains no
express provision dealing with the respondent's obligations with respect to the
nature and existence of the 2 year project
o so BG Checo involved impermissible concurrent liability in tort and contract, while the
present case involves no concurrency at all
 the duty of care owed to the appellant
o respondent concedes that it owed duty of care to appellant not to make negligent
misrepresentations as to Cognos (the company) and the nature and permanence of
the job being offered
o respondent accepts that there was "special relationship" between itself and appellant
o it was foreseeable that the appellant would be relying on the information given
during the hiring interview in order to make his career decision
o it was reasonable for the appellant to rely on said representations (respondent made
no caveats; no evidence to suggest that respondent was not assuming responsibility
for what was being represented to the appellent by the respondent); any disclaimers

57
 of responsibility are in the employment contract signed more than 2 weeks after the
interview (so those aren't valid disclaimers, and do not negate the duty of care owed
to the appellant)
o it was foreseeable to respondent that appellant would sustain damages should
representations prove to be false and negligently made
o undoubtedly a relationship of proximity between the parties at all material times
o not unreasonable to impose a duty of care in all the circumstances of this case
 standard of care
o reasonable person test (does not require person to guarantee accuracy of
statements, but does require a person to exercise such care as is reasonable in the
circumstances)
o trial judge was not wrong to hold that respondent's manager had acted carelessly in
making statements during the appellant's job interview

 Intrawest Corp. v No.2002 Taurus Ventures Ltd. (2006, BCSC; rev'd 2007 BCCA)
o defendant sought to avoid liability for certain pre-contractual statements
o defendant failed at trial for 3 reasons:
- contractual discalimer did not expressly refer to pre-contractual statements
- the statements were made well before hte contract was signed
- the plaintiff ha no opportunity to verify the accuracy of the statements
o clause stated: the contract "is the entire agreement...there are no other terms,
conditions, reprsentations, warranties or collateral agreements, express or implied"
o CA: the contract's entire agreement clause did preclude claims for negligent
misrepresentation (even though wording of disclaimer did not mention negligence or
negligent misrepresentation)
o parties to contract were sophisticated, accordingly bound by the clause
 Mariani v Lemstra (2004, OntCA)
o court indicated that an express "ntire agreement" clause in a standard-form agreement
of purchase and sale, coupled with buyer's opportunity to inspect the property, would
exclude liability for negligent misrepresentaiton
 Whighton v Integrity Inspections Inc (2007, ABQB)
o court held that because the negligent misrepresentations were made outside the scope
of the contract, the limitation of liability clause did not apply

Recovery of Pure Economic Loss

 issues with liability for pure economic loss
o raises risk of indeterminate liability
o extends legal protection to interests that most people would agree are less
important than the interests protected by liability for personal injury and property
damage
o given scarcity of judicial resources, it may be not be appropriate to use them on
resolution of disputes arising from mere loss of money
o often more efficient for pure economic losses to be borne by the victim (typically a
business entity; usually better positioned to assess prospect of such loss and
arrange insurance coverage beforehand)

58
  historically, issues resolved on basis of broad rule that excluded liability for such losses (Cattle v
Stockton Waterworks Co 1874)
 recently, SCC has moved to more sophisticated, sensitive and liberal approach: has classified
pure economic loss claims into 5 categories (*this chapter)
o negligent misrepresentation
o independent liability of statutory public authorities
o negligent performance of a service*
o negligent supply of shoddy goods or structures*, and
o relational economic loss*
 classification reveals court's recognition that, while unified by the common theme of pure
economic loss, the different categories of cases involve different policy considerations

New Categories of Pure Economic Loss

 categories of pure economic loss are not closed
 courts can recognize a duty of care in a new type of situation outside the 5 categories
mentioned above
o will use Ann/Kamloops test, as interpreted in Cooper v Hbart to do so

Martel Building Ltd. v Canada (2000, SCC)

 SCC addressed existence of duty of care to otherwise conduct pre-contractual negotiations in
such a way as to avoid inflicting pure economic loss
 shot at trying to reate new category, fails
Facts
 plaintiff leased building to defendant
 when lease about to expire, parties entered into negotiations for a renewal
 defendant led plaintiff to believe that it wouldbe amenable to renewing the lease on certain
terms
 but when plaintiff formally extended offer on those ters, defendant rejected the proposal and
issued a call for tenders (looking for building owners willing to lease space)
 defendant eventually accepted tender from another party, did not renew lease with plaintiff
 plaintiff claimed that defendant had breached a duty of care to negotiate in such a way as to
avoid causing the plaintiff pure economic loss (loss of opportunity to renew original lease), by
repeatedly delaying matters, breaking appointments, ignoring requests, etc
Issue
 given that one owes a duty of care not to harm those who miht foreseeably suffer damage,
does a duty of care exist to that same group with respect to negotiations? Does the tort of
negligence extend to damages for pure economic loss arising out of the conduct of pre-
contractual negotiations?
Held
Ratio
Reasoning (Iacobucci, Major)
 claims for recovery of economic loos are like any other claim in neligence: must establish dut,
breach, damage and causation
 but there is added scrutiny here becauseof common law's historical treatment of economic
loss (common law traditionally did not alow recovery of economic loss where a plaintiff had

59
 suffered neither physical harm not property damage; but now recognized that in limited
circumstances damages for economic loss absent physical or proprietary harm may be
recovered)
 rationale for caution when approaching economic loss:
o economic interests are viewed as less compelling of protection than bodily security or
proprietary interests
o unbridled recognition of economic loss raises the spectre of indeterminate liability
o economic losses often arise in commercial context, where they are often an inherent
business risk best guarded against by the party on whom they fall (through such
means as insurance)
o seen to encourage a multiplicity of inappropriate lawsuits
 this is novel claim, doesn't fall within any of the 5 established categories of pure economic
loss
 framework for recognition of new categories:
o Canadian jurisprudence has consistently use 2-step test from Anns/Kamloops to
determine whether to extend a duty of care in a given case
1. Was there a sufficiently close relationship between Martel and the
Department so that, in the reasonable contemplation of the Department,
carelessness on its part might cause damage to a party such as Martel with
whom it negotiated?
 the causal relationship in contractual negotiations is sually sinificant
for a finding of proximity (in thi case, the appellant;'s pre-exisitng
contractual arrangement with Martel is an impressive indicator of
proximity)
 also intent" the communications between the appellant and Martel
disclose a readiness to arrive at an agreement despite the fact that
one was never reached
 so there is prima facie duty of care
2. Are there any policy considerations that serve to negative or limit (a) the
scope of the prima facie duty of care (b) the class of persons to whom it is
owed or (c) the damages to which a breach of it may give rise?
 there are compelling policy reasons to conclude that one commercial
party should not have to be mindful of another commercial party's
legitimate interests in an arm's length negotiation
 scope of indeterminate liability: in this case, the inherent nature of
negotiations place definable limits on the ultimate extent of liability
so that concerns of indeterminacy are not determinative in this
appeal
 the class of potential claimants is limited to those persons that the
Department directly negotiated with
 quantum of damages is limited by the nature of the transaction being
negotiated (there are difficulties in valuing a lost opportunity, but the
extent of the loss in this case has definable limits: restricted to the
loss of an opportunity to conclude a 10-year lease renewal)
 so even though indeterminacy is not an issue, there are a number of ancillary policy
considerations that necessitate precluding the extension of the tort of negligence into
commercial negotiations

60
 2. the goal of negotiation (to achieve the most advantageous financial bargain)works
against recovery (gains are realized at the expense of the other negotiating party);
negotiation merely transfers wealth between parties, so as an economic whole,
society is not worse off
3. to extend a duty of care to pre-contractual commercial negotiations could deter
socially and economically useful conduct (it would defeat the essence of negotiation
and hobble the marketplace to extend a duty of care to the conduct of negotiations,
and to label a party's failure to disclose its bottom line, its motives or its final position
as negligent)
4. to impose a duty in the circumstances of this appeal could interject tort law as after-
the fact insurance against failures to act with due diligence or to hedge the risk of
failed negotiations through the pusuit of alternative strategies or opportunities
(Martel could at any point have concluded that the Department was not serous or
interested in concluding a renewal of the Martel Building lease; the retention of self-
vigilance is a necessary ingredient of commerce)
5. to extend the tort of negligence into the conduct of commercial negotiations would
introduce the courts to a significant regulatory function, scrutinizing the minutiae of
pre-contractual conduct (other causes of action already provide remedies for many
forms of conduct (ex.// doctrines of undue influence, economic duress and
unconscionability [for bargains obtained as a result of improper negotiation];
negligent misrepresentation, fraud and deceit [for aspects of negotiation which do
not culminate in an agreement])
6. extent to which needless litigation should be discouraged (extending negligence into
conduct of negotiations could encourage multiplicity of lawsuits)
 so any prima facie duty is outweighed by policy considerations
 - as a general proposition, no duty of care arises in conducting negotiations (although there
may be an exception in future)

 other claims brought by plaintiff in Martel case

1. plaintiff argued that it had suffered a loss because the defendant had breached a duty of
care when it carelessly drafted its call for tenders
 plaintiff stressed that it had made certain assumptions based on its prior
negotiations with the defendant
 SCC rejected this argument, held there was no duty of care - any prima facie
duty of care would be negated by policy considerations (would call into question
the integrity of the tendering process if, by reason of a past relationship with, or
special knowledge of, a potential bidder, there could be an enforceable
obligation to take the interests of that particular bidder into account; party
calling for tenders has discretion to set out its own specifications and
requirements
2. plaintiff claimed that the defendant had breached a duty of care in tort law by failing to
fairly evaluate the bids that it received
 SCC rejected this argument as well, since defendant had not breached any of
the contractual obligations that it owed to the plaintiff under "Contract A"

61
  Martel case left open the question of whether someone who issues a call for tenders could owe
a duty of care to subcontractors of a bidding contractor: Design Services Ltd v Canada
Design Services Ltd v Canada (2008, SCC)
Facts
 Public Works launched tendering process for construction of a naval reserve building
 contractor Olympic Construction Ltd tendered a bid
 Public Works accepted a non-compliant bid
 subcontractors that were part of Olympic's bid could not sue Public Works in contract (privity
issue, they hadn't tendered the bid themselves), so they sued in tort
Issue
Held
Ratio
Reasoning
 claim did not fall into any of the five existing categories of pure economic loss
 consider whether to create new category - Cooper test
o defendant conceded reasonable foreseeability of harm
o several factors point to proximity (ex.// considerable information about the plaintiffs
was included in the bid documents received and reviewed by the defendant)
o but policy consideration [namely, the plaintiffs' ability to take steps to protect
themselves] negated a finding of sufficient proximity (rather than relying on the
contractor's bid, the plaintiffs could have formed a joint venture with the contractor
an so been parties to the bid)
 allowing the appellants to sidestep the circumstances they participated in
creating and make a claim in tort would be to ignore and circumvent the
contractual rights and obligations that were, and were not, intended by PW,
Olympic and the appellants
 to conclude that an action in tort is appropriate when commercial parties
have deliberately arranged their affairs in contract would be to allow for an
unjustifiable encroachment of tort law into the realm of contract
o so no prima facie duty of care - but even if there was prima facie duty of care, it
would have been negated by policy considerations (indications of indeterminate
liability [since the class of plaintiffs seems to seep into the lower levels of the
corporate structure of the design-build team members; even where subcontractors
are named and known by an owners, those subcontractors will have employees and
suppliers and their own subcontractors who also could suffer economic loss]

 SCC unwilling to recognize a new category of recoverable pure economic loss in Martel and
Design Services, but the prospect has received more favourable treatment in some other cases:
Haskett v Equifax Canada Inc (2003, OntCA)

Haskett v Equifax Canada Inc (2003, OntCA)

Facts
 plaintiff was discharged from bankruptcy in 1996
 despite being current on all debts and earning more than $75,000/yr., he wa consistently
denied commercial credit

62
  claimed that poor credit rating was caused by an inaccurate report that the defendant
company had carelessly prepared and made available to potential creditors
 plaintiff sued in negligence for alleged losses
 defendant brought motion to strike out claim on basis that it did not disclose cause of action;
plus, pure economic loss that doesnt fit within one of the 5 categories, so it must fail
 trial judge agreed with defendant
 CA: overturned decision of trial judge
o plaintiff's claim should proceed to trial because either (i) the situation fell by analogy
into the established category of negligent misrepresentation, or (ii) it was possible for
the trial judge to recognize a new category of recoverable pure economic loss

Customs and Excise Commissioners v Barclays Bank plc (2007, HL)

 novel issue: whether a third party, such as a bank, that holds the assets of a defendant whose
assets have been frozen by court order, and that carelessly allows the defendant to transfer
the assets despite the order, owes a duty of care to the plaintiff who obtained the order
 3 tests which have been used in deciding whether a defendant sued as causing pure economic
loss to a claimant owed him a duty of care in tort
1. whether the defendant assumed responsibility for what he said and did vis-a-vis the
claimant, or is to be treated by the law as having done so
2. threefold test: (i) whether loss to the claimant was a reasonably foreseeable
consequence of what the defendant did or failed to do; (ii) whether the relationship
between the parties was one of sufficient proximity; (iii) whether in all the
circumstances it is fair, just and reasonable to impose a duty of care on the defendant
towards the claimant
3. the incremental test (Brennan in Sutherland Shire Counsil v Heyman (1985); approved
by Lord Bridge of Harwich in Caparo Industries plc v Dickman (1990): law should
develop novel categories of negligence incrementally and by analogy with established
categories, rather than by a massive extension of a prima facie duty of care restrained
only by indefinable "considerations which ought to negative, or to reduce or limit the
scope of the duty or the class of person to whom it is owed")
 HL refused to impose duty of care

Negligent Performance of a Service

 applicable principles closely mirror the rules that govern liability for negligent
misrepresentations (not surprising, usually fine line between services and representations)
 as per Feldthusen: Advice is a particular form of business service, and in many representation
cases the negligence lies in the performance of an underlying service rather than in the
representation itself

BDC Ltd v Hofstrand Farms Ltd (1986, SCC)

Facts
 appellant courier company contracted with Prov of BC to deliver envelope from govt office in
Victoria to Land Registry Office in Prince George
 appellant didnt know that envelope contained Crown grant in favour of respondent

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  respondent anxious for grant to be resgistered before Dec.31, 1976 (or else respondent
would lose ability to bind third party to a contract for the sale of certain land)
 appellant delivered envelope late, result was that third party refused to complete the
contemplated contract with the respondent
 respondent suffered an economic loss
 respondent sued appellant
 trial judge: dismissed claim (courier company unaware of envelope's contents, not informed
of need for timely delivery)
 CA: opposite conclusion
Issue
Held
Ratio
Reasoning (Estey)
 need for reasonable limitations in cases of pure economic loss (as per Cadozo in Ultramares
Corp v Touche: may involve liability "in an indeterminate amount for an indeterminte time to
an indeterminate class")
 however there are ways of circumscribing, in pure ecoomic loss, what might otherwise be an
inending chain of liability in an incalculable amount (Lord Pearce in Hedley Byrne: how wide
the sphere of duty of care in negligence is to be laid depends ultimately on the courts'
assessment of the demands of society for protection from the carelessness of others)
 applying Anns teest - sufficient to dispose of appeal
1. does there exist a relationship of proximity or neighbourhood "such that in a
reasonable contemplation" of the actor, his carelessness may likely damage the
laintiff
 appellant courier had no knowledge of the existence of the respondent, nor
could it reasonably have known of the existence of a class of persons qhose
interests depended upon timely transmission of the envelope
 no actual or constructive knowledge in the courier that the rights of a third
party could in any way be affected y the transmission or lack of transmission
of the envelope in question
 Lord Reid in Hedley Byrne: "it would be going very far to say that [the
defendant] owes a duty to every ultimate consumer"
 also, respondent did not rely on the appellant, since the appellant was hired
by the govt
2. whether there are present any circumstances which would negate or reduce (a) the
scope of the duty, or (b) the class of persons to whom such a duty is owed, or (c) the
damage seen in law to flow from breach of the duty
 no need to go on to this stage since the first stage was failed

James v BC (2005, BCCA)

Facts
 plaintiff's employer held tree farm licence from the prov. of BC (contained provision that
would have prevented employer's sawmill from being closed by the employer without the
approval of the Minister of Forests)
 on renewal of the licence, the Minister inadvertently omitted the protective clause and the
employer later closed the mill

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  plaintiff launched class action against govt (alleged that negligence had caused him and
others similarly situated to suffer a loss of employment income)
Issue
Held
Ratio
Reasoning
 Hedley Byrne overruled longstanding rule that there could be no recovery rule in tort for pure
economic loss; also held that detrimental reliance was an essential element of the cause of
action
o but that doesn’t mean that requirement of detrimental reliance applies to all actions
seeking recovery of damages for pure economic loss
o when claim is misrepresentation, it was always incumbent upon the plaintiff to plead
and prove reliance upon the false representation
...p.490-491....

Relational Economic Loss

 situations in which the defendant, as a result of negligently damaging property belonging to a
third party, also causes a pure economic loss to the plaintiff with whom the third party had a
relationship
 potential for "indeterminate liability" is particularly pronounced in such circumstances, s courts
have been required to strike a balance between allowing victims to recover compensation for
their losses and protecting defendants from the prospect of crushing liability
 3 key cases:
o Canadian National Railway Co. v Norsk Pcific Steamship Co 1992, SCC)
o D'Amato v Badger (1996, SCC)
o Bow Valley Husky (Bermuda) Ltd. v Saint John Shipbuilding Ltd. (1997, SCC)

Bow Valley Husky (Bermuda) Ltd. v Saint John Shipbuilding Ltd. (1997, SCC)
Facts
 Husky Oil Operations Ltd. (HOOL) and Bow Valley Industries Ltd (BVI) made arrangements to
have off-shore oil drilling rig contructed by Saint John Shipbuilding Limited (SJSL)
 to take advantage of govt financing, HOOL and BVI incorporated an offshore company: Bow
Valley Husky (Bermuda) Ltd. (BVHB)
 ownership of rig and construction contract with SJSL transferred to BVHB
 HOOL and BVI entered into contracts with BVHB for the hire of the rig to conduct drilling
operations at sites chosen by HOOL and BVI (so the rig was owned by BVHB, BVHB was owned
by HOOL and BVI, and HOOL and BVI rented the rig from their own company BVHB)
 HOOL and BVI would continue pay "day rates" to BVHB, even if rig was out of service
 heat trace system required to kee rig's pipes from freezing in winter
 BVHB directed SJSL to use system manufactured by Raychem (used Thermaclad to keep
moisture away from the insulation and heat trace wire)
 fire broke out on rig as a result of hte flammability of the Thermaclad wrap
 enither Raychem nor SJSL warned any of the plaintiffs that Thermaclad was flammable under
certain circumstances
 fire also caused in part by BVHB's misuse of the heat trace system

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  rig out of service for several months during repairs
 BVHB, HOOL, and BVI sued SJSL for breach of contract and negligence, and sued Raychem for
negligence
 BVHB claim: for cost of repairs and revenue lost as a result of rig being out of service
 HOOL and BVI: economic losses during repair period, including the day rates that they were
contractually required to pay to BVHB
 trial judge found:
o defendant SJSL had, inter alia, breached a tort law duty to warn of the flammability of
Thermaclad wrap
o Raychem had breached a tort law duty to warn
o BVHB was primarily at fault for the accident because of careless operation of the heat
tracing system
o dismissed plaintiffs' claims on the basis that the case arose from negligence at sea,
and therefore was governed by maritime law, in which contributory negligence
constitutes a complete defence
 CA: alowed appeal by BVHB, not by HOOL or BVI (since loss by BV and HOOL was purely
economic, it was not recoverable)
o held that either (i) the provincial contributory negligence legislation applied on the
facts, or (ii) contributory negligence no longer constituted a complete bar to recovery
in maritime law
o BVHB entitled to 40% of its damages from SJSL and Raychem
Issue
 did SJSL and Raychem owe BVI and HOOL a duty to warn? (recovery of contractual relational
economic loss)
Held
 McLachlin held that:
o SJSL and Raychem owed a duty to warn BVHB of the flammability of Thermaclad wrap
o SJSL's duty of care to BVHB was not negated by the terms of their contract
o a sufficient causal relationship existed between the defendants' failure to warn and
the loss sustained by BVHB
o the trial judge's assessment of BVHB's contributory negligence was appropriate
o BVHB's contributory negligence did not constitute a complete bar to recovery
 Iacobuci (majority)
o HOOL and BVI failed in their actions in negligence
o BVHB failed in its negligence action against SJSL, but succeeded against Raychem;
damages against Raychem were reduced to 40% on account of BVHB's contributory
negligence
Ratio
Reasoning (La Forest and McLachlin) [dissenting in part]
 HOOL and BVI seek to recover the economic loss they suffered as a result of damage to the
property of a third party (contractual relational economic loss)
 common law courts have traditionally regarded many types of contractual relational
economic loss as irrecoverable
 in England: no relational economic loss can ever be recovered
o Murphy v Brentwood District Council (1991, HL): concerned the liability of a pulic
authority for approval of a negligently constructed building, not relational economic
loss; but HL stipulted that pure economic loss is recoverable only where there is

66
 actual physical damage to property of the plaintiff thus excluding recovery for
relational economic loss)
 in QC, France (civil law jursidctions): law does not distinguish between loss arising from
damage of one's own property and loss arising from damage to the property of another
 law in the common law provinces of Canada: between these 2 extremes
o recovery in tort of contractual relational econoic loss is exceptional, but there may be
cases where it may be recovered
 suggests need for rule to distinguish between cases where contractual relational economic
loss can be recovered and cases where it cannot be recovered
o court tried to create rule in Norsk, but it was split decision
o court agreed tha if the plaintiff is in a joint venture with the person whose property is
damaged, the plaintiff may claim consequential economic loss related to that
property (but La Forest took stricter view of what constituted "joint venture" than
McLachlin)
o also difference in methodology:
 La Forest: started from general exclusionary rule with exceptions where
recovery would be permitted
 McLachlin: stressed 2-step test for when recovery would be available (based
on Anns/Kamloops: (1) whether the relationship between the plaintiff and
the defendant was sufficiently proximate to give rise to a prima facie duty of
care; and (2) whether, if such a prima facie duty existed, it was negated for
policy reasons and recovery should be denied)
o things La Forest and McLachlin agreed on:
 relational economic loss is recoverable only in special circumstances where
the appropriate conditions are met
 these circumstances can be defined by reference to categories, which will
make the law generally predictable
- La Forest identified categories of recovery of relational economis loss
defined to date as:
(i) cases where the claimant has a possessory or proprietary interest
in the damaged property
(ii) general average cases
(iii) cases where the relationship between the claimant and property
owner constitutes a joint venture
 the categories are not closed
 case at bar does not fall into any of the categories
(i) plaintiffs had no possessory or proprietary interst in the rig
(ii) case if not one of general averaging
(iii) plaintiff and property owner cannot be viewed as joint venturers, though they are related
contractually
 but categories of recoverable contractual relational economic loss in tort are not closed
o in Norsk, La Forest suggested that the general rule against recovery for policy-based
reasons might be relaxed where the deterrent effect of potential liability to the
property owner is low, or, despite a degree of indeterminate liability, where the
claimant's opportunity to allocate the risk by contract is slight, either because of hte
type of transaction or an inequality of bargaining power

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 o so new catgories of recoverable contractual relational economic loss may be
recognized where justified by policy considerations and required by justice
o need a clear rule predicting when recovery is available - Anns/Kamloops (as per
Hercules Managements Ltd v Ernst & Young)
(1) whether a prima facie duty of care is owed (proximity; existence of a relationship
of "neighbourhood"; whether the defendants ought to reasonably to have foreseen
that the plaintiffs might suffer loss as a result of use of the product about which the
warning should have been made); and
(2) whether that duty, if it exists, its negated or limited by policy considerations
 in this case:
(1) there is prima facie duty of care (BVI and HOOL's economi interests could foreseeably
have been affeccted by a failure to warn BVHB of the danger of fire resultng from the use of
products supplied by the defendants)
(2) prima facie duty of care is negatived by policy considerations (problem of indeterminate
liability [if defendants owed a duty to warn the plaintiffs, it is difficult to see why they would
not owe a similar duty to a host of other persons who would foreseeably lose money if the rig
was shut down as a result of being damaged])
 ...p.508...
Reasoning (Iacobucci, Gonthier, Cory, Major)
 McLachlin accepted L Forest's general exclusionary rule
 the contact between BVHB and SJSL did negate the duty to warn that SJSL
owed to BVHB

Canadian National Railway Co. v Norsk Pacific Steamship Co (1992, SCC)

Facts
 plaintiff company entered into a contract for use of a bridge owned by the government
 defendant carelessly damaged the bridge
 plaintiff sustained considerable economic losses due to the disruption of its services
Issue
Held
 SCC allowed the claim, but was split
Ratio
Reasoning (McLachlin, L'Heureux-Dube, Cory)
 rejected traditional exclusionary rule
 preferred incremental approach (on case-by-case basis, courts develop a list of categories of
situations in which a duty may be recognized)
 2-stage Anns/Kamloops test
(1) foreseeability; proximity (relationship between the parties, physical propinquity, assumed
or imposed obligations, close causal connection)
(2) factors that might negate a prima facie duty of care
 in this case: duty of care owed
(1) close contractualrelationship between the plaintiff and the govt; parties essentially were
in a "joint venture" with respect to the bridge; sufficient degree of proximity
(2) spectre of indeterminate liability did not arise; no policy reason to negate the existence of
a duty of care
Reasoning (Stevenson - concurring)

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  duty of care exists on the fact, but narrower reasoning
 duty of care could arise in a case of relational economic loss only with respect to specific
individuals that the defendant could have reasonably foreseen would suffer economic loss
(notorious plaintiff test)
Reasoning (La Forest, Sopinka, Iacobucci - dissent)
 general exclusionary rule should apply, excep where clear policy considerations demand
otherwise
 in cases of relational economic loss, duty of care should be reocgnized only if:
o the plaintiff held a proprietary or possessory interest in the damaged property
o the concept of general average (maritime law concept, applied for example among
various cargo owners to share in paying for cargo thrown overboard in a storm in
order to save rest of the cargo) applied, or
o the plaintiff and the owner of the damaged property were parties in a joint venture
 CNR's contractual relationship with the government does not give rise to a joint venture

D'Amato v Badger (1996, SCC)

Facts
 person who owned a 50% shar in a company was injured by the defendant's carelessness
 injured party unable to continue performing services for the company, which consequently
was required to hire a new employee
 company brought claim against defendant for relational economic loss (cost of hiring new
employee)
 trial: claim allowed
 BCCA & SCC: rejected the claim
Issue
Held
Ratio
Reasoning (unanimous)
 McLachlin's and La Forest's approaches usually produce the same result
o La Forest: claim did not fall within any of the exceptions recognized in general
exclusionary rule
o McLachlin: duty of care did not arise under ANns/Kamloops becaue the
company's loss was neither foreseeable nor sufficiently proximate to the
defendant' act of negligence to warrant recovery; evenif prima facie duty existed,
it was negated because of indeterminacy

Shell UK Limited v Total UK Limited (2010, EWCA)

Facts
 plaintiff had a contractual right to have fuel transported through certain pipelines owned by
other companies
 defendant negligently damaged the pipelines
 plaintiff suffered economic loss
Issue
Held
Ratio
Reasoning

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  usually wouldn't work in England, but the companies the owned the pipelines held title to
them on trust for the plaintiff and others
o so plaintiff was beneficial owner of the pipelines
 as beneficial owner, the plaintiff could recover the economic loss as consequential to the
physical damage to its property

Standard of Care
 duty of care =/= standard of care
o duty of care: inquiry into the existence, nature and scope of the legal relationship
between the plaintiff and the defendant
o standard of care: determines how the defendant should have acted; breach occurs if
he/she acted without that requisite degree of care
 "negligence"
o narrow meaning: defendant was negligent if they breached the standard of care;
refers only to the questions of standard and breach
o broad meaning: the cause of action as a whole; includes the other elemtns of the
tort
 duty of care: legal issue, resolved by judge
 standard of care and breach: raise questions of both law and fact
o trier of law (judge): formulates the standard of care and determined the factors that
need to be considered
o trier of fact (jury/judge): apply those factors to the case and determine whether the
defendant met the standard
 at appellate level:
o question of law: appellate court can substitute its view for that of the trial judge so
long as it is satisfied that he/she committed an error
o question of fact: appellate court can overturn the trial judge only if it is convinced
that he/she committed a "palpable and overriding error" or reached a conclusion
that could not be supported by the evidence (Housen v Nikolaisen 2002 SCC)
 standard of care and breach cannot be reduced to systematic mathematical or economic
formulae; depends on human judgment

The Common Law Standard of Care: The Reasonable Person Test

Arland v Taylor (1955, OntCA)

Facts
 plaintiff injured in MVA
 trial: jury held that defendant had not breached the requisite standard of care
 plaintiff appealed, obected to the trial judge's charge to the jury
 trial judge's charge to jury: "put yourself in the driver's seat...as yourself "would I have done
that? was that reasonable for him to do?", etc.
Issue
Held

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  trial judge was in rror in those instructions to the jury, and there was a misdirection, but there
was no substantial wrong caused by the misdirection
 appeal dismissed
Ratio
Reasoning
 standard of care by which a jury is to judge the conduct of parties in a case of this kind is the
care that would have been taken in the circumstances by "a reasonable and prudent man"
 no comprehensive definition of "a reasonable man"
o mythical creature of the law whose whose conduct is the standard by which the
Courts measure the conduct of all other persons and find it to be proper/improper in
particular circumstances as they may exist from time to time
o not extraordinary/unusual; not superhuman; not required to display the highest skill
of which anyone is capable; not a genius who can perform uncommon feats; not
possessed of unusual powers of foresight
o does nothing that a prudent man would not do and does not omit to do anything a
prudent man would do
o acts in accord with general and approved practice
o conduct is guided by considerations which ordinarily regulate the conduct of human
affairs
o conduct is the standard "adopted in the community by persons of ordinary
intelligence and prudence" (Blyth v Birmingham Waterworks Co 1856)
 as per Lord Macmillan in Glasgow Corporation v Muir et al (1943) re: reasonable man:
 impersonal test
 eliminates personal equation
 independent of idiosyncracies of the particular person whose conduct is in question
 free from both over-apprehension and from over-confidence
 there is subjective element involved in application: left to judge to decide what, in the
circumstnaces of the particular case, the reasonable man would have had in contemplation,
and what the party sought to be made liable ought to have foreseen
 as per Mazengarb, Negligence on the Highway:
 legal standard of care: waht a reasonably prudent man would hav done in like circumstances
(legal standard is fixed and immutable, but factual standard changes fro time to time and
from place to place)
 jury should not think about what they themselves would have done in the place of the
defendant

 the reasonable person test is not a standard of perfection; court can draw distinction between
non-tortious mistake (an "error of judgment") and actionable carelessness (Lapointe v Hopital le
Gardeur 1992 SCC; WIlson v Swanson 1956 SCC)
o list of cases involving error of judgment (in text)

 Ryan v Victoria (City) 1999 SCC: court summarized standard of care

o conduct is negligent if it creates an objectively unreasonable risk of harm
o to avoid liability, a person must exercise the standard of care that would be expected of
an ordinary, reasonable and prudent person in the same circumstances

71
 o factors to be considered when measuring what is reasonable: likelihood of a known or
foreseeable harm, the gravity of that harm, the burden or cost which would be incurred
to prevent the injury
o also external indicators of reasonable conduct: custom, industry practice, statutory or
regulatory standards

 statutory or regulatory violation does not automatically equate with englgience (Holland v
Saskatchewan 2008 SCC)

Factors Considered in Determining Breach of the Standard of Care

 2 most important factors when determining if there has been breach of standard of care:
o probability of injury
o potential severity of injury
 considerations balanced against the private and social costs that would have been associated
with avoiding the risk and the social utility of the defendant's conduct
 various considerations must be assessed at the time of the alleged breach, rather than in
hindsight
o so the real question: how a reasonable person in the defendant's circumstances
would have acted at the relevant time

Roe v Minister of Health (1954, EngCA)

Facts
 defendant ran a hospital
 stored spinal anaesthetic in glass ampoules, which were placed into liquid phenol for the
purpose of sterilization
 plaintiff underwent operation; suffered spastic paraplegia because the anasthetic that re
received had been contaminated by phenol
 contamination occurred because phenol had seeped into the anaesthetic through
imperceptibly small cracks in the glass ampoules
 by time of trial (1954), medical community recognized the risk
 at time of operation (1947): risk was unknown and not reasonably foreseeable
Issue
Held
 not liable
Ratio
Reasoning (Denning)
 must not look at the 1947 accident with 1954 spectacles

Probability and Severity of the Harm

Bolton v Stone (1951, HL)
Facts
 plaintiff was walking on a road adjacent to a crcket ground when she was struck and njured
by a ball that had been hit out of the ground
Issue

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  what is the nature and extent of the duty of a person who promotes on his land operations
which may cause damage to persons on an adjoining highway
Held
 appeal allowed, which means...?
Ratio
Reasoning
 readily foreseeable that such an accident might possibly occur during cricket match
 also plain that the chance of that happening was small
 generally speaking, if injury to another person from the defendants' acts is reasonably
foreseeable the chance that injury will result is substantial, and it doesn't matter in which
way the duty is stated
 there is tendency to base duty on rather on the likelihood of damage to others than on its
foreseeability alone
 as per Alderson in Blyth v Birmingham Waterworks Co (1856): "negligence is the omission to
do something which a reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do"
 not just a test of reasonable foreseeability, but also have to be sure not to create a
substantial risk
 the test to be applied is whether the risk of damage to someone on road was so small that a
reasonable man in the position of the appellants, considering the mattr from the point of
view of safety, would have thought it right to refrain from taking steps to prevent the danger
o take into account remoteness of the chance that a person might be struck
 but do not take into account the difficulty of remedial measures
 if cricket can't be played on the ground without creating substantial risk, then it should not be
played there at all

Paris v Stepney Borough Council (1951, HL)

Facts
 one-eyed worker had job to knock bolts out of chassis with a steel hammer while the chassis
was elevated on a ramp
 workman's eye was close to and under the bolt
Issue
 whether an ordinarily prudent employer would supply goggles to a one-eyed workman whose
job was to knock bolts out of a chassis with a steel hammer while the chassis was elevated on
a ramp so that the workman's eye was close to and under the bolt
Held
 trial judge's judgment restored (employer liable)
Ratio
Reasoning
 duty of employer towards servant is to take reasonable care for servant's safety in all
circumstances of the case
 in taking precautions, employer must take into account the fact that servant only has one eye,
and that if he loses it he will be blind
 standard of care: care which an ordinarily prudent employer would take in all the
circumstances

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  lower court judge was entitled to hold that ordinarily prudent employer would take that
precaution (of giving goggles)
 risk of splinters of steel breaking off a bolt and injuring workman's eye is slight
 damage for a two-eyed workman would be serious
 damage to a one-eyed man would be even more serious
 it is a simple and inexpensive precaution to take
 weighing the risk and the extent of the damage, trial judge was correct to find employer liable
Dissent (Lord Morton of Henryton)
 there are 2 factors to consider when determining whether employer ought to have taken
precautions: the likelihood/risk of an accident occurring and the gravity/seriousness of the
consequences
 the more serious the damage which will happen if an accident occurs, the more thorough are
the precautions which an employer must take
 the duty to take reasonable rpecautions against injury is one which is owed by the employer
to every individual workman
o so even though the one-eyes man didn't run greater risk of injury than the other
workers, he ran a risk of greater injury
 CA thought one-eyed condition of the appellant was irrelvant in detemrining whether or not
employer took reasonable precautins
o dissent doesnt agree
o the condition of hte appellant was a relevant fact to be taken into account
 trial judge thought that employers owed duty to provide goggles to one-eyed man, but not to
two-eyed men
o it's true that employers did not owe duty to provide goggles to two-eyed men
 because all workers ran the same risk of injury, and becaue employer did not owe duty to
provide goggles to two-eyed men (because the risk of injury was so remote), then they also
did not owe duty to one-eyed man because the risk of injury was so remote
 would dismiss appeal

 Bolton often contrasted with Miller v Jackson (cricket ground)

o Denning: accepted that cricket players would be liable if injury happened, but refused to
grant injunction
o Lane (majority): risk of property damage was foreseeable and foreseen by defendants;
plus plaintiffs did not have obligation to protect themselves in their own home;
prepared to grant injunction (but Lane was the only one prepared to grant injunction;
Cumming-Bruce agreed that defendants were liable in nuisance and negligence, but not
prepared to grant injunction)
o in Miller v Jackson, 400 pounds in damages were awarded
 defendant needs to take precautions against "reasonably foreseeable" risks - but what is
reasonably foreseeable? there are some accepted propositions:
o reasonably foreseeable does not have to be probable (i.e., risk of more than 50%)
o an unusual, even remarkable, event may be sufficiently foreseeable in some
circumstances
o at the same time, defendant does not need to guard agaisnt dangers that are fanciful or
far-fetched

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 o concept of reasonable foreseeability creates generous amount of leeway and discretion
for the trier of fact

Bingley v Morrison Fuels (2009, OntCA)

Facts
 Stanzel Plumbing decommissioned an oil heating system at the plaintiff's house in 1979
o left oil tank and exterior pipe in place, but tightened cap on pipe so it couldnt be
opened by hand, and rotated pipe downwards towards the ground so that it could
not be filled and to show that the system was inoperative
 2001: MF (defendant) employee misread oil delivey ticket, went to plaintiff's house, rotated
pipe upwards, opened cap with wrench, delivered large quantity of oil
 caused oil leak and more than $1 million in damages
Issue
 trial judge was asking: whether a mistaken delivery occasioned by the particular chain of
events that unfolded in this case was reasonably foreseeable
 CA was asking (more generally): whether, in general, harm from a mistaken delivery of oil to
the Bingley residence was reasonably foreseeable
Held
 trial judge: loss not reasonably foreseeable by SP
 CA: reversed decision; mistaken oil delivery was foreseeable
Ratio
Reasoning
 trial judge was looking at things too narrowly
 it was foreseeable that an employee might misread a delivery ticket, might atempt to rotte a
fill pipe that had come loose over time, and might use a wrench to open a tight cap
Dissent
 accepted trial judge's view

Cost of Risk Avoidance

Vaughn v Halifax-Dartmouth Bridge Comm. (1961, NSSC)
Facts
 defendant operated and maintained a bridge
 defendant painted the bridge
 fleck of paint were blown by wind onto nearby cars
 owners of cars sued in negligence
 defendant argued: took all necessary and proper measures to prevent/minimize injury
Issue
Held
 defendant was negligent
Ratio
Reasoning
 no amount of ordinary care would prevent the dripping paint, or the likelihood of the paint
beign carried by wind hundreds of feet
o so it was inevitable that paint should fall on the cars

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  defendant had duty to ake all reasonable measures to prevent that result/minimize the
damage from falling paint
 argument made: impracticability of any effective steps to prevent/minimize damage except
at prohibitve cost
o but there were precautions that could have been taken that weren't
o no steps were taken to warn car owners/dockyard authorities in advance of
painting
o when complaints came, defendant advised Security Officer of dockyard and
certain cars were moved (which shows that moving the cars would have been
feasible)
o defendant could have posted warning signs at the parking lot
 all the defendants did was have a person in the parking lot wiping the cars when they got
paint on them (did they actually do this or is this another otion put forth by the court? i dont
know)
o but this depended on speed of the person in the parking lot in wiping the paint
o plus just not an effective method
 these precautions owuld have entailed relatively little expense (since the painting operation
was only a month long), and would have prevented/minimized the damage

Law Estate v Simice (1994, BCSC)

Facts
 plaintiff sued defendant doctors in negligence
 plaintiff claimed that husband died because of defendants' failure to provide timely,
appropriate and skillful emergency care
 doctors had not initially taken CT scan of patient
Issue
Held
 doctors were negligent
Ratio
Reasoning
 doctors testified that they felt constrained by the BC Medical Insurance Plan and the BC
Medical Association standards to restrict requests for CT scans as diagnostic tools
 CT scan equipment is limited and costly to use, so there are budgetary restraints
 these restraints inhibited the doctors in the judgment
 there are budgetary problems confronting the health care system, and that is somethign to
be considered by legislators
 when doctor has to choose between their responsibiltity to their patient and their
responsibility to the medicare system overall, they have to choose the former
 severeity of harm to patient is greater than financial harm to medicare system

Bateman v Doiron (1991, NBQB)

Facts
Issue
Held
Ratio
Reasoning

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  Moncton hospital had no choice but to grant privileges to GPs in order to fully staff its
emergency dept.
 this practice resulted in physicians with limited skill and experience staffing the emergency
room
 but it is not realistic, and not a reasonably expected community standard, to expect the
hospital to staff the emergency dept. with qualified physicians
 - it's an unrealistic standard because of the non-availability of trained and expereinced
personnel, plus collateral resource allocation

De Vos v Robertson (2000, OntSCJ)

Facts
Issue
Held
 anaesthetist breached hte standard of care
Ratio
Reasoning
 there are budgetary and time constraints involved in scheduling day surgeries such as those
undergone by the plaintiff
 in this case, the constraints worked against the intersts of the patient

 Vaughn and Law Estate suggest that plaintiff must prove that there was a reaosnably practicable
precaution that the defendant failed to adopt
o but there are some cases where the precautions to be adopted are more difficult to
determine: Neill v NEw South Wales Fresh Food & Ice Pty. Ltd. (1963, HCA)
o defendant employed plaintiff to wash large cylindrical tank, tank got slippery, plaintiff
slipped and fel
o trial" jury found that defendant had breached standard of care
o decision reversed on appeal because plaintiff had not adduced sufficient evidence of a
practical solution
 many examples of courts weighing cost of precautions against likelihood and gravity of harm:
Lovely v Kamloops (City) (2009, BCSC; aff'd 2010, BCCA)
o plaintiff was disposing of rubbish at transfer station, fell and injured leg so seriously that
it had to be amputated
o trial judge: installation of guardrails would be economic and simple measure relative to
the capital and operating costs of the Transfer Station
o held that city, as operator of the station, had breached standard of care

Social Utility
Watt v Hertfordshire County Council (1954, EngCA)
Facts
 plaintiff = firefighter
 responded to emergency call, required use of special jack; truck fitted for carrying the jack
was unavailable, so jack loaded in rear of another vehicle
 plaintiff braked suddenly, jack became dislodged, seriously injured the plaintiff
 plaintiff claimed that employers were negligent because:

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 o they failed to load/secure the jack in such a way that it couldnt become dislodged
o they loaded the jack in such a way that they knew/ought to have known that it was
likely to become dislodged if truck braked suddenly and cause injury
o permitted/caused plaintiff to ride on back of the truck
o caused/permitted jack to be transported on truck that defendants knew/ought to
have known was not suitable to secure jack
o failed to provide any/adequate supervision of the loading of the jack onto the truck
Issue
Held
 appeal dismissed (employer not liable)
Ratio
Reasoning
 in measuring due care, you must balance the risk against hte measures necessary to eliminate
the risk
 but must also balance the risk against hte end to be achieved
o if this had happened in commercial context, employee would succeed; because
commercial goal is to make money
o but here the goal is to save lives
 goal of saving lives justifies taking considerable risk
o in this case, the risk was not so great sa to prohibit the attempt to save lives
 zooming through a red light is too great a risk to take to warrant hte incurring of the danger

 high-speed police chases pose controversial social utility issues

o Priestman v Colangelo (1959, SCC)
 defendant police officers tried serveral timees to stop suspected car theif;
eventually shot at rear tire of vehicle, but bullet hit care frame, ricocheted and
hit driver, made driver unconscious, stolen car mounted curb and killed 2
pedestrians
 court reasoned that officers were under affirmative duty to apprehend suspects
and were justified by what is now s.25(4) of the CC in using as much force as
was necessary to prevent their escape
o 1980s: police depts adopted strict rules to govern high-speed chases and use of firearms
(ex.// Ontario SOlicitor General limited police pursuits to measure of last resort; listed
factors to be considered (like seriusness of offence, presence of bystanders and traffic,
age of fleeing driver)
o Burbank v Bolton (2007, BCCA)
 RCMP constable pursued what turned out to be a 15 yo unlicensed driver
impaired by methadone, in a stolen car
 driver ran stop sign, hit another car, killed one person, injured 4 others
 victims sued driver and constable
 court held driver 85% responsible and constable 15% responsible (constable
responsible because pursuit never should have started, so constable in breach
of standard of care)
 generally, courts only consider social utility of defendant's conduct if defendant is public
officer/employed by a public authrority

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An Economic Analysis of the Standard of Care
United States v Carrol Towing Co (1947)
Facts
Issue
Held
Ratio
Reasoning (L.Hand)
 no genral rule to determine when absence of bargee/other attendant will make owner of
barge liable for injuries to other vessels if barge breaks away from mooring
 3 variables to determine liability in such cases:
o the probability that the barge will break away
o the gravity of the resulting injury
o the burden of adequate precautions
 algebraically: liability depends on whether B < LP
o probability = P
o injury = L
o (3) burden = B

 Posner revisted "the Hand formula" in "A Theory of Negligence"

o judge/jury should attempt to measure
 the magnitude of the loss if an accident occurs
 the probability of hte accident's occuring
 the burden of taking precautions that would avert it
o if magnitude x probability of loss > burden of taking precautions, then standard of care
breached
o economic meaning of negligence
 burden of taking precautions = cost of preventing
 if cost of prevention exceeds benefit in accident avoidance gained by incurring
that cost, society owuld be better off to forego accidnet prevention
 when cost of accidents < cost of prevention, a rational profit-maximizing
enterprise will pay tort judgments rather than incur larger cost of avoidign
liability
o so perhaps the dominant function of the fault system is to generate rules of liability that,
if followed, will being about the efficient (cost-justified) level of accidents and safety
o a judgment of negligence has overtones of moral disapproval because it implies that
htere was a cheaper alternative to the accident

 Fleming, in The Law of Torts, criticises this economic analysis

o negligence cannot be reduced to a purely economic equation
o economic factors are given weight, but in genral, judicial opinions do not make much of
the cost factor, because
 legal tradition in torts has strong roots in individualistic morality, with focus
primarily on interpersonal equity rather than broader social policy

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  calculus of negligence includes important non-economic values, like health and
life, freedom and privacy
o the reasonable man is by no means a caricature cold blooded, calculating Economic Man

Special Standards of Care

The Standard of Care Expected of the Disabled
Fiala v Cechmanek (2001, AB CA)
Facts
 RJM went for a run one morning, expereinced severe manic episode, diagnosed later as
bipolar disorder
o believed that he was God, had a plan to save the world, asked several people for
telephone/fax numbers,
o approached a car and beat on car and yeleld obscenities at owner of car and jumped
on car, broke through sunroof, began choking driver, driver hit gas pedal involuntarily
o car hit another car, owned by appellant
 appellant and daughter (in car) injured
 RJM kept yelling after collision, shouted sexually explicit statements at 17yo daughter of Fiala,
flailed arms, ran down middleof road
 eventually 2 police officers and 2 EMS attendants forcibly restrained him
Issue
Held
 at trial level: RJM had no reason to foresee manic episode, manic episode caused RJM to be
unable to reason or appreciate his duty of care to others, RJM not in control of his mind, had
no control over his behaviour, incapable fo aprpeciating the nature or quality of his actions
(nlike Wenden v Trikha, where defendant was aware of his mental illnedd before causing
collision)
 CA: not liable
Ratio
Reasoning
 some emphasize the "fault" requirement of tort liability (saying that objective reaosnable
person standard is relaxed in instances where defendant's mental illenss prevents him/her
from meeting hte standard of care normally required), while others emphasize the
compensatory nature of tort law as being the primary concern (therefore those suffering
from mental illness should not be allowed a lower standard; function of negligence is to
compensate the victim rather than punish the wrongdoer)
 arguments made by those who hold the mentally ill to the higher objective standard:
o victim compensation is primary aim of tort law (when 2 innocent people in accident,
the person who caused the accident should be liable for the resulting damage)
o the practical difficulties associated with determining the extent of a person's mental
illness and the person's avility to act in a reasonable manner would created such
confusion that the courts would be vulnerable to those feigning mental illness for the
purpose of avoiding liability
o would encourage caregivers to take adequate precautions; relieving the mentally ill of
liability will result in their incresed isolation, as community members will avoid
contact with them for fear of harm without compensaiton

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 o consideration of defendant's mental illness will erode the objective standard to such
an extent that it will no longer be of consequence
 but there are weaknesses in this argument:
o fault is a key consideration for liability in tort law (that's why for children, they are
presumed to be incapable fo negligence because they lack sufficient judgment to
exercise reasonable care)
 plus, people who are suddenly physically ill (epilesy, diabetic shock) are not
held liable, and creating a distinction for metnal illness would just reinforce
negative stereotypes about mental illness
 courts take age and physical disability into consideration for objective
reasonable person, so should also taken into consideration a defendants
metnal illness
o practical difficulties in assessing mental illenss should not prevent courts from
crafting a test for a mental illness defence in tort actions
 when the arguemnt was originally made, assessment of the capacity of
metnally ill defendant was not possible, but there have been significant
advancements in the study of mentalillness since then
o imposing liability on the metnally ill doesnt encourage caregivers to take adequate
precautions
 it would be more reasonable to impose liability directly on the caregivers
 failure to acknowledge impact of mental illness risks undermining the
legitimacy of such disorders; increased understanidn of mental illness will
allow public to distinguish between real risks associated with integration of
the mentally ill and fears mired in ignorance
o there will ne no erosion of objective reasonable person, it is just an exception to the
genreal rule, and hte excpetion is not unreasonable
 Buckley and TTC v Smith Transport Lts (1946, OntCA): defendant who, by
reason of mental disorder was either incapable of appreciating the duty to
take care or incapable fo discharging that duty, would not be liable in
negligence; test to determine whether plaintiff could appreciate duty of care
owed and discharge the duty would not involve assessment of whether
defendant could understand that his actions were "wrong"
 Canada (AG) v Connolly (1989, BCSC): there could be no liability in the
absence of foreseeable harm; because defendant's bipolar disorder
prevented him from foreseeing the injury that could result from driving car at
high speed while plaintiff's arm was pinned inside the car, he could not be
held liable
 excptions must be narrowly defined (only serious mental illness)
 to find negligence:
o act causing damage must have been voluntary
o defendant msut have possessed the capacity to commit the tort
o in other words, defendant must have understood the duty of care he owed and been
able to discharge that duty
 if sudden infliction of mental illness, defendant must show either:
o as a result of the mental illness, defendant did not have capacity to
understand/appreciate the duty of care owed at relevant time, or
o as reuslt of mental illness, defendant unable to discharge duty of care (because no
meaningful control over actions)

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  in this case, RJM had no meaningful control of his behaviour and was unable to apprecait ethe
duty of care he owed to Cechmanek and others, including Fialas
 no fault because
o RJM unaware of mental illness until after accident
o was not driving vehicle, could not have foreseen the manic episode, could not have
taken preventative measures
 if strict liability to apply to mentally ill, Legislature must say so

 in US and UK, mental definiciency does not relieve the actor from liability for conduct which
does not conform to the standard of the reasonable man under the circumstnaces
o although UK position may be changing: Mansfield v Weetabix (1998, CA): driver's brain
functions became impaired when blood sugar dropped; court held that he was not liable for
accidents caused; "standard of care was that which is to be expected of a reasonably
competent driver unaware that he is/may be suffering from a condition that impairs his
ability to drive"

 the question of who should bear risks posed by mentally ill remains a contentious legal and
policy issue
o Hutchings v Nevin (1992, Ont Gen Div): defendant was having psychotic delusions, caused a
car accident, injured passenger; judge held that defendant not liable, although plaintiff's
counsel argued that Ontario's compulsory automobile insurance legislation had shifted the
risk of metnally ill drivers ontot he defendant's insurer

The Standard of Care Expected of Children

Joyal v Barsby (1965, MB CA)
Facts
 plaintiff's younger bro crossed highway successfully, although truck sounded "fog-horn" to
warn the children generally
 because of horn, plaintiff (6yo) and other brothere didnt cross, waited on their side
 driver Despins was ahead of defedant's car, saw one kid on one side of the highway and 2 on
the other side, decided to slow down incase the 2 decided to cross
 Despins passed
 defendant concluded that the kids were waiting for hte traffic to pass before crossing, since
they were just standing on the side of the road
 defendant also slowed down
 as defendant was passing kid, she decided to run across and collided with rear door of
defendant's vehicle
 infant ran onto busy highway into side of defendant's vehicle, suffered grievous injuries
Issue
 can 6yo be guilty of contributory negligence
Held
 trial judge: defendant liable for 100% of the damages
 CA dissent: kid liable for 40%, driver for 60%
Ratio
Reasoning

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  trial judge was right in saying that infant plaintiff acted as others her age would have acted
(she was focused on the truck)
Dissent
 SCC in McEllistrum v Etches (1956): where the age is not such as to make a discussion of
contributory negligence absurd, it is a question for the jury in each case whether the infant
exercised the care to be expected from a child of like age, intelligence and experience
 trial judge said kid was not more heedless than other kids her age/intelligence/experiecne
 but she was eeldess, careless and negligent
 infant plaintiff was partly responsible (she was trained on the dangers of hte highway, had
experience with the traffic, and without looking, suddenly went into road)
 - if controbutory negligence not found in this case, it would be rare to find it at all against a
child

 a child involved in an adult activity (ex.// driving a car,snowmobiling, hunting) is required to

meet the standard of care expected of a reasonable adult

 parents/guardians/supervisors of children are not VL when child commits tort, but they can be
liable if they have carelessly failed to monitor/control the child's conduct
o legislation: Parental Responsibility Act, 2000 (Ontario)
o as per Myers v Peel County Board of Education (1981, SCC): requisite standard of care is
that of a "reasonable parent of ordinary prudence" (even for guardians/supervisors)
o LaPlante (Guardian ad litem of) v LaPlante (1995, BCCA): defendant father held liable in
negligence for permitting 16yo son recently obtained licence) to drive in traffic at
highway speeds under icy conditions; court held" reasonable parent of ordinary
prudence would not have let son drive in these conditions
o CS (Next friend of ) v Miller (2002, ABQB): Camp Chief, even though a volunteer, was
liable in negligence for taking no action to stop/prevent further assaults after witnessing
sexual assault on 5yo child by Miller (friend of the child's parents); because Camp Chief
had willingly and knowingly entered into a relationship of supervisory care and control
over the children at the camp, she had obligation to take appropriate steps to protect
hte victim (even though victim was visitor and not registered camper, and even though
Miller had parental authority over the victim); Boy Scouts VL for Camp Chief's
negligence

The Standard of Care Expected of Professionals

 at one point, only a limited number of public professionals, like innkeepers and common
carriers, were held to special standards of care
 now modified standards of care to govern not only professionals but also most skilled trades
and occupations
 following cases focus on medical, but approach applies across many professions and trades

White v Turner (1981, OntHC; aff'd 1982 OntCA)

Facts
 defendant plastic surgeon (Turner) performed breast reduction operation on the plaintiff

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  plaintiff suffered post-operative complications and breasts were scarred and poorly shaped
 plaintiff sued defendant, claimed that he had been negligent in performing the operations
Issue
Held
 defendant surgeon did not meet standard of care
Ratio
Reasoning
 mere error in judgment by professional =/= negligence
 mere fact of a poor result =/= negligence
 to succeed in aciton against professional in neglgience, plaintiff must show that (i) there has
been bad result (ii) brought about by negligent conduct
 for defendant to be liable, plaintiff must prove that defendant performed the surgery in such
a way that a reasonable plastic surgeon would consider it to have been less than satisfactory
 there are standards that are unique to the practice of plastic surgery; these are the standards
the defendant needs to meet
 the evidence supports the finding that the poor result obtained int he mammoplasty
performed on Mrs. White was the result of Dr. Turner's negligent execution of the surgery
 reason for the bad result: insufficient tissue was removed by Dr. Turner
 2 reasons that insufficient tissue was removed:
o operation was done too quickly
o suturing was started beore a proper check was made of whether enough tissue had
been removed
 operation done too quickly:
o usual time required is 2-4 hours
o -the Strombeck procedure (the one used int his case) takes an average of 2.5 hours to
do (more than 3 hours needed to do Strombeck properly)
o Turner performed Strombeck in 1hour35min
o so the necessary attention to detail was not done int his case
 failure to make proper checks before closing
o no evidence that TUrner did proper checks (usually surgeons will check before
suturing)
o Turner did not say he made such a ckeck, did not indicate that he was aware that it
was standard practice
o Turner admitted that when he closed, he noticed more tension in the skin than usual,
but did nothing
o written report indicated that he removed 800g of tissue, although in fact he removed
only 705g
o Turner was aware that 705g was ess than the usual amount of tissue removed in such
cases

 as per Ter Neuzen v Korn (1995, SCC): "physicians have a duty to conduct their practice in
accordance with the conduct of a prudent and diligent doctor in the same circumstances"
 so Gps are required to exercise standard of care of a reasonable, competent GP (includes
knowing limits and when to refer client to specialist)
 Layden v Cope (1984, ABQB): plaintiff went to 2 GPs, both diagnosed patient with gout
(patient had had gout previosuly), both prescribed medication; pateint's condition

84
 worsened, nurses expressed concern; after 9 days, patient referred to specialist who
diagnosed cellulitis, plaintiff's condition deteriorated, leg had to be amputated; GPs held
liable: standard of care expected of GP in a small town is not significantly different from that
of GPs in a city (they should have considered other diagnoses when plaintiff's condition did
not improve and referred him to specialist much sooner)
 standard of care expected of an intern: that of a reasonbly competent intern in the
circumstances
 lower than standard of care of GP, since interns have passed medical school and licensing
exams, but are not qualified to practice on their own until after working under supervision
of fully qualified doctor (as per Vancouver General Hospital v Fraser Estate 1952 SCC)
 but residents are fully qualified doctors seeking additional training in a specialty
 so even junior resident would be held to standard of care of GP
 senior resident would be expected to have advanced skills in his/her specialty consistent
with resident of comparable training, but would not be expected to have the skills of a fully
qualified specialist (as per Dale v Munthali)
 standard of care of a volunteer
 not expected to meet professional standard of care
 required to have the skills and training necessary to do their assigned tasks competently
 expected to know their own limits and when they should get prfessional ssistance
 agency may be held liable in negligence for using inadequately trained volunteers to staff a
suicide crisis line
 ndividuals that implicitly/expliitly suggest that they have the skills and training of a professional
may be held to professional standard of care
 but at the same time, a person practising in a secondary/related field will not be held liable
simply because he/dshe failed t satisfy the standard expected int eh primary field
 ex.// Shakoor v Situ (2000, QB): court held that practitioner of traditional Chinese herbal
medicine, who did not hold himself out as an "orthodox" physician, was only required to
meet the standard of care appropriate to his "art"
 Carere v Cressman (2002, OntSCJ): similar analysis for midwives
 Meyers (next friend of ) v Moscovitz (2005, AB CA): court found that trial judge had erred in
definign standard of care expected of reasonable doctor in management of a birth (instead of
framing standard in terms of overall management of the birth, trial judge focussed on single
aspect: monitoring of temperature for infection); in some situations, the breach of a single
element of the standard of care could warrant a finding that hte standard has been breached,
but not here
 in professional negligence claim, the plaintiff is usually required to provide expert evidence on
the issue of the standard of care
 Kurdina v Gratzer (2010, OntCA): court said "it is well established that to establish a breach
of the standard of care to support a claim for medical negligence, a plaintiff is required to
lead expert evidence of a phsyician practising in the same field as the defendant attesting to
the defendant's negligence"
 Rowlands v Wright (2009, OntCA): common sense plays limited rule in assessing medical
negligence where procedures involve dificult/uncertain questions of medical treatment or

85
 complex/scientific/highly technical matters that are beyond the ordinary experience and
understanding of judge/jury (so trial judge cant use common sense standards)
 professionals often subject to codes of ethical conduct, but violation of these codes are not
automatically a breach of the standard of care

Degrees of Negligence
 common law generally recognizes one standard of care in negligence: reasonable person
 but statutes occasionally restrict scope of liability to injuries inflicted as a result of "gross
negligence"
 what is gross negligence?
o requires something less blameworthy than criminal negligence, but something
worse than ordinary engligence
o SCC in McCulloch v Murray (1942): defined gross negligence as involving "a very
marked departure from teh standards by which responsible and competent
people...habitually govern themselves"
 gross nelgigence tends to be confined to 2 types of statues
o liability of a municipality for injuries caused by snow or ice on sidewalks (ex.// s.44
of Municipal Act 200 Ontario)
o liability of medical professionals who provide medical assistance during emergencies
(ex.// s.2 of the Good Samaritan Act 2001 Ontario; more specialized ex.// Sabrina's
Law 2005 Ontario: applies to emergency responses to anaphylactic reactions
suffered by students in schools)
 sudden peril doctrine
o rdinary standard of care: defendant must act as the reasonable person would have
acted in simialr circumstnaces
o under sudden peril doctrine, conduct that normally would be considered careless is
exempted from liability is, in the context of an emergency, it nevertheless was
reasonable (Canadian Pacific Ltd v Gill 1973 SCC: reaosnable people make
reasonable mistakes under pressure)

Custom
Ter Neuzen v Korn (1995, SCC)
Facts
 plaintiff contracted HIV as a result of artifical insemination
 risk of infection not widely knwon in NOrth AMerica when procedure was performed
 defendant doctor was responsible for screening semen donors
 as per expert evidence: physician adopted standard medical practices in this regard
 jury found defendant liable
 doctor appealing
Issue
 whether it was open to the jury to find that the standard practice itself fell short of the
standard of care
Held
Ratio

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 as a general rule, where a procedure involves difficult/uncertain questions of medical
treatmetn or complex/scientific/highly technical matter that are beyond the ordinary
experience and understanding of a judge.jury, it will not be open to find a standard of
medical pratice negligence
 expcetion to this rule: if a standard practice fails to adopt obvious and reasonable
precaustions which are readily apparent to the ordinary finder of fact, then it is no excuse for
a practitioner to claim that he/she was merely confirming to such a negligent common
practice ("fraught with obvious risk")
Reasoning
 generally accepted: when a doctor acts in accordance with a recognized and respectable
practice of the profession, he/she will not be foudn to be negligence
o courts do not ordinarily have the expertise to tell profesisonals that they are not
behaving appropriately in their field
 as per L'Heureux-Dube in Lapointe v Hopital Le Gardeur (1992, SCC): "a doctor will not be
found liable if the diagnosis and treatment given to a patient correspond to those recognized
by medical science at the time, even in the face of competing theories
 as per Fleming in The Law of Torts:
o conformity with general practice usually dispels a charge of negligence
o but must be cautious against passing too cavalierly upon the conduct and decision
of experts
o even a common practice may be condemned as negligent if fraught with obvious
risks
o an accepted practice is open to censure by a jury (no expert testimony required)
in amtters not involving diagnostic/clinical skills, on which an ordinary person may
presume to pass judgment sensibly (ex.// omission to inform the patient of risks,
failure to remove a sponge, an explosion set off by mixture of vapour and oxygen,
injury to a patient's body outside the area of treatment)
 conformity with common practice will genrally exonerate physicians of negligence, unless the
standad practice is fraught with obvious risks such that anyone is capable of finding it
nelgience (without having to judge the matters requiring diagnostic/clinical expertise)
 finder of fact cannot conclude that standard adopted by the profession is inherently
negligenct unless the matter falls within the ordinary common sense of juries (ex.// where
there are obvioud existing alternatives which any reasonable person would utilize in order to
avoid risk)

 the party relying on either compliance with/breach of custom has the burden of proving that
such a custom exists (courts will onyl accept that an act/approach/pattern of conduct constiutes
a custom if it is a well-established and recognized practice that has been widely accepted in a
trade/industry/profession (Heeney v Best 1979 OntCA)
 ter Neuzen does not require deference to expert opinion in every medical case
o Walker Estate v York-Finch General Hospital (1999, OntCA): plaintiffs contracted HIV
after receiving tainted blood transfusions; plaintiffs claimed that defendant was liable
for failing to properly screen potential donors for risk of HIV (in these cases, donor was
homosexual male); experts said that the defendant's approach, while less specific than
the American, was adequate and appropriate; but trial judge still held that defendant
had breached standard of care (CA and SCC agreed)

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  Nattrass v Weber (2010, AB CA):
o trial judge condemned standard practice as negligent
o CA said it would rare when there was actually a case that fit in the ter Neuzen exception
(because it would require an entire class of professionals to follow an unsafe practice
which is so unsafe that even the lay observer would notice)
 special concerns can arise when a defendant has a monopoly, so that its customs or practice if
therefore also the custom/practice for the whole trade/industry/profession (ex.// Zsoldos v
Canadian Pacific Railway Co 2009 OntCA)

Causation
Introduction
 2 subissues in causation
o what test of causation governs the situation?
 general test: but-for
o can the plaintiff prove on the balance of probabilities that the defendant's breach of the
standard of care was a cause of his/her loss? (the cause-in-fact test)
 causation = element of a negligence action that links the defendant breach of the standard of
care to the plaintiffs loss
 separate injuries must be analysed separately for causation
 "divisible loss" : a loss that, as a practical matter, is attribuable to the conduct of a single
tortfeasor (requires "single cause" approach)
 "indivisible loss": a loss that, as a practical matter, is attributable to the conduct of mroe than
one tortfeasor (requires "multiple cause" approach)
 plaintiff need not prove that the defendant's negligence was the sole, immediate, direct, or even
the most important cause of his/her loss
o plaintiff only has to establish that the defendant's negligence was a cause
o plus plaintiff only has to establish causation on a balance of proabilities

The But-For Test

 standard test of factual causation
 if the plaintiff's injury would not have occurred but for the defendant's negligent act, then that
act is a cause of the injury/"causally effective"

Kaufmann v TTC (1959, OntCA; aff'd 1960, SCC)

Facts
 plaintiff was on escalator in St. Clair subway station
 2 kids fighting on the escalator, kids fell on man, man fell on plaintiff, plaintiff suffered serious
and permanent injuries
 jury at trial level awarded plaintiff $25,000 for injuries suffered (because defendant acquired
escalator that was not tested by a qualified expert)
Issue
Held
 appeal allowed, action dismissed
Ratio

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Reasoning
 there is no evidence that the man that fell on plaintiff or the 2 kids were holding/attempting
to hold the hand rail when falling
 - also no evidence that plaintiff would not have fallen if hands had been holding a handrail
tested by a qualified expert

Barnett v Chelsea & Kensington Hospital Management COmmittee (1969, QB)

Facts
 3 men drank some tea; several hours later they went to hospital because they were vomiting
 nurse on duty called medical casualty officer; officer told nurse to tell them to go home to
bed and call their own doctors
 one of the men died of arsenic poisoning about 5 hours later
 judge already found that doctor breached standard of care
Issue
 whether doctor's negligence was the cause of the man's death
Held
 not liable
 plaintiff failed to establish, on the balance of probabilities, that the defedants' negligence
caused the death of the deceased
Ratio
Reasoning
 even if doctor had seen the deceased, in the time it took to examine him, admit him, get him
in a bed in a ward, set up an IV drip, and discover the potassium loss, the chances of survival
were not good
 - the only way to fight this type of arsenic poison was through the use of B.A.L., which would
probably not have been given before the time the deceased died

 recent discussions of causation in malpractice cases:

o Aristorenas v Comcare Health Services (2006, OntCA): negligent delay in treating wound
not proven to be a cause of hte plaintiff's flesh-eating disease
o Ahmed v Stefaniu (2006, OntCA): negligent decision to release psychiatric patient held to
be a cause of hte patient's subsequent killing of his sister
o Agno (Guardian ad litem of) v Wilson (2007, BCSC): management of twins during labour
and delivery not proven to be a cause of one twin's death and the other twin's
disabilities
o Sam v Wilson (2007, BCCA): negligent monitoring of liver function not proven to be a
cause of the plaintiff's liver disease
o Madonia v Stevens (2008 OntSCJ): negligent reasing of electrocardiogram and
implementation of anti-coagulation therapy held to be a cause of hte patient's fatal
gastrointestinal bleed
o Duncalf v Capital Health Authority (2009, ABQB): negligent failure to treat with nasal
gastric tube not proven to be a cause of the plaintiff's serious anxiety disorder

QUalcast (Wolverhampton) Ltd v Haynes (1959, HL)

 experienced foundry worker injured when ladle slipped and splashed molten metal on his
foot
 defendant company had protective spats which, if worn, would have prevented the injury

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  company had not ordered worker to wear the spats, and worker had not asked to use them
 after recuperating, worker returned to job and still did not wear the spats
 - HL held that defendant had not been careless

Richard v CNR (1970, PEISC)

 plaintiff was asleep in car aboard ferry
 awakened by someone shouting "we're here"
 plaintiff thought attendant had made announcement and that they had docked
 plaintiff backed car off the ferry, lande in the Gulf of St. Lawrence
 plaintiff sued, alleged that defendant hadbeen negligent in untying the nylon rope across the
end of hte ferry before it docked
 - court concluded that the actual cause of the plaintiff's injury ("the sole, direct, proximate
and effective cause") was the plaintiff's rash act of backing off the boat (contrary to warning
signs and crew's attempts to stop him)

Established Exceptions to the But-For Test

 each exception addresses a specified unfairness that would result from applying the but-for test

The Multiple Negligent Defendants Rule

Cook v Lewis (1951, SCC)

 plaintiff shot in face by one of two negligent hunters (both fired at same time)
 each hunter denied aiming in plaintiff's direction
 plaintiff could not prove on balance of probabilities which one had shot him
 if but-for test applied, both hunters would be absolved of liability
 court held: if plaintiff could prove that (i) the 2 defendants were negligent, (ii) one had to
have caused his loss, and (iii) it was impossible to prove which one, then burden of proving
causation would shift to the defendants (unless each defendant could disprove causation on
balance of probabilities, he would be held liable for negligently causing the loss)

 Canada: MND rule appears to be limited to caes involving 2 negligent defendants

 UK and some US: sometimes can apply to more than 2 defendants

The Learned Intermediary Rule

 manufacturers of products that are not directly available to the public (ex.// prescription drugs)
may discharge their duty to inform consumers by adequately disclosing information toa learned
intermediary

Hollis v Dow Corning Corp (1995, SCC)

 manufacturer had negligently failed to inform intermediary (surgeon) of risk
 manufacturer argued that it should be absolved of liability on basis of causation (plaintiff
could not prove that doctor would have warned her, even if manufacturer had adequately
informed doctor)

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  court rejected this argument (because it would create anomalous situation inwhich plaintiff
owuld have no cause of action: (i) claim against doctor would fail because he was not
negligent, (ii) claim against manufacturer would fail on causation)
 court said can't use learned intermediary rule to shield yourself from claims arising from your
own negligence
 these cases exempt from the but-for rule
 manufacturer liable

Informed Consent
Hopp v Lepp (1980, SCC) & Reibl v Hughes (1980, SCC)
 court held: healthcare professionals have a duty to put patients in a position to make
informed decisions about whetherto consent to proposed treatment
 court adopted special objective/subjective test of causaion: whether a reasonable person in
the plaintiff's position woul dhave consented if he/she had been adequately informed
 - test can't be subjective because disgruntled patients would provide self-serving evidence
(would say that they would not have had the treatment had they been adequately informed)

Arndt v Smith (1997, SCC)

 defendant objective/subjective approach
 purely subjective would (i) require court to hypothesize abour how patient would have
reacted if properly informed, (ii) result in patient's testimony being coloured by hindsight and
bitterness, (iii) leave the causation issue to be determined solely on the patient's testimony
on how he/she would have acted if properly informed
 - although there was split: 3 udges dissented and applied standard subjective test of
causation

Recent attempts to modify the but-for

 3 situations where there have been evolving modifications/exceptions to the but-for test
o material contribution
o materially increased risk
o proportionate cause an loss of chance
 measure of uncertainty with each test

Material Contribution

Walker Estate v York Finch General Hospital (2001, SCC)

Facts
 3 patients contracted HIV from tainted blood products supplied by Canadian Red Cross
Society
 Alma Walker was one of them
 plaintiffs claim: CRCS was negligent in creening potential blood donors, its negligence resulted
in their becoming infected
 tainted blood was donated by Robert M in 1983; at that time, relatively little was known
about HIV

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  at that time, no test for determining if blood donation was infected
- only method to reduce risk of receiving infected donations: donor screening
(pamphlets used for this purpose; 1983 pamphlet: simply told potential donors that
"it is important for you to be in good health"; 1984 pamphlet: specifically identified
homosexual men with multiple partners as having an increased risk of infection, but
did not expressly inform potential donors that they may be infected even if they feel
healthy, and did not list the possible symptoms of aids)
- american 1983 pamphlet: (i) expressly said that person may feel in excellent health
but nevertheless be infected, (ii) listed possible symptoms of aids, (iii) specifically
identified gay men as having increased risk of infection
 RM continued to donate blood until he was told to stop in 1987 (so he would have seen 1984
pamphlet)
Issue
Held
 trial judge: CRCS was negligent in using the vague 1983 pamphlet given what was known in
1983; but even if CRCS had met standard of care, RM would continued to donate blood, so no
causation
 CA: reversed trial decision; causation established on basis of Hollis test
 SCC: rejected OntCA decision and analysis of causation
Ratio
Reasoning
 traditional test for causation: but-for
 but but-for test is unworkable where multiple independent causes may bring about a single
harm
 in this case, impossible to prove hypothetically what the donor would have done had he/she
been properly screened by the CRCS
 so the question should be, not whether the CRCS's conduct was a necessary condition for the
plaintiff's injuries using the but-for test, but whether that conduct was a sufficient condition
 proper test in this case: whether the defendant's negligence "materially contributed' to the
occurrence of the injury
 as per Athey v Leonati (1996, SCC): "a contributing factor is material if it falls outside the de
minimis range"
 plaintiff bears burden of proving this
 rather than asking whether RM would have self-deferred/been excluded from donating blood
in 1983, like the trial judge did, must ask: would RM have self-deferred/been excluded if the
CRCS had followed the appropriate standard of care (appropriate standard of care: the
american pamphlet)
o american pamphlet listed symptoms of AIDS, but this would not have deterred RM
because he didn't have any symptoms
o american pamphlet said that even if you feel in excellent health, you could be
infected; the canadian pamphlet just said it's important to be in good health; that was
insufficient to deter RM
o american pamphlet is clearly focused on the AIDS problem, but the canadian one isn't
 so proper test for causation in negligent donor screening cases: whether the defendant's
negligence materially contributed to the plaintiff's harm

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  even using but-for, defendant would still be liable, since RM said that if he had read the
american pamphlet, he would not have donated blood, since he fit into one of the high-risk
categories (gay men with multiple partners)

(i) Limiting the Material Contribution Test

Hanke v Resurfice Corp (2007, SCC):
 court addressed some of the confusion generated by the material contribution test
 affirmed that but-for test is the standard test for causation for cases involving either a single
cause or multiple causes
 2 requirements to be met to apply material contribution test:
o plaintiff must establish that it is impossible to prove causation using the but-for test,
and that this impossibility results from factors beyond the plaintiff's control (ex.//
current limits of scientific knowledge)
o plaintiff must establish that the defendant breached the standard of care, and that
his/her injuries fell within the ambit of the risk created by the defendant's breach
 but did not explain what the material contribution test means (is it referring to a material
contribution to the plaintiff's injury or to a material contribution to the risk of injry?)

Materially Increased Risk

McGhee v National Coal Board (1972, HL)
Facts
 defendant employed the plaintiff to clean out brick kilns
 because of working conditions, plaintiff was covered in sweat and dust by the end of the day
 defendant failed to provide shower facilities at the work site, breaching requisite standard of
care
 plaintiff was required to cycle home while still filthy
 plaintiff developed dermatitis, sued the defendant
 as per expert witnessess:
o defendant's failure to provide showers materially increased the risk of the plaintiff
developing the condition
o unable to say that the absence of showers was more likely than not to have been a
cause of the plaintiff's dermatitis
Issue
Held
 found for plaintiff
Ratio
Reasoning
 as per Lord Reid: if a defendant's negligence materailly increases the risk of a particular kind
of injury occurring, and that very injury befalls the plaintiff, then the defendnat will be
deemed to be a cause
 as per Lord Wilberforce: in such circumstances, the burden of proving causation should shift
from the plaintiff to the defendant, who must then disprove causation on a balance of
proabbilities; but this principle is limited to cases in which sound policy warranted making an
exception to the standard test of causation

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Aftermath
 canadian ourts adopted McGHee, but focused on Wilberforce's approach
 plus canadian court apply the principle beyond the confines of workplace health and safety
issues, and rarely refer to special policy considerations that warranted dviating from the
accpeted principles of causation and proof
 Wilsher v Essex Area Health Authority (1988, HL): HL "reinterpreted" McGhee in a way that
essentially overruled it
 SCC addressed the materially increased risk test in Snell v Farrell

Snell v Farrell (1990, SCC)

Facts
 Dr. Farrell performed cataract operation on Mrs. Snell
 F injected anaesthetic into muscles behind eyeball
 F noticed discoloration due to small bleed, examined further and found no other signs of
bleeding, waited 30 minutes then proceeded with operation
 after operation, there was blood in eye, which cleared in 9 monts, but by that time the optic
nerve had atrophied, resulting in blindness in that eye
 as per expert witnessess: damage to optic nerve could have occurred naturally or been the
result of continuing the operation, unable to say for certain
Issue
 whether the plaintiff in a malpractice suit must prove causation in accordance with traditional
principles or whether recent developments in the law justify a finding of liability on the basis
of some less onerous standard
Held
 trial judge: F was negligent in continuing the operation after noticing the discolouration (as
per McGhee, S had established prima facie case and burden shifted to F to disprove
causation; F could not discharge this burden)
 SCC: appeal dismissed (doctor was negligent)
Ratio
 plaintiff must prove that hte defendant's negligence increased the risk to the xtent that the
negligence was more likely that not to have been a cause of the loss in issue
Reasoning (Sopinka)
 issue with the traditional but-for test for causation: in cases where plaintiff is victim of
combined tortious conduct of a number of defendants, plaintiff may not be able to prove
causation against a specific defendant/defendants, and will be deprived of relief
 has long been recognized that allocation of the burden of proof is not immutable
o 2 broad principles in civil case:
 onus is on party who asserts a proposition, usually the plaintiff
 where the subject matter of the allegation lie particularly within the
knowledge of one party, that party may be required to prove it
 court has not hesitated to alter burden of proof when the underlying rationale for its
allocation is absent in a prticular case
 in medical malpractice case
o proof of causation is often difficult for the patient
o physician is usually in a better position than the patient to know the cause of the
injury
 2 theories of causation in McGhee case

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 o Wilberforce: plaintiff need only prove that the defendant created a risk of harm, and
that the injury occurred within the area of the risk
o in these circumstances, an inference of causation was warranted in that there is no
practical difference between materially contributing to the risk of harmand materially
contributing to the harm itself
 in Wilsher v Essex Area Health Authority:
o plaintiff claimed damages from defendant health authority for negligence in medical
treatment which resulted in a condition of the eyes lading to blindness
o likely but not definite cause: too much oxygen
o but there were other factors that could have caused/contributed to the injury
o conflicting expert evidence
o trial judge: held defendant liable (as per McGhee, defendant failed to prove that
plaintiff's condition had not resulted from its negligence)
o CA: dismissed appeal
o HL: directed new trial; reaffirmed principle that burden of proving causation rested
on the plaintiff; McGHee explained as promoting a robust and pragmatic approach to
the facts to enable an inference of negligence to be drawn even though medical or
scientific expertise cannot arrive at a definitive conclusion
 Canadian decisions made after Wilsher accepted its interpretation of McGhee
 but neither of the McGHee alternatives need to be adopted, because the principles relating
to causation are adequate enough to hold defendants who have substantial connection to the
injury liable
o adopting either one of hte alternatives would have the effect of compensating
plaintiffs where a substantial connection between the injury and the defendant's
conduct is absent
 the dissatisfaction with the traditional approach to causation stems to a large extent from its
too rigid application by the courts in many cases
 as per Lord Salmon in Alphacell Ltd v Woodward (1972, HL): causation is "essentially a
practical question of fact which can best be answerd by ordinary common sense rather than
abstract metaphysical theory"
 the legal/ultimate burden remains with the lpaintiff, but in the absence of evidence to the
ocntrary adduced by the defendant, an inference of causation may be drawn although
positive/scientific proof of causation has not been adduced
o this will the "robust and pragmatic" approach that Lord Bridge was talking about in
Wilsher

 even a "robust and pragmatic approach to the facts: may not help the plaintiff (Bigcharles v
Dawson Creek)

Bigcharles v Dawson Creek & District Health Care Society (2001, BCCA)
 Facts: plaintiff was in car crash, was taken to hospital while unconscious; on the basis of
cervical spine x-rays, plaintiff was moved (turned, etc.); plaintiff's legs remained
unresponsive, so thoracic x-rays taken and revealed spinal cord damage
 doctor admitted he wasnegligent in moving the plintiff without first taking the thoracic x-rays,
but claimed that his negligence was irrelevant because plaintiff's spinal cord injuries were
already complte at the scene of the crash
 plaintiff argued that doctor'snegligence caused/contributed to paralysis

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  trial judge: conflicting medical evidence was equally balanced; plaintiff's claim dismissed
because the plaintiff failed to prove causation on the balance of probabilities
 CA: upheld trial court decision

Fairchild v Glenhaven FUneral Services Ltd (2002, HL)

 McGhee made comeback in altered guise
Facts
 plaintiff contracted mesothelioma (fatal disease, caued by inhalation of a single fibre of
asbestos; previous and subsequent inhalation of other fibres is causally irrelevant; disease
may lie dormant for decades after the causative fibre has taken effect)
 plaintiff had been negligently exposed to asbestos by several employers over the years and
had no means of proving which one had exposed him to the single fibre that caused his
disease
Issue
Held
 all employers held jointly and severally liable
Ratio
Reasoning
 HL again reinterpreted Lord Reid's judgment in McGhee
o relied on Reid's judgment for proposition "that a breach of duty which materially
increased the risk should be treated as if it had materially contributed to the disease"

Barker v Corus (UK) plc (2006, HL)

Facts
 deceased had been exposed to asbestos while emplyed by two companies and while self-
employed
Issue
Held
 rather than being jointly and severally liable, defendant company was only held liable in
relationship to its proportionate share of the risk it created
Ratio
Reasoning
 distinguished from Fairchild: deceased's mesothelioma could have resulted from a non-
tortious exposure to asbestos
Aftermath
 principle in Barker overturned by 2006 mendment to the Compensation Act 2006 (makes
tortfeasors in mesothelioma cases jointly and severally liable)

Holtby v Brigham & Cowan (Hull) Ltd (2000, EngCA)

Facts
 plaintiff developed asbestosis after working as a marine pipe fitter for nearly 40 years
 plaintiff was negligently exposed to asbestos fibres for about 20 years, during half of which he
worked for the defendant
 asbestosis results from the cumulative inhalation of fibres, becomes more severe as more
fibres are inhaled
Issue
Held

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  defendant liable, but only for 25% of the plaintiff's losses (to reflect proportion of time that
he had worked for hte defendant)
Ratio
Reasoning

Johnson v NEI INternational; Rothwell v Chemical and Insulating Company Limited (2008,
HL)
Facts
 employees developed pleural plaques from asbestos exposure
 employees sued employers for increasing their risks of developing asbestos-related diseases
and their related psychiatric distress
Issue
Held
 claims dismissed
Ratio
Reasoning
 merely increasing the risk of future disease and the associated anxiety are not actionable
heads of damage

Sindell v Abbott Laboratories (Cali SC, 1980)

Facts
 plaintiff developed a deadly cancer caused by a drug called DES which her mother had taken
while pregnant
 200 pharmaceutical companies had manufactured DES, but there were no significant
differences in the brands
 plaintiff sued several of the larger manufacturers
Issue
Held
 all of the companies had been negligent in marketing DES because they knew/ought to have
known of its risks at that time
 plaintiff could not prove which company had produced the DES her mother had taken, but
court held all defendants liable in proportion to their individual market share
Ratio
Reasoning

Proportionate Cause and Loss of Chance

 major problem in preceding cases seems to be the all-or-nothing approach
o if there is only 49% chance that defendant's negligence was a cause, then plaintiff's
claim fails
o if there is 5% chance, the plaintiff's claim succeeds, and he/she recovers 100% of the
loss
 in Sindell case, a proportionate approach is adopted (plaintiff would recover based on a
possibility that the defendant was a cause)
 loss of chance cases:
o typically arise when the defendant's negligence has denied the plaintiff a possibility of
avoiding a loss

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 o ex.// family learns, after son's death, that there would have been a 25% chance of
recovery had the doctor not negligently delayed cancer treatment; as per Canadian and
English courts: recovery denied because plaintiff cannot prove on a balance of
probabilities that the defendant's negligence was a cause of his/her loss
 for losses that may occur after trial (future lossess): Canadian courts apply a diffrent standard of
proof
o if the plaintiff can establish a substantial or reasonable possibility that the defendant's
negligence will cause a future loss, the plaintiff can recover for a percentage of that loss
o ex.// assume there is 40% chance that the defendant's negligence will cause the plaintiff
to go blind and that this injury, if it occurs, will result in $100,000 in damages; as per
Janiak v Ippolito (1985, SCC): plaintiff would be awarded 40% of $100,000 as
compensation for this possibility

Multiple Causes
 when the plaintiff's injuries are brought about by two or more causes, the issue of causation
becomes more complex
 divisible vs indivisible injuries
o divisible injuries: the injuries can be divided into distinct losses that are each readily
attributable to the conduct of a particular tortfeasor; plaintiff will have separate cause
of action against each tortfeasor
o indivisible injury: two or more tortfeasors cause a single indivisible harm
 independent insufficient causes vs independent sufficient causes
o independent insufficient causes: the but-for test adequately addresses the causation
issues posed by independent insufficient causes
o independent sufficient causes: when but-for test applied,it produces anomalous results
 independent tortfeasors vs joint tortfeasors
o independent tortfeasor: can only be held liable for the injuries he/she causes or
contributes to bringing about
o joint tortfeasor: held liable for the torts committed by his/her fellow tortfeasors, even if
he/she did not cause or contribute to the plaintiff's loss
 Cook v Lewis (1951, SCC): court recognized 3 situations in which defendants will
be held to be joint tortfeasors:
 agent committing a tort while acting on his/her principal's behalf
 employee committing a tort while acting on his/her employer's behalf
 two or more individuals agreeing to act in concert to bring about a
common end which is illegal, inherently dangerous, or one in which
negligence can be anticipated

NEwcastle (TOwn) v Mattatall (1987, NBQB; aff'd 1988 NBCA)

Facts
 3 intoxicated youths broke into the town rink with the intent of stealing whatever they could
find
 one of the youths negligently caused a fire that resulted in substantial property damage
 the other two were not negligent and were not with the third one when he started the fire
Issue
 are they all liable?
Held

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  they were all joint tortfeasors, all equally liable
Ratio
Reasoning
 the fire was caused in pursuit of the 3 youths' common wrongful intention

 at common law, no apportionment among joint tortfeasors

o common law principle: release of one joint tortfeasor extinguishes the plaintiff's right to
sue the other joint tortfeasors remains
o to avoid this problem: plaintiff may agree in a settlement not to sue one of the joint
tortfeasors, but not provide a release (so plaintiff is free to seek redress from the
remaining joint tortfeasors)

Independent Insufficient Causes

 several factors combine to cause the plaintiff's loss
 each factor is individually necessary for loss to have occurred
 but no factor individuall sufficient

Athey v Leonati (1996, SCC)

 plaintiff's injury was caused by a non-culpable factor (pre-existing back condition) and a
culpable factor (the defendant's negligent driving)
Facts
 plaintiff had pre-existing back condition
 plaintiff suffered neck and back injuries in a traffic crash that defendant negligently caused
 on doctor's advice, plaintiff began exercise program at Fitness World
 during warm up one day, plaintiff sustained herniated disc
 result: plaintiff suffered permanent partial disability, had to leave job as auto body worker
and take less demanding job at lower pay
 trial judge: crash causally contributed to the onset of the disability; plaintiff damage reduced
by 75% because greater causal role was played by pre-existing back condition
 BCCA: upheld trial decision
Issue
Held
 appeal allowed; plaintiff entitled to recover 100% of his damages
Ratio
 once the defendant has been found to be a cause of the plaintiff's loss, the defendant will be
held liable for the entire loss even if there were other causal factors
Reasoning
 plaintiff does not have to establish that defendant's negligence was the sole cause of the
injury
 as long as the defendant is part of the cause of an injury, the defendant is liable, een though
his act alone was not enough to create the injury
 no basis for reduction of liability because of hte existence of other preconditions: defendants
are lible for all injuies caused or contributed to by their neligence

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  separation (which is not apportionment) is prmitted where multiple defendants are the caue
of distinct and divisible injuries, or where some of hte injuries have tortious causes and some
of the injuries have non-tortious causes
o this is merely recognition that defendant is not liable for injuries which were not
caused by his/her negligence
 this case: single, indivisible injury (disc herniation)
 respondents argue: crumbling skull doctrine: recognizes that the pre-existing condition was
inherent in the plaintiff's "original position"; defendant need not compensate the plaintiff for
any debilitating effects of hte pre-existing condition which the plaintiff would have
experienced anyway; defendant is not liable for pre-existing damage
o but this argument does not succeed: trial judge did not find any measurable risk that
the disc herniation would have occurred without the acident
 competing causes: the MVA and the pre-existing condition (Fitness World incident was not a
cause, it was the effect; mere stretching alone was not sufficient to caue disc herniation in the
absence of some latent disposition or previous injuries)
 applicable principles:
o if the injuries sustained in the MVA caused/contributed to the disc herniation, then
the defenants are fully liable
o plaintiff must prove causation by meeting the "but-for" or material contribution test
 findings of the trial judge: it was necessary to have both the pre-existing condition and the
injuries from the accidents to cause the disc herniation in this case; the herniation was not
unrelated to the accidents, the accidents contributed to some degree to the subseqeutn
herniation
 trial judge found the contribution of hte MVA to the herniation 25%
o this is outside the de minimis range, is therefore a material contribution

Nowlan v Brunswick Construction Ltee (1972, NCA; aff'd 1975 SCC)

 addresses the causal role of two negligent parties in damaging the plaintiff's house
Facts
 defendant contractor had been negligent in constructing hte plaintiff's house
 plaintiff's house suffered extensive rot due to leaks in structure
 defendant argued that no damage would have occurred, but for the architect's poor design
which had not provided for proper ventilation
Issue
Held
 appeal allowed
 trial judgment set aside
 judgment for plaintiffs against defendant for the amount of $36,068.48
Ratio
 where there are concurrent torts, breaches of contract or a breach of contract and a
concurrent tort both contributing to the same damage, whether or not the damage would
have occurred in the absence of either cause, the liability is a joint and several liability; either
party causing or contributing to the damage is liable for the whole damage to the person
aggrieved
 if two or more negligent defendants cause/contribute to an indivisible injury, each defendant
will be held jointly and severally liable for the entire loss
Reasoning

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  architect's design had lack of ventilation, which contributed greatly to the damage
 but the poor workmanship of hte defendant also contributed
 - defendant is a concurrent wrongdoer

Arneil v Paterson (1931, HL)

Facts
 several of the plaintiff's sheep were killed and injured when two dogs, belonging to the two
defendants, separately chased, mauled and bit the sheep
Issue
Held
 each defendant liable for the entire loss
Ratio
Reasoning
 impossible to determine which dog had caused which injuries to which sheep
 loss viewed as being indivisible (difficult to disentangle the causal roles of each negligent act)

 at common law, there was no contribution among tortfeasors (so a defendant could be held
fully liable and have no redress against other tortfeasors)
o but then provincial negligence statutes (like the Negligence Act RSO 1990): provide that
one tortfeasor may obtain contribution from his/her fellow tortfeasors, based upon
their respective degrees of fault

Independent Sufficient Causes

 more difficult issues posed wen the plaintiff's indvisible loss results from two or more sufficient
causes
 under but-for test: each tortfeasor would be absolved of liability because the plaintiff would
have suffered the same loss regardless of any individual tortfeasor's negligence
o to avoid this inequity: courts have applied a significant/substantial factor test of
causation

Lambton v Mellish (1894)

Facts
 defendants Mellish and Cox
o both were rival refreshment contractors (caterers)
o both had merry-go-rounds on their premises
o both used organs as accompaniments to the amusements
 in the summer, the organs would play continuously all day, everyday
 organs used by Mellish had been changed
o so he used small portable hand-organ which made less noise than the organ used by
Cox, which was much larger
 plaintiff wants injunction to stop defendant from playing any organs so as to cause
nuisance/injury
Issue
Held
 plaintiff entitled to injunction
 each defendant is separately liable

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  defendants are both responsible or the noise as a whole so fa as it constitutes a nuisance
affecting the plaintiff
 injunction against both defendants
Ratio
Reasoning
 the noise made by each defendant, taken separately, amount to nuisance
 - each hears the other, and is adding to the sum which makes up the nuisance

Issues in Assessing the Plaintiffs Loss

Successive Causes of Parallel Injury
 legal principles governing liability of tortfeasors when the plaintiff suffers parallel/overlapping
injuries in a series of incidents
o once the appeal period ends, the plaintiff's subsequent fate has no impact on the
original tortfeasor's liability (ex.// if original tortfeasor paid $2.5 million to provide the
plaintiff with 20 years of future care, and plaintiff dies after 3 years, tortfeasor cannot
recoup the unspent funds)
o tortfeasor's liability will be reduced to reflect the plaintiff's pre-existing
injuries/disabilities, whether they were naturally occurring, innocently caused, or the
reult of a preceding tort (consistent with thin skull rule)
o there is more uncertainty regarding the extent of an original tortfeasor's liability when
the plaintiff suffers a supervening injury (an independent successive parallel injury prior
to trial on the first injury)

Penner v Mitchell (1978, ABCA)

Facts
 trial judge awarded the respondent special damages for loss of income for 13 months
following the date of the accident which gave rise to the respondent's cause of action
 during the 13 month period, the respondent would have been unable to work for a period of
3 months, even if accident had not occurred, as she suffered from a heart condition which
was unrelated to the accident
 appellant's position: the respondent's award fo special damages should not have included
compensation for loss of wages during that 3 month period
Issue
 whether the rule applied in the Baker case, which resulted in treating the injury arising from
the second event as irrelevant in assessing damages against the first tortfeasor, should be
applied in the present case when the second event, the heart problem, arose in non-culpable
circumstances
Held
 trial judge erred in awarding the respondent damages for the 3 month period that she was
disabled as a result of her heart condition
 set aside the award of special damages the sum of $12,000 for loss of income and substitute
it with an award of $9,230
Ratio
Reasoning
 Baker v Willoughby (1970, HL)

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 o plaintiff, while crossing road, was struck by motor vehicle operated by defendant,
sustained injuries to left leg
o shortly before trial: plaintiff shot in left leg by robber; had to get leg amputated
o issue: whether the first tortfeasor could call in aid the second tort to reduce the
damages he should be made to pay on the ground that the disability the plaintiff
suffered in his left leg resulting from the first tort ceased to be an effective cause of
further loss after that leg was amputated as a result of the second tort
o Lord Reid said: original tortfeasors could only take into account a successive culpable
parallel injury if it reduced the plaintiff's disability or shortened the period of time
that he/she would suffer it
 as per Dickson in Andrews case: when dealing with prospective loss of income, it is general
practice to take account of contingencies which might have affected future earnings such as
unemployment, illness, accidents, and business depression (i.e., non-culpable contingencies)
 the rule applied in the Baker case should be applied only to those contingencies which arise
from culpable circumstances
 future contingencies arising in culpable circumstances should not be taken into account in
assessing damages such as prospective loss of income (because then the plaintiff would
receive less than full compensation from the wrongdoers - because there would be a
deduction from the first loss because of the contingency that the second culpable event
might occur and there would be a deduction from the secnd claim as the first culpable
incident had occurred)
 - to not take into account future contingencies arising in non-culpable circmstances would
result in an injured person being overcompensated in the event such contingency occurred

 there are also very complex factual issues that must be resolved in some of hte successive
parallel injury cases
o most common: plaintiffs who suffer overlapping injuries in a series of vehicle crashes
occurring over a relatively short period of time
 often difficult to determine which of the plaintiff's injuries are divisible and
which are not
 trier of fact must also detrmine plaintiff's condition immediately prior to the
initial, second and subsequent crashes
o not just crashes: in Blackwater v Plint (2005, SCC): court had difficulty assessing
residential school's liability for sexually abusing the plaintiff, given that plaintiff had
previously suffered sexual abuse at home and non-sexual abuse at the residential school

Sunrise Co v Lake WInnipeg (The) (1991, SCC)

Facts
 defendant's ship negligently caused the plaintiff's ship to run aground, which necessitated 27
days of repair
 in unrelated incident, plaintiff's ship sustained damages requiring 14 days of repairs, which
were carried out within the 27-day period
Issue
Held
 majority: defendant liable for 27 days of lost income
 dissent: defendant liable for only 13 days of lost income

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 Ratio
Reasoning
 majority: solely based on shipping cases
 - dissent: based on general neglgience principles

Devaluing the Plaintiff's Loss

Dillon v Twin State Gas and Elec. Co. (1932)

Facts
 defendant maintained electricity wires over a public bridge
 the decedent and other boys were accustomed to playing on the bridge and climbing the
girders (sides)
 no current passed through the wires in the daytime except by chance
 one day, decedent was climbing the bridge posts, sat on part of it, leaned forward, lost
balance, grabbed wire to save himself from falling, was electrocuted
Issue
Held
Ratio
Reasoning
 decedent was entitled to no protection from the defendant
 although defendant did expose decedent to danger (the charged wires)
 if by reason of his preceding loss of balance he was bound to fall except for the intervention
of the current, he would have died or been seriously injured
 so defendant did not deprive decedent of a normal life expectancy, but of one either (i) too
short to be given pecuniary allowance, or (ii) of limited earning capacity
 if it could be found that the decedent would have died anyway when falling, then defendant
wouldn't be liable for life or earning capacity (if liable, would only be liable for conscious
suffering sustained from the shock)
 if it should be found that decedent would have suffered injury when falling off the bridge,
then the loss of life/earning capacity resulting from the electrocution would be measured by
its value in such injured condition
 - decedent's probable future but for the current bears on liability as well as damages

Remoteness
 even if there is causation, liability will be denied if the connection between the breach of
standard of care and the loss was too "Remote"
 remoteness: rule of fairness
 there is close relationship between the issues of remoteness and causation
o causation: concerned with the factual connection between defendant's breach and
plaintiff's loss
o remoteness: concerned with legal connection between defendant's breach and
plaintiff's loss
 but important difference between causation and remoteness:
o causation: an exercise in hard facts and logic

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 o remoteness: the whole purpose if to cut off the logical inquiry at some point; only
makes sense in a legal context, because it is based on policy rather than logic
 remoteness is like duty of care: both are means by which the courts, for practical policy reasons,
control the scope of liability

Directness Versus Foreseeability

The Directness Test

Re Polemis and Furness, Withy & Co (1921, KB CA)

Facts
 defendant's servants carelessly dropped a plank into the hold of the plaintiff's ship, which
contained a cargo of benzene
 the plank struck something, caused a spark, ignited the benzene fumes, ensuing explosion
destroyed the plaintiff's ship
Issue
Held
Ratio
Reasoning
 this sequence of events was not reasonably foreseeable
 but liability imposed anyway on the basis that there was direct connectio between the
defendant's breach and the plaintiff's loss
 established "directness" as test for remoteness: the plaintiff's loss would not be too remote
to be recoverable fi it was a direct result of the defendant's carelessness
 "directness" defines in terms of a close temporal and spatial connection between the
defendant's breach and the plaintiff's loss

The Foreseeability Test

The Wagon Mound (No.1): Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co
(1961, JCPC)
Facts
 appellants rented the Wagon Mound (a ship)
 appellants carelessly permitted oil to spill into Sydney Harbour while taking on fuel
 oil continued to escape for over a day, was carried by wind + tide under the respondent's
wharf
 respondent's employees were using welding equipment
 some molten metal fell, ignited a rag that was floating on debris, the oil ignited, and
respondent's wharf and some equipment were severely damaged in ensuing fire
Issue
 whether the appellants are liable for the fire damage
Held
 appeal allowed
Ratio
Reasoning
 Polemis should not longer be regarded as good law

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 o does not seem consonant with current ideas of justice or morality that for an act of
negligence. however slight, the actor should be liable for all consequences however
unforeseeable and however grave, as long as they are "direct"
o principle of civil liability: a man must be considered to be responsible for the probable
consequences of his act
 the grounds of directness and reasonable foreseeability are largely coterminous, but where
they are not, defendant should be judged by what the reasonable man ought to foresee
(since this corresponds with the common conscience of mankind)
 - the essential factor in determining liability is whether the damage is of such a kind as the
reasonable man should have foreseen

Modifications to the Foreseeability Test

The Kind of Injury
Hughes v Lord Advocate (1963, HL)
Facts
 Some Royal Mail employees had removed a manhole to work under the road. They had
marked it clearly as dangerous. They took a tea break, and when this happened Hughes, a
young boy, went into the manhole to explore. After getting back out, a lamp was either
dropped or knocked into the hole and an explosion resulted, causing Hughes to fall back in
where he was badly burned. The lower court dismissed the case stating that the actual event
that led to the injuries was the explosion, and that it was not foreseeable as it resulted from
numerous unlikely events, and Hughes appealed.
Issue
 Does the foreseeability of the actual event that caused the injury matter, or just the
foreseeability of injury?
Held
 Appeal allowed. He was charged.
Ratio
 As long as the general type of injury can be foreseen, there will be proximate cause.
Reasoning
 Reid, in a unanimous decision, holds that what is truly of importance is whether the lighting
of a fire outside of the manhole was a reasonably foreseeable result of leaving the manhole
unwatched, and they determine that it was as the lamps were left there. He focuses on the
lamp, and states that the types of injuries that are reasonably foreseeable from lamps are
burns, which is exactly what we have here. Therefore, the injury is not different in kind from
what should have been expected. As long as you can foresee in a general way the type of
injury that occurs then you have proximate cause

 Impact of the test in Jughes depends on how broadly/narrowly one characterizes the kind of
injury that the plaintiff has suffered
o Ex.// Doughty v Turner Mfg. Co. (1964, CA):
 Employee in metal treatment plant was injured when asbestos cover slid into
treatment vat
 Chemical reaction caused eruption of molten liquid, burned employee

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  Covers had been used for 20 years, this chemical reaction had never been
observed
 Court held: for defendant; characterized injury as one caused by chemical
reaction that was not foreseeable
 Characterization of plaintiff’s injury can play critical role
o Ex.// Tremain v Pike (1969, Eng)
 Defendant carelessly failed to control ratpopulation on his farm
 Plaintiff (farmhand) contracted Weil’s disease after coming into contact with rat
urine
 Liability denied
 Court held: injury from rat bites would have been foreseeable, but injury from
rat urine would not have been reasonably foreseeable
o Ex.// Jolley v Sutton London BC (1998, CA; rev’d 2000 HL)
 There was decrepit boat on defendant’s property
 Plaintiff and freidn, both 14yo, decided to repair it and sail it; used car jack to
hoist it up, boat fell, rendered plaintiff paraplegic
 Trial judge: defencnat liable, but reduction of 25% because of contributory
negligence
 CA: rev’d on basis of remoteness; the injury was of a different type and kind
than defencant could have foreseen (reasonably foreseeable that children might
get hurt playing on the boat, but not reasonably foreseeable that children might
be injured while trying to repair it)
 HL: trial judgment restored; more broad take on relevant risk; when children
play, it is reaosanbly foreseablt that their play can take on the form of
mimicking adult behaviour
 Lauritzan v Barstead (1965, ABSC):
o Defendant’s negligence resulted in his car becoming stuck in snow during snow storm
on relatively unused portion of a rural highway
o Plaintiff (passenger) and defendant were forced to stay incar for 36 hours
o When weather broke, plaintiff went for help, got frostbite, had to amputate parts of
both feet
o Wife ofplaintiff left him because she didn’t want to live with disabled man
o Court held: physical injuries were reasonably foreseeable, but loss of consortium was
not a foreseeable kind of injury
 Trevison v Springman (1996, BCSC):
o Defendants had been entrusted with plaintiff’s house key
o Defendants’ son stole house key, then set fire to plaintiff’s house to cover up series of
thefts
o Court held: losses due to fire were too remote from defendant’s negligence failure to
supervise and control their frequently delinquent son
o Defendants liable only for losses due to theft

The Thin-Skulled Plaintiff Rule

Smith v Leech Brain & Co. (1962, QB)

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Facts
 Smith's husband worked in a factory owned by Leech Brain galvanizing steel. He had
previously worked in the gas industry, making him prone to cancer. One day at work he came
out from behind his protective shield when working and was struck in the lip by molten metal.
The burn was treated, but he eventually developed cancer and died three years later. The
protection provided to employees during their work was very shoddy.
Issue
 Which test applies – Polemis or Wagon Mound?
 Does the man’s special sensitivity matter?
Held
 Judgment for the plaintiff
Ratio
 The ruling in Wagon Mound does not apply to cases where the outcome was unforeseeable
to a particular plaintiff because of a condition that he or she had; rather it is used in situations
when the foreseeable connection between the action and the outcome is unreasonable.
 For actions in tort, you take a plaintiff as he or she comes - the fact that they have a condition
that led to more damages than normal is not a factor in determining damages (the "thin skull"
rule).
Reasoning
 Parker does not think that the decision in Wagon Mound is relevant to this case. He states
that the "thin skull" rule differentiates the two cases, and that this is a case of "taking your
plaintiffs as they come" rather than insufficient proximity. Therefore, as it is found that the
burn was a negligent action on the part of Leech Brain as they did not provide ample safety,
and it at least partially led to the development of the cancer, the defendants are liable

Marconato v Franklin (1974, BCSC)

Facts
 Plaintiff suffered relatively minor physical injuries in a car accident caused by defendant’s
negligence. Following the accident, she developed psychiatric and physical problems.
Psychiatric evidence indicated that she had paranoid tendencies before the accident; but that
she had been a good homemaker. The accident triggered a major personality change.
Issue
 Is there a finding of causation when negligence results in an injury partly because of a pre-
existing condition?
Held
 Decision in favour of plaintiff. Defendants must pay damages
Ratio
 A finding of causation will follow when negligence aggravates a pre-existing condition,
resulting in an injury
Reasoning
 Injury arose because of pre-existing personality traits: the consequences could not be
foreseen. However, the defendant could foresee the probability of injury, and the wrongdoer
takes the victim as he finds him, with all the victim’s peculiar susceptibilities and
vulnerabilities. The plaintiff’s injuries were unusual, but arose involuntarily.

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  The plaintiff was predisposed by her personality to suffer the consequences which she did
suffer as a result of the modest physical injury caused by the accident; and it was that
predisposition which brought on the unusual consequences of the injury

 Swami v Lo (1980, BCSC):

o Plaintiff’s husband committed suicide 14 month after being injured in car accident
caused by defendant’s carelessness
o Husband suffered constant pain, had to give up work, began to drink heavily, became
very depressed
o Judge held: Smith didn’t apply to the facts of the case; plaintiff’s claim dismissed
because too remote
 Wright Estate v Davidson (1992, BCCA):
o Court held that deceased’s suicide following minor car accident was too remote
 Gray v Cotic (1983, SCC):
o Plaintiff recovered damages for husband’s suicide following car accident because he had
pre-existing mental health problem

 Kavanagh v Akhtar (1998, NSWCA):

o Plaintiff injured when heavy box fell on her in plaintiff’s store
o Because of injuries to left shoulder and arm, she was unable to care for long hari, so she
cut it
o Her husband, devout Muslim, reacted badly to short hair, perceived it as defiance of his
religion (women can’t cut hair without husband’s permission)
o Haircut led to breakdown of mattiage

 Thin skull vs crumbling skull

o Thin skull: plaintiff is unusually vulnerable to harm, but not doomed at outset; would
have avoided injury with careful life
o Crumbling skull: injury would have occurred anyway, even without defendant’s
carelessness; defendant’s dcarelessness merely hastened injury
 In this case, defendant is liable for damages to the extent that the defendant
worsened the plaintiff’s condition (ex.// breach caused plaintiff’s skull to
crumble 2 years earlier than expected, so defendant’s liability is limited to those
2 years)

 Thin skull vs thin wallet rule

o Thin wallet rule: whether the defendant should be held liable for damage that were
exacerbated by the fact that the plaintiff had limited financial resources and therefore
was unusually vulnerable to financial harm
o Traditionally, defendant not held liable

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 o Ex.// Dredger Liesbosch v Steamship Edison (1933, HL)
 Plaintiff’s ship was sunk and lost due to defendant’s carelessness
 Plaintiff obviously entitled to damages for that
 But plaintiff had contractually promised to use ship to provide certain services
to third party; because of accident, ship not available, and because of strained
resources, plaintiff could not buy new ship immediately, so had to rent ship, and
wanted defendant to pay damages representing that cost
 HL rejected that claim; defendant not responsible for plaintff’s impecuniosity
 Established proposition: plaintiff cannot claim additional damages that flow
from the fact that it had a “thin wallet” and therefore was unusually susceptibl
to economic harm
o Modern approach: rejects blanket rule in favour of a test of reasonable foreseeability
o Ex.// Alcoa Minerals of Jamaica v Broderick (2000, JCPC)
 Defendant committed tort of nuisance by operating smelting plan in Jamaica
that emitted corrosive materials
 Materials caused substantial damage to the roof of the plaintiff’s house
 When action was first started, the cost of the damage was $211,000, but by the
time the the matter was decided at trial, the cost of repair was $938,000
(receission in Jamaica)
 Trial judge awarded $938,000
 Defendant appeal to JCPC (plaintiff didn’t do repairs immediately because of
their own impecuniosity, so defendant should not have to be liable for higher
amount, as per Liesbosch)
 JCPC: found in favour of plaintiff, affirmed trial judge’s decision; there isno
absolute rule that requires damages to be assessed at the date of the initial
damage; no absolute rule to the effect that the plaintiff cannot recover the full
value of a loss that was exacerbated by its own impecuniosity; in this case, it
was reasonably foreseeable that plaintiff might not be able to afford repairs
immediately, and that economic factors would later render repairs more costly)

 Note: pure economic loss is dealt with as a special duty of care; but if there is consequential
economic loss (economic loss resulting from injuries to person/property), then issue is dealt
with under remoteness

The Possibility of Injury

The Wagon Mound (No.2); Overseas Tankship (UK) Ltd. V Miller Steamship Co. pty. (1967,
JCPC)
Facts
 Plaintiffs are owners of two boats damaged in harbour fire. The fire resulted when the Wagon
Mound ship leaked oil into the harbour while welders were working nearby. Sparks from the
welders ignited the oil and destroyed all three ships.
 At trial:
o → Plaintiff succeeded in nuisance

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 o → Plaintiff’s negligence action dismissed because damages were not reasonably
foreseeable and thus too remote to be recoverable
o → “That the damage was not reasonably foreseeable by those for whose acts the
defendant would be responsible”
o → Defendant appealed
Issue
 Is a defendant liable for not eliminating risks so small that a reasonable person would neglect
them?
o → Would a reasonable person have known that there was a real risk of the oil on
water igniting?
Held
 Decision in favour of plaintiffs/respondents
Ratio
 Tortfeasors are liable for injuries that are (from their own perspective) possible and therefore
reasonably foreseeable consequences of their negligence
o → This is a modified objective test
o → The smaller the risk and higher the cost for mitigating risk, the less responsibility
there is for the tortfeasor to mitigate the risk
Reasoning
 Trial judge made inference from other findings:
o → 1. That the officers of the WM would regard furnace oil as very difficult to ignite in
water (not that they would regard it as impossible)
o → 2. That their experience was that it rarely happened (not that it never happened)
o → 3. That they regarded it as a possibility, which could happen only in exceptional
circumstances
 Distinguished from Wagon Mound #1 where they could not be reasonably expected to have
known that this oil was capable of igniting when on water
 Must determine the different between “foreseeable” and “reasonably foreseeable”:
o → Before Bolton v Stone: There were (1) Cases where risk of occurrence is unreal
because it is far -fetched (a mere possibility which would never occur to the mind of a
reasonable person); and (2) Cases where there is a real and substantial risk, and that
a reasonable person would have taken the necessary steps to eliminate risk
o → In Bolton v Stone (1951): Cricket ball hitting person standing on the adjacent public
road. This was foreseeable, BUT the chance of its happening in the foreseeable future
was infinitesimal. The risk was so small that a reasonable person would have been
justified in disregarding the risk.
o → Reasonable person can only neglect a small risk if there is a valid reason (e.g.
expense).
 General principle:
o → A person must be regarded as negligent if he does not take steps to eliminate a risk
which he knows or ought to know is a real risk and not a mere possibility which would
never influence the mind of a reasonable person -- Still can say that it is justifiable not
to take steps to eliminate risk if risk is small and a reasonable person would neglect it

Assiniboine South School Division No.3 v Greater Winnipeg Gas Co. (1971, MBCA; aff’d 1973
SCC)
Facts

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  Hoffer’s autotobaggan ran out of control, striking a gas-riser pipe installed by Greater
Winnipeg Gas (GWG). A pipe fractured and gas leaked into the boiler room of the Assiniboine
school. The gas in the school ignited, and an explosion and fire occurred caused damage to
the school.

 At trial: Court allowed damages to the school against the owners of the autotobaggan (the
Hoffers) and GWG (damages allocation was 50% for each defendant).
Issue
 Was the damage reasonably foreseeable and therefore recoverable?
Held
 Decision against Hoffers and GWG.
Ratio
 The test of foreseeability of damage is a question of what is possible rather than what is
probable.
Reasoning
 Precedent:
o → As per Wagon Mound #1, liability depends on whether the damage is of such a
kind as a reasonable person should have foreseen. In that case, it was Important to
note that defendants did not know, and could not reasonably have been expected to
know, that furnace oil was capable of being set afire when spread on water
o → As per Wagon Mound #2, recovery may be had, provided the event giving rise to
the damage is not regarded as “impossible” even if it rarely happened
o → Thus: The test of foreseeability of damage becomes a question of what is possible
rather than what is probable
 Analysis of Hoffer in the case at bar:
o → Damage was of the type or kind which any reasonable person might foresee
 ⇒ Gas-riser pipes are common
 ⇒ Damage to it is not of a kind that no one could anticipate
 ⇒ Foreseeability is broad when you let a power toboggan run at large
o → Hoffer’s conduct was a causally relevant factor (not just up until the pipe broke,
after which GWG would be liable): BUT FOR Hoffer’s act, the explosion would not
have occurred
 Analysis of GWG in the case at bar:
o → They constructed the pipe-riser negligently; in a place where and how it could be
expected to be hit and damaged
 ⇒ Protective pipes could have been installed at small cost and difficulty
 ⇒ The duty to take protective measures increases in direct proportion to the
risk

 Assiniboine has been widely adopted in Canada (ex.// Belzile v Dumais (1986, NBQB); Monkman
v Singh (1989, MBQB)

Mustapha v Culligan of Canada Ltd (2008, SCC)

Facts

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  M saw fly in bottle of water produced by C. M went into depression and nervous shock, and
sued C for negligence.
 Trial judge awarded damages: said there was duty, breach, damage and causation. The could
applied a subjective test (M’s particular sensibilities) rather than an objective test.
 Appeal overturned judgement: said injury was not reasonably foreseeable, and therefore did
not give rise to a cause of action
Issue
 Does the company have a duty of care to Mustapha?
 Does liability extend to nervous shock resulting from a breach of standard of care?
Held
 Appeal dismissed in favour of Culligan
Ratio
 In a duty of care analysis concerning nervous shock, damage caused by a breach in the
standard of care must be reasonably foreseeable. The plaintiff must show that her or his
mental injury would have occurred in a person of ordinary, reasonable fortitude
Reasoning
 Negligence in general:
o → 1. Duty of care owed
o → 2. Breach of standard of care
o → 3. Plaintiff sustained damage
o → 4. Causation
 M’s claim fails because of failure to establish causation:
o → Damage is too remote to allow recovery: No foreseeable of causation (as opposed
to foreseeability in duty as used by Appeal)
 Analysis:
 1. Not a novel category of relationship (Donoghue v Stevenson), so there is a duty of care
 2. Breached standard of care
 3. M sustained damage, psychiatric injury
 4. Breach of duty did cause M’s psychiatric injury (in fact)
o → Did breach cause damage in law?
 ⇒ Reasonable person test: what would a person of ordinary fortitude suffer?
 ⇒ Unusual or extreme reactions to events caused by negligence are
imaginable but not reasonably foreseeable -- reasonable foresight
 ⇒ If defendant has actual knowledge of plaintiff’s sensibilities, then
reasonable foresight may come to a different conclusion
o → Therefore, no foreseeable causation

 In Mustapha, only psychological injury, no physical injury; but case has been papplied in cases in
which plaintiff suffers not only psychological injury but also foreseeable physical injury (Bain v
Black & Decker Canada (2009, OntSJ; Frazer v Haukioja (2010, OntCA)

Intervening Causes
 Cases in which plaintiff’s loss was caused by the defendant’s breach and a subsequent
intervening act
 Intervening act: one that causes/contributes to the plaintiff’s loss after the original defendant’s
breach has taken effect

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  Traditionally: original tortfeasor was relieved of liability because the causal link between his/her
breach and plaintiff’s loss was seen to have been severed by intervening cause
o “novus actus interveniens” (new intervening act)
o Second act breaking the chain
 But the the “last wrongdoer” approach replaced: courts developed 3 categories of intervening
acts based on nature and moral blameworthiness
o First category: intervening acts that were naturally occurring/non-culpable; generally
held not to break the chain of causation
o Second category: negligent intervening acts; generally held to rbeak the chain of
causeation and absolve original tortfeasor of liability
o Third category: deliberately wrongful/illegal acts; invariably broke the chain of causation
 Categorization has not been replaced by more general principle: the “within the scope of the
risk” test

Bradford v Kanellos (1973, SCC)

Facts
 Appellants were customers at respondent’s restaurant, sitting at the counter. The
restaurant's grill was equipped with an automatic fire extinguisher. A fire started and fire
extinguisher was activated manually. The fire extinguisher made a popping noise when it
operated. An unidentified person shouted that gas was escaping and that there would be an
explosion. Those words caused panic in the restaurant. While people rushed out, the
appellant was pushed from her seat and sustained an injury.
 At trial:
o → The court awarded damages, finding negligence in the flash fire because the grill
had not been cleaned as efficiently as it should have been; the sound from fire
extinguisher, not the fire, caused panic; while act of yelling out was “idiotic”, the
panic could have been foreseen
 On appeal:
o → It should not be held that the person guilty of the original negligence resulting in
the grill fire ought reasonably to have anticipated the subsequent intervening act of
acts which were the direct cause of the injuries and damages suffered by the plaintiffs
Issue
Held
 Majority: Appeal dismissed
 Dissent: Appeal allowed, restore judgement of trial
Ratio
 If a consequence is not within the scope of what is reasonably foreseeable, then there can be
no liability
Reasoning
 Majority:
o → Agreed with Court of Appeal: It should not be held that a person guilty of the
original negligence ought reasonably to have anticipated such subsequent intervening
negligence and to have foreseen that if it occurred then result would be that his
negligence would lead to loss or damage
 Dissent:

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 o → The person guilty of the original negligence ought reasonably to have anticipated
such subsequent intervening negligence and to have foreseen that if it occurred the
result would be that his negligence would lead to loss or damage.
o → The person who yelled acted in a reasonable and foreseeable manner

 Oke v Weide Tpt. Ltd (1963, MBCA)

o Defendant knocked down a traffic sign on a gravel strip separating the eastbound and
westbound lanes of traffic
o Defendant stopped and moved some debris, was unable to move the sign post, which
was left projecting upwards
o Informed a garage attendant of the incident, but did not contact the police or highway
authorities
o Next day, a driver was attempting to pass illegally on the gravel strip; was killed when
the sign post came up through floor of car and pierced chest
o Majority said: even if defendant was careless in not reporting the incident, he could not
be liable because the deceased’s intervening act of driving on gravel strip and the
consequenecs could not have been foreseen
o Dissent: an accident in general was a foreseeable consequence of the defendant’s
negligence (failing to report the hazardous situation)
 In subsequent cases, Canadian courts have adopted a broad interpretation of foreseeability (R v
Cote (1974, SCC); Hendrick v De Marsh (1984, OntHC; aff’d 1986, OntCA); Funk v Clapp (1986,
BCCA), etc.)
 Issue that sometimes arises: whether the plaintiff’s own contributory negligence constitutes an
intervening act that severs the chain of causation
o Ex.//Jolley v Sutton London BC (2000, HL): the boat/teenager/carjack/paraplegic case;
HL held that the plaintiff’s lossess were not too remote and that the boys’ conduct did
not sever the chain of causation (it was a 75/25 split liability)

Price v Milawski (1977, OntCA)

Facts
 The plaintiff injured his right ankle. He went to the hospital and told the defendant doctor
that he heard a crack and thought it was broken. The defendant sent the plaintiff for x-rays,
but instructed the technician to x-ray the foot, not the ankle.
 After looking at the x-rays, the defendant told the plaintiff his ankle was only sprained.
However, it was actually broken. The plaintiff continued to have problems, and was referred
by his family doctor to orthopedic surgeon.
 The surgeon saw the x-rays were negative, and did not order new ones; but the surgeon put
on a cast for the sprain. Once the cast was removed, the plaintiff still had problems.
 A second surgeon took new x-rays and discovered the fracture. As a result of delay in
treatment, the plaintiff suffered permanent disabilities.
 At trial:
o → Both the hospital doctor and the first surgeon were found liable in negligence
o → Held equally at fault for injury
Issue

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  Can a person acting negligently be held liable for future damages arising, in part from
subsequent acts of negligence, and in part from his own negligence?
Held
 Both defendants were negligent
Ratio
 A person acting in negligence may be held liable for future damages arising in part from
subsequent acts of negligence and in part from his own negligence, where each subsequent
negligence and consequent damage was reasonably foreseeable as a possible result of his
own negligence.
Reasoning
 Judgement dealing with hospital doctor’s liability for first surgeon’s intervening act: the
“foreseeability” argument:
o → “Intervening act of negligence”
o → As per Mercer v Gray: If reasonable care has been used by the plaintiff to employ a
competent physician or surgeon to treat personal injuries wrongfully inflicted by a
defendant, the results of the treatment are a proper head of damage, even though
through an error in treatment, it is unsuccessful.
o → As per Wagon Mound #2: As per Wagon Mound#1 and Hughes, damages can only
be recovered if the injury complained of was not only caused by the alleged
negligence by was also an injury of a class or character foreseeable as a possible
result of it
 Case at bar:
o → Two negligent acts in succession: A person acting in negligence may be held liable
for future damages arising in part from subsequent acts of negligence and his own
negligence, where each subsequent negligence and consequent damage were
reasonably foreseeable as a possible result of his own negligence
o → Reasonably foreseeable that the information arising from the negligence of
hospital doctor would be relied upon by subsequent doctors. It was also foreseeable
that a doctor would only check the xray, even though doing so might constitute
negligence (not something a reasonable person would have brushed aside)
o → Negligence of the first surgeon compounded the effects of the earlier negligence

 Papp v Leclerc (1977, OntCA):

o Lacourciere sais: “Every tortfeasor causing injury to a person placing him in the position
of seeking medical or hospital help, must assume the inherent risk of complications,
bona fide medical error or misadventure, if they are reasonably foreseeable and not too
remote…It is for the defendant to prove that some new act rendering another person
liable has broken the chain of causation. This was not done in the present case. I must,
therefore, rule against the appellant on this first contention based on lack of
foreseeability and novus actus.”
 Block v Martin (1951, ABCA):
o Defendant negligently ran over plaintiff, causing slight fracture of leg
o Plaintiff followed doctor’s orders, continued to walk
o 6 months after the accident, plaintiff slipped while fishing and completely fractured leg
o Court held: original injury was contributing cause of the 2nd fracture and plaintiff’s
conduct in going fishing was not a novus actus interveniens

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 o Defendant held liable for plaintiff’s entire loss
 McKew v Holland (1969, HL): court held that original tortfeasor should be absolved of liability
for an injury the plaintiff sustains while recuperating if the plaintiff has been contributorily
negligent
 Spencer v Wincanton Holdings Ltd (2009, EWCA):
o Plaintiff suffered a relatively minor injury
o Injury eventually led to amputation of plaintiff’s leg
o Plaintiff made good recovery, was fitted with prosthesis
o Months later, he stopped at gas station, did not put on prosthetic leg before exiting
vehicle, tripped and fell, seriously injured other leg
o Court held: didn’t apply McKew v Holland; allowed plaintiff to recover for the injuries to
the other leg from the original tortfeasor, subject to a deduction for contributory
negligence
 Bourgoin vLeamington (Municipality) (2006, OntSCJ):
o Plaintiff suffered an ankle injury while walking on an uneven sidewalk
o She developed chronic intractable pain, identified as Complex Regional Pain Syndrome
o Defendant municipality argued tat she had failed to reduce her damages from the pain
by refusing to undergo the treatment recommended by her psychiatrist, 95% likely to
eliminate the pain, which was to have her leg amputated below the knee

Hewson v Red Deer (City) (1976, AB CA)

 Note: the case in the book is the trial decision, which was reversed on appeal
Facts
 Defendant was transporting gravel using tractors. A worker left a tractor secured at the top of
a large mound of gravel. Upon returning, the worker found the tractor had crashed into the
plaintiff’s house. The tractor was not secured as worker had left it -- there was evidence that
an unknown person had been in the tractor.
Issue
 If the city was negligent, was the damage too remote to be attributed to them (due to third
party intervention)?
Held
 Decision in favour of plaintiffs
Ratio
 Cannot use third party intervention (novus actus interveniens) as a defence if the defendant
fails to guard against the very things that are likely to occur.
Reasoning
 The court decided that the incident was caused by some unknown person
o → One cannot use third party intervention as a defence if the defendant failed to
guard against the very things that was likely to occur. The defendant could have
secured the tractor further; the tractor was parked in a location accessible to people
living in the area
 Therefore:
o → It was reasonably foreseeable that anyone of the people in the area might become
aware that the tractor was being left at the stockpile unattended and might be
tempted to put it in motion
o → And thus novus actus interveniens is not applicable

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  Lamb v London Borough of Camden (1981, EngCA):
o The 3 judges agreed that the reasonable foreseeability test is not always appropriate for
cases involving deliberate intervening acts of third parties
o Test would extend the defendant’s liability “beyond all reason” and lead to “bizarre and
ludicrous” results
 Gittani Stone Pty Ltd v Pavkovic (2007, NSWCA): held that employee;s intentional and criminal
conduct (shooting another employee) was not an intervening act (employer knows employee is
potentially dangerous but negligently doesn’t terminate him)

Actual Loss

Defences in Negligence
 Damages may be reduced/denied on basis of a defence, even if plaintiff proves that he/she was
negligently injured by defendant
 Defences pertaining to plaintiff’s own behaviour
o Contributory negligence
o Voluntary assumption of risk
o Participation in a criminal/immoral act
 Defence concerned with the factual circumstances surrounding the defendant’s conduct
o Inevitable accident
 Burden of proof on defendant for defences

Contributory Negligence
The Developments of the Defence
 Traditionally at common law: plaintiff denied recovery if contributory negligence found
 To avoid inequity, courts developed “last clear chance”/”last opportunity” rule
o Permitted plaintiff to recover despite contributory negligence, if defendant had last
clear chance to aoid the accident and negligently failed to take it
o But still all or nothing
 th
20 century: legislation permitting the apportionment of liability enacted
o Tempered the harshness of the common law’s all-or-nothing approach
 Courts first dealt with contributory negligence as a question of legal causation rather than as
defence (Butterfield v Forrester 1809 EngKB)
 Davies v Mann (1842, Exch): first case in which the last clear chance doctrine was clearly
articulated
 Even before contributory negligence legislation, SCC abolished the common law rule of last clear
chance – in Bow Valley Husky (Bermuda) Ltd. V Saint John Shipbuilding Ltd (1997, SCC)
o Held that Nfld’s Contributory Negligence Act did not apply to a claim arising in maritime
law

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 o Held that claims in maritime law should be subject to a rule of joint and several liability,
together with a right of contribution
 Plaintiff will be found contributorily negligent only where his/her negligence caused the accident
or contributed to the severity of his/her injury
o Not necessary that plaintiff’s negligence be the only cause, but it must have been a
proximate or effective cause
o Zsoldos v Canadian Pacific Railway Co (2009, OntCA): plaintiff was injured when his
motorcycle struck a train at a rural crossing at night; defendant argues the plaintiff was
contributorily negligent because he was driving while impaired and he was driving too
fast; because the collision would have happened whether or not the plaintiff was
impaired, the impairment did not amount to contributory negligence; in contrast, the
excessive speed did

Conduct Constituting Contributory Negligence

Walls v Mussens Ltd. (1969, NBCA)
Facts
 Defendant Morrison, an employee of the defendant company drove a timberjack to the
plaintiff’s service station
 Defendants obtained permission from plaintiff to repair the vehicle in one of the bays
 Defendants were working on the vehicle when a gas torch ignited a pool of gasoline under the
vehicle
 Gasoline had leaked from the vehicle
 Fire was caused by the negligence of Morrison in the use of the gas torch
 When fire started, someone called out for someone to bring a fire extinguisher
 The 17-year old left in charge and others including the defendants, tried to put out the fire
with snow and water
 Plaintiff arrived and also tried putting snow on the fire
 Morrison tried to tow the timberjack out without success
 The service station and most of its contents were destroyed
 At trial:
o Expert testified that had fire extinguishers been used, the fire could have been
prevented
o Defendants argued that the damage was caused by negligence by the plaintiff (his
workmen and agents)
o Judge found that failure by plaintiff to use fire extinguishers did not constitute
contributory negligence;
o Judge held that Morrison was the sole cause of damage
Issue
 Was the plaintiff contributorily negligent for the damage suffered?
Held
 Appeal dismissed in favour of plaintiff (not contributorily negligent)
Ratio
 In an emergency situation, the test for contributory negligence is whether the plaintiff did
what an ordinarily prudent person might reasonably have done under the stress of the
moment
Reasoning

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  The Court of Appeal agreed with trial judge
o The emergency was created solely by the negligence of the defendant
o "Agony of the moment" rule: a modified objective test -- it must allow for a certain
latitude in emergency situations. Consider what would constitute reasonable conduct
given the circumstances.
 The test to be applied: whether what the plaintiff did something an ordinarily prudent person
might reasonably have done under the stress of the emergency

 AG (ON) v Keller (1978, OntCA):

o Plaintiff was police officer who was injured in high-speed chase wen cruiser went out of
control and struck a pole
o Officer was driving 85mph on icy roads within 100-150 ft of defendant
o Court held: officer was not contributorily negligence because his actions were “no more
than was reasonably necessary to carry out his statutory duty”
 Lewis v Tdd (1980, SCC):
o Police officer killed by driver while investigating traffic accident
o Officer had ignored traffic and relied on the warnings given by flashing lights
o SCC rejected argument that Lewis was contributorily negligence for not keeping proper
lookout
o SCC said that conduct had to be judged according to the standard of care expected of a
police officer investigating an accident, and not the standard of an ordinary pedestrian
 Heeney v Best (1979, OntCA):
o Plaintiff’s chickens died of asphyxiation when the defendant negligently cut off the
power supply to the plaintiff’s barns
o Alarm system would have warned of power failure, but had not been plugged in
o Plaintiff argued: it was custom among poultry farmers to not have an alarm system, so
can’t be contributorily negligent
o Court held: plaintiff contributorily negligent for failing to take care of his own property
 Standard of care aimposed in contributory negligence is affected by the age, disabilities and
professional training of the plaintiff
o – ex.// child required to meet the standard of care of a reasonable child of like age,
intelligence and experience (Myers v Peel County Board of Education 1981 SCC)
 Doctrine of Identification attributed negligence of one party o the conduct of another if a special
relationship existed between them
o Principle eliminated for parent-child relationship
o But still applies to situations involving master-servant, car owner-driver

Gagnon v Beaulieu (1977, BCSC)

Facts
 Plaintiff passenger and defendant driver were driving car when defendant ran into a truck
 Driver admitted liability for accident
 But plaintiff was not wearing seat belt, and suffered physical injuries consistent with being
thrown forward by the impact

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Issue
 Does not wearing a seat belt, and suffering related injuries as a result, constitute contributory
negligence?
Held
 Decision in favour of defendant – plaintif was contributorily negligent
Ratio
 A person who does not exercise all precautions as a person of ordinary prudence would
observe, in accordance with prevailing safety standards, is contributorily negligent
Reasoning
 Following Yuan v Farstad:
o Munro J: “In light of modern-day knowledge of the benefits and reduction of danger
of injury flowing from the use of seatbelts, an occupant of a motor vehicle in which
such apparatus is provide for his use who nevertheless fails to wear it is negligent in
that he has failed to take reasonable precautions for his own safety”
o People know about the dangers of not wearing a seatbelt; so if one is available and
the passenger doesn’t buckle up, they are negligent
o If he is injured as a result of not buckling up, then he is contributorily negligent
 In this kind of injury, the onus is on the defendant to prove that the seatbelt was not worn
and that injuries would have been prevent had the seatbelt been worn
 Expert testified that the injuries and damage could only have occurred if the plaintiff had not
been wearing a seatbelt
 Per Denning: Objective test (as set out in the ratio of this case)

 Galaske v O’Donnell (1994, SCC): court held that the defendant had a duty to ensure that an 8yo
passenger wore a seatbelt
 Rewcastle v Sieben (2003, ABCA):
o Vehicle had 4 seatbelts, 6 people in the car
o Plaintiff asked to sit in front but was refused, so sat on lap of someone in backseat
o Plaintiff was 16yo at the time
o It was near midnight, plaintiff had cell phone and credit card, was 7.5 km from home
o Car crashed, plaintiff killed
o Court found that plaintiff was not contributorily negligent for not wearing a seatbelt;
decision to ride in car without seatbelt was reasonable

Apportionment of Loss

Negligence Act (RSO, 1990)

Extent of Liability, remedy over
 S.1
Recovery as between Tortfeasors
 S.2
Plaintiff Guilty of Contributory Negligence
 S.3
Where Parties to be Deemed Equally at Fault
 S.4

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 o Default position: parties deemed to be equally negligence is impossible/impractical
on the evidence to determine their respective degrees of fault
Adding Parties
 S.5
Jury to determine degrees of negligence of parties
 S.6
Where Plaintiff may be Liable for Costs
 S.7

 Pilon v Janveaux (2005, OntCA)

o Plaintiff was injured as passenger in car driven by impaired driver
o Driver, owner of car, and bar where driver had been drinking all admitted liability for
accident
o Trial judge told jury to determine plaintif’s degree of contributory negligence but not to
apportion liability among defendants (apparently because of admission)
o Jury found plaintiff 35.5% responsible (was also intoxicated, accepted ride from
intoxicated driver)
o CA said: under s.3 of Negligence Act, court has to apportion liability, so jury verdict
could not stand; found bar responsible for 40% of plaintiff’s 35.5% liability, so plaintiff
only 21.3% responsible
 Boma Manufacturing Ltd v CIBC (196, SCC) [action for conversion of cheques]:
o “as a matter of principle…contributory negligence would not be available in the context
of a strict liability tort.”
o But then Cowles v Balac (2006, OntCA) [case where Bengal tigers in drive-thru safari
attack] clarified further: “in stating contributory negligence is not available in the
context of a strict liability tort, Iacobucci was not intending to state a general principle.
Rather, he was referring to the law of bills of exchange”
 Apportionment legislation eliminated the rationale for the last clear chance doctrine

Mortimer v Cameron (1994, OntCA)

Facts
 Mortimer and Cameron were “horseplaying” on the stairway. On the stairway was an interior
landing leading to the front door of the apartment. The front door was open, and outside was
an exterior landing at the top of another stairway leading down to the street.
 As they were playing, Mortimer fell backward through the door, grabbing Cameron as he fell.
They tumbled onto the exterior landing and fell against an exterior wall with minimal force.
The wall gave way and they both fell 10 feet onto the ground below. Cameron was unhurt;
Mortimer fractured his spinal cord and was rendered quadriplegic.
 At trial:
o The accident was not within the realm of reasonable foreseeability
o Cameron and Mortimer were both negligent.
o However, their conduct did not constitute a proximate cause of Mortimer’s injuries
and therefore no liability should attach to them

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 o Found City 80% liable and Stingray (the building company) 20% liable for damages –
for the faulty wall
Issue
 1. Was Cameron’s negligence proximate cause of Mortimer’s injury?
 2. Was Mortimer contributorily negligent?
 3. Was the apportionment of loss attributed to the City and to Stingray (the building
company) correct?
Held
 Cameron and Mortimer are not contributorily negligent. Apportionment of loss should be
60% to building company Stingray and 40% to the City
Ratio
 A defendant’s negligence is only actionable with respect to harm that is within the scope of
the risk that makes the offending conduct actionable. Similarly, a plaintiff’s contributory
negligence will not limit recovery unless it is a proximate cause of his injury (and if the loss
was within the ambit of risk created by his negligence).
 A party who breaches an ongoing duty is more liable than a party breaching an intermittent
or one-time duty. Where there are multiple liable parties, the party with more proximate
cause will have a larger apportionment of liability
Reasoning
 Regarding issues 1 and 2:
o Mortimer and Cameron were entitled to rely on the wall to provide them with
reasonable protection
o It was not reasonably foreseeable that a normal looking wall would give way with a
relatively low application of force
o If the wall had been properly constructed, it would not have given way
o The accident “was not within the scope of the risk created by their horseplay, no
matter how imprudent that conduct may be considered”
 Regarding issue 3:
o City performed a final inspection after the wall was built, which should have revealed
the faulty wall; so they were negligent
o But Stingray had an “ongoing duty” to properly inspect the premises. It’s failure to do
so constituted a more proximate cause of the accident than did the city’s negligence

 Ryan v Victoria (City) (1999, SCC)

o Plaintiff was injured after the front tire of his motorcycle became caught in a railway
track that ran within a city street
o Trial judge held: defendant (who was responsible for the street) liable in negligence
o BCCA: plaintiff had been equally responsible for the accident, reduced recovery by 50%
o SCC: disagreed with BCCA; as per Stein v Kathy K (The Ship) (1976): findings of fact
should not be reversed by appellate court “unless it can be established that the learned
trial judge made some palpable and overriding error which affected his assessment of
the fact”; no such error here
 Even more deference to jury’s apportionment of damages (as per Marcoccia (Litigation Guardian
of) v Gill (2009, OntCA): jury’s decision on appoirtionment can be changed only in “exceptional
circumstances”
 Chamberland v Fleming (1984, ABQB):

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 o Chamberland (non-wimmer, inexperienced canoeist) drowned when defendant
negligently approachedin hismotor boat and caused a wave to overturn the canoe
o Deceased had declined to weat a like jacket that would have saved his life
o Court suggested upper limit of 25% for contributory negligence is plaintiff’s negligence
did not cause the incident but merely affected the extent of the loss
 Snushall v Fulsang (2005, OntCA):
o Plaintiff failed to wear shoulder belt, but wore lap belt, then was injured in car crash
o Trial judge found plaintiff 35% contributorily negligent
o CA: reduced to 5%; even if she had worn seatbelt, accident would have occurred; failure
to wear seatbelt is not cause of injuries, only contributes to extent of injuries suffered
 In some cases, plaintiff is more than 50% contributorilynegligent

Voluntary Assumption of Risk

 Remains a complete defence, unlike contributory negligene
 Precludes recovery altogether, notwithstanding fact that defendant negligently caused plaintiff’s
injuriy
 Confined to certain situations, like those involving sports

Dube v Labar (1986, SCC)

Facts
 Two coworkers (appellant and respondent) drink all night and continue to drink into the next
day. While the appellant is driving they pick up some women and drive them out of town. The
respondent takes over driving, claiming he was capable of driving when he has a blood-
alcohol level well above the legal limit (.25/.24). The respondent then, in an attempt to turn
speak to a passenger veers the car to the right. The appellant grabbed the wheel to turn in to
the left in an attempt to correct. The respondent, also attempting to correct the steering
overturns the car causing personal injuries to the appellant.
 At trial:
o Only two defences were raised: volenti non fit injuria and contributory negligence
o Trial judge explained volenti non fit injuria to jury as “to one who is willing, no harm is
done." The burden is on the defence to prove that the plaintiff, expressly or by
necessary implication, agreed to exempt the defendant from liability for any damaged
suffered by the plaintiff. The test is not whether the plaintiff knew of risk, but
whether circumstances are such as necessarily to lead to the conclusion that the
whole risk was voluntarily incurred by the plaintiff.
o Trial judge explained contributory negligence: If the plaintiff’s conduct amounted to a
breach of that duty to take reasonable care for his own safety
o Jury found plaintiff to be contributory negligent and to have voluntarily assumed the
risk
Issue
 Is the defence of volenti inapplicable to cases involving negligence on the highways?
Held
 Appeal dismissed in favour of respondent (defendant)
Ratio
 Volenti defence can only be used when it is shown that:

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 o 1) Plaintiff knows of the risk
o 2) Plaintiff has assumed risks voluntarily
o 3) Plaintiff has bargained away his legal right to sue for injuries caused by the
defendant’s negligent action
 The enactment of legislation allowing the apportionment of damages means that
contributory negligence is no longer an absolute defence, thus is it necessary to distinguish
between both defences. Contributory negligence would now allow for apportionment of
liability, which is the favoured approach
Reasoning
 No, it is applicable, and jury’s conclusion finding it was not unreasonable.
 Defence of volenti was used in four SCC cases involving negligence on the highways. However,
the defence is only available in unusual circumstances.In Miller, the court noted there must
be an express or implied bargain between the parties whereby the plaintiff gave up his right
of action for negligence
 Volenti will only arise where the circumstances are such that it is clear the plaintiff, knowing
of the virtually certain risk of harm, in essence bargained away his right to sue for injuries
incurred as a result of any negligence on the defendant’s part
 Generally inapplicable in drunk driver-willing passenger cases, as it requires an awareness of
the circumstances and the consequences of action rarely present on the facts in such cases
o But in this case, added policy considerations (can’t hide behind law for drunk driving)
 Jury’s conclusion that P voluntarily assumed risk is not unreasonable

 Courts may find that plaintiff voluntarily assumed the risk of he/she encouraged the defendant
to be careless
 Wong (Litigation Guardian of) v Lok’s Martial Arts Centre Inc (2009, BCCA): court held that the
parent of a child enrolled in a martial arts program could not waive the child’s right to sue in
negligence

Participation in a Criminal or Immoral Act

 Defence of ex turpi causa non oritur action
 Does not merely lead to a reduction in damages; it precludes recovery altogether
 So also narrowly interpreted

Hall v Hebert (1993, SCC)

Facts
 The plaintiff (P) and defendant (D) get drunk at a party. They get into D's muscle car. D stalls
the car on a steep unlit gravel road, with a steep embankment on one side. D agrees to let P
drive. P, in attThey try a rolling start. The car crashes. They think they are fine but P actually
has sever head injuries. P sues the D for allowing him to drive in his intoxicated state
Issue
Held
Ratio
 A person cannot recover in tort for the consequences of their own illegal or immoral acts.
o Rather than negating a duty of care, ex turpi causa is a narrowly defined defence that
precludes recovery and is only applicable to cases where the plaintiff is attempting to
profit from illegal conduct or evade criminal sanction

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Reasoning
 A person can’t recover in tort for the consequences of their own illegal or immoral acts. This
is intended to protect the integrity of the legal system.
 McLaughlin J: Trying to ground it in a flexibility model, to prevent from benefiting financially
for illegal activities. However, this does not necessarily limit you from redress for physical
injuries.

 John Bead Corp v Soni (2002, OntCA)

o Court commented on the effect of Hall
o Plaintiff claimed that the defendant had stolen $1,600,000 from plaintiff’s company
o Defendant denied allegation; also pleaded ex turpi causa on basis that plaintiff had also
illegally taken money from company
o Issue: whether defence should be struck from the pleadings
o CA said: yes
 Defence does not apply merely because plaintiff was engaged in illegal activity
that was unrelated to the facts underlying the plaintiff’s claim
 Damages will be refused to prevent plaintiff from profiting from his/her own
wrongdoing: (i) where one wrongdoer claims in tort against another for financial
loss arising from an illegal activity”, and (ii) “where the plaintiff claims as a head
of damage suffered in a personal injury claim, loss of earnings from an illegal
activity”
 Generally accepted that police owe some duty of care to those in their custody after an arrest
o Vellino v Chief Constable of Greater Manchester Police (2002, EngCA): plaintiff injured
while jumping from window to escape from police custody; court denied claim, in part
on the basis that in attempting to escape the plaintiff was committing a criminal offence
and could not sue for the injuries sustained while doing so
 Beljanski (Guardian ad litem of) v Smithwick (2006, BCCA):
o Dependant children of “career criminal” brought claim when father was killed
negligently
o Court relied on ex turpi causa in refusing to base any part of the award on any illegal
income the deceased would have made through criminal activities
 British Columbia v Zastowny (2008, SCC)
o Can plaintiff recover lost wages while incarcerated?
o Plaintiff successfully sued defendant for sexual battey; in assessing plaintiff’s loss of
income flowing from the battery, court refused compensation for the significan periosof
of time hehad subsequently spent in jail for vaiorus offences

Inevitable Accident
Rintoul v X-Ray and Radium Indust. Ltd. (1956, SCC)
Facts
 Employee of the defendant D was driving a truck owned by D. At first, the service brakes were
working properly and had been applied 5 times successfully. Employee found while crossing
an intersection that his service brakes had stopped working. After attempting to engage them
several times, he pulled his hand brake but was unable to stop in time. An accident ensued.

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  At trial: Failure of service breaks placed D in situation of emergency in which he acted without
negligence and that the collision was the result of an inevitable accident.
Issue
 Is the defence of inevitable accident available to protect against negligence?
Held
 Appeal allowed in favour of plaintiff
Ratio
 For inevitable accident to operate as a defence, the defendant must establish that damage
was:
o 1) caused by event in which the defendant had no control (inevitable)
o 2) that by exercising reasonable care the it could not be avoided (unavoidable)
Reasoning
 In this case: no, the defence of inevitable accident is not available:
o Inevitable accident requires that defence must show that something happened over
which he had no control, and the effect of which could not be avoided even by the
greatest care and skill
 1) defendant provided no evidence to prove that the brake defect could not
be discovered: Only evidence defence raised was a bald statement that work
had been done the previous day and that the brakes were in working order;
Didn’t address when car was purchased, how far it had been driven, etc.
 2) Defence failed to show that even by the exercise of reasonable care the
accident could not have been avoided

 Canadian courts generally apply Rintoul (majority of cases: sudden mechanical faiures, other
emergency sitautions)
o But Graham v odgkinson (1983, OntCA); Boutcher v Stewart (1989, NBCA): indicated
that inevitable accident was no more than denial of negligence and that it did not alter
either the plaintiff’s or the defendant’s case
 Barron v Barron (2003, NSSC):
o Defendant was drinking coffee while driving
o He had sudden choking fit and fainted
o Had frequently experienced choking fits before, but had never lost consciousness
o He crashed, injured plaintiff passenger
o Court rejected defence of inevitable accident, said that given defendant’s history, he
should have refrained from drinking coffee while driving

Proof of Negligence
The Burden of Proof in a Negligence Action
 Legal burden of proof in civil action: burden of proving an issue on balance of probabilities
o Difficult to define precisely
o Fleming, The Law of Tort: “more than a mere mechanical compatison of probabilities
independently of any belief in its reality…tribunal must feel an actual persuasion based
on a preponderance of probability”

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 o Plaintiff usually bears legal burden of proving element of negligence action, defendant
has burden of proving defence
 Evidentiary burden (=/= legal burden) may shift back and forth between plaintiff and defendant
o Relates to the practical desirability of adducing evidence in support of one’s position
o In addition to proving elements of negligence action, plaintiff also has evidentiary
burden of producing sufficient evidence to establish a prima facie case
o If plaintiff’s evidentiary burden not met, nonsuit will be ordered (trial will end
immediately, defendant will not be required to present its case)
o If plaintiff meets evidentiary burden, the burden shifts to defence, who can rebut the
prima facie case that the plaintiff has made (not required to prove, on balance of
probabilities, that it was not negligent)

Wakelin v London and South Western Railway Co (1886, HL)

Ruling
 Held for the D. At best here we have two equally plausible accounts of what may have
happened (and the story that they might both have been negligent), and in that situation P
loses
Ratio
 It must be proven that the D’s negligence directly caused said injury and not that the
negligence was simply related to said injury.

 Hunt (litigation Guardian of) v Sutton Group Incentive Realty Inc (2002, OntCA): court said:
o Right to trial by jury is substantial right, not to be taken away lightly
o Party moving to discharge jury has substantial onus
o Trial judge erred in exercising his discretion to discharge the jury on the grounds that
the issues in the case were too complex for it to resolve
o New trial ordered
 Mohamed v Banville (2009, OntSCJ):
o Plaintiff sued defendant alleging that he had negligently caused housefire
o Defendant was intoxicated & a moker
o Insurance investigator’s opinion: fire most likely caused by careless smoking
o But no specific evidence that defendan was smoking in the house on the evening in
question
o Plaintiff’s claim failed for lack of proof of negligence
 RC v McDougall (2008, SCC):
o Court confirmed that proof on balance of probabilities is only standard of proof in civil
law
 Apology Act (SO, 2009): prevents apologies from being used by plaintiffs as evidence of
negligene

Exceptions to the General Principles Governing the Burden of Proof

Statutes and Shifting Burdens of Proof

MacDonald v Woodard (1974, Ont Co Ct)

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Facts
 P, service station provider, stood in front of D’s car after boosting battery, is then struck by
D’s car
Ruling
 Res ipsa loquitur is enacted via statute in s.193(1) of HTA: the owner or driver is prima facie
liable for damage caused by his motor vehicle unless he satisfied the Court on a
preponderance of evidence that he was not in fact negligent. The P need only show that the
collision, and not the conduct of the driver, was the cause of the damage.
 So essentially, s.193(1) shifts BOP onto defendant, as the P only has to show that damage was
caused by the motor vehicle, then the onus shifts onto the D to disprove negligence (i.e. that
his conduct did not negligently cause the damage). In this case, Woodward could not disprove
negligence, and so held for P.
Ratio
 Once a P establishes that damages were caused by presence of motor vehicle, then
rebuttable presumption of negligence arises in relation to the D.

 AG(ON) v Keller (1978, OntCA):

o Police officer injured when car went out of control during chase and he struck a pole
o Fleeing vehicle knew he was being pursued and tried to escape
o The 2 vehicles never collided
o CA held that reverse onus provision applied to escaping driver

Directly Caused Injury: Unintended Trespass

Dahlberg v Naydiuk (1969, MBCA)
Facts
 D fired at a deer but missed and struck the P, who was working on his farm 250m away. The D
had obtained consent to hunt from the owner of the land he was standing on, but not from
the P.
Ruling
 From COOK v LEWIS, if the P sues under trespass (intentional tort), onus falls on the D to
disprove both negligence and intent on his part. So D’s burden is higher for trespass than for
negligence – on the same facts, P’s action is more likely to succeed under trespass than
negligence.
 At the bottom of page 735 we see that English courts have removed this oddity, but here
Dickson J.A. feels compelled to follow SCC, so works within this rule. In this case, the D fails to
disprove negligence and so held for the P under trespass
Ratio
 There is a difference in burden of proof depending solely on the whether the force was
indirectly or directly applied.

Multiple Negligent Defendants

Cook v Lewis (1952, SCC)
Facts
 Plaintiff (Lewis) shot in the face by one of two hunters (Cook) that shot at the same time
 Lewis could not prove which one

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Issue
 When there are two parties, and it is proven that one of their actions caused harm, but it
cannot be proven which one it was, who, if anyone, is liable?
 Should the "but for" test applied, or whether the "material contribution" test applied?
 Are either satisfied?
Held
 Appeal dismiss in favour or Lewis
Ratio
 (1) If the plaintiff can prove that the two defendants were negligent (one had to have caused
his loss) and it is impossible to prove which one, then the burden of proving causation shifts
to the defendants.
 (2) In such a circumstance, there is no joint tortfeasance when two parties are engaged in a
lawful common enterprise, and it is proven that one of them caused harm in their actions but
it cannot be proven which party actually did it, unless there are special circumstances of
agency in the parties' relationship (e.g. master and servant, employer and employee, principle
and agent), in which case both parties may be found liable for the resulting damages; i.e.,
found to be joint tortfeasors
Reasoning
 Snell Case:
o A plaintiff may succeed by showing that the defendant’s conduct materially
contributed to risk of the plaintiff’s injury, where
o (a) the plaintiff has established that her loss would not have occurred “but for” the
negligence of two or more tortfeasors, each possibly in fact responsible for the loss;
and
o (b) the plaintiff, through no fault of her own, is unable to show that any one of the
possible tort feasors in fact was the necessary or “but for” cause of her injury,
because each can point to one another as the possible “but for” cause of the injury,
defeating a finding of causation on a balance of probabilities against anyone.
 Due to the situation that each defendant can point the finger at the other, it is impossible for
the plaintiff to show on a balance of probabilities that any one of them in fact caused the
plaintiffs injury.
 The decision in the lower court was based upon the general Canadian rule that stated that
when it is certain that one of two individuals committed the offence, but it is uncertain which
one was the guilty agent, then neither of them can be convicted.
 Cartwright, writing for the majority, decides not to follow this and to follow US precedent
instead, from Summers v Tice and Oliver v Miles, which state that to allow both parties to
escape liability is unfair because both of them were negligent. Lewis is put in an unfair
position in having to prove which of the parties did it, and will not recover because of this
unfair position. He agrees with this, and states that both parties must be held liable, as they
were both negligent in firing their shots.
 Rand concurs, but goes further to say that this burden is so unfair on Lewis that the burden
must shift to the appellants to prove which one of them did it. If neither has proof then they
are both equally liable, however the onus is on each appellant to prove that the other is the
guilty party. This is fairer because the appellants have a better idea of what really happened
than Lewis.
 In the dissent, Locke says that the relationship between the two appellants is not close
enough to make them share liability for each other's actions. The simple fact that they were

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 hunting together, and were going to split the kill at the end of the day does not mean that
they should be completely responsible for each other’s actions.

 Joseph Brant Memorial Hosp. v Koziol (1976, OntCA; aff’d 1977 SCC):
o Nurse negligently failed to maintain adequate records, made it impossible to determine
the exact circumstances surrounding plaintiff’s death
o CA said burden of proof for disproving causation should be on nurse
o SCC didn’t agree: the “destruction of evidence” rationale was only Rand J, not adopted
by majority
 Patients often unable to identify the person responsible for negligent act that occurs
during/immediately after surgery – so courts have shifted burden of proof regarding causation
to the defendant
o Ybarra v Spanguard (1944, Cal. SC): court inferred negligene against an entire surgical
team of doctors and nurses even though only one of them may have caused plaintiff’s
injury
o Roe v Min. of Health (1954, EngCA): similar posisiton to above; “If an injurd person
shows that one or other or both of two persons injured him, but cannot say which of
them it was, then he is not defeated altogether. He can call on each of them for an
explanation” (did not elaborate further)
 Cook v Lewis is where 2 defendants were both careless; another approach may be adopted
when the potential causal factors include the defendant’s carelessness and the plaintiff’s
carelessness:
o Leaman v Rea (1954, NBCA)
 Collision between 2 cars, both driving in middle of highway
 Trial judge dismissed claim because he could not determine on balance of
probabilities how accident had occurred or which party was at fault
 NBCA: held that both parties equally to blame, apportioned damages 50/50
o Wotta v Haliburton Oil Well Cementing Co (1955, SCC):
 SCC said Leaman was case where the facts supported inference of carelessness
against both parties
 Leaman inapplicable to cases where either plaintiff or defendant was negligently
responsible but the facts did not point to one or both parties as being the
probable cause of the accident; in that situation, neither party is able to recover
any damages
o Martin v Murray Estate (1995, Ont Gen Div):
 Highly similar facts
 Court was able to identify the lane in which the accident occurred
 English and American courts have adopted a broader approach to the problems posed in cases
like Cook v Lewis
o McGhee v National Coal Board (1972, HL)
 In cases where it was impossible to determine the cause of the plaintiff;s loss
and “policy and justice” warranted imposing liability on the defendant as the
creator of a risk, the burden would shift to defendant if defendant’s negligene
material increased the risk of injury and that very injury befell the plaintiff

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  But this has yet to be settled
o Wilsher v Essex Area Health Authority (1988, HL)
 “reinterpreted” McGhee to simply mean that, in certain circumstnacecs, the
court may take robust and pragmatic approach to drawing an inference of
causation
o Snell v Farrell
 Court reiterated that plaintiff bears the legal burden of proving causation on a
balance of probabilities
 Held that evidence of conduct that materially increased the risk of injury does
not per se constitute sufficient proof
o Fairchild v Glenhaven Funeral Services Ltd (2002, HL)
 Endorsed view that there is no substantial difference between saying that what
the defendants did materially increased the risk of injury to the plaintiff and that
what they did made a material contribution to his injury
 Breach of duty which materially increased the risk should be treated as if it had
materialy contributed to the disease
 Sindell v Abbott Laboratories (Cal. SC, 1980)
o Plaintiff was cancer victim, mother had taken diesthylstilbestrol (DES) during pregnancy
o DES manufactured by ~200 pharmaceutical companies, no significant differences in the
product between manufacturers
o Plaintiff could prove that her cancer was caused by DES, but could not establish which
company had produced the DES that he mother had taken
o Plaintiff sued all major manufacturers
o Court found defendants negligence, held each liable in proportion to its market share
unless it could prove that it had not produced the DE that mother had taken
 Where the defendant destroys evidence, court will generally draw rebuttable presumption that
destroyed evidence was unfavourable to the party who destroyed it (St Louis v R (1895, SCC))

Res Ipsa Loquitur

 In some cases, plaintiff has to rely on circumstantial evidence to prove that defendant was
negligent party
 Circumstantial evidence: evidence from which an inference may be drawn to reach a conclusion
 Res ipsa loquitur = the thing speaks for itself
 Canadian courts use res ipsa loquitur to describe the circumstances in which the occurrence of
an accident provided circumstantial evidence that the plaintiff’s injury was caused by the
defendant’s carelessness
 Ex.// Byrne v Boadle (19863, Eng Ex)
o Plaintiff walking on sidewalk, was struck by barrel of flour that had fallen from window
of defendant’s warehouse
o Using res ipsa loquitur, court inferred that barrel fell as a result of defendant’s
carelessness
 Elements of Res Ipsa Loquitur (Scott v London and St Katherine Docks Co 1865)
o Occurrence must have been one that does not, in the ordinary course of events, happen
without carelessness

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 o Instrumentality of harm must have been under the sole management and control of the
defendant/someone for whom the defendant was responsible
o There must not have been any direct evidence as to how/why the accident occurred
 3 approaches about the effects of res ipsa loquitur
o Successful invocation of the maxim reversed the legal burden of proof such that
defendant was required to prove on balance of proabbilities that his/her carelessness
did not cause the plaintiff’s injury (Markway v South Wales Transport Co 1948 Eng)
o Successful invocation of maxim did not reverse legal burden of proof, but did require
defendant to adduce evidence that was sufficient to raise an inference of proper care
that was at least as strong as the inference of negligence that had been raised by
plaintiff (Erison v Higgins OntCA)
o Successful invocation of maxim merely provided a basis upon which some inference of
negligence might be drawn; trier of fact entitled, but not required, to draw an inference
(Easson v LNE Rwy Co 1944 KB)

Fontaine v BC (Official Administrator) (1998, SCC)

Facts
 Fontaine went on hunting trip and never came back - his body was recovered, along with that
of his hunting partner, crashed in their car in a creek bed. There were severe rainstorms and
terrible road conditions in the area at the time of the accident. Fontaine’s wife is claiming
compensation under BC legislation on the basis that the driver (Fontaine’s hunting partner)
presumably negligently caused the accident.
Issue
 1. When does res ipsa loquitur apply?
 2. What is the effect of invoking res ipsa loquitur? Res ipsa loquitur is no longer good law.
Held
Ratio
 Res ipsa loquitur is no longer good law – circumstantial evidence will be treated as supporting
a reasonable inference if it convinces the trier of fact on a balance of probabilities.
Reasoning
 Res Ipsa Loquitur (“the thing speaks for itself”) – doctrine applies when these circumstantial
facts are proven (1 & 2):
o 1. The thing that inflicted the damage was under the sole control of the defendant (or
of someone for whom he is responsible/whom he has a right to control)
o 2. The occurrence is such that it would not have happened without negligence
o 3. There must be no evidence as to why/how the occurrence took place
 If these conditions are satisfied, it follows, on a balance of probability, that the defendant was
negligent and is thus liable for the damage (i.e. circumstantial evidence constitutes
reasonable evidence of negligence)
 N.B. If there is any evidence as to how occurrence took place, the appeal to res ipsa loquitur is
inappropriate à question of defendant’s negligence must be determined on that evidence
 Res ipsa loquitur is a permissible fact inference; judge decides if it can be made, jury decides if
it will (it is not bound to find negligence on the basis of RIL)
 If defendant produces a reasonable explanation that is as consistent with no negligence as
the res ipsa loquitur is with negligence à neutralizes the inference of negligence and plaintiff’s
case must fail because they did not discharge their burden of proof

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  The law would be better served if the maxim was treated as expired: circumstantial evidence
must be weighed with direct evidence to determine whether the plaintiff has established a
prima facie case for negligence against defendant.
 In this case: the circumstantial evidence (tires were worn, car left road fast enough to break
through trees) is not strong enough to raise the presumption v. the defendant; the bad
weather means the accident could equally have happened without negligence.

 Singleton v Morris (2010, BCCA):

o Plaintiff’s vehicle was stopped at stop sign, was hit from behind by defendant’s behicle
o Court held: the fact that it was rear-end collision allowed court to infer that the
defendant had been negligent
o So plaintiff had established prima facie case
o But defendant presented evidence that there was oily substance on the road’s surface
o Court held that this was sufficient evidence to rebut the inference
o Plaintif’s claim failed for lack of proof of negligence
 HC Australia refused to abolish res ipsa loquitur (Schellenberg v Tunnel Holdings Pty Ltd (2000,
HCA)
 Visanji v Eaton (2006, BCSC)
o Plaintiff slipped and fell on wet bust floor
o Historically, common carriers, like the bus company, were held to high standard ofcare
(Day v Toronto Transit Commission 1940 SCC(, which sometimes involved shifting onus
of proof on the standard of care issue to the defendant
o In light of Fontaine, court state that “whether the burden upon a public carrier in cases
of injury/accident sustained by a passenger can be referred to as the shifting of the
burden as in Day, or a matter of inferences to be drawn from the evidence once the
plaintiff has established a prima facie case of negligence against the defendant carrier as
articulated in Fontaine, it is for the defendant to present evidence to answer, or be
found negligent”

Statutory Provisions and Tort Liability

 Possible definitions of “common law”
o As a system of law: derived from England; contrasted fromcivil law (ex.// QC), Jewish
law, Islamic Law, Aboriginal law
o As a source of law: denotes rules that were created by judges as opposed to legislators;
tort is very much a common law subject in that legislators have left the area to judicial
development
o As a court of law: used to distinguish the body of rules historically created in the courts
of law, as opposed to the courts of chancery or equity
 Most important definition for this section : the second one – most of the rules in tort law are
developed by judges
 But there are still circumstances in which statutory provisions affect the availability of relief in
tort law

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 o ex.// limitation periods
o statutory causes of action: legislation creates cause of action; wil often address specific
aspects of the statutory claim (ex.// standard of care, quantum of relief); judiciary role is
interpretive
o statutes in common law torts: legislation does not necessarily create independent
statutory cause of action, but may affect court’s analysis of common law claim in
negligence (ex.// if regulatory scheme prohibits certain type of conduct and imposes
fine, while not talking about civil liability, judge may decide that the regulatory scheme
supports the recognition of a duty of care in negligence)

Express Statutory Causes of Action

Trespass to Property Act (RSO 1990)
Trespass as an Offence
 s.2(1): Every person who is not acting under a right or authority conferred by law and who,
o (a) without the express permission of the occupier, the proof of which rests on the
defendant,
 (i) enters on premises when entry is prohibited under this Act, or
 (ii) engages in an activity on premises when the activity is prohibited under
this Act; or
o (b) does not leave the premises immediately after he or she is directed to do so by
the occupier of the premises or a person authorized by the occupier,
is guilty of an offence and on conviction is liable to a fine of not more than $2,000
o Sidenote: most violations of this provision will also give rise to a common law action
for trespass to land
Colour of Right as a Defence
 S.2(2): It is a defence to a charge under subsection (1) in respect of premises that is land that
the person charged reasonably believed that he or she had title to or an interest in the land
that entitled him or her to do the act complained of
Damage Award
 S.12(1): Where a person is convicted of an offence under section 2, and a person has suffered
damage caused by the person convicted during the commission of the offence, the court
shall, on the request of the prosecutor and with the consent of the person who suffered the
damage, determine the damages and shall make a judgment for damages against the person
convicted in favour of the person who suffered the damage, but no judgment shall be for an
amount in excess of $1,000
Costs of Prosecution
 S.12(2): Where a prosecution under section 2 is conducted by a private prosecutor, and the
defendant is convicted, unless the court is of the opinion that the prosecution was not
necessary for the protection of the occupier or the occupier’s interests, the court shall
determine the actual costs reasonably incurred in conducting the prosecution and,
despite section 60 of the Provincial Offences Act, shall order those costs to be paid by the
defendant to the prosecutor
Damages and Costs in Addition to Fine
 S.12(3): A judgment for damages under subsection (1), or an award of costs under subsection
(2), shall be in addition to any fine that is imposed under this Act
Civil Action

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  S.12(4): A judgment for damages under subsection (1) extinguishes the right of the person in
whose favour the judgment is made to bring a civil action for damages against the person
convicted arising out of the same facts
Idem
 S.12(5): The failure to request or refusal to grant a judgment for damages under subsection
(1) does not affect a right to bring a civil action for damages arising out of the same facts
Enforcement
 S.12(6): The judgment for damages under subsection (1), and the award for costs under
subsection (2), may be filed in the Small Claims Court and shall be deemed to be a judgment
or order of that court for the purposes of enforcement

Competition Act (RSC 1985)

Recovery of Damages
 S.36(1): Any person who has suffered loss or damage as a result of
o (a) conduct that is contrary to any provision of Part VI, or
o (b) the failure of any person to comply with an order of the Tribunal or another court
under this Act,
may, in any court of competent jurisdiction, sue for and recover from the person who
engaged in the conduct or failed to comply with the order an amount equal to the loss or
damage proved to have been suffered by him, together with any additional amount that the
court may allow not exceeding the full cost to him of any investigation in connection with the
matter and of proceedings under this section
o Sidenote: one purpose of this provision: to encourage private citizens to participate in
the enforcement of the criminal law in the field
o Sidenote: this provision is similar to the commonlaw action for conspiract

Part VI
Offences in Relation to Competition
Conspiracies, agreements or arrangements between competitors
 S.45(1): Every one to conspires, combines, agrees or arranges with another person
o (a) to limit unduly the facilities for transporting, producing, manufacturing, supplying,
storing or dealing in any product,
o (b) to prevent, limit or lessen, unduly, the manufacture or production of a product or
to enhance unreasonably the price thereof,
o (c) to prevent or lessen, unduly, competition in the production, manufacture,
purchase, barter, sale, storage, rental, transportation or supply of a product, or in the
price of insurance on persons or property, or
o (d) to otherwise restrain or injure competition unduly,
Is guilty of an indictable offence and liable to imprisonment for a term not exceeding 5 years
or to a fine not exceeding ten million dollars or to both.

 Burgess (Litigation Guardian of) v Canadian National Railway (2005, OntSCJ; aff’d 2006 OntCA)
o Young child was seriously injured after being struck by defendant’s train
o Plaintiff’s action: defendant responsible because it failed to install a pedestrian crossing
system
o Action failed

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 o Court held: situation governed by Railway Safety Act (RSC 1985)
o But court also held: Parliament intended to create obligations to benefit the public
generally, rather than individual
o Court further held: notwithstanding existence of public obligation, parties did not share
a relationship of sufficient proximity so as to trigger an independent duty of care under
the tort of negligence

Trachsler v Halton (1955, OntHC)

Held:
 The Municipal Act creates a duty in municipalities to keep highways in a condition that
travellers using them with ordinary care may do so in safety
Ratio:
 If defendant can show they did all that could be reasonably expected to discharge a statutory
duty, they will not be held liable

 Statutory duty vs statutory standard:

o Statutory duty: refers to the oligation itself (ex.// duty to keep the highway in a state of
repair)
o Statutory standard: degree of care that the defendant must exercise to meet this duty

The Use of Statutes in Common Law Negligence

 Very often, legislation directs a party to act a certain way, but does not expressly provide a
statutory right of action
 Issue: can court (1) infer statutory action, or (2) treat legislation breach, in and of itself, as a
common law action

R. in Right of Can. V Sask. Wheat Pool (1983, SCC)

Facts
 Saskatchewan Wheat Pool (SWP) delivered infested wheat to the Canadian Wheat Board, in
violation of s. 86(c) of the Canadian Grain Act. The statute made no reference to using civil
liability for breach of its provisions. The board did not make claim in common law negligence,
but sought damages for breach of s.86(c).
Issue
 Can a civil cause of action be brought for breach of a statutory duty?
o If yes, then: Is the liability for breach absolute, or can D be absolved of liability if the
failure to perform the duty was through no fault of their own?
Held
Ratio
 Canada does not recognize a common law tort of statutory breach
o 1) Civil Consequences of breach of statute should be subsumed in the law of
negligence
o 2) The notion of a nominate tort of statutory breach giving a right to recovery merely
on proof of breach and damages should be rejected, as should the view that
unexcused breach constitutes negligence per se giving rise to absolute liability
o 3) Proof of statutory breach, causative of damages, may be evidence of negligence

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 o 4) The statutory formulation of the duty may afford a specific, and useful, standard of
reasonable conduct
Reasoning
 Generally, there are two relevant systems: US and UK
 UK System: new nominate tort of statutory breach
o Where a public law penalty was provided for in statute, a private civil action would
not automatically arise
o In UK the cause of action rests on proof that the legislature intended that violation of
the right or interest conferred by the statute was to be treated as tortious?
o This system is considered capricious and arbitrary, “judicial legislation” at its worst, as
it led to decisions made on insignificant details of phraseology
o A test emerged: whether the duty created by statute is owed to the state, and only
incidentally to the individual or vice versa.
 1) Is the purpose of the statute to protect a certain class of individuals (and
not all the public)?
 2) Is the injury suffered of a kind to which legislation was seeking to prevent
 US System: assimilate civil responsibility for statutory breach into the general law of
negligence
 Recovery of damages for injury due to violation of the statute, rest on common law principles:
Proposes the formulation of specific standards for violation, instead of unformulated
standard of reasonable conduct
 Spectrum of views
o One end (Majority View in US): Breach of statutory duty may constitute negligence
per se. Once statute is determined to be applicable, an unexcused violation is
conclusive of negligence. Standard of Conduct is that of a reasonable man when
legislation’s purpose is at least in part to protect the class of the persons interest and
the interest from harmed and from the type and kind of harm
o Other end(Minority View in US): breach is merely evidence of negligence: Breach may
be evidence considered totally irrelevant, merely relevant, or prima facie evidence of
negligence. This view is due to application to criminal law, technical defences
available in criminal are not available in civil law. Purpose of criminal statute
(deterrence and punitive) very different from compensatory principle of tort
 Canadian Perspective
o Traditionally Canadian courts have used both systems
o But generally: The breach of statutory provision is prima facie evidence of negligence
 Court's Reasoning:
 Negligence: the purpose is to shift loss to a defendant who has been at fault, to discourage
such acts.
o But holding defendant who breached a statutory duty unwittingly is not defensible
o When statute has a strictly admonitory (to warn) penalty, then creating liability in
such circumstances would create liability without fault
 In such cases creating civil liability would make consequences not the statutes
penalty but the damages for recovery
 Minimal fault may lead to large liability in damages
 Inconsequential violations should not be subject to civil liability, but left to
criminal fines

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 o Duty imposed by the act is not absolute, requirements to show how failure to comply
arose or whether D was guilty of any failure to take reasonable care to comply must
be met
o All of the grain collected at The Pool came from the Wheat Board’s agents; to impose
a heavy fine on the Pool without fault would seem to violate fundamental fairness.
o In the case at bar, negligence is neither pleaded nor proven -- the action must fail.

 SK Wheat Pool was not first SCC decision to consider the rules that apply at intersection of
statutory obligations and common law torts – Horsley v MacLaren (1972, SCC)
o Passenger on pleasure craft fell overboard, operator ofboat didn’t cause victim to fall
overboard, but failed to provide effective rescue
o Court had to determine significance of a statutory obligation that applied in the context
of commercial shipping
o Laskin said: “there is an independent basis for a common law duty of care in the
relationship of carrier to passenger, but the legislative eclaration of policy in s..526(1) of
the Canada Shipping Act is a fortifying element in the recognition of that duty, being in
harmony with it in a comparable situation”
o Ritchie said: agreed that defendant was under common law duty to rescue, but that
duty was not dependent upon the provisions of s.526(1)
o Majority held that defendant had not breached common law standard of care
 Bhadaura v Bd. Of Governors of Seneca College (1979, OntCA; rev’d 1981 SCC)
o Wilson (at OntCA): recognized new common law tort of discrimination based on public
policy expressed in Ontario Human Rights Code
o SCC: rejected this argument; the Code’s remedial provisions were only remedy available
to plaintiff
 Stewart v Pettie (1995, SCC):
o Car accident caused by carelessness of driver who had been served alcohol at the
defendant’s dinner theatre
o Defendant may have breached statute that prohibited the provision of alcohol to
intoxicated patrons, but Major J said that legislative violation “does not ground liability”
 Ryan v Victoria (City) (1999, SCC)
o Same view as Stewart v Pettie: breach of statutory duty does not constitute grounds for
liability
o Citing SK Wheat Pool and Stewart v Pettie, Major J held that while proof of a statutory
breach may provide some evidence of carelessness, it “does not automatically give rise
to civil liability”
 Holland v Saskatchewan (2008, SCC):
o Another application of SK Wheat Pool
o Plaintiff represented ~200 farmers who dealt with domesticated cervids (members of
deer family)
o Farmers were asked to join fed program aimed at controlling chronic wasting disease
(CWD), but refused to sign broadly worded indemnification and release clause
o Govt revoked CWD-free certification status, which adversely affected the marketability
of their cervine products and caused financial loss

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 o Plaintiff secured judicial declaration saying that impugned clause was beyond the scope
of the fed govt’s legal authority
o Govt refused to reinstate CWD-free certification or provide compensation for losses
o Plaintiff started class action
o Govt argued: class action should be struck out for failing to disclose valid cause of action
o Plaintiff’s claim was struck out, except insofar as it alleged that the defendant
negligently failed to implement the judicial declaration regarding the invalidity of the
impugned clause
o Reiterated proposition that “mere breach of a statutory duty does not constitute
negligenve”
o “the proper remedy for breach of a statutory duty by a public authority…is judicial
review for invalidity…no parallel ation lies in tort”
 Limited nature of SK Wheat Pool
o Legislative violation does not, by itself, trigger civil liability
o But it also does not preclude civil liability (as per Odhavji Estate v Woodhouse)
o Odhavji Estate v Woodhouse (2003, SCC):
 Contrary to provision in Police Services Act, police officers involved in a fatal
shooting refused to cooperate in an investigation
 Court said: tort of statutory breach does not exist; but that doesn’t mean that
breach of statute can’t give rise to liability if the constituent elements of
tortious responsibility have been satisfied; the mere fact that the alleged
misconduct also constitutes a breach of statute is insufficient to exempt officer
from civil liability

Breach of Statutory Duty and Common Law Standard of Care

 As per SCC in SK Wheat Pool, breach of statutory duty does not, by itself, trigger liability
 Plaintiff must instead prove a common law cause of action (ex.// tort of negligene)
 Within common law action for negligene, statutory duty may provide some evidence of the
standard of care that the defendant is expected to meet

Galaske v O’Donnell 1994, SCC)

Facts
 8 year old P and dad were passengers in a truck being driven by D. P wasn’t wearing a
seatbelt and D didn’t do anything to make sure he was because his dad was there
Issue
Held
 D is liable
Ratio
Reasoning
 There was a duty of care between the parties. A duty owed by an occupant of a car to wear a
seat belt but children under 16 do require guidance and direction from parents and older
persons. One of those responsible for their wearing a seatbelt must always be the driver of
the car. Driving is a licensed activity that is subject to a number of conditions, obligations and
responsibilities, which include some regard for the safety of young passengers. S217(6) of the
Motor Vehicle Act – a person shouldn’t drive their car with a passenger between 6-16, if they
haven’t put their seatbelt on yet. Such a failure on the part of the driver demonstrates

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 conduct which falls below the standard required by the community and is thus negligent.
There may be joint responsibility/duty of care resting upon both the parent and the driver,
but the parent’s responsibility does not negate the duty owed by the driver to a passenger
under 16. The driver of the car is in a position of control. What would constitute reasonable
conduct on the part of the legendary reasonable man placed in the same circumstances – the
degree of responsibility will have to be determined in this case

Ryan v Victoria (City) (1999, SCC)

Facts
 Ryan was riding motorcycle in downtown Victoria and had an accident due to railcar lines in
the street. Victoria argued that they were following all their statutory duties regarding safe
maintenance of the roads (flip-side of presence of statutory provision).
Ruling
 “… By the same token, mere compliance with a statute does not, in and of itself, preclude a
finding of civil liability.” First full paragraph on 812 sets out basic position vis-à-vis
compliance. Note background requirement, similar to that operating in context of statutory
presence in relation to issue of duty: one must consider the ‘scope’ of the statute.
 But as well in this context one should consider carefully whether the statute is ‘specific’ or
‘general’ (here unpacked in terms of whether the statute defines the manner of conduct, or
provides authority for action in a more or less undefined manner):
 “Where a statute authorizes…” (just past 1/3 down on 813)
Ratio
 Either the D or P can raise a statute in a tort action, but it only serves as evidence as to the
existence of and the standard for the duty of care, as per SASKATCHEWAN WHEAT POOL.

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