LAWG 101 – ECO / TortsProf. Stephen Smith

Summary Winter 2017Alexandra Klein

Table of Contents1. Injury: Existence and Assessment.............................................................3

A. Injury (Jan 17-19)............................................................................................3The Measure of Injury – Chamallas & Wriggins – 2000..............................................................7Parker v Richards [1990] – CML................................................................................................8Le Préjudice Corporel – Gardner – 2009....................................................................................9Independent Assessement Process (IAP) for continuing Indian Residential School Abuse Claims....................................................................................................................................... 9

B. Limits of Recovery (Jan 24)..............................................................................9Ter Neuzen v. Korn [1995] – CML............................................................................................10Curateur Publique v Hôpital St-Ferdinand [1996] – CVL..........................................................10Augustus v Gosset [1996] – CVL.............................................................................................11

2. Limiting Liability on the Basis of the Injury, Relationship, or Actors..........12A. Introduction (Jan 26) – Plenary (Smith)...........................................................13

Comparative Tort Law – Scope of Protection – Wagner – 2006 – CML.....................................14Weller v Foot and Mouth Disease Institute [1996] – CML (UK)................................................15Hedley Byrne & Co v Heller & Partners [1963] – CML (UK)......................................................16Elliott c Entreprises Côte-Nord Ltée [1976] – CVL...................................................................17Page v Smith [1996] – CML (UK).............................................................................................17Augustus v Gosset [1996] – CVL.............................................................................................18

B. Wrongful Life & Birth (Jan 31).........................................................................18McKay v Essex Area Health Authority [1982] – CML (UK)........................................................19McFarlane v Tayside Health Board [1999] – CML (UK)............................................................21Cooke v Suite [1995] – CVL.....................................................................................................22

C. Privacy (Feb 2)..............................................................................................22Aubry c Éditions Vice-Versa Inc [1998] – CVL.........................................................................23Von Hannover v Germany [2004] – GERMANY........................................................................23Jones v Tsige [2012] – CML.....................................................................................................24An Act to Address & Prevent Cyberbullying SNS 2013, c 2 (99)..............................................25

D. Human Rights (Feb 7)....................................................................................26Choc v Hudbay Minerals Inc [2013] – CML..............................................................................26La Protection des droits fondamentaux et la responsabilité civile – LeBel..............................27

3. The Common Law Duty of Care................................................................28A. Introduction to ‘Duty of Care’ and its Counterpart, ‘Causation in Law’ (Feb 9) – Plenary (Van Praagh)..........................................................................................28

Palsgraf v Long Island Railroad [1928] – CML (US)..................................................................29Palsgraf as ‘Transsystemic’ Tort Law......................................................................................30

B. The Concept of the ‘Duty of Care’ (Feb 14)......................................................31Article 1457 CCQ..................................................................................................................... 32Donoghue v Stevenson [1932 ] – CML (UK).............................................................................32Home Office v Dorset Yacht [1970] – CML (UK)......................................................................32Anns v London Borough of Merton [1977] – CML (UK)............................................................33City of Kamloops v Nielson [1984] – CML................................................................................34Cooper v Hobart [2001] – CML................................................................................................34

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C. Duties to Benefit/Rescue (Feb 16)...................................................................35Article 2 Charte des droits et libertés de la personne.............................................................35Articles 1457 CCQ................................................................................................................... 35Articles 1471 CCQ................................................................................................................... 35An Act to Promote Good Citizenship Articles 2 and 12............................................................35The Good Samaritan Protection Act........................................................................................36Tort Law: Scope of Protection – Van Gerven...........................................................................36Agapè – N Kasirer....................................................................................................................36Childs v Desormeaux [2006] – CML........................................................................................38Crocker v Sundance [1988] – CML (skip sections 4, 5, 6 of the judgment).............................39

D. Emotional and Psychiatric Harms (Feb 21) (also: Secondary Victims and Relational Loss)..................................................................................................40

Article 1053 CCLC...................................................................................................................40Article 1056 CCLC...................................................................................................................40Who Lost What? Relationship and Relational Law – Van Praagh.............................................41Régent Taxi v Congrégation des petits frères de Marie [1929] – CVL.....................................42Augustus v Gosset [1992] – CVL.............................................................................................43Alcock v Chief Constable [1992] – CML (UK)...........................................................................43Annetts v Australian Stations Pty Ltd [2002] – CML (AUS)......................................................44

E. ‘Pure’ Economic Harms? (Feb 23)....................................................................45Article 1067 CCLC...................................................................................................................46Weller v Foot and Mouth Disease Research Institute [1966] – CML (UK)................................46Elliott c Entreprises Côte-Nord Ltée [1976] - CVL....................................................................46Hedley Byrne & Co v Heller & Partners [1963] – CML (UK)......................................................46Cooper v Hobart [2001] – CML................................................................................................46CNR v Norsk Pacific Steamship [1992] – CML.........................................................................46Bow Valley Husky v Saint John Shipbuilding [1997] – CML......................................................47Hercules Managements Ltd v Ernst & Young [1997] – CML.....................................................48

F. Civil Liability and the State – Plenary (Saumier) (Mar 7)...................................49Liability for Failure to Regulate Health and Safety Risks – Van Boom & Pinna........................50Cilinger c Québec (PG) [2004] – CVL.......................................................................................52Williams v Ontario [2009] – CML.............................................................................................52R v Imperial Tobacco Canada Ltd [2011] – CML......................................................................53

4. Defining the Scope of Civil Liability: Legal Causation................................54A. Legal Causation: Directness and Foreseeability (Mar 9-14)................................54

Art 1607 CCQ.......................................................................................................................... 55Causation in the Law – Hart & Honoré....................................................................................55Chapter 5 – Cane – pp. 118-129..............................................................................................56In Re Polemis and Furness, Withy & Co [1921] – CML (UK).....................................................57Overseas Tankship v Morts Dock (Wagon Mound 1) [1961] – CML (UK)..................................58Obligations: Responsabilité Délictuelle – Starck, Roland & Boyer...........................................59Brisson c Potvin [1948] – CVL.................................................................................................59Morrissette v McQuat [1958] – CVL.........................................................................................60Joly v La Ferme Ré-Mi [1974] – CVL........................................................................................61Hughes v Lord Advocate [1963] – CML (UK)............................................................................62Palsgraf v Long Island Railroad [1928] – CML (US)..................................................................62

B. Multiple Wrongdoers and Multiple Causes (Mar 16)..........................................63Deguire v Adler [1963] – CVL..................................................................................................63Q v Minto Management [1988] – CML.....................................................................................64Caneric Properties v Allstate [1995] – CVL..............................................................................65Home Office v Dorset Yacht [1970] – CML (UK)......................................................................66

C. Consolidation (Mar 21)....................................................................................66D. Predisposition of the Victim (Thin Skull Rule) (Mar 23).....................................66

Les Conditions de la Responsabilité – Viney...........................................................................67Smith v Leech Brain & Co. Ltd [1962] – CML (UK)...................................................................68

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Marconato v Franklin [1976] – CML.........................................................................................69Corr v IBC Vehicles [2006] – CML (UK)....................................................................................69

E. Victim’s Behavior (Mar 28)..............................................................................70Hydro v Girard [1987] – CVL...................................................................................................71Contributory Negligence Act...................................................................................................71Crocker v Sundance [1988] – CML..........................................................................................71Waldick v Malcolm [1991] – CML.............................................................................................72Gaudet v Lagacé [1998] – CVL................................................................................................73

F. Consolidation (Mar 30)....................................................................................74

1. Injury: Existence and Assessment

A. Injury (Jan 17-19)

Types of damagesCompensatory

Pecuniary (patrimonial/special)o Bodily injuryo Material injury

Non-pecuniary (extra-patrimonial/general) (Jim Russell Int. Racing Drivers School c. Hite)o Moral injury

Pecuniary damages are more tangible and can easily be proven with receipts or other types of mechanisms (market value, etc) Non-pecuniary damages are harder to assess since they deal with people’s feelings, souls, dignity, etc Non-pecuniary damages are usually assessed under specific heads of damages: pain and suffering, loss of enjoyment of life, impact on personality, impact on confidence, impact of aesthetic blow to the person It’s impossible to put a number on moral damages, so we must decide in terms of policy concerns and philosophical foundations

Deterrent Punitive/exemplary

o Beyond what you would get for pain and suffering o Focuses on the defendant’s behaviouro Very similar to criminal law, but the money goes to the victimo In some instances, people say it’s used to basically make up for the fact that they have to pay for their

lawyerso CML: accepted, in certain circumstances:

Committing a tort intentionally and to make a profit (ex: newspaper defames someone but figures they’ll make so much money that it’s worth it)

Malicious prosecutiono CVL: only allowed for breach of the Chartero Many people think it is just wrong – if you want to punish, you should use the criminal law

Injury/damages3 questions raised re injury/harm

1. Do you need an injury in order for there to be civil liability?o In CVL, need injury (1457) to get damageso In CML, it depends on the tort (Chamallas & Wiggins)

For negligence must have injury/harm For intentional torts (trespass, assault etc) you don’t require a loss/harm (nominal damages)

Is symbolic to show you did something wrong and will be held liableo Part of a bigger story about what CML cares about – rights in an abstract sense

as opposed to CVL

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2. When you do need injury, what counts as an injury/harm? Biggest diff between CML and CVLo CVL: anything you can imagine as a harm – very expansive notion

Harm includes anything that hurts your dignity, your respect, your physical self, finances, moral, etc anything that causes you to be worst off

o CML: many things you may call harm but are insufficient, don’t count as injury for purposes of negligence

Pure economic loss: ie: economic prospects, only setback is financial NOT recoverable (CML explains via duty of care)

Ex: defendant carelessly cutes power line and your business has no power so shut down for 2 days and lose sales

Consequential economic loss: economic loss you have due to property being damaged IS recoverable (CML explains it via trying to measure the value of the loss/assessing damages)

Pure emotional harm: mental distress and suffering NOT recoverable Ex: if someone carelessly kills your friend, you can’t recover because it’s only emotional Note: psychiatric harm though is physical Exception: for death of family members via statutes

Consequential emotional harm: IS recoverable3. When there’s sufficient injury, how do you assess the measure of damages (ie: how much money you’ll get)?

o CVL: compensatory damages (pecuniary and non-pecuniary) o CML: compensatory damages (pecuniary and non-pecuniary, includes pain and suffering) and punitive

damageso A lot of the questions turn around very technical data that depends on the facts and require a lot of proofo You have to consider: (1) life expectancy (2) earnings (with and without the injury) (3) collateral benefits

(what the person gets from other insurances) The law isn’t consistent in either system, in its way of dealing with collateral benefits and this

concerns normative questions

Instrumental/utilitarian theories v corrective justice/right-based theories Can be applied to damages but provide 2 diff solutions Instrumental/utilitarian: damages as incentives to prevent wrongdoing from taking place in the future, trying to

make the world a better place – forward-looking Justice/right-based: justice demands that the wrongdoer pays damages to the victim to achieve justice and

redress the wrong – backward-looking

What’s the point of giving damages? Continuity thesis: damages are continuation/substitute of original duty (next best way of performing your duty)

o Originated in K law, and still works best in K – it’s used in torts but it’s trickier o Hard to assess how much money we have to give to make up for the breach of contract or duty and put

the person back into their original position – it’s too technical Symbolic/expressive thesis: damages are like an apology, something symbolic

o The law attempts to say to the defendant that what they did was wrong, they should be punished for acting badly, and the law will force you to pay money to vindicate and express that this shouldn’t have happened

o Fits way better with punitive damages, and pains and sufferingso When we consider punishments as symbolic as in this theory, it’s a sort of gesture to ask for forgiveness

for the harm suffered by the plaintiff rather than being completely accurate and technical as to what’s owed

3 approaches for calculating non-pecuniary damages(Curateur Publique v Hôpital St-Ferdinand)

1. Conceptual approach: gives each kind of damage an objective, universal, specific valuea. Has the disadvantage of not accounting for the victim’s unique situation and has generally been rejectedb. Whereby we categorize diff types of losses and determine a monetary value which attaches to each

2. Personal approach: attempts to calculate the specific moral damages that a particular victim feels due to the injury

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a. In cases of low or average loss, this is the preferred approach, although in serious cases it can be arbitrary and is thus not optimal

b. Reflects point of view that we can compensate individuals and that money can restore individuals per restutio in integrum

c. Whereby the individual’s particular characteristics and circumstances are taken into account (in concreto approach)

d. Adopted by CVL (Jim Russell Int. Racing Drivers School c. Hite; Ouellette v Tardif)3. Functional approach: adopted in CML provinces, which values injuries by the cost of equivalent pleasures

and/or measures required to return a person’s life to the pre-injury conditiona. Money acts as a substitute for the pleasure and enjoyment lost and endeavours to alleviate, as far as

possible, the pain and suffering b. Reflects the point of view that money cannot realistically restore individuals per restutio in integrumc. Whereby the goal is to provide solace, not about compensation in the sense of restutiod. Adopted by CML (Parker v Richards)

In practice, there’s no real diff between CML and CVL, and both use a combo of the above approaches in determining damages

Smith doesn’t see how personal entirely differs from the functional approach

The purpose of damages is that of repairing the injuries, and bringing back the person to the position she was in Obviously some guesswork will have to be done to assess what are the damages that must be awarded We cannot know what one’s life would have been like or what one’s life will look like: so we have to guess what

the person’s life will look like now given the accident and what the person’s life would have looked like We have to make a guess about salary and about life expectancy We have specific variables that are relevant to look at in order to assess how much would a person’s salary have

been or what would have been the life expectancy: gender, race, geography, education, and any other variable that might give a statistical picture as to what degree this person’s life is “worth”

In other words, ECO has so far been concerned with having statistical accuracy over people’s “worth” Some argue that ECO then simply uses damages to reinforce and accept social inequality. We take those

inequalities as given and reproduce them in assessing the damages. To what degree is this appropriate? Should tort law reproduce this inequality?

CVL CVL focuses very heavily on the objective of full compensation. It recognizes a greater variety of injuries than

does the common law and is typically more generous in its compensation Compensation is due when one party infringes on the legitimate interest of another or an objective loss,

whether it be patrimonial or extra-patrimonial in nature What types of moral damages does the law recognize? Loss of enjoyment of life; esthetic prejudice,

physical/psychological pain and suffering; inconvenience, loss of amenities; sexual prejudice Moral damages should be compensated via the personal approach, assessing the damages in terms of the

injury’s effect on the specific victim in question and not on abstract principles

CML CML adopts a functional approach to assessing compensation for damages on a basis of pecuniary loss Damages are based on future income prospects of the deceased or injured

o Relevant criteria for this include gender, age, education, participation in the labour force, marital status, ethnicity and socioeconomic background

Jim Russell Int. Racing Drivers School c. Hite [1986] – CVL

FACTS H was working for a racetrack operated by R H was training with one of the race cars when he crashed into a chain that would normally have been raised

o Caused severe facial disfiguration and he needed extensive surgery, despite not losing any mental or real physical capacity

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HISTORY: trial judge awarded damages for the injury to H’s bodily integrity and to his personality, R appeals

ISSUE1. How do QC courts assess compensation? Court will consider capacity of gain beyond simple pecuniary loss – H must be fully compensated for his patrimonial (economic) and extra-patrimonial (moral) losses2. Can moral damages (prejudice of extra-patrimonial rights), which cannot be monetarily quantified, be compensated? YES

REASONINGThe injury sustained to H.’s face is more than physical definite moral suffering

It takes away his confidence It prevents him from expressing himself and communicating with others as he normally could have done

QC diverges from CML approachQC courts should not adopt the functional approach based on categories adopted by the CML CVL offers compensation for both physical and moral damages (injury to extra-patrimonial rights – ie: no pecuniary value (ex: personality rights))

Goal is the objective compensation of a legitimate interest or right which has been injured The loss does not have to be pecuniary

The CML notion that compensation should only be so much as allows the damages to be balanced CML is reluctant to award moral damages

In concreto approach to damages Qc. courts should adopt a reasonable approach based on the individual loss, and not based on abstract rules

Damages are assessed in an in concreto fashion Facial disfigurement fundamentally affects communication, interpersonal relations and the identity a person

projects to the world and it may even prevent H from working in jobs that require contact with the public it has both patrimonial and extra-patrimonial elements which require compensation

RATIO1. Under CVL, both physical and moral (non-pecuniary) damages are compensable based on an evaluation of the individual’s personal loss with an in concreto approach2. In civil law, moral damages should be compensated via the personal approach, assessing the damages in terms of the injury’s effect on the specific victim in question and not on abstract principles

COMMENTSN.B. This ruling implies that the rules of the SCC with respect to compensation in CML should not restrict CVL judges

Ouellette v Tardif [2000] – CVL

FACTS T, a university-educated priest, was hit while swimming in a lake by a boat driven by O’s 14 yr old son, while

O was waterskiing behind and his son was not looking in front of him Injuries prevent T from returning to work as a missionary in Africa where he had a vow of poverty HISTORY: trial court found responsibility to be 75%-25% as T was wearing a dark bathing suit

ISSUE1. Was T contributorily negligent? NO2. What is the correct method for determining compensation for T? Court must consider ‘capacity of gain’ beyond pecuniary damage

REASONINGT’s vow of poverty does not affect his right to receive compensation The vow is to a 3rd party – ie: the mission, and has nothing to do with O’s obligation to compensate

Where the actual work does not have a clear income, the court can refer to statistical evidence rel. to a comparable job – here they use the avg salary of a university professor

Gain lost by the victim – loss of earnings capacity You want to look at more than simple pecuniary damage and consider also the capacity for gain lost by the victim

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T tried, but was unable to return to his work in Africa his handicap completely impeded his pursuit of his career Trial judge erred in assessing that the injury resulted (medically) in a 31.5% loss of physical capacity as,

given that the victim could no longer work at all, the loss of capacity of gain was actually 100% Trial judge erred in considering the rest of T’s life as factoring into the calculation of potential income lost

Calculation should be on the basis of “active life” – ie: until when he would have been working, which statistically is 65 yrs. old, and not for life despite what the Fathers of the his mission normally did

It is important to assess the impact of the handicap in concreto Ie: rel. to the given situationContributory negligence T is in no way responsible for the accident will receive 100% of any damages awarded

Faute lourde on the part of O and his son

RATIO1. Damages must be awarded in concreto, taking account of the victim’s specific needs and abilities 2. In QC, the court must consider “capacity of gain” when assessing compensation for injuries (ie: pecuniary damage for loss of income is calculated upon the loss of capacity to earn, not the actual income)

COMMENTS All pecuniary damages are very specific: the numbers are based on statistical data or actual expenses measured with receipts. All non-pecuniary damages, however, are rounded off which is usual for these types of injuries because it’s hard to give a perfectly accurate amount that represents the damage Trying to put him in the same position he was before. Sometimes it involves some inventive kind of thinking, like in this one

The Measure of Injury – Chamallas & Wriggins – 2000

SUMMARYProof of damages is an essential element of most tort actions – aside from some intentional torts in which plaintiffs are entitled to recover nominal damages once they establish their cause of action, in all other cases plaintiffs are required to demonstrate actual harm and to provide individualized evidence of the extent of their losses. It is important to dwell on the connection between damages and the general objectives – compensation and deterrence – of tort law. Recent reform, the enacting of damage caps, and the use of gender and race-based tables has disproportionate effects on certain groups on the basis of age, race, and gender.

KEY POINTSDamages are important because they signal how injuries are valued by the legal system

Tort measurement of lost earnings potential, pain and suffering, etc, can be affected by negative attitudes toward social groups and are not immune to conscious and unconscious gender and racial bias

Compensatory and punitive damages Compensatory damages: routinely awarded and considered the ‘normal’ remedy in tort

o Main function is most often described as ‘repairing’ the plaintiff’s injury – to restore the plaintiff to the position they were in before the accident (the status quo ante)

o To accomplish the restorative function of tort law to the widest extent possible, compensatory damages are awarded for a wide variety of economic (ex: lost wages, loss of future income capacity, etc) and non-economic harms (ex: pain and suffering, loss of enjoyment of life, relational losses etc)

o Compensatory damages do not just answer the compensation purpose of tort law An award of compensatory damages may represent a desire to deter conduct, to articulate a

social norm of social disapproval, or to fix damages at the level that vindicates the invasion of the plaintiff’s rights

Punitive damages: rarely awarded and require showing that the defendant acted with malice or conscious indifference to the risks posed by his conduct

o Main purpose is to punish the defendant for reprehensible conduct and to deter future behavior Specific problems Rel. to economic damages: use of gender and race-based tables to calculate awards for loss and future income capacity

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Social importance as we are talking about the measure of a person’s potential here Essentially stereotyping in a way generally prohibited by constitutional guarantees of equal protection and

statutory anti-discrimination lawso Esp rel. also to reliance on statistics where individual track record absent (ex: children who’ve not yet

entered the workforce) Perpetuation of historical pattern of wage discrimination in tort awards Can result in the systematic undervaluation of recurring types of injury (ex: lead paint in low-income

neighborhoods awards reflect the poor people who live there and are low landlords have less incentive to take measure to fix the situation)

For some time, courts in CA have grappled with the legitimacy of using gender-based calculations in tort caseo Have started to reject the use of gender-based estimates of lost earning capacity

9/11 exampleo In calculating awards under the Sept 11 Compensation Fund, there was objection to the proposed use

of gender and race tables – so the same tables were used for all, effectively raising compensation to women and lowering it for men to make it even for everyone

Main objection to abandoning such tables is ‘accuracy’ and you have to think of this in terms of the ‘make-whole’ orientation of tort law

o BUT most of these often fail to appreciate that predictions about the future have a way of simultaneously affecting the present and constructing the future

Ex: compensating men and women on the same basis in tort law makes a statement about the type of equality the culture embraces which could then generate pressure for pay equity in the workplace

o The unspoken premise of using race and gender as indicators is that women and racial minorities will continue to lack the character, ability or commitment to compete successfully with white men in the workplace – eclipses the role that lack of opportunities and persistent discrimination play and reinforces the view that these differences are inevitable and enduring rather than a product of political and social arrangements that are subject to change

Rel. to non-economic damages: contemporary assault on the legitimacy of such damages and recent imposition of harsh damage caps

Effect of these caps is felt unequally and have their main effects on those persons whose injuries defy monetization and disproportionality affect women, children, elderly, and minorities who are unable to prove the value of their loss in market-based terms

These caps reveal an implicit hierarchy of value in tort law that ranks economic damages higher than non-economic damages

Parker v Richards [1990] – CML

FACTS C Parker, an Aboriginal 17 yr old single mother dropout with a young child, A Parker, was killed in a car

accident C’s mother, P, took on the role of guardian for A P. is claiming damages under the Family Compensation Act

ISSUEHow do CA CML courts assess damages? Compensation is based on an assessment of past and future pecuniary losses

REASONINGCourt takes a number of factors into account when assessing compensation for P P made claims in terms of the resulting loss of financial support, loss of mother’s services, loss of care, guidance, training, and encouragement, and loss of inheritance

Court holds that a proper assessment of the value of these losses includes a consideration of C’s ability to provide for A and the likelihood of it

o In concreto: don’t just say how much the average mother supplies to average daughter BUT how much THIS actual mother would

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o Take into account factors like gender, age, education, marital status, ethnicity, family backgroundDamages Loss of financial support

Expert evidence that C would statistically have been below the poverty line, likely on welfare Judge decides what proportion of welfare would have been to the benefit of A then calculates past and future

losses Loss of mother’s services

Accepts expert evidence that a full-time nanny would be required and calculates past and future losses Loss of care, guidance, training and encouragement Loss of inheritance

RATIO1. CML adopts a functional approach to assessing compensation for damages on a basis of pecuniary loss2. Damages are based on future income prospects of the deceased or injured – relevant criteria for this include gender, age, education, participation in the labor force, marital status, ethnicity and socioeconomic background

COMMENTSApplied gender/race based tables without questioning. Some US courts now have refused to apply these

Le Préjudice Corporel – Gardner – 2009

Non-pecuniary loss Difficulties (évaluation monétaire des pertes non pécuniaires est plus un exercice philosophique et social qu'un

exercice juridique ou logique) should prompt us to frame in the best possible way an essentially subjective evaluation process.

Since the trilogy cases of 1978, the limits (caps) have been conservative In this domain, restitution integrum can only apply in a limited way (difficulties in monetizing such losses). Evaluation methodology: Grouped under one head or separate (Pain / suffering, loss of enjoyment of life /

inconvenience and aesthetic damage) The separation method was traditionally used in CVL tradition, including Qc CML: one amount for all non-pecuniary damages Gardner prefers grouping method:

First, the process of assessing these losses is in any case largely subjective: the breakdown of its various components will not make the operation more precise

Second, a pooled assessment of the various non-monetary losses does not mean a less fair assessment

Moreover, the risks of error and duplication are greater when the evaluation process is broken down into several sub-categories with ill-defined contours

Third, the decomposition of non-pecuniary losses into several headings all too often makes one forget that is an equally arbitrary assessment of pecuniary losses

The Distinctive View of Canadian Law: The Jurisprudential Cap of the Indemnity What essentially distinguishes the CML of Canada from that of the United States is that the former has

understood the need to limit the assessment of losses that are difficult to quantify in order to avoid an explosion of compensation that is detrimental to society generally.

In Andrews (1978), Dickson J: "the sum of $ 100,000 represents adequate compensation. Except in exceptional circumstances, this amount must be considered as a ceiling for non-pecuniary losses in such cases ". Three decades later, the Supreme Court still did not recognize any "exceptional circumstances" to exceed the ceiling. As Jamie Cassels points out, "the rough upper limit is in fact a firm ceiling on awards."

SCC several years later: "Whether or not the judge informs the jury of the existence of the compensation cap, the judge must reduce the award if it exceeds the inflation-adjusted threshold set out in the trilogy"

The theoretical exposition of the different methods Conceptual method

The human being is considered here as a machine made up of various components, all of which have a particular and purely objective monetary value.

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Simplicity and standardization is its strong point; its disadvantage is its total lack of consideration of the particular situation of the victim

Functional method There is compensation not because the lost faculties have a monetary value, but because it is

possible to use money to substitute other pleasures and pleasures for those that have been lost Such a method, very pragmatic, eliminates the insoluble problem of the search for a true

compensation of an essentially intangible harm. Issue: its inequity for some victims, as the compensation should theoretically decrease as the

severity of the injuries suffered limits the possibility of substituting pleasures for those who are lost

Application: Assessment is above all the objective severity of the injuries sustained that is analyzed to fix the indemnity, according to a scale of values whose indexed limit of $ 100,000 constitutes the reference point. This approach is very similar to the conceptual evaluation method.

Yet SCC has clearly established that the amount of compensation for non-pecuniary damage must depend not only on the seriousness of the injury but also on the possibility of improving the victim's situation given his condition.

Personal method Is to determine an indemnity which specifically corresponds to the loss sustained by the victim One of the disadvantages of the method is to disadvantage the victim who overcomes his or

her disability more quickly and completely, thereby limiting the extent of his or her prejudice. Issue: In seeking to repair or compensate for what can not be done, the court places itself in a

position which can only lead to a largely arbitrary solution.

Independent Assessement Process (IAP) for continuing Indian Residential School Abuse Claims

Compensable abuse Sexual and physical assaults committed by adult employees of the gov or church entity which operated the IRS

or other adults lawfully on the premises or by another student at an IRS Any other wrongful act committed by adult employees or other adults lawfully on the premises which are

proven to have caused serious psych consequences

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B. Limits of Recovery (Jan 24)

Ter Neuzen v. Korn [1995] – CML

FACTS T contracted HIV undergoing IVF by K in 1985 K didn’t warn T of the risk of HIV infection, and there was no test for it in semen and blood in CA at the time Letter was published in a journal in 1983 suggesting a risk of transmitting STDs through IVF

o Journal not widely read by gynaecologists incl K No obstetrics lit mentioned IVF as a mode of transmission of HIV No article summarized the disease risks of IVF before 1986 In late 1985, K learned that 4 Australians contracted HIV through IVF and immediately stopped IVF and

recommended all his donors and T be testedISSUES

Was K negligent despite having conformed to the standard medical practice as established by expert testimony? NO

REASONING

Standard to assess K’s behavior – was the medical practice not to test for HIV reasonable? The knowledge they ought to have reasonably possessed at the time

IVF wasn’t considered to put anyone at risk of HIV at the time of T’s procedure and the test to detect HIV in semen wasn’t developed

The conduct of a prudent or diligent (reasonable) doctor in the same circumstances When the connection was established, K discontinued practice and warned T and other patients to be tested

Clear K conformed to the standards at the time Clear the standard itself was not negligent at the time

Standard to assess K’s behavior – was K’s lack of follow up questions to the donor reasonable? Standard practice to ask follow up questions to identify gay/bisexual donors for exclusion to prevent STD transmission K did not ask follow up questions unreasonable BUT: exclusion of gay/bisexuals wasn’t to prevent HIV, which wasn’t considered a risk for STDs or in IVF at the time

Coincidence that it would have protected T from HIV legal coincidence

RATIO1. To determine if a specialist’s conduct was negligent, we defer to expert testimony when we are convinced that the given standard represents the conduct of the ‘reasonable expert’ unless this standard is fraught with obvious risk 2. Adhering to professional standard doesn’t exclude you from acting reasonably if the professional standard is unreasonable3. The trial judge has discretion to inform the jury of the upper limit for non-pecuniary damages (along with the reasons for its existence) and should do so only if he believes their damage award might exceed the limit

COMMENTSRE: Roberge: if a doctor practices in accordance with common professional practice, he will be liable if that practice is wanting not the case here

Smith thinks the court made a mistake in finding him liable for negligence in not asking follow up questions because it was a legal coincidence that it would have protected T from HIV not what the exclusion was designed to address

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Curateur Publique v Hôpital St-Ferdinand [1996] – CVL

FACTS Hospital employees went on an illegal strike for over a month, leaving the patients in a mental hospital without

some of the services they normally received Class action is being brought against the syndicate

o Claiming damages caused by the loss of access to care and services as an interference with the right to security, inviolability, and dignity (Charter)

o Claiming exemplary damages because of unlawful and intentional interference (Charter) HISTORY: Trial and CoA judges decline to apply the functional approach to assessing moral damages. Trial

judge did not award exemplary damages, CoA dido Syndicate argues that functional approach should have been applied and that the patients should not

receive compensation in the amount awarded as they were unable, due to their mental condition, to take any satisfaction from it

o Curateur argues that the functional approach cannot be used to determine the right of a victim to redress for moral prejudice

ISSUE1. Did the lower courts err in refusing to apply the functional approach in assessing moral damages? NO2. Is there a claim for exemplary damages? YES

REASONINGArt. 1457 provides an express provision for the compensation of moral prejudice (…liable to reparation for the injury, whether it be bodily, moral, or material in nature)Distinction between objective and subjective damage

Subjectively, damage only exists if it is felt – the prejudice is identical to the psychological distress it causes Objectively, damage exists due to the condition in which the victim finds himself, regardless of whether he is

aware of it In QC, case law and doctrine support an objective conception of prejudice such that the right to compensation for moral prejudice is not conditional on the victim’s ability to profit or benefit from monetary compensation

Trial judge and CoA were correct in not applying the functional approach to determine the right to redress for moral prejudice clear objective violation in this case

o Victims’ condition or capacity to perceive are irrelevant re the right to compensation for moral harmo Claim for moral injury is supported

Approaches to calculating damages (not amounts, just what factors to take into account)1. Conceptual approach: gives each kind of damage an objective, universal, specific value

a. Has the disadvantage of not accounting for the victim’s unique situation and has generally been rejected

2. Personal approach: attempts to calculate the specific moral damages that a particular victim feels due to the injury

a. In cases of low or average loss, this is the preferred approach, although in serious cases it can be arbitrary not optimal

3. Functional approach: adopted in CML provinces, which values injuries by the cost of equivalent pleasures and/or measures required to return a person’s life to the pre-injury condition

In QC, all 3 approaches should be jointly used for the purpose of calculating the amount of moral damages it encourages a personalized evaluation of moral prejudiceCharterExemplary damages can be awarded under the Charter where the interference with Charter rights is unlawful and intentional Court holds that inviolability is not interfered with (because no permanent consequences) but that the patients’ dignity was violated (Charter s 4) To find the act which violated the Charter right to be unlawful it must be shown that:

The conduct was wrongful – ie: a violation of the reasonable standard of conduct That it was intentional – ie: the person intended the consequences that their wrongful conduct would have Court holds that the conditions are met here and therefore exemplary damages can be accorded

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RATIO1. QC law adopts an objective conception of prejudice in assessing the right to compensation for moral prejudice and rejects the functional or subjective conception2. In determining the amount of damages, all three approaches apply (conceptual, personal and functional) and “the only rule is that the victim be compensated in a personalized manner for the loss suffered”3. Exemplary damages can be awarded where it can be shown that a person unlawfully and intentionally infringed on another’s Charter right

Augustus v Gosset [1996] – CVL

FACTS G’s 19 yr old son was wrongfully shot and killed by a police officer G is claiming moral damages on the basis of solatium doloris (ie: solace for grief) under art. 1053 and 1056

CCLC (Art. 1457 CCQ) Also claiming damages for loss of life as her son’s heir under the Charter for interfering with her parental

rights HISTORY: Trial judge refuses claim for solatium doloris on the basis of an erroneous decision in applying

English law as in Canadian Pacific Railways v. Robinson and awarding only damages for loss of moral and financial support

o Reversed on appeal and damages given under the head of solatium doloris On appeal, argument is that this is not the only compensable head of moral prejudice, and the

award amount was insufficient under that head

ISSUECan G claim compensatory damages under the head of solatium doloris for her son’s death? YES

REASONINGSolatium doloris definition Moral prejudice suffered by 3rd parties due to the death of loved ones A recoverable head of damage in QC CVL: an indirect victim can obtain compensation for moral prejudice resulting from the death of close relative or friend per art. 1053 (now 1457) – allows for a claim in moral damages, even if no pecuniary damage is proven( In every province except QC, the right to claim damages owing to the death of a third person is governed by special statutes – courts were quick to interpret them as covering only pecuniary losses)Solatium doloris application On the basis of erroneous application of English law in Canadian Pacific Railway, QC courts tended to award compensation for pecuniary consequences of grief and refused claims of solatium doloris

Trial judge erred in applying this principle, and CoA was correct in reversing the decision CoA was correct in allowing the claim for damages under the hard of solatium doloris

However, CoA erred in determining the amount of the award:o In looking to legislative schemes and faulty jurisprudence to justify awarding the min compensationo In failing to develop new tests for assessing the prejudice of solatium doloris, depriving the appellant

of her right to full compensation (did not abide by restutio in integrum) The amount should aim to fully compensate the loss

An appropriate test must try to retain objectivity in order to foster moderation and predictability in the use of the restutio doctrine

But it is still on a case by case basis that the determination must be madeo Factors to consider incl. circumstances of death, age of deceased, nature of the relationship, emotional

consequences and parents’ ability to handle them, other kids or the possibility of having other kidso Dichotomy exists: it’s a mixture of a subjective and objective analysiso In this case, the son’s unexpected and violent death was exacerbated by the fact that the mother had

already lost another child, was unable to have more, and her son’s death was highly publicized Judge suggests award of $25,000 but refers back to CoA for quantum

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RATIOIn determining a fair and reasonable award for solatium doloris, the Court should be as objective as possible and consider other cases of non-pecuniary loss, the socio-economic result of the new award, the need for predictability and certainty and the human element. Courts must balance full compensation for the grief of an individual and, on the other hand, the broader perspective to ensure a criteria for moral damages awarded in different contexts

COMMENTS Particular case because it’s a solely non-pecuniary loss court must consider everything in determining damages: pain, quality of relationship between mother and son, the personality of this woman and how she’ll manage, whether or not she has other children In traditional CML, mother would get nothing

2. Limiting Liability on the Basis of the Injury, Relationship, or Actors

A. Introduction (Jan 26) – Plenary (Smith)

Legal causation Fault, causation and injury are not always sufficient to establish liability Legal cause is used to exclude liability for injuries that, while factually caused by the defendant, is only indirectly

linked to their fault o Often: chain of events where defendant’s carelessness is one small factor in what occurred aftero Ex: trip someone which injures them and leads to a whole slew of negative consequences in their lives

You tripping them may be a factual cause (usually a ‘but for’ cause) but it’s not a legal cause (aka a proximate cause)

Should you need anything more to establish liability? CVL: fault, factual causation, injury, and legal causation are sufficient to establish liability (1457) (Elliott c

Entreprises Côte-Nord Ltée) CML: fault, factual causation, injury, and legal causation are NOT ALWAYS sufficient to establish liability

o There are certain kinds of injuries that aren’t compensable unless some further requirement is met duty of care, ex:

Pure economic loss Pure emotional loss

Pure economic loss/harm (CML) Pure economic loss: loss consisting exclusively in not getting money you expected to get or having to pay out money you didn’t expect to pay

(Weller v Foot and Mouth Disease Institute) Why does CML traditionally deny the right to recover:

o Floodgate: would lead to an excess of litigation (counter-argument: mass tort)o Indeterminacy of injury: difficulty of asserting the extent fo damage that’s been sufferedo Historically, notion of wealth was grounded on property/land, so judges were sceptical of recognizing

importance of intangible property (counter-argument: today, wealth is mostly intangible) Exceptions:

Loss of financial support (ie: claims of dependency) from a deceased parent (Parker v Richards) – pure economic loss, not harmed physically – decided under statute

Intentional harms – usually

Pure emotional loss/harm (CML) Pure emotional loss: usually grief, similar to pure economic loss

No recovery unless consequential to tangible harm with some statutory exceptions Psychiatric harm is diff as it’s considered physical injury (Page v Smith) Not easy to find cases where the rule’s been applied to deny recovery

o (Smith things it’s because it’s so well established that no one tries to challenge it)

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For secondary victims, they get nothing unless it’s psychiatric and even then it’s limited by duty of careo In theory applies even when the primary victim is a relative BUT similar statutes for pure emotional loss

exceptions for family apply to grief as to pure economic loss Exceptions:

Grief arising from the death of a family member – decided by statute – but are inconsistent (Augustus v Gosset)

WHY can’t you recover for pure eco and emo loss?On the basis of what we’ve studied so far, there are 2 possibilities:

1. Injury: you can’t recover in these cases because you haven’t suffered an injury, or at least not one the law should care about

a. Because injury must be to your person, property or liberty not the case in pure eco or emo loss2. Legal causation: pure eco and emo harms are injuries of the kind that law should recognize but recovery should

be denied because they’re too indirectly related to the defendant’s fault Don’t lead to identical results

o No-injury approach leads to a blanket-rule against recovery: either there’s injury or noo Causation approach means each case must in principle be decided on its own facts

How QC does it– so often can’t recover for the same things as in CML just for diff reasons Why she could recover in Augustus v Gosset – her pure eco loss was directly caused

It’s actually because of duty of care in CML (Weller v Foot and Mouth Disease Institute)

Duty of care (DOC) There’s no recovery for pure eco and emo loss is because the defendant doesn’t owe a duty of care to the plaintiff CML requires fault, factual causation, injury, legal causation, and duty of care Confusing and a bit of a mess of a concept, but ultimately the arguments made under its heading are basically no-injury or no-legal-causation arguments CA CML courts love to introduce policy arguments in DOC

But it’s often hard to tell how they make a diff to the result – often the court lacks the data to apply it, or ignores an equally compelling counter policy argument – so Smith thinks policy arguments are a fancy way of getting at a concern re no-injury or no-legal-causation arguments

But DOC has also become a sort of catchall for arguments that don’t fit anywhere (incl no-injury and no-legal-causation) to deny liability

Ex: state liability: used not to be able to sue the state in CML, but now cano State acting as a ‘ordinary citizen’ – liability can be determined using regular legal ruleso State doing something only the state can do – ordinary rules don’t seem to apply, is more complicated –

use DOC to determine liability Often look at the statute giving the state the power in question (ex: salting streets) and ask

whether given the nature of it, it makes sense to suppose there’s a DOC has nothing to do with the nature or directness of the plaintiff’s injury

Ex: misrepresentations: plaintiff sues on the basis of a loss as a result of a careless misrepresentation (ie: statement made without reasonable care and as a result was false)

o Almost always the loss is pure ecoo Used never to be able to recover, but that was overturned with Hedley Byrne v Heller (although the DOC

didn’t apply in that case, it was ruled that it could have) Discuss DOC but it’s basically a disguised discussion re legal causation bringing CML more

in line with CVL losses by misrepresentations are compensable IF they’re caused directly enough by the defendant’s fault

Problems with this view: Tests focus on nature of the parties’ dealings with each other, not the directness of injury If the tests are basically tests for determining legal causation, then it’s hard to explain the

subsequent pure eco loss cases like Weller v Foot and Mouth Disease Institute Smith thinks Hedley Byrne v Heller is basically a contracts case defendants voluntarily

undertook responsibility, which comes close to being a promise/undertaking, which is a K Not explicitly a K case because there was no consideration So to get around that, they stretched the concept of liability in tort

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IF this is the case, then the pure eco loss rule isn’t affected as there’s no problem recovering for pure eco losses in K

Comparative Tort Law – Scope of Protection – Wagner – 2006 – CML

SUMMARY

KEY POINTSThe problem defined

The substantive issue raised by a choice between a general clause and the multitude of diff wrongs is the definition of the scope of protection which tort law provides

o Moot with regard to personal injury and property damage cases because the underlying interests in one’s life and property clearly deserve protection against tortious acts of another

o Less clear with regard to pure economic and emotional loss (aka intangible personality rights)Protected interests vs general clauses

Across countries, the response is varied: French law doesn’t distinguish between consequential and pure economic loss while Germany limits the scope of negligence liability omitting pure economic and emotional loss

UK CML lacks a clear catalogue of protected rights and interests – limits the scope of the duty to take care so a person must only avoid causing certain types of harm (typically excludes pure eco and emo loss)

American CML is similar to UK Upon first glance these differences seem fundamental and weird given the growing relevance of pure eco and

emo loss today BUT in fact the diffs are smaller than first appear, just get to the results in diff waysPure economic loss Restrictions on the liability for pure economic loss employed by French law

Doesn’t stand upon an equal footing with personal injury and damage to property – France does limit liability for pure eco loss BUT does so without explicitly distinguishing between diff types of harm, rather through indirect means (ie: variations in the concept of ‘faute’ and restrictions within the concept of compensable damage)

Faute:o Regularly: the tortfeasor is subjected to a gen duty to take careo Pure eco loss: there’s no automatic liability for negligent or intentional infliction of eco loss – rather,

it’s contingent on breach of the rules of fair competition, on the conduct being ‘deloyale’ and upon its contravening the comportment of an honest businessperson

Principle of non-cumul des responsabilités: existence of a K precludes resort to tort can’t apply tort law cumulatively to harm suffered within K relations

Expansions of liability for pure eco loss in German and Anglo-American law German and English law have found ways to allow for compensation for pure eco loss even when it’s

negligently caused – via statute In Germany, it’s in K law where the main burden of expanding liability for pure eco loss has fallen drift

toward contractual solutions In England, the expansion of liability has been in tort law, not K law

o Cases like; Medley Byrne, Anns v Merton London Borough Council, Murphy v Brentwood District Council

o Protection of purely economic interests is to be established on a case-by-case basis, starting from the ‘close proximity’ requirement outlined in Hailey Byrne

Not in substance that Germany and England differ but merely in categorization and classification There is much less diversity in outcomes than one would expect when looking at the several systems of tort law or delict in the abstract and in isolation

Major areas where liability for purely economic loss is particularly problematic – unfair competition and contractual – reveal a high degree of convergence

Dignitary injuries (pure emotional loss) Similar to pure eco loss The protective perimeter of tort law is impossible to define in this area without taking into account the

guarantees of free speech and freedom of the press which feature in all constitutions

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Germany: rights of privacy were developed in 1950-60s, previously the law of delict didn’t recognize a general right of privacy

US: introduced the right of privacy in 1900s in response to burgeoning tabloid press France: explicitly recognizes the right to privacy in their civil code but the intangible interests in one’s

personality don’t command overall protection and so aren’t protected by a gen duty on others to take reasonable care

England: doesn’t recognize a generic right to privacy – intangible interests in personal integrity are protected only within the framework of specific torts (defamation)

Weller v Foot and Mouth Disease Institute [1996] – CML (UK)

FACTS FMDRI negligently allowed a virus to escape the experimental testing area

o It subsequently resulted in an outbreak of foot and mouth disease among neighboring cattle The cattle markets in the district were closed by statutory order W are cattle auctioneers who were temporarily unable to carry on their business, and suffered economic loss

o They bring a claim against FMDRI

ISSUEIs W entitled to recover damages from FMDRI (ie: did FMDRI owe a duty of care to W)? NO

REASONINGUnder the CML, the plaintiff must establish that he was within the scope of the defendant’s duty of care on the basis of the ‘neighbor principle’ W argues that since FMDRI should have foreseen the damages incurred, yet failed to take adequate precautions to prevent the escape of the virus, they should be held liable

Court rules that this would extend liability beyond a reasonable scopePure economic loss A plaintiff suing in negligence cannot recover where the negligent act in question did not directly injure the plaintiff’s person or property – ie: where is wasn’t a consequential loss

The court must be cautious in recognizing new categories of negligenceo In this case, FMDRI’s duty was to ensure that the disease did not escape and infect neighbouring cows

The duty of care is accordingly owed to cattle owners in the areas (they could recover for consequential economic loss – their property was damaged)

o However, the defendants are not cattle owners and have no proprietary interest in anything that might conceivably be damaged by the escape of the virus – were harmed only indirectly

If they were allowed to recover damages, the Institute would be liable for almost all of the economic losses caused by the agricultural quarantine

To impose such wide-ranging liability would be unfair and goes against the current of jurisprudence both before and after Donoghue v. Stevenson

o CML does not recognize pure economic loss W can’t recover

RATIO1. In order to have a right of action for negligence, a plaintiff must demonstrate that he was within the defendant’s duty of care which is owed to those whose physical or proprietary interests are foreseeably threatened by the negligent act2. No recovery can be made for non-consequential loss (in this case, pure economic loss)

Hedley Byrne & Co v Heller & Partners [1963] – CML (UK)

FACTS Hedley (an ad firm) wanted to know if it would be advisable to extend credit to a customer, Easipower Hedley asked Heller whether it would be advisable Heller advised Hedley via Hedley’s bank that it was appropriate to extend credit to Easipower Hedley extended credit and Easipower went out of business and Hedley lost money

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Hedley sued Heller

ISSUEDid Heller owe Hedley a duty of care? NO

REASONINGWhether and in what circumstances a person can recover damages for loss suffered by reason of their having relied on an innocent but negligent misrepresentation

Must be more than simple misstatement – in general an innocent but negligent misrepresentation gives no cause of action

The Hedley Byrne test has 5 general requirements:o There must be a duty of care based on a “special relationship” between the representor and the

representeeo The representation in question must be untrue, inaccurate, or misleadingo The representor must have acted negligently in making said misrepresentationo The representee must have relied in a reasonable manner, on said negligent misrepresentationo The reliance must have been detrimental to the representee in the sense that damages resulted

RATIOA duty of care can arise with respect to careless statements that cause pure economic loss

COMMENTS This decision was a landmark – perhaps the second most important common law tort case after Donoghue – but

it raised an immediate problem: how to control the potential scope of liability for misrepresentations o In CVL, it would be a matter of legal causation – indirect/insufficient link o In CML, used DOC but it’s ultimately a disguised discussion of legal causation

Basically brings CML in line with CVL How wide the sphere of duty of care in negligence is to be laid depends ultimately upon the courts’ assessment

of the demands of society for protection from the carelessness of others The court acknowledges the first time that it was acceptable under CML to recover for something other than

physical damage to self or one’s property, that is, purely economy loss if some specific conditions are met This is a case of pure economic loss

Elliott c Entreprises Côte-Nord Ltée [1976] – CVL

FACTS G, joint owner and employee of ECN, was injured in a car accident caused by E he was unable to work ECN had to hire two temporary workers to replace him, which resulted in them spending more money than

they would have had to for G’s services alone ECN is brining an action in damages against E for the financial losses incurred as a result of his fault

ISSUEDoes ECN come within the scope of “another” under art. 1053 CCLC? YESIf so, is ECN entitled to recover damages from E (for pure economic loss)? NO

REASONINGECN falls within the scope of ‘another’ under art. 1053 CCLC Its ordinary meaning, as used in art. 1053, refers to any person at all to whom damages are caused by the fault of any person capable of discerning right from wrong

This broad definition is acceptable as it is limited by art. 1075 which restricts claims in damages to immediate and direct consequences of the delict

o This disallows untenable claims from damages on the grounds of remoteness (rather than on the basis of whether the claimant is a direct victim or not)

Thus, ECN is not precluded from suing ELimitations on recovery of damages

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However, ECN is not entitled to recover from E for the damages it is claiming Judge refers to Sylvain re: the court must be prudent when dealing with claims by employers for the loss of services of their employees

The employee in question must be “irreplaceable” – the unavailability of the worker and privation of services is not in itself sufficient to ground a claim in damages

Must look at the actual losses in context ECN must prove that the alleged damages were (1) caused by E’s delict, and (2) that there were an immediate and direct consequence of this fault

G’s injury is definitely a consequence of E’s fault However, ECN had to hire to people to replace G due to a rapid increase in the volume of business, and was

not a consequence of G’s incapacityo Therefore, ECN cannot recover

RATIO1. The meaning of “another” under art. 1053 implies that there may be as many claims as there are people suffering from the wrongful actions – should be interpreted broadly2. A party can only claim damages where it can prove that the harm incurred was an immediate and direct consequence of the delict

Page v Smith [1996] – CML (UK)

FACTS P was in a car accident caused by S’s actions

o Neither party suffered apparent physical injury P had suffered from chronic fatigue syndrome (CFS) which is exacerbated by physical trauma

o P claims as a result of the accident his CFS has become permanent and prevents him from ever working again he sues for pecuniary damages

HISTORY: trial judge found in P’s favor and awarded damages, CoA reversed the decision

ISSUE1. Is P owed damages? YES2. Has P suffered injury? YES3. Should physical and psychiatric illness be considered differently? Not when the plaintiff is a primary victim

REASONINGMajorityNervous shock, where stress or emotional trauma from an event leads to a recognizable psychiatric illness is a personal injury that can be compensated

Personal injury includes both physical and psychiatric injury (bodily)o The court should not legally distinguish psychiatric illness as being “non-physical” without adequate

medical knowledge Like in physical injury cases, the te negligent defendant takes his victim as he finds him – no

reason to ask whether he’s a person of ‘ordinary phlegm’ Distinction to be made between secondary victim and primary victim P was directly involved in the accident

Important legal consequenceso Secondary victims: foreseeability of psychiatric injury remains a crucial ingredient, for the very reason

that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury as well as proximity

o Primary victims: since the defendant is admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it is unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury

P’s CFS was exacerbated by the accident S was responsible for an increase in severity of the psychiatric illness

Dissent

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The patient suffered nervous shock only because he was already prone to a particular illness, rendering him less than normally healthy The defendant should only be liable when the injury would have been suffered by a normal person

RATIO1. In cases involving nervous shock, it is essential to distinguish between the primary victim and secondary victims2. Subject to the above qualifications, the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. There is no justification for regarding physical and psychiatric injury as different "kinds of damage"3. A defendant who is under a duty of care to the plaintiff, whether as primary or secondary victim, is not liable for damages for nervous shock unless the shock results in some recognised psychiatric illness. It is no answer that the plaintiff was predisposed to psychiatric illness. The defendant must take his victim as he finds him.

Augustus v Gosset [1996] – CVL

SEE ABOVE

B. Wrongful Life & Birth (Jan 31)

(CML: defense of illegality: where someone’s involved in illegal/immoral activity and suffer a tort and we don’t allow them to bring an action – similar thing in CVL)

Wrongful Life/birth Policy arguments in all the cases

Careful: policy is used in many ways, but standard is utilitarian type arguments (like in vicarious liability) Policy here is much more moralistic conception of policy

There are limits to what will be recognized as ‘injury’ Can the birth of a child be considered an injury?

o Esp contentious when the child has a disability There is a tension between awarding nominal “solace” damages, as, on the one hand, they are

helpful in aiding with the costs associated with raising a child, while on the other hand, they are paternalistic and suggest that disabilities are indeed “injuries” and require additional aid, thus making a value judgement of the lives of individuals with handicaps

Wrongful life cases: child sues the doctor for failure to inform the parents about the risk of pregnancy Essentially claiming that you’d be better off dead/never born Court refuses to accept it for policy reasons – basically saying handicap people are worth less than others The advantage of wrongful life over birth is that the damages are awarded based on the child’s life expectancy

– so if the parents pass away, the child will continue to receive support – whereas if it’s the parents’ life expectancy that’s taken into account, once the parents’ die the child won’t get any more support

Wrongful birth cases: parent sues the doctor for expenses incurred for the birth of the handicapped child in cases where the doctor failed to inform the parents, who may then have decided to terminate

Compromise with wrongful life cases which are rejected for policy reasons Parents must argue they didn’t want the child and would have aborted it if had been informed CML: mother can sue for expenses arising from handicap (compared to raising a healthy baby) (McKay v Essex

Area Health Authority) CVL: mother can sue for full child-rearing costs (Cooke v Suite)

Wrongful conception cases: a sterilization treatment is unsuccessful, but unknown to the parties or not due to doctor’s negligence

Questions are: (1) should the doctor be held responsible for the costs and expenses of raising the child? (2) should the parents mitigate the damages (by abortion, etc)?

CML: a baby is a blessing, so you can’t get child-rearing costs (unless the child is handicapped in which case you get the diff as in wrongful birth cases) BUT can get all the damages associated with the pregnancy (incl. non-pecuniary) (McFarlane v Tayside Health Board)

CVL: can get all the money needed to rear the child (incl. extra cost of raising a handicapped kid)

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Child can’t sue mom for being careless while pregnant Pulic policy: floodgate-like argument: would need to start judging/policing mothers BUT can sue if ex: someone else drives carelessly hits mom and fetus is injured and baby is handicapped

Possibilities for compensation for ‘wrongful birth’ or ‘wrongful compensation’ Can kid recover? No one has said yes yet Can mother recover? That’s what’s on the table

CVL: allows pecuniary cost up to age 18 (Cooke v Suite) CML: inconsistent court decisions (many more cases exist than we’ve read) – 4 main ones have been given:

o Full costs of what it would cost that particular family to raise the kido Full costs of a standard amount to raise kids in those timeso No compensationo A ‘conventional’ sum – an arbitrary amount

No compensationo Justified on the grounds that a healthy child should not be considered an “injury” and on the impossibility

of assessing the “value” or the “damages” Full compensation

o Justified on the grounds of restutio in integrum Compensation for the “harm” of birth, but not for child rearing costs

o Justified on the grounds that it avoids assigning value to life Partial compensation

o Justified on the grounds that it is impossible to dissociate the costs and benefits of having a child Moral compensation

o Justified on the grounds that it compensated for the loss of the right to freely make reproductive choices

McKay v Essex Area Health Authority [1982] – CML (UK)

FACTS During her pregnancy, M became infected with rubella, causing her daughter to be born with deformities Plaintiffs allege that but for the negligence of the defendants, the health authority and the doctor, the mother

would have had an abortiono Infant is claiming damages on the ground of the doctor’s failure to treat the rubellao Infant and M are claiming damages against both defendants for her having “suffered entry into life”

ISSUECan M succeed on a claim of “wrongful life”? YES re: “wrongful birth”Can the infant succeed on a claim of “wrongful life”? NO re: “wrongful life”

REASONINGThe duty to take away life? The authority and the doctor owed a duty to the unborn child to the extent that they had a duty not to injure it as a result of a lack of reasonable care and skill

This is not the case, as the infant was not injured by either defendant, but by the rubella, which was not due to the carelessness of either defendant

Thus, her right not to be injured before birth by the carelessness of others was not breached The only right the infant can claim was infringed was the right not to be born deformed or disabled, meaning a right to be aborted or killed

In this sense, the only duty which either defendant can owe the unborn child would be a duty to abort or kill her

However, the judge rules that the duty actually only goes so far as a duty to give the mother the opportunity to choose the child’s abortion of death in this sense, the authority and the doctor were negligent

However, M and infant are claiming that the defendants’ negligence burdened them with the child’s injuries Given that neither defendant caused the injuries, the only result for which they were responsible was her being

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born the claim against them is for “wrongful entry into life” Question which follows is whether there can be a duty to take away life

The legal right of the mother to choose abortion does not entail that a doctor is under a legal obligation to perform an abortion, nor that the fetus has a legal right to die

In this case, it cannot be suggested that the child’s quality of life would be better were she dead, not that she herself would wish not to have been born and should now die

Therefore, judge rules neither defendant was under any duty to the child to give its mother an opportunity to terminate its life – the duty may be owed to the mother, but cannot be owed to the child – as it would be against public order

Because life of handicapped child would be regarded as so much less valuable than that of a normal child that it is not even worth preserving

Because doctors would have to pay damages to children infected by certain diseases before birth who are born with even trivial abnormalities

Because it would open the courts to claims by children born handicapped against their mothers for not having abortions

The only duty of care which courts of law can recognize are duties owed to those who can be compensated for loss by those who owe the duties

The only way in which a child injured in the womb can be compensated for damages is by measuring what it has lost – ie: the difference between the value of its life as a normal child the its life as a handicapped child

o But in this case, it would be the difference between the life handicapped, and no life at allo To measure loss of expectation of death would require a value judgment where a crucial factor lies

altogether outside the range of human knowledgeo The impossibility of assessing damages is sufficient for refusing to do so

RATIO1. “Wrongful life” is not a compensable injury2. The imposition of a duty of care may be limited by public policy3. If there is no measure of damage which is not unjustified and indeed unjust, courts of law cannot entertain claims by a child affected with pre-natal damage against those who fail to provide its mother with the opportunity to end its damaged life, however careless and the may have been and however liable they may be to the mother for that failure

COMMENTSPerruche is a twin case which occurred in France In this case, they awarded damages to the handicapped child for “wrongful entry into life” by comparing her life without the injuries, to the life she will live with her disabilities

However, this decision faced huge popular backlash, ex: from disability advocacy groups, and subsequently an Anti-Perruche law was passed, forbidding claims for both wrongful life and wrongful birth by both the children and the parents – instead, compensation is offered through an insurance scheme

No direct QC case on this but Smith thinks it’d be the same result There are cultural diffs but no real CML/CVL diff here Very few places that have allowed claims for wrongful birth (a few US states)

McFarlane v Tayside Health Board [1999] – CML (UK)

FACTS Mr M had a vasectomy because he and his wife already had four children and wanted no more

o The procedure was not successful, yet he was erroneously told that it was and told that he could dispense with contraceptive precautions

Mrs M became pregnant, and gave birth to a fifth, healthy child Mr and Mrs M bring proceedings for damages, alleging that the defenders failed to take reasonable care to

ensure that the information they were given was correct, that they were entitled to rely on it, and that the pregnancy and birth of the child were the direct and foreseeable consequence of this negligence

o They claim under the heads Pain and distress of pregnancy and delivery Costs of maintaining the child throughout her childhood

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ISSUEAre damages recoverable for the particular heads of damaged claimed? NO

REASONINGArguments in favor of denying recovery for child-rearing costs1. Causation: the costs of bringing up a child aren’t the result of his birth but of the parents’ deliberate decision to keep it and not have an abortion/adoption

BUT parents wouldn’t have had to make that decision if the surgery had worked and the doctor informed them properly causal connection between the negligence and birth and the costs of bringing up the child is strong

Also, it’s never unreasonable for parents to decline abortion/adoption2. The birth of a healthy baby is not a harm but a blessing

The birth of a healthy baby is a mixed blessing, but its advantages and disadvantages, incl. the costs of maintaining a child, are inseparable, and society must regard the balance as beneficial, to hold otherwise would be morally offensive

In the same sense that a man cannot keep goods delivered to him an refuse to pay on the ground that he did not order them, the parents cannot enjoy the advantages of having a child and dispense with the disadvantages

Arguments against the contention that the birth of a healthy baby is a blessing and not a matter for compensation1. The birth is simply the economic manifestation of the defendants’ negligence and it’s that which is unwanted, not the child itself

Counter: the question is not whether the birth itself is harmful, but whether the costs of maintaining the child are recoverable, and the difficulty arises from the fact that the birth and its financial consequences are inseparable

2. The birth of a healthy baby is not always a blessing Counter: generally, the birth of a healthy baby is a blessing – it is only a harm where its parents view it as such

3. The parents are the best judges of where their interests lie and should not be treated as receiving a benefit when it is one they have deliberately decided to forego

Counter: true, but if the admissibility of a head of damage is a question of law and where the law regards an event as beneficial, plaintiffs cannot make it a matter for compensation by saying they did not wish the event

Head of damages doesn’t exist The head of damages (wrongful conception) requested by the plaintiffs doesn’t yet exist The admission of a new head of damages is not solely a question of principle

o Limits on the scope of liability arise from legal policy that is, courts must resolve disputes in a way that is fair and reasonable and maintain the overall coherence of the law

For public policy reasons, it must be rejected the birth of a healthy baby cannot be considered as harmfulo It is morally offensive and demeaning of the value of human life to hold otherwise

General damages The parents are entitled to damages for their loss of freedom in limiting the size of their family and for equipment rel. to child-rearing they may have disposed of, relying on the promise they would no longer have children

RATIO1. The birth of a healthy child is considered beneficial under the law, and therefore it is impossible to claim damages for the birth of a healthy child2. Limits on the scope of liability arise from legal policy

COMMENTS This decision has been overturned or modified by subsequent cases. Most common law jurisdictions award damages for wrongful conception today

Cooke v Suite [1995] – CVL

FACTS S did not want to have any more children to avoid future economic hardship, and went to C to be sterilized

however, the procedure failed C had not consulted an important pathology report which would have given him information regarding the

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procedure which would have prevented it from failing S became pregnant and delivered her 4th healthy child

ISSUECan S. claim damages for “wrongful conception”? YES

REASONINGThe doctor was negligent If the doctor was negligent, he must take responsibility for the consequences of his negligence

C was negligent for not consulting the report, and S became pregnant as a result of the ensuing faulty procedure C violated S’s right to choose the size of her family

Policy argument There is a policy argument whereby a healthy baby cannot constitute an injury

QC court rules that the public policy argument does not prevent S from recovering in full the financial damage sustained as a result of the C’s negligence – ie: the cost entailed by the birth of her child

o QC recognizes the couple’s right to plan the size of their family and women’s rights over their bodieso This reasoning applies regardless of whether the child is healthy or is handicapped or abnormal

Causation Art 1607 states that the plaintiff need only show that the damage occurred as a direct and immediate consequence of the negligence of the defendant

Even though S could have had an abortion or adoption, the child remains the direct and immediate consequence of the doctor’s negligence

Assessing damages Rel. to compensation, the court must weigh the costs and benefits of having a child

In this case, the benefits of having a child are balanced with the costs, and therefore the amount of compensation awarded is accordingly reduced

RATIOQC CVL recognizes a claim for wrongful conception pursuant to art. 1607 such that a healthy baby can be considered an injury

C. Privacy (Feb 2)

Privacy Protects the interest against intrusion upon seclusion Fundamental principles incl. solitude, seclusion, private affairs, private sphere

Jones v Tsige Would it have been decided the same in CVL?

o Must show there’s harm – and in this case there was no apparent harm What if her info was released carelessly, not intentionally?

o Is it the same for CML and CVL – does CVL require intention? No CVL it doesn’t

Aubry c Éditions Vice-Versa Inc [1998] – CVL

FACTS Photograph of A sitting on steps of a building published without her consent A was teased by classmates because of it HISTORY: trial judge awarded her a portion of the compensatory damages sought at $2,000, so did CoA

ISSUE1. Does A’s right to privacy/her own image outweigh the photographer and publisher’s right to freedom of expression? YES

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REASONINGMajority

Although the infringement of a right guaranteed in the QC Charter gives rise under s. 49 para 1 to an action for moral and material prejudice, it’s still subject to the CVL principles of recovery so the traditional elements of liability must be established (ie: must prove fault, injury, causation)

o Only unjustifiable infringements of freedom of expression constitute faultRights Right to one’s image: an element of the right to privacy under s. 5 QC Charter – must include ability to control the use made of one’s image

Infringement of the right and therefore fault as soon as the image is published without consent and the person can be identified

Right to freedom of expression: includes freedom of artistic expression and is protected by s. 3 QC Charter Conflicts with right to privacy

Balancing the rights Artist’s right isn’t absolute and can’t infringe without justification a fund. right of the Rights must be interpreted in accordance with s. 9.1 QC Charter balance them depending on context

Public interest: balance the rights with the public’s right to info (s. 44 QC Charter)o Ex: a public figure, a person appears in an incidental manner in a photo of a public place, a person’s

actions cause them to be in the photoo Appellants liable a priori since photo was published when A was identifiableo The public interest in this case doesn’t justify the fault, it wasn’t predominanto They didn’t try to get her consent for the photo

Dissent Insufficient evidence that A suffered/was injured by the photo no damages awarded

RATIO1. An artist’s right to publish their work cannot include the right to infringe, without any justification, a fundamental right of the subject whose image appears in the work2. The right to privacy and the right to freedom of expression must be balanced based on context and public interest

Von Hannover v Germany [2004] – GERMANY

FACTS V is the eldest daughter of Prince Rainier III of Monaco Photos of her private life were published by a German publishing company in two of their magazines

o The photos incl. her in daily life (ex: sports, restaurant, etc) and are activities of a purely private nature She wants to photos removed pursuant to Article 8 of the European Convention of Human Rights (?) rel. to the

protection of private life The domestic Court in Germany attached decisive weight to Article 10 rel. to the freedom of expression

dismissed V’s appeals

ISSUEIs the publication of photos of V in her private life in violation of her right to the protection of private life pursuant to Article 8 of the Convention? YES

REASONINGClassification of photos as private Distinction must be made between reporting facts capable of contributing to debate in a democratic society rel. to politicians in the exercise of their functions, and reporting details of the private life of an individual (esp one not exercising any official functions) The public has a right to be informed, and this can extend to aspects of the private life of public figures

Not the case here because:o The published photos and accompanying commentaries relate exclusively to V’s private life

Photos and stories rel. to private life cannot be deemed to contribute to any debate of general

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interest to society (ie: come within the sphere of any political or public debate)o V doesn’t exercise any official functions, so s. 23 of the Copyright Act rel. to figures of contemporary

society “by excellence” does not apply Must be distinct from “relatively” public figures in the interest of rule of law

Role of freedom of expression Where the info shared is not of general interest to society, freedom of expression calls for a narrower interpretation

Avoid a ‘one-sided’ interpretation of freedom of expression in favor of the media The aspect of harassment cannot be disregarded

This is considered from the point of view of the development of every human being’s personality This protection extends beyond the private family circle and also includes a social dimension such that any

person known to the general public must be able to enjoy a legitimate expectation of protection and respect for their private life

Esp rel. to current context with the development of new communication technologiesSpatial isolationThe media’s argument rel. to the criterion of spatial isolation is too vague Too difficult for the person concerned to determine in advance whether they are protected Merely classifying the applicant as a figure of contemporary society “par excellence” does not suffice to justify such an intrusion into her private life

RATIOThe freedom of expression and the importance of reporting facts relevant to debate in a democratic society must be counterbalanced with the protection of private life, esp for private individuals who exercise no official functions

Jones v Tsige [2012] – CML

FACTS T was involved in a common law partnership with J’s ex-husband The women did not know each other but both worked for BMO Over a 4 yr period, T accessed J’s personal bank accounts which contained personal info as well as transaction

details but didn’t disseminate the info in any wayo She said she knew it was wrong but did it because she had wanted to see whether her partner was

paying J child support payments J rejects this explanation J brings a civil action for breach of privacy and claims damages HISTORY: summary judgment at trial dismissed the claim on the basis that ON CML does not recognize the

tort of breach of privacy

ISSUECan J bring a civil action against T for damages for the invasion of personal privacy? YES

REASONINGRight of privacy in CML Historically, the distinct right of action for breach of privacy is uncertain but overall supports recognition of civil action for breach of privacy

Warren and Brandeis argued for the recognition of a right of privacy to meet the problems poses by technological and social change

Building on this work, Prosser proposes four distinct torts rel. to privacy (American)o Intrusion upon the plaintiff’s seclusion or solitude or into his private affairs – MOST RELEVANT

HEREo Public disclosure of embarrassing private factso Publicity placing the plaintiff in a false light in the public eyeo Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness

An analysis of CA case law suggests a movement toward the American model Precedent shows that judges have dismissed the claim that no tort of breach of privacy exists and have awarded

damages for such breachesCharter jurisprudence

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The Charter identifies privacy as being worthy of constitutional protection, thus supporting the recognition of civil action for breach of privacy

S. 8’s protection against unreasonable search and seizure is purposively interpreted as protecting the underlying right to privacy as an independent right held by all citizens

Charter jurisprudence recognizes three distinct privacy interests- Personal privacy (grounded in CML)- Territorial privacy (grounded in CML)- Informational privacy: the claim of individuals, groups, or institutions to determine for themselves when,

how, and to what extent information about themselves is communicated to others” – INTEREST AT STAKE HERE

Recognition of the right of privacy in CML private law Court rules that it is appropriate to confirm the existence of a right of action for intrusion upon seclusion

Recognition of such a cause of action would amount to an incremental step consistent with the role of the court to develop the CML in a manner consistent with the changing needs of society

o Recognized on the basis of all above considerationo Recognized in the face of the facts which cry out for a remedy

Defined as: 1. Intentional and reckless YES2. Defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns YES3. A reasonable person would regard the invasion as offensive causing distress, humiliation, or anguish YES4. (Economic interest is not a relevant consideration)

Therefore, a claim from intrusion of seclusion will arise only for deliberate and signification invasions of personal privacy (not floodgates)

RATIOOne who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person

An Act to Address & Prevent Cyberbullying SNS 2013, c 2 (99)

(3) Cyberbullying: any electronic communication through the use of technology, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress etc, and includes assisting or encouraging such communication in any way

(21) A person who subjects another person to cyberbullying commits a tort against that person (22) In an action for cyberbullying (1) the court can award damages and issue and injunction and make any

other order the court considers reasonable and just in the circumstances (2) has regard to a number of factors to determine damages (3) the parent is liable unless they can prove they were exercising reasonable supervision over the defendant at the time and made reasonable efforts to prevent the activity

D. Human Rights (Feb 7)

The PLCW has thought about human rights long before the advent of the Charter As of the beginning of the 21st c, we see two things influenced by developments in the EU, incl:

“Constitutionalization” of the private law “Privatization” of constitutional law

Human rights In terms of tort how can private law protect human rights Freedom of expression: could be curtailed by the gov

o Is there anything private law could do against that?o Examples of torts:

Throwing people in jail without a statute Destroyed printing presses (property and trespass as torts to ‘protect’ you)

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Trying to stop someone talking by covering their mouth, blocking their door so they can’t leave house etc

Injury: one of the sticking points in discrimination Ex: if didn’t get the job may have pecuniary injury (but often get another job) but if that’s all you need then

anyone who doesn’t get a job has a claimo Must push it to fault: a reasonable person doesn’t discriminate

Tort of discrimination Many people argue there should be a tort of discrimination If they ever developed a tort of discrimination they’d use the Charter to show it’s consistent

But the Charter isn’t directly applicable – must sue the gov in Charter cases, can’t sue individuals for breach of Charter rights

QC Charter/ON Human Rights Codeo Say in them you can bring an action against a person for breacho 2 possibilities:

Separation: Charter is freestanding on its own – not a part of private law ON Integration: they all need to fit together seamlessly QC (ie: part of the general CVL)

CVL has expansive notion of harm QC Charter is very expansive – more than other provinces

Choc v Hudbay Minerals Inc [2013] – CML

FACTS 13 Mayan Guatemalans brought 3 related lawsuits against H over alleged human rights abuses committed by

security personnel working for its wholly owned subsidiary (CGN), at its subsidiary’s mining operation in Guatemala

The three law suits are based on the tort of negligence:o Allegations for gang rape by security personnel, police, and military during their forced removal from

their village situated on an island claimed to be owned by H’s subsidiary At the time of these alleged rapes, H had no ownership interest in the mining corporation

o Allegations by wife that her husband was hacked with machetes and fatally shot by security personnel in an unprovoked attack

o Allegation that a member of the personnel shot and paralyzed a man in an unprovoked attack

ISSUEIs there a claim in negligence against H for the actions of its subsidiary? YES – H was directly negligent for failing to prevent the harms that were committed by the subsidiary’s security personnel

REASONINGPositions of the defendants and plaintiffsH argued that the plaintiffs had no cause of action Argued this on three grounds, all of which were rejected and the case proceeded to trial

Claims are an attempt to pierce the corporate veil akin to imposing absolute liability on a parent corporation for the operation of its subsidiaries in foreign countries NO

No recognized duty of care owed by a parent corporation to ensure that commercial activities carried out by its subsidiary are designed so as to protect those with whom the subsidiary interacts NO

The requisite elements of foreseeability and proximity required to recognize a new duty of care are not present NO

Plaintiffs’ contention that H itself was directly negligent for failing to prevent the harms that were committed by the subsidiary’s security personnel is accepted The Court rules that a Canadian parent corporation could be directly liable in negligence for its own actions and omissions in another countryThe Anns test: novel duty of care Does H owe a duty of care to the plaintiffs would be a novel duty must use the Anns test to prove the following:

1. That the harm complained of is a reasonably foreseeable consequence of the alleged breach YES

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2. 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 YES

3. Are there policy reasons to negative or otherwise restrict the prima facie duty of care NOo Both parties advanced policy arguments:

Defendants argued that this new duty of care would risk exposing any Canadian company with a foreign subsidiary to a myriad of meritless claims and would likely impinge upon the fundamental principle of separate corporate personality entrenched in the common law and in corporate statutes

Plaintiffs made a number of counter-arguments, including that local communities should not have to suffer without redress when adversely affected by the business activity of a Canadian corporation operating in their country

The requirements are met for the Anns test it’s possible that H had brought itself into a relationship of sufficient proximity to the plaintiffs to justify imposing liability

The Court also found that a secondary claim could proceed because a relationship of agency between the parent and the subsidiary sufficient to pierce the corporate veil was properly pleaded

RATIOA Canadian parent corporation can be held legally responsible in CA for human rights abuses at a foreign subsidiary’s operations where a duty of care is found pursuant to the Anns test

COMMENTS H was a separate legal personality fact 1 company owns another doesn’t mean you can sue both no VL So held them directly liable: careless the way they looked after their security people

Novel because don’t think usually have duties to supervise 3rd parties unless you hired them and it’s your company

Court talks re duty of care because doing this novel thing and do it by saying because of relationship between company and security companies and Aboriginals they have a duty of care because they assumed the duty by explicitly saying they were making sure no abuses occurred/looking after it and then they didn’t

La Protection des droits fondamentaux et la responsabilité civile – LeBel

SUMMARYIn this article, Justice LeBel examines the changing role of the system of civil responsibility in protecting fundamental rights, both before and after the adoption of Quebec’s Charter in 1977 and the insertion in 1982 of the Charter of Rights and Freedoms into the Canadian Constitution

KEY POINTS Justice LeBel first contends that even before the constitutionalization of civil liberties in the Canadian Charter,

the system of civil responsibility was capable of filling in some of the gaps of the public law and was able to protect, at least symbolically, civil liberties

He then examines the impact of this constitutionalization, and asks whether these new provisions create an autonomous regime of civil responsibility, or conversely, a regime that has become integrated with those already in existence

He concludes that there exists a general, but not completed, convergence between regimes in Quebec CVLo The question, however, still requires a more in-depth examination in CML

Finally, Justice LeBel asks what links the system of civil responsibility and section 24(1) of the Canadian Charter

o He contends that the question currently remains unresolved and that despite recent judicial developments, the coordination of these systems will require the gradual elaboration of norms that will provide a framework for the exercise of discretion by the courts

According to Justice LeBel, the constitutionalization of fundamental liberties, although necessary, should not abstract from the richness and the flexibility of the various systems of civil responsibility

o The coordination of these juridical normative systems will allow for the application of the law regarding fundamental liberties in a way that is more nuanced and more attuned to each particular situation

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Key passages. Passaged highlighted by SVP in class.

“Dès avant l’entrée en vigueur des Chartes, dans le droit du Québec…le droit de la responsabilité avait déjà contribué non seulement à defender les droits de la personnalité, mais aussi à souligner le caractère essential de certaines libertés publiques…Il profitait, en effet, de l’unité fondamentale d’un régime juridique fondé sur un concept de faute contextuel et évolutif. Suivant l’expression de Frank Scott, on appliquait une loi “of delict, not of delicts”. De plus…la flexibilité des categories traditionnelles de prejudice, notamment celle de prejudice moral, ne faisait pas obstacle à toute manifestation de créativité judiciaire…De son côté, la common law avait développé des “torts’ qui remplissaient une fonction similaire, comme les torts de “defamation”, “libel” ou “slander”.”

“Au niveau symbolique, le jugement qui accueillait alors l’action en responsabilité délictuelle confirmait alors l’existence d’un droit fundamental par l’assimilation de la violation de ces libertés à une faute….[M]algré le silence des textes constitutionnels, le Canada vivait dans un régime démocratique, fondé sur les libertés de religion, d’opinion et de reunion. La notion large de faute civile permettait de conclure que les atteintes à ces droits constiutaient des délits ou des quasi-délits au sens de l’article 1053 C.c.B.C.. La commission de ces délits donnait ouverture à une reparation sous forme de dommages moraux. Consciente de la difficulté de les évaluer comme de l’inexistence du pouvoir d’accorder des dommages punitifs, la Cour supreme n’hésita pas toutefois à accorder des dommages moraux, pour donner une sanction effective à la violation des droits en cause.”

“D’abord, la Charte canadienne ne vise que l’activité legislative et gouvernmentale…Par contre, la Charter québécoise s’applique dans un domaine plus étendu…Le C.c.Q, selon sa disposition préliminaire, doit s’interpréter en harmonie avec la Charte québécoise pour remplire sa fonction de droit commun du Québec. Par surcroît, on notera que le C.c.Q. incorpore maintenant un ensemble de principes très généraux qui reconnaissent eux aussi les droits fondamentaux…Il suffit de penser, par exemple, à la reconnaissance du droit à l’inviolabilité de la personne à l’article 10 ou encore à celle du droit à la reputation ou à la vie privée à l’article 35. Ces dispositions réitèrent ou précisent les guaranties des droits fondamentaux de la personne édictées par la Charte québecoise…Ainsi la Charte québecoise s’applique non seulement aux rapports entre l’État et le citoyen, mais aussi aux relations entre personnes privées.(”

“La Charte québecoise inclut clairement les recours en dommages-intérêts parmi les mesures réparatrices appropriées. En effet, selon le premier paragraphe de son article 49, la victim d’une atteinte illicite à l’un des droits ou libertés protégés a droit à “la reparation du prejudice moral ou materiel qui en résulte”. De plus, le paragraphe second du même article autorise explicitement des recours en reclamation de dommages punitifs en cas d’atteinte “illicite ou intentionelles” à un droit protégé. … En droit québecois [contrairement à la situation en common law dès Bhadauria], la Cour suprême n’a pas retenu un principe d’autonomie des régimes de responsabilité qui aurait pu amener à terme le développement de deux systèmes parallèles…elle a plutôt privilégié une méthode de coordination et de convergence du droit des libertés fondamentales et du régime de responsabilité délictuelle régi par le C.c.Q.”

3. The Common Law Duty of Care

A. Introduction to ‘Duty of Care’ and its Counterpart, ‘Causation in Law’ (Feb 9) – Plenary (Van Praagh)

It is important to note that it is not always sufficient to show fault, injury, and causation to impute liability. The scope of liability is delineated, as we see in Palsgraf

Palsgraf Palsgraf as transystemia Wrongdoing of the workers was established by lower courts ‘But for’ causation: yes – there was a factual connection between the wrongdoing and P’s injury Injury was not questioned and was understated by Cardozo J: her daughter explained that P became mute (from

shock) and developed diabetes (not possible as a result)o Cardozo J wasn’t going to allow this case to be remembered as the case of the woman who got a stammer

as a result of an explosion it would make it silly and he wanted it to be a ‘great’ case

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The 3 elements are there: wrongdoing, injury, causation but court was split 4-3 Shows how duty of care can be used to limit liability/responsibility whereas in Donoghue it is extended to the

neighbour principle (P would be “non-neighbour) o True that the actions were wrongful, but you’re not the type of persons to whom I owe a duty, you’re not

my ‘neighbour’ Cardozo establishes duty of care (McPherson v Buick – 100 years ago) focus on relationship between D and P

2 ways to think about liability (representative of CML/CVL) Cardozo J: foreseeability

Emphasizes the relationship between the plaintiff and the defendant (“risk important relation”), delineating liability on the basis of the “orbit of risk”

Confirmed 4 yrs later in Donoghue (part of test for DOC) where Lord Atkin used the “neighbour” metaphor to essentially illustrate the notion that we owe a duty of care to those that fall within the orbit of risk

Andrews J: proximate cause CVL view (legal causation is the only factor limiting liability – encompasses DOC) Andrews J is probably right in saying P’s owed a duty of care since she’s on the tracks with her ticket – she’s a

customer and she’s exactly the sort of person who could be affected by the guard’s negligence In fact in cases like this mostly we don’t use DOC, we ask if the injury (her stammer) could really be seen as a

result of the guard’s negligence (ie: proximate cause/causation in law) His notion of proximate cause alludes to art 1607

o The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default

Problem with Andrews’ judgment: he finds proximate cause between the explosion and the injury, but not between the negligence of the workers and the injury which was the issue

Palsgraf v Long Island Railroad [1928] – CML (US)

FACTS P was on the train platform owned by the LIR Two men were running toward a moving train to get on

o One of them started falling backward as he got on, so one guard pulled him in while another pushed – this caused him to drop a package he was holding which fell onto the tracks

o The package contained fireworks, and a large explosion ensuedo The explosion caused a scale many feet away to fall, which caused injury to P

P is claiming damages in tort for her injury HISTORY: trial judge finds in P’s favour but CoA overturns this, she appeals

ISSUE1. Did the train workers’ duty of care extend to P? NO2. Must the plaintiff be within the range of foreseeability for a duty to be owed? YES

REASONINGMajority

Negligence is not a tort unless it results in a wrong that violates a right or protected interest Damage to the person isn’t actionable per se – if the harm wasn’t intended, one must demonstrate that the act

had a reasonably foreseeable possibility of danger There was no reasonably foreseeable risk Dropping the package may have been negligent, but not with respect to P

The workers had no way of knowing the contents of the parcel, there was no indication it contained fireworks, and even if they had, they could not reasonably have foreseen this outcome

Court acknowledges that there was an act of negligence, however, negligence is not a tort unless it imports the commission of a wrong, which can result only where a right is violated

Where harm is not willful, the plaintiff must prove that the act had possibilities of danger so apparent as to entitle them to be protected against the act

Not the case here

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Dissent Every individual has a duty to the world at large from refraining from acts that may unreasonably threaten the

safety of others Negligence may be defined roughly as an act or omission which unreasonably does or may affect the rights of

others The negligence in dropping the bundle is enough to impose liability for all consequences of the negligent act,

including injury to P, even if they were not foreseeable A tortfeasor should be responsible for all the consequences of which his tortious act was the proximate cause

Proximate cause Proximate cause is defined as the arbitrary line that public policy draws to prevent tracing a series of events from a cause beyond a certain point

In this particular case, the act was negligent and the defendant should be liable for the proximate consequenceso He argues that the explosion was the proximate cause of the injury

RATIO1. There is a reasonable limit on the extension of duty in negligence cases: where the harm is not willful, the plaintiff must prove that the resulting injury resulted from an apparent danger inherent in the act2. The concept of “Duty of care” is based on foreseeability, rather than causality (2) Duty of care will be the main method of controlling liability.

COMMENTSThis case embodies the co-existence of approaches to delineating the scope of liability in systems which work (a) several torts and (b) a single general obligation. Cardozo J., key ideas incl.:

“Risk imports relation.” “Orbit of danger [is determined by] reasonable vigilance.”

Andrews J., key ideas incl.: “Proximate cause.” “Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the

safety of others.” “Because of convenience, public policy, of a rough sense of justice, the law arbitrarily declines to trace a series

of events beyond a certain point. This is not logic. It is practical politics.”

N.B. Both judges are in part wrong, and in part right. Cardozo J.

He is wrong in neglecting the fact that there is an obvious rel. between P. and the guards, i.e. a contractual rel. as she has a ticket, so she is obviously within the “orbit of risk.” He could have instead argued that the injury was not foreseeable, which may have been the stronger argument according to SVP, although this would have been a proximate cause argument, more or less.

He is right in his exposition of how the mechanism, by emphasizing that we ask (in the CML) whether a duty of care was owed to the given person.

Andrews J. He is wrong in that he discusses whether P.’s injury was a proximate cause of the explosion, when he should

have been assessing whether her injury was a proximate cause of the guard’s negligence. He is right in his exposition of the mechanism as well (though a CVL approach) whereby co-existent with the

duty of care, we have the limiting mechanism of proximate cause.

Palsgraf as ‘Transsystemic’ Tort Law

B. The Concept of the ‘Duty of Care’ (Feb 14)

Duty of care (DOC)

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The concept of duty of care evolved very differently in CML and CVL; the most important distinction is the notion that in CML, the key is to demonstrate that a DOC is owed to the plaintiff by the defendant

CML DOC CML developed from King’s Court, which was only interested in hearing particular types of disputes, given limited time and resources

The led to the creation of writs (which are today recognized torts) the kinds of wrongs for which one could obtain a writ had two main features:

1. The wrong had to result in an injury to what had to be considered an important interest or right of the plaintiff – specifically, you had to show that the right to your person, property, liberty was infringed

2. The wrong had to be intentional Eventually, the writ system was broadened with the adoption of the writ of trespass on the case, under which the

plaintiff need only allege a broad wrongdoing on the part of the defendant – ie: the injury need not be shown to have been intentional

o However, because the court was worried about opening floodgates, it only allowed claims for unintentional harm in specific cases, and this is where we see the emergence of the notion of the DOC in assessing whether there was a duty owed, the emphasis was on the relationship between parties

The torts of negligence and nuisance developed from this writ

CVL ‘DOC’ CVL developed through codification

CVL limited the number of claims by using the concept of legal causationo This allowed it to exclude liability for harm even where the test for factual causation is met, but where

the relationship between the defendant’s wrongdoing and the injury is so remote that it would be considered unfair to hold the defendant liable

DOC and Donoghue v Stevenson Pre-Donoghue The duty of care concept pre-Donoghue was used in two ways

1. To identify a list of rights which could be the basis for an action in torts (right to person, property, or liberty)o Rights aspect” of the DOC

2. To identify a list of categories of relationships between the plaintiff and the defendant, or between the defendant and the injury, that could be a ground for liability

o “Relationship aspect” of the DOCPost-Donoghue It established the general test for ascertaining whether or not there is a DOC the “neighbour principle”

The emphasis is on the relationship (Atkin did not address the rights aspect – likely assumed it would continue on in CML)

o So we eventually have the development toward and emphasis on the relationship in Home Office v Dorset Yacht and eventually in Anns v London Borough (and reaffirmed in City of Kamloops v Nielson) where we see the development of the test based on foreseeability and proximity (also, Cooper v Hobart)

This test looks for:1. A sufficient relationship between the victim and the wrongdoer such that, in the

reasonable contemplation of the wrongdoer, carelessness on his part may be likely to cause damage to the victim, in which case a prima facie duty of care arises

2. Whether policy consideration negate the imposition of such a duty N.B. Smith notes that despite the emphasis being on the relationship in the Anns test, and that this is the test

courts apply, most cases where a right has not been infringed will fail (ex: pure eco loss, pure emo harm, failure to rescue)

o The justification will be related to the relationship, but really it is about the right

Anns test Still using it effectively but it’s so complicated now

Trying to have one test apply to a bunch of diff situations – but they are diff situations so there’s fundamentally diff reasons for why you shouldn’t recover

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So the test becomes more complicated and less usable Court does say though not to apply it all the time but to look at precedents

Article 1457 CCQ

Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another.Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody.

Donoghue v Stevenson [1932 ] – CML (UK)

FACTS D’s friend bought her a ginger beer D found a decomposed snail in the drink and suffered shock and gastro-enteritis

ISSUESDoes the manufacturer of a product owe a legal duty to their customers to take care that the product is free from defect likely to cause injury? YES

REASONINGNo existing provisions in CML to account for this confined the right to recover to those who enter into the K Classical neighbor principle: you must not injure your neighbor

Ie: any person so directly affected by your act that you must keep them in mind when acting or omitting to act Have a duty to take reasonable care toward anyone who may be reasonably expected to be harmed by your

actions or negligence Manufacturer put food in a container which couldn’t reasonably be inspected before being drunk by the consumer

Relationship is close enough for a duty of care to arise Manufacturer demonstrated negligence when a snail was allowed into the bottle

Also a consumer should have recourse to a manufacturer that provides a flawed product – would be a social wrong to deny that legal remedy

RATIO1. Neighbor principle: you must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely injure your neighbor2. The manufacturer of a product has a legal duty to the consumer to take reasonable care that the product is free from defect likely to cause injury

Home Office v Dorset Yacht [1970] – CML (UK)

FACTS Several “borstal boys” (young offenders) were under the supervision of three officers while working on an

islando The officers went to sleep and left the boys to their work

Seven of the boys escaped by stealing a yacht They crashed the yacht into another yacht owned by DY and boarded the second yacht, causing further damage HISTORY: DY brought a claim against HO, but HO appealed DY’s ability to bring a claim in the first place

ISSUEDoes HO, or its officers, owe any duty of care to DY capable of giving rise to liability in damages? YES

REASONINGMajority

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The officers were clearly negligent Their supervision of the boys was negligent, and it was reasonably foreseeable that they would try to escape by boat during the night if unsupervised

So, it was a likely consequence of their neglect of duty that the respondent’s yacht would suffer damage The question is one of remoteness rel. to causation

The court has to consider to what the law regards the acts of another person, the boys in this case, as breaking the causal chain between the defendant’s carelessness and the damage to the plaintiff

o HO argues that where human action is one of the links in the chain, it cannot be argued that the damage was the inevitable result of the negligence

o BUT you can still claim that the damage was the “nautral and probable result” of the breach of duty, regardless of intervening human action, as long as the action is “at least [something] very likely to happen and it is not regarded as a novus actus inteveniens” which would break the chain of causation

o There is no novus actus here, and the damage caused by the boys was a foreseeable consequence of the officers’ negligence

Statutory duties do not excuse negligence HO argued that they were simply performing their statutory duty

They may still be held liable where that duty was exercised negligently, as it was herePolicy reasoning HO argues that holding them liable would have serious policy consequences Court dismisses this argument on two grounds:

It would have to be shown that their behaviour was so unreasonable that it could not be regarded as a real exercise of discretion

It would have to be shown that the offence was the natural and probable (v merely foreseeable) result of the negligence

ConcurringThis is a case about policy and whether or not to extend the PLCW The question is whether the duty of care articulated in Donaghue should apply here

N.B. This case is distinct from Donaghue in that the damage was the result of a conscious and tortious action by a 3rd party, and the defendants are subject to 2 potentially conflicting “neighbour relationships”

The general is that one man is under no duty of controlling another to prevent his doing damage to a third. There are however, special relations which are the source of a duty of this nature

It can be presumed that Parliament did not intent to authorize the officers to exercise their statutory powers in such a way as to cause proprietary damage to private citizens which would have been avoided by taking reasonable care

A cause of action can arise from the failure of a custodian to take reasonable care to prevent the detainee from escaping if the escape was the consequence of an act or omission falling outside the limits of discretion delegated to the officers or contrary to instructions received by the Home Office

The scope of duty extend only to persons that officers could have reasonably foreseen had property in the vicinity. The boys escaped from an island, the only means of escaping from was by boat; therefore, the plaintiff, whose

boat was moored adjacent to the island, falls within the scope of duty

RATIOA party can be held liable in tort for damage caused by a third party if the damage caused is a reasonably foreseeable consequence of their negligence

Anns v London Borough of Merton [1977] – CML (UK)

FACTS A were tenants in a block of flats which suffered from a structural defect

o The defect was due to the foundations not respecting the by-law and being too shallow The council was responsible for inspecting the flats during construction

ISSUEDid the council have a duty of care toward the tenants? YES

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REASONINGCourt develops the ‘Anns Test’ which is a two-stage test to establish whether there is a duty of care (N.B. this has since been overruled(?)) A duty of care is established:

1. Where there is a sufficient relationship between the victim and the wrongdoer such that, in the reasonable contemplation of the wrongdoer, carelessness on his part may be likely to cause damage to the victim, in which case a prima facie duty of care arises (ie: foreseeability and proximity)

2. If the first question is answered in the affirmative, it is necessary to consider whether there are any consideration which ought to negate, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise (ie: policy considerations)

The court rules that the council’s failure to check the foundations during construction foreseeably resulted in the structural defect, and no policy considerations prevent to council from being held liable

RATIOThere is a duty of care where there is a relationship of proximity between the parties such that the harm caused by the negligent party’s action was reasonably foreseeable and there are no policy reasons for not imposing liability

City of Kamloops v Nielson [1984] – CML

This case simply reaffirms the test set out above in Anns in Canada

Cooper v Hobart [2001] – CML

FACTS Eron Mortgage Co. was a mortgage broker under the Mortgage Brokers Act C advanced money to E E’s license was suspended, and they went out of business It was later found that E had used investors’ money for unauthorized purposes

o C alleges that the registrar, H, breached its duty of care to investors and therefore was liable in damages

o C claims that H should have been aware of E’s serious violations of the Act and should have suspended its license earlier

H’s failure to do is claimed to be negligence

ISSUE1. Is a new duty of care recognized here? NO – there is no duty of care2. Is the Anns test the appropriate way of ascertaining this? YES

REASONINGThe Anns test applies in order to ascertain whether the court will recognize a novel duty of care This case cannot be likened to any other case, as it deals with pure economic loss

There is neither sufficient foreseeability nor proximity between the negligence of the defendant and the harm incurred by the plaintiff to warrant establishing a duty of care

o Proximity: ‘something more’ than mere foreseeability and focuses on “factors arising from the relationship between the plaintiff and the defendant”

No single principle exists to guide findings of proximity judges should rely on categories of relationships – recognize proximity by comparing a case to existing categories where it’s been recognized

Some categories include:o Foreseeable physical harm to the plaintiff or his propertyo Foreseeable nervous shocko Negligent misstatemento Misfeasance in public officeo Relational economic loss when the claimant has a possessory or proprietary

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interest in the property No proximity in this case

Even if a prima facie duty of care had been recognized, it would have been negated for policy reasons in the second part of the Anns test

RATIO1. The two-part Anns test is used to ascertain whether a novel duty of care exists in a given case2. Proximity analysis in Canada shall proceed by categories as a first step and failing that, it is determined with respect to the nature of the relationship between persons

C. Duties to Benefit/Rescue (Feb 16)

Duty to rescue To what extent does the law expect us to take positive steps to protect others from harm? The CML and CVL approach the duty to rescue differently (Van Gerven; Kasirer):

CML: asks whether a DOC was owed to the person by the person who failed to come to their rescueo Generally, CML is very reticent to find such a duty; however, there are two main exceptions where it will

recognize a positive duty to act: Where there are certain recognized proximate relationships, ex: parent-child, teacher-student

(Childs v Desormeaux) Where one party created the risk, to their own economic benefit (Crocker v Sundance)

CVL: works in conjunction with art. 2 of the QC Charter which grants every person the right to be rescued from situations of peril

o Not respecting this provision of the Charter entails wrongdoing under art. 1457 However, notice that this notion of a duty to rescue is quite narrow – ie: limited to situations of

peril Yet, art. 1457 does recognize omissions as wrongdoing, and we may find more room to find a

duty to rescue subsumed in this provision, regardless of art. 2o CVL also provides protection to those who come to the rescue of others under art. 1471

Alternate solutions Legislation compensation, or protecting, rescuers may be enacted in order to encourage individuals to be Good Samaritans, ex:

An Act to Promote Good Citizenship (arts. 2 and 12) The Good Samaritan Protection Act

Article 2 Charte des droits et libertés de la personne

Articles 1457 CCQ

Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another.Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature.He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody.

Articles 1471 CCQ

Where a person comes to the assistance of another or, for an unselfish motive, gratuitously disposes of property for the benefit of another, he is exempt from all liability for injury that may result, unless the injury is due to his intentional or gross fault.

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An Act to Promote Good Citizenship Articles 2 and 12

The Good Samaritan Protection Act

Tort Law: Scope of Protection – Van Gerven

SUMMARYCivil liability may arise due to an omission as well as a positive act under the French and German CVL, while the English CML is reluctant to accept unrestricted liability for mere omissions, as opposed to omissions in action. This article explores different grounds for liability and considers the political, moral, and economic considerations which justify recognizing, or choosing not to recognize, such a duty.

KEY POINTS In common law “there is a general reluctance to accept unrestricted liability for “mere omissions”, as opposed

to “omissions in action”. Whilst the latter occur in the course of positive conduct, and are treated as an integral part of such conduct, the former do not occur in the course of positive conduct. The basis for this distinction is that while it is logical that I should be held responsible for the consequences of events I have initiated, the same cannot be said of harm which results from a chain of events I have not [initiated], unless special circumstances arise. The reluctance of English law to impose liability for mere omissions extends to failures to prevent another from causing harm

Rationale for CML approach to omissions There are political, moral, and economic justifications for refusing to recognize a duty to prevent another from suffering from harm from the acts of third parties or natural causes

Political: it is less of an invasion of an individual’s freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect

Moral: the duty to rescue may apply to a large and indeterminate class of people who happen to be able to do something why should one person be held liable rather than another (“Why pick on me?”)

Economic: the efficient allocation of resources requires an activity should bear its own costs, so liability to pay compensation for loss caused by negligence acts as a deterrent, but there is no similar justification for requiring one who did not do anything to spend money on behalf of someone else

Situations in which the duty of rescue/protect (ie: ‘mere omissions’) is acknowledged in CVL and CML Existence of a special relationship with the plaintiff – ex: parent-child, guardian, employer-employee Creation of a danger for one’s own (often economic) benefit – ex: licensed premises Imposition of duties by law, contract, ethics (esp professional) or a general principle of good faith in society

Failure to prevent the deliberate wrongdoing of a third party England = no general obligation, but many cases under which such a duty is imposed (contract, special relationship, creation of nuisance)

More generally, a duty may be imposed where the defendant negligently causes or allows a hazard to arise, and it is reasonably foreseeable that third party may interfere and cause damage by activating the danger

Important Q: whether English CML is not “repugnant to modern thinking” in denying liability for mere omissions Answer may depend on the kind of effort required to act

Agapè – N Kasirer

SUMMARYThis article examines how common lawyers and civilists use the parable of the Good Samaritan to formulate the question “Who is my neighbour?” in relation to the problem of establishing or not the existence of a duty to rescue in the PLCW in both traditions. It will show that we can question the generally accepted conclusion that the CVL is more

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charitable than the CML in its attitude toward a person in peril.

KEY POINTSIs there a juridical duty to give, or to rescue in the PLCW? Note paradox in the very notion of the question “Devrais-je donner?”

While “devoir” is the language of obligations, “donner” is the language of liberalism, and choice the same paradox exists when we consider the question “Devrais-je secourir?”

“Dans sa recherché visant à trouver le créancier légitime du devoir de secours, le jurist rejoint les rangs du commun des mortels en formulant tout naturellement la question “Qui est mon prochain?”, la proximité étant la base même de la relation interpersonnelle qui fonde le devoir de droit.”

Who is the creditor, or the debtor, of a juridical duty to act? Certain relationships imply, by their very essence, a duty to act (ex: a duty to rescue, such a parent-child, spouses, etc) Certain states enact specific legislative provisions creating a duty to rescue But what happens in the absence of either sufficient proximity or specific legislative provisions?Dissonance between the CML and CVL approaches to the duty to rescue CML has a philosophical reticence to recognizing such a duty, viewing it as an attack on individual liberty CVL is more open to the notion of “faute d’abstention”

The parable of the Good Samaritan is often cited in cases, in the both the CML and the CVL in an effort to assess the extent, or scope, of the juridical duty to rescue, which boils down to the question of “Qui est mon prochain?” However, the CML and CVL approach the parable from diff points of view:

CML will invoke the parable in order to further draw the distinction between law and morality, thereby justifying their hesitation to recognize a duty to rescue

CVL will invoke the parable to support a system which timidly enforces a duty to act for the benefit of one’s neighbour

Note that neither approach invokes the notion of agapè and the duty to one’s neighbour in the sense actually invoked by the parable

The parable actually infl. not only the CML’s approach to the duty to rescue, but permeates the entirety of its PLCW Donoghue v. Stevenson

Lord Atkin refers to the parable when he wrote that “the rule that ‘you are to love your neighbour’ becomes in law, ‘you must not injure your neighbour’; and the lawyer’s question, ‘who is my neighbour’, receives a restrictive reply”

Further, while Donoghue does not exclude the possibility of liability for a failure to act, it suggests that such a failure will only result in liability where it constitutes a failure to perform a juridical duty

So we can see the restrictive definition of the duty of care emerging here, which is in stark contrast to the duty of charitability actually expounded in the parable this duty “relèverait d’un ordre normative qui existerait parallèlement à l’ordre normatif juridique.”

Dorset Yacht Co. v. Home Office 18 The analysis is based on a distinction of moral and juridical duties the notion is that the moral duty evoked

in the parable has no equivalent in a juridical duty to act under the CML Lord Diplock writes that “the very parable of the Good Samaritan illustrates, in the conduct of the priest and

the Levite who passed by on the other side, an omission which was likely to have as its reasonable and probable consequences damage to the health of the victim, but for which they would have incurred no liability in English law”

The CML does accord an important place to duties to act, which include the duty to rescue However, these arise in cases of special, or proximate, relationships it is the control that one person has over

another, or the advantage which one gains from a given relationship, which justifies imposing a duty to act “Benevolence alone is not adequate to account for special positive duties as a class”

o Rather, it is founded on specific, discrete, proximate relationships this is again distinct from the notion of agapè, which is a universal ethical principle

Why is agapè so incompatible with the objective of the PLCW in the CML? Because there is an incompatibility between the notion of loving one’s neighbour, motivating one to act, and the

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general duty not to harm others Because the function of tort law is compensatory, and imposing a duty to rescue would be to ask the debtor to shoulder to cost of a risk that he did not create Because imposing a duty to act is a serious attack to individual liberty, and the PLCW is traditionally liberal and centered on an obligation (duty of care) which is defined as a negative liberty

Although the CVL recognizes fault as well as fault by omission, it remains to be seen whether we can characterize the duty to rescue as agapè In invoking the parable, civilists are often attempting to draw the line between morality and law, and to dissociate the juridical duty to rescue from the moral duty reflected in the parable

This absence of a general duty to rescue is the result of the distinction between law and morality It also recognizes that the compensatory purpose of tort law does not justify a duty to benefit others Furthermore, a general duty to rescue would be too broad and thus impracticable There are also concerns related to causation

Certain CVL jurisdictions have legislative provisions imposing a duty to rescue where an individual’s life is in peril This would be where the parable is most closely reflected Kasiser calls it “agapè legislative” but then goes

on to counter this position, arguing that the law is actually opposed to the notion of agapè as it does not share the instinct of generosity and charity which lies at the core of the parable

o Such legislation is also incompatible with agapè in that it imposes an obligation, whereas agapè is a source of freedom for the person who takes it on

From the above we can understand that we should not overstate the distinction between the CML and CVL approaches to the duty to rescue

Childs v Desormeaux [2006] – CML

FACTS D is a heavy drinker, and was at a BYOB party hosted by a couple

o He had 12 beers, and then left to drive home with two passengers in the caro The host walked D out to his car and inquired as to whether he was alright D didn’t show any signs

of intoxication and said he was ok D crashed head-on into another car

o The collision killed a passenger in the other car, as well as caused severe injuries resulting in paralysis for C, a teen passenger

D pled guilty at trial and was sentenced to prison However, C is now suing the hosts of the party, saying that they are liable for her injuries HISTORY: trial judge and CoA held that no duty of care existed between the hosts and C

ISSUEDo the social hosts of parties owe a duty of care to members of the public who may be injured by an intoxicated guests’ conduct? NO

REASONING By applying the Ann’s test, it’s determined that social hosts of parties where alcohol is served do not owe a

duty of care to public users of highwaysProximity and foreseeability aren’t established (Ann’s test) The proximity necessary to meet the first stage of the Anns test has not been established

First, the injury to C was not reasonably foreseeable on the facts established in this caseo There was no finding by the trial judge that the hosts knew, or ought to have known, that D, who was

leaving the party driving, was impairedo Also, although the hosts knew that D had gotten drunk in the past and driven, a history of alcohol

consumption and impaired driving does not make impaired driving, and the consequent risk to other motorists, reasonably foreseeable

Second, even if foreseeability were established, no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act

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o No duty to monitor guests’ drinking or to prevent them from driving can be imposed having regard to the relevant legal principles

o A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk

o A BYOB party does not fit any of the categories which create proximity among persons who would otherwise be legal strangers

Short of active implication, a host is entitled to respect the autonomy of a guest  The consumption of alcohol, and the assumption of the risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity 

Absent the special considerations that may apply in the commercial context, when such a choice is made by an adult, there is no reason why others should be made to bear its costs 

Lastly, with respect to the factor of reasonable reliance, there is no evidence that anyone relied on the hosts in this case to monitor guests’ intake of alcohol or prevent intoxicated guests from driving While, in the commercial context, it is reasonable to expect that the provider will act to protect the public interest, the same cannot be said of the private social host, who neither undertakes nor is expected to monitor the conduct of guests on behalf of the public 

RATIO1. Application of the Anns test to private party hosts, so the ratio is that they do not owe motorists a duty of care unless they create an abnormally risky situation2. McLachlin defines three areas in which positive duties to act are imposed: creation of risks, exercise of paternalistic authority, performance of public or commercial functions

Crocker v Sundance [1988] – CML (skip sections 4, 5, 6 of the judgment)

FACTS C and his friend participated in a tubing competition hosted by S He signed a K which incl. a waiver

o As he did not actually read the form, he did not take notice of the waivero He also did not notice televised showings of the previous year’s race which showed participants being

thrown off their tubes C was drinking prior to the first heat

o They won the first heat and he suffered a small cut from a fall Between the first and second heats, C had several more drinks

o Both the owner of S and a manager noticed that C was inebriated, and suggested to him that it might be best if he did not continue the competition

o However, when C insisted on participating, neither took any further steps to dissuade or restrain him The tube flipped during the second heat, and C suffered a neck injury which had rendered him quadriplegic

ISSUE1. Did S owe a duty of care to C? YES2. If so, what was the standard of care required and was it met? NO3. If so, did the failure to meet the standard of care cause the harm suffered? YES

REASONINGThere was a duty of care owed to C by S The CML distinguished between misfeasance and nonfeasance, and has traditionally been reluctant to recognize affirmative duties to act, except in limited exceptions

However, the court has become more willing to expand the number of special relationships to which a positive duty to act attaches

This incl. situations where there is some element of control or some economic benefit inuring the person as a result of the relation, which justifies the creation of the duty – ex: Jordan House recognized that a Tavern had a duty of care to an intoxicated patron

The general notion is that one is under a duty not to place another person in a position where it is foreseeable that

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the person could suffer injury The plaintiff’s inability to handle the situation in which he or she has been placed – ex: through youth,

intoxication, incapacity, etc – is an element in determining how foreseeable the injury is In this case, S set up an inherently dangerous situation in order to promote its resort and improve its financial future

It also provided liquor and knew of C’s inebriated and injured condition, which officials were aware heightened his chance of injury

S is not a stranger to C, the nexus between the two is close enough to justify S assuming the responsibility of taking all reasonable steps to prevent a visibly incapacitated person from participating in a dangerous sport

S did not meet the standard of care required The standard of care is dependent on context, and a court should consider the relation between the probability and gravity of the injury to the burden that would be imposed upon the defendant in taking preventative measures

Many options were open to S to dissuade C from competing, none of which would have imposed a serious burden on the resort

However, S did not do any of these, and did nothing beyond mildly suggest to C not to do the second heatThe causal link between S.’s failure to meet its duty of care and the injury is sufficient Drunkenness does in fact increase the risk of injury, despite S arguing that tubing is an inherently dangerous activity so there are risks drunk or not

RATIOThere is a duty of care not to place another person in a position where it is foreseeable that the person could suffer injury

D. Emotional and Psychiatric Harms (Feb 21) (also: Secondary Victims and Relational Loss)

Emotional lossCML and CVL adopt different approaches to addressing cases of emotional loss (Van Praagh) CML: traditionally doesn’t recognize a DOC not to cause emotional harm or distress

This is based on the historical requirement that claims were only recognized where a right was infringed, and no right not to suffer mental distress exists

However, CML will draw a distinction between pure emo harm and consequential emo harmo Although it will not recognize a claim for pure emo harm, it is possible to recover for consequential

emo harm – ie: where a person was otherwise harmed (ex: body, property) and suffered emotional harm as a consequence

The rule is similar with regard to eco losso The Anns test applies

It also recognizes certain exceptionso Where one party intentionally caused emo harm to another, the harmed party can recovero Where legislation statutorily allows close relatives to recover for pure eco or emo loss when their mother,

father, or child is wrongfully injured or killed Finally, CML also distinguishes between emo harm and psychiatric harm

o Psychiatric harm is recognized as a physical injury, and therefore one can recover, ex: for shock, under certain circumstances (Alcock v Chief Constable; Annetts v Australian Stations)

CVL: there’s a single general principle whereby you essentially simply need to show that you have been injured, and that your injury was caused by the negligence of the defendant

It is necessary that the relationship between the negligence and the harm incurred by proximate enough (Augustus v Gosset)

o CVL has developed this broad notion – ie: that you have a general right not to be made worse off by the negligence of another – as it developed through philosophers and academics as a code for life

There is no distinction between psychiatric and emotional harmo The question is, again, whether the relationship between the wrongdoing and the harm is proximate

enough (although in practice, one recovers substantially more often for psychiatric harm)

Relational loss (?)

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(Régent Taxi v Congrégation des petits frères de Marie)

Article 1053 CCLC

Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill

Article 1056 CCLC

Who Lost What? Relationship and Relational Law – Van Praagh

SUMMARYThis paper explores the approaches taken to relational loss by the CML and CVL in Canada, and reflects on their unique yet overlapping preoccupations and perspectives. The article suggests that relational losses can be differentiated depending on the nature of the loss or injury experienced and the appropriateness of search for a private law response to the loss in question. Finally, it clarifies the significant role that relationship plays in defining and responding to claims or relational injury and loss. The context of relational personal or moral injury will serve as an illustration of the limits of Art. 1457 and the duty of care.

KEY POINTS Both Canadian CML and CVL recognize that the scope of the wrongdoer’s responsibility may properly extend to individuals who had a significant relationship with the immediate victim

However, the CML and CVL have diff theoretical starting points and diff mechanisms rel. to establishing liability and compensation

o CML starts with the position that no one can bring a claim against a wrongdoer for relational harm stemming from the death of another person, subject to a limited exception for nervous shock or psychiatric injury claims

In the case of relational losses incurred as the result of wrongfully caused injuries, some plaintiffs could historically bring claims

However, we see that overall the CML is very wary of relational harmo CVL has art. 1457 in which the use of “another” entails that any person who suffers when someone

else is subject to wrongful injury may be recognized as a victim There is no theoretical distinction between victims and “victims by ricochet” The latter must simply show that a recognizable injury was suffered, and that there is a

sufficient causal link between the harm and the fault Thus, the CVL is much more open and generous

o Note that the above are simplistic and will be “filled out”Relational harm in the CML Because it is hardly recognizing under the CML, legislatures have enacted fatal accident legislation which provides a right of action for certain categories of people, usually close relatives, upon the wrongful death of someone close to them

There is a general trend for this legislation to become more generous in broadening the categories of potential claimants and a broader attitude allowing for the inclusion of pecuniary losses associated with loss of care and guidance, and, in some jurisdictions, for grief and loss of companionship

The original objective of this legislation is to remedy an unacceptable position in the CML it recognizes that those close to the deceased for the harm they have suffered

o In so doing, it underlines a normative conception of who is and should be closest to us in life and in death

Because of the centrality of relationships, SVP suggests that relational losses are better referred to as “relationship losses”, in the sense that it is the damage to, or destruction of, a personal relationship

Relationship losses are tied to assumptions about the networks and close connections within which people live, and demonstrate that the law is more interested in easing the burden of being left alone, rather than supporting the survivor in their emotional loss or breakdown

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Nervous shock is an exception in that in theory one can claim damage for psychiatric damage (ie: ‘nervous shock’) However, in practice, this will be awarded where the secondary victim can show exposure to traumatic

experience, the immediacy of their discovery of the death or injury, and a close relationship of emotional proximity with the primary victim

Again we see the centrality of relationships, although SVP argues that this is an unnecessary tension she says that relational loss need not be relationship loss, and so we could instead focus on the rel. between the nervous shock plaintiff and the psychiatric-injury producing event, rather than between the primary and secondary victims

She argues that the reason for this tension and confusion is that the law is trying to encompass relational loss for grief or sorrow so the law implicitly shows an appreciation for the grief of the survivor when it incorporates an element of relationship or proximity into the doctrine of nervous shock

Relational harm in the CVL The structure of the general obligation expressed in the Code fits with the goal of compensating for actual losses suffered by people affected by the injury or death of another, more immediate victim There is no a priori restriction or categorization of potential claimants

That being said, the status-based approach of the CML was originally reflected in art. 1056 of the CCLC which outlined which family members were granted a right of action in cases of wrongful death but left open the question of by whom relational loss was recoverable in the case of injuries

Initially interpreted such that anyone who suffered relational harm could bring a claim, and the plaintiff is understood as making an independent, and not a derivative, claim

Instead of asking “who”, we are now asking what loss was suffered, and whether the loss was the result of the wrongdoing

In considering the scope of what constitutes recognizable relational harm, the court would focus on the quality of the loss. However, this would entail a consideration of the relationship between the victims. The determination is whether the quality of the injury grounded in the particular relationship allows that loss to count

Causation is the principal limiting mechanism used in the CVL to circumscribe claims of wrongful loss Although it appears that the CVL takes seriously the claimant and the injury without reference to the relationship, we see that this concern implicitly surfaces in the analysis of both causation and injury (as only those losses which are the direct and immediate consequence of the wrongdoing will be compensated)

While the “ricochet” aspect of relational loss does not a priori undermine a successful claim, it does seem that a close rel. between the victim who has died or experience physical injury and the victim who claims relational loss makes it more likely that a “direct and immediate” connection between wrongdoing and loss will be established

This is illustrated in QC’s recognition of grief as a compensable injuryo An analysis of grief or sorrow, as to particular losses, uncover assumptions about relationships and

their significanceo When we look at it, QC emphasizes the loss of companionship, affection, and moral support, rather

than the shock and pain of the death (ie: the actual suffering)o This reluctance to undertake a detailed inquiry into the claimant’s personal experience reflects a

conceptual reluctance rel. to the CVL’s desire to consider grief as a real injuryReflections on relationship in relational loss Three reactions may arise in response to the unwavering centrality of relationship in recovery for relational loss:

1. We could criticize the exclusionary categories of potential claimants and make arguments for expanding the list

2. We could question the CML’s stubborn refusal to recognize relational loss, insisting that relationship loss be acknowledged but distinguished from injury more accurately arising from the personal impact of a wrongfully caused event

3. We could ask why grief or sorrow remains in practice unrecognizable as tangible and immediate injury and instead indirectly wrapped up in other relational losses

Régent Taxi v Congrégation des petits frères de Marie [1929] – CVL

FACTS CPFM is a statutorily incorporated religious community, which therefore has the capacity to sue and can be

sued44

They brought an action against RT when a member of their community, Brother Henri-Gabriel, was seriously injured while travelling in RT’s omnibus

o The injury was attributable to the fault and negligence of an RT employeeo They claimed medical costs, clothing and personal effects, and actual damages for the loss of services

RT is appealing

ISSUEDoes CPFM have a right of action? YES

REASONINGThe plaintiff falls within the purview of “another” under art. 1053 CCLC Prima facie, art. 1053 confers on every person who suffers injury directly attributable to the fault of a third party the right to recover Courts have given “another” its ordinary and unrestricted meaning

To depart from this interpretation and restrict “another” to the immediate victim would be a departure from the golden rule of legal interpretation that the grammatical and ordinary sense of the word is to be adhered to unless it would lead to absurdity

Furthermore, nothing in art. 1056 CCLC suggests an intent to narrow the scope of art. 1053 except in cases where the immediate victim dies and the claim is for damages occasioned by death had the legislature intended to exclude cases such as the current case from art. 1053, it would have used a more direct method

In this case, CPFM had a reasonable expectation, amounting to moral certitude, that it would enjoy the full benefit of Brother Henri-Gabriel’s services during the next two years

The expectation of gain or advantage was interfered with by the act of RT’s employee, and that suffices to create the interest requisite to give status to sue for damages

CPFM and Brother Henri-Gabriel had an arrangement by which, in return for his services, CPFM assumed an obligation to maintain him and were thus given an interest in his wealth and welfare

o This is sufficient to justify its claim in damages occasioned by inability on his part to render to it the services stipulated

RATIOThe meaning of “another” under art. 1053 CCLC is not circumscribed to the immediate victim, and any person who suffers injury directly attributable to the fault of a third party have a right to recover

Augustus v Gosset [1992] – CVL

SEE ABOVE

Alcock v Chief Constable [1992] – CML (UK)

FACTS The police allowed too many spectators to enter the stadium at a soccer match

o The stands collapsed, killing 95 people, and injuring 400 others and the incident was televised The Chief Constable of the police admitted negligent liability

16 separate actions by people who had watched the incident on TV or heard it on the radio or were in different parts of the stadium (ie: were not present at the scene of the incident) were brought against the Constable by persons related to the victims

o They are claiming damages for nervous shock resulting in psychiatric illness as a result of seeing or hearing about their family members’ deaths or injuries

o Some of the claimants were present at the match, although in different areas, others were not

ISSUE1. Can the boundaries of the cause of action to succeed on claims of nervous shock be extended? YES2. In the circumstances, can the plaintiffs claim damages for nervous shock (ie: do they meet the extended boundaries)? NO

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REASONINGThe limits of damages for psychiatric illness as a result of shock due to negligence for secondary victims McLoughlin v. O’Brian is the precedent that the court looks to. It establishes that:

A claim for damages for psychiatric illness as a result of shock due to negligence can be made without the claimant having to prove that he was himself injured

A claim for damages for such illness can be made where the shock results from:1. The death or injury of the claimant’s spouse or child, or the fear of this occurrence2. The shock has come about through the sight or hearing of the event or in its immediate aftermath

In this case, the claimants are seeking to extend the boundaries of the cause of action They want to broaden the claim by:

o Removing any restrictions on the categories of persons that may sue under this heado Extending the means recognized by which shock is caused to include simultaneous broadcastso Modifying the present requirement that the aftermath be “immediate”

What is shockShock is no longer a variant of physical injury, but it recognized as a separate kind of damage current law: Shock in this context involves the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind

Even though the risk of psychiatric illness is reasonably foreseeably, the law does not award damages where the psychiatric injury was not induced by shock

Even where the nervous shock and subsequent illness caused by it could both have been reasonably foreseen, it has generally been accepted that damages are not recoverable where the claimant was merely informed of, read, or heard about the accident

Mere mental suffering, although reasonably foreseeably, if not accompanied by physical injury, is not a basis for a claim in damages

An injured party is not liable to another person for mere psychiatric injury sustained as a result of shockIn this case, the court extended the boundaries of the cause of action Classes of persons whose claim should be recognized

The current law made a distinction between closest family and simple bystanders, the rationale being that those not close to the victim should just deal with it the defendant can’t be expected to compensate the world at large

So, the court holds that in cases of shock suffered by a 3rd party, where this is reasonably foreseeable, the person is entitled to recover damages where a reasonably strong-nerved person would have been so shocked

o They replaced the limited class with an objective test which, in principle, is open to allo This esp opened up the class of persons to distant family an friend

Proximity of the claimant to the accident Proximity must be close in both time and space, although direct and immediate sight, hearing, or learning of

the accident is not required However, notice of the accident after its occurrence does not constitute sufficiently close proximity

The means by which the shock is caused The shock must have occurred due to sight or hearing of the even or in its immediate aftermath In this case, TV broadcasts cannot be equated with the above requirement

o In adhering to a code of ethics, TV authorities wouldn’t show pics of suffering by recognizable individuals such pictures can’t give e equated with the “sight of hearing the event or its immediate aftermath”

However, this decision pertained only to the particular cases, and the question remains open for future casesDespite extending the grounds for the cause of action, none of the claimants met the criteria

RATIO1. To recover damages for psychiatric illness sustained as a result of shock, the claimant is entitled to damages where it was reasonably foreseeable and where a reasonably strong-nerved person would have been so shocked2. The shock must have occurred due to sight or hearing of the event in its immediate aftermath, and the claimant must have been in sufficient proximity

Annetts v Australian Stations Pty Ltd [2002] – CML (AUS)

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FACTS A’s 16 yr old son was employed by ASP and he was assured his son would be supervised at all times But the son was sent to work alone in a remote area and went missing and died of starvation in the desert – A

was informed he was missing Then, months later, they found his body and informed A by phone – A didn’t see/hear about it immediately or

at the scene of the accident

ISSUEWere the assumed facts sufficient at law to give rise to an independent duty of care owed by the respondent to the appellants to exercise reasonable care and skill to avoid causing them psychiatric injury?

REASONINGThere is a duty of care owed to the parents 2 matters are critical:

1. The relationship between the parties2. The reasonable foreseeability of the kind of injury suffered

Look at: ‘Sudden shock’: individuals may sustain psychiatric illness without any particular ‘sudden shock’ so to

require this would have no root in principle and be arbitrary and inconsistent in applicationo Liability in negligence should be based on proof of psychiatric illness, not on the aetiology of that

disorder ‘Direct perception’: a rule that renders liability in negligence for psychiatric harm conditional on the

geo/temporal distance of the plaintiff from the incident or on the means by which they learn of the incident will produce arbitrary outcomes and exclude meritorious claims, although it may be relevant to assessing reasonable foreseeability, causation, remoteness of damage

o The process by which A found out about his son was protracted not sudden AND the death was slow, not an ‘incident’

BUT shouldn’t distinguish between this and similar injury suffered by parents who watch their son being killed by a car

The relationship and foreseeability of harm was sufficient to give rise to a duty of care despite A not seeing his son’s death and not suffering shock

RATIOA duty of care is owed to the parents of a deceased child in the event of negligence when there is a sufficient relationship that there is reasonable foreseeability of the injury. Sudden shock and direct perception are not necessary determinants

E. ‘Pure’ Economic Harms? (Feb 23)

Pure eco harm/loss Is it possible to claim for indirect eco loss?

CML: the ‘neighbor principle’ set out in Donaghue is used The Court will look to see whether a DOC was owed to ‘another’, except in this case “another” is owed a DOC

where he is a ‘neighbor’

Indirect victim: ‘Another’ or ‘Autrui’

Direct victim

Cause of the injury

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As a general rule, you cannot claim for pure eco loss (although you may for relational eco loss – see consequential emo harm)

o Pure eco loss: Weller v Foot and Mouth Disease Institute; Cooper v Hobarto Misrepresentations causing pure eco loss: Hedley Byrne & Co v Heller & Partnerso Relational eco loss: CNR v Norsk Pacific Steamship; Bow Valley Husky v Saint John Shipbuilding;

Hercules Managements Ltd v Ernst & Young CVL: will look at art. 1607

While art. 1457 states that you owe a duty not to harm ‘another’, this is circumscribed by art. 1607 In theory, there are as many claims as persons who have been injured by one’s wrongdoing however, the

injury must be a direct and immediate consequence of the wrongdoing for the person to recover (Elliott c Entreprises Côte-Nord Ltée)

o This is essentially the reason of Andrews J re proximate cause in Palsgraf.

Contractual relational eco loss CML courts typically don’t allow recovery for contractual relational economic loss (Bow Valley Husky v Saint John Shipbuilding), because:

1. Economic interests have customarily been seen by CML courts as less worthy of protection than either bodily security or property

2. Relational eco loss presents the spectre of ‘liability in an indeterminate amount for an indeterminate time to an indeterminate class’

3. May be more efficient to place the burden of economic loss on the victim who may be better placed to anticipate and insure its risk

4. Confining eco claims to K discourages a multiplicity of lawsuits

Article 1067 CCLC

Weller v Foot and Mouth Disease Research Institute [1966] – CML (UK)

SEE ABOVE

Elliott c Entreprises Côte-Nord Ltée [1976] - CVL

SEE ABOVE

Hedley Byrne & Co v Heller & Partners [1963] – CML (UK)

SEE ABOVE

Cooper v Hobart [2001] – CML

SEE ABOVE

CNR v Norsk Pacific Steamship [1992] – CML

FACTS One of N’s steamships ran into a bridge owned by PWS The main user of the bridge was CNR The damage caused to the bridge prevented CNR from fulfilling its contractual obligations to many 3rd parties,

resulting in much contractual liability and lost profit CNR is suing N for the damages incurred as a result of these losses

ISSUESCan someone who Ks for the use of a property of another sue a person who damages that property for losses resulting

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from their inability to use the property during that period of repair (ie: pure eco loss)? YES – if they’re in a joint venture

REASONING

Majority Recovery for pure eco loss

For decades, limited liability to physical damage of property – excluded pure eco loss But why, it was asked, should the right to recover economic loss be dependant on whether physical damage,

however minuscule, had been inflicted on the plaintiff’s property? Exceptions have been made in CA law – incl Hedley Byrne; Rivtow; Kamloops Pure eco loss is prima facie recoverable where, in addition to negligence and foreseeable loss, there’s sufficient

proximity between the negligent act and the losso Proximity is the controlling concept which avoids the spectre of unlimited liabilityo Proximity may be seen as paralleling the requirement in civil law that damages be direct and certain

Pragmatic considerations to limit recovery to physical damage or injury? 3 arguments (that fail according to McLachlin) for limiting liability:

o Insurance argument: plaintiff is in a better position to predict eco loss consequent on an accident and better able to obtain cheap insurance against the contingency results in overall savings (macro-econ)

o Loss spreading argument: it’s better for the economic well-being of society to spread the risk among many parties rather than place it on the shoulders of the tortfeasor

o Contractual allocation of risk argument: denying recovery will encourage actors to plan their contractual affairs and allocate risk more efficiently fails to account for inequality in bargaining power and overlooks the role of personal fault in the realm of negligence and its role in deterring tortious conduct

CNR should have considered the risk and incorporated it into their lease accordingly and by not doing so, they were themselves negligence precluding them from recovery is justified

Anns/Kamloops test Proximity: CNR’s activities were so closely aligned to those of PWC that they can be considered to be in a joint venture recovery for pure eco loss is permitted (effectively, PWC can be seen to have damaged CNR’s property)

Liability in a joint venture between CNR and PWC isn’t confined to the formal terms of the Ko Need a flexible test which permits consideration of all factors relevant to their relationshipo This test gives needed predictability while leaving the door open to future development

Practical/policy considerations: recovery serves the purpose of permitting a plaintiff whose position for practical purposes vis-à-vis the tortfeasor is indistinguishable from that of the owner of the damaged property to recover AND doesn’t ‘open the floodgates’ as it’s a limited category

Concurring Known plaintiff: there’s no danger of indeterminate liability and no policy reason to deny recovery when the defendant does or ought to know of the specific individual (as opposed to a general class of the public) who is likely to suffer a foreseeable kind of loss as a result of their negligence

Here, the loss and victim were identifiable and the damage inevitable

DissentContractual relational economic loss Persons cannot sue a tortfeasor for suffering losses to their contractual rights with the owner of property by reason of damages caused to that property by the tortfeasor

Can be exceptions but these don’t apply here Liability should be determinate before the accident occurs; unless there is joint venture or possessory interest, no recovery for damage to contractual interestsRefined proximity analysis in contractual relation economic loss Must look at proximity from plaintiff’s perspective too, not just defendant’s Legitimacy of policy considerations: should consider which party is the better loss-bearer (ie: better able to predict frequency and severity of losses) here, CNR is better able to bear the loss than N

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Contract: all parties were aware of the risk and CNR’s ability to protect itself isn’t limited to its K with PWC but also its Ks with clients/suppliers/etc CNR is in a better position to spread the loss by contractually allocating the risk

RATIO1. Confirmation of the Anns test2. Relational economic loss in the case of joint ventures falls within the category of losses that are sufficiently proximate to give rise to a duty of care

Bow Valley Husky v Saint John Shipbuilding [1997] – CML

FACTS Husky and Bow Valley arranged to have an oil drilling rig constructed by SJS

o To take advantage of gov financing, they incorporated an offshore company, BVH and ownership of the rig and the construction K was transferred to BVH before construction began with H and B essentially renting it from them

A functioning heat tracing system wasn’t installed properly by R leading to a fire and the rig had to be towed and repaired and was out of commission for several months

H and B and BVH sue SJS for breach of K and negligence H and B also sought to recover the day rates they were contractually required to pay BVH during the period the

rig was out of service and expenses

ISSUESIs SJS liable to H and B in tort for relational contractual loss? NO – but do owe a duty of care and are liable to BVH (which isn’t relational contractual loss but is direct)

REASONING There’s need for a rule to distinguish between cases where contractual relational economic loss can be

recovered and cases where it cannot be recoveredo Should be morally and economically defensible and provide a logical basis upon which individuals can

predicate their conduct and courts can decide future caseso Attempted in Norsk but division no clear rule revisit here

Recovery in relational contractual loss per Norsk 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 The categories aren’t closed Categories of recovery to date:

1. Cases where the claimant has a possessory or proprietary interest in the damaged property2. General average cases3. Cases where the relationship between the claimant and property owner constitutes a joint ventureo While this case doesn’t fit into these, the Anns test can be used to determine new categories

where justified by policy considerations and required by justiceAnns/Kamloops test1. Is a prima facie duty of care owed? YES2. Is the duty negated or limited by policy considerations? YES

The plaintiff’s ability to allocate the risk to the property owner by K:o No inequality in bargaining power between parent and BVI and HOOLo The parties also set out in the K their liability to each other and made provision for third party claims

arising out of rig operationso B and H aren’t owed a duty of care due to policy reasons

Re BVH: suffered property damage in excess of $5 million the need to provide additional deterrence against negligence outweighs the problem of indeterminate liability in BVH’s case

RATIOThe categories for recovery in relational loss aren’t closed, and new ones can be determined by the Anns test where prima facie duties of care can be negated by policy considerations

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COMMENTS RE: Norsk: didn’t officially overturn it (Smith thinks they effectively did)

Court says Norsk applies but it reached a diff result Smith thinks it’s the perfect case for recovery problematic they reached a diff result

o Fact that it was a diff company was just for tax purposes – it was 100% subsidiary and parent companies were in total control

But court said it’s not a joint venture Smith thinks this is wrong Court reasoned via indeterminate liability – if BVH is liable, what about shareholders etc

Smith thinks you can limit liability with the closeness test and that these same problems exist in Norsk

Hercules Managements Ltd v Ernst & Young [1997] – CML

FACTS EY, accountants, prepared audited financial statements for 2 companies: NGA and NGH The 2 companies went into receivership Appellants (H), shareholders in the 2 companies, claimed EY acted carelessly in preparing the statements

o Claim to have suffered eco loss based on relying on statements to buy more shares and on their existing holdings

ISSUESDid EY owe H a duty of care? NO

REASONINGAnns/Kamloops test Applies to misrepresentation cases involving pure eco loss – it should be treated no diff than other negligence cases1. Is a prima facie duty of care owed? YES

Proximity is a question of reliance in cases of misrepresentation o Duty of care arises where the defendant ought reasonably to have foreseen that the plaintiff would rely

on his representation and that reliance by the plaintiff would in the circumstances be reasonableo It was reasonable for H to rely and they did

2. Is the duty negated or limited by policy considerations? YES Indeterminate liability: auditors’ reporting is particularly exposed to this concern opening up a broad duty

of care on auditors is socially undesirable because:o Successful actions against them could be limitlesso Insurance premiums protecting them would skyrocketo Higher costs for clients due to hiring of lawyers to draft liability exclusion clauses, litigation costs, etc

The aim of the report isn’t to protect the interests of individual shareholders but rather to enable the shareholders, as a group, to safeguard the interests of the companies themselves

o The purpose for which the audit reports were prepared in this case was the standard statutory one of allowing shareholders, as a group, to supervise management and to take decisions with respect to matters concerning the proper overall administration of the corporation

o H are claiming in personal tort must assert reliance as individual shareholders no duty owed as it’s only owed to shareholders as a group acting in the interest of the companies

RATIO1. In cases of negligent representation, the reasonable foreseeability component of the Anns Test is replaced with "reasonable reliance2. A prima facie duty of care can be negated for policy reasons such as the fear of indeterminate liability 3. Relational eco loss is not recoverable for individual shareholders not acting as a group in the interest of the companies which have a K with the defendant

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F. Civil Liability and the State – Plenary (Saumier) (Mar 7)

o Role of State may be limited to providing

What is the State? Different from individual: no liberty interest to protect – interest in action or in security

The state is accountable for actions through political process: can sue them, not re-elect them, Charter challenges, jurisdictional challenges

Different from business or other private organizations: not pursuing own self-interest; no option to exit market Similarities to other defendants in civil liability: (1) acts through individuals who can and should consider risk to others; (2) can cause harm to others through its actions or inaction; (3) has the ability to compensate victims; (4) may be the party with the most efficient way to avoid a particular loss; (5) may have the most info and best means to avoid injury

The State as the wrongdoer Does it make sense to think about the “civil liability” of the state in the same way as we have thought of civil liability for personal wrongdoing?

Notions of liberty, autonomy, equality, dignity don’t really attach to Stateso The main foundation for civil liability based on fault doesn’t really applyo The need to maintain a separation of powers – not let courts act like the executive branch (Van Boom &

Pinna) State stands in diff relationship with individuals and legal persons than these do between each other

o State must act in relation to collective or diffuse interests as opposed to individual interestso Role of state may be limited to providing environment to support individual liberty and autonomyo State acts as arbiter between conflicting or intersecting social interests

Historically, State had immunity but the modern view is that the State can be sued and legislation provides for it Classic complaints against the State incl:

Failure to regulate, or negligence related to the conception of regulation Omission to implement regulation Negligent application of regulation

Uniform approach in CML and CVL law leads to the same reasoning and results in both Claims can be brought under art. 1376 in CVL and using the Anns test in CML

However, they generally failThere are two models to think about State liability1. Duties and relationships: considers the duties which the State has taken on, and the relationships that it has with the persons to whom it owes these duties

This model is reflected in the requirement of a relationship of proximity ie: Annso One main way of ascertaining whether there’s sufficient proximity is to see whether any “legislation

habilitante” exists which enables to gov to take certain actionso However, even where there is no legislation creating an express obligation toward any individual or

group, there may yet be a close relationship on the facts, such as where the State became particularly involved related to the interests of a particular individual or group

Essentially, we are asking whether there is legislation which creates a DOC for the State toward a particular group or individual

o In practice, this is rarely the case, as the State’s DOC is generally toward the entire pop (R v Imperial Tobacco; Williams v Ontario)

The State must prioritize collective interests over individual interests, and thus plays the role of arbiter related to many important, and often conflicting, social and economic issues

2. Immunity: takes into account residual policy concerns, as well as art. 1376 in CVL We see that the State has immunity from liability with regard to certain actions and decisions (Cilinger v QC),

which incl:o Adopting legislation or regulationso Decisions rel. to the allocation of resourceso Discretion rel. to executive political decisions

An exception is where the State has acted in bad faith, in which case immunity is liftedCounter-arguments to State liability (van Boom & Pinna)

However, the State can be liable rel. to negligent operational application of legislation and political decisions

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Sufficient accountability through political process Alternative instruments to evaluate behaviour of regulators (administrative law) State is not normal citizen special powers and position, needs for flexibility in action Chilling effect – defensive legislation (in order to protect themselves) Resource Implication

The State as a victim It is interesting also to ask ourselves about the State as a victim – ie: can a State claim against an industry, ex: tobacco companies There is no jurisprudential precedent here, as there are important policy concerns involved – ex: where an industry went bankrupt, the State would be deprived from significant tax revenue

Liability for Failure to Regulate Health and Safety Risks – Van Boom & Pinna

SUMMARYThis paper provides an overview of liability for regulatory failure concerning health and safety risks and the arguments used to dismiss and allow claims for tortious liability.

KEY POINTSExample scenarios (from the Netherlands) Pedestrians and cyclists are killed by trucks not equipped with special mirrors when these turn right and fitting all relevant vehicles with such mirrors would cost about $27M and would prevent deaths and accidents the cost per prevented death would be about $110,000

Here, there is no regulation or superior legal rules compelling the regulator to develop such a rule tortious liability would have to be based on wrongful omission leading to infringement of physical inviolability or the wrongful omission contrary to unwritten standards of care for regulators to enact protective legislation.

An employee was walking down a narrow hallway built to all relevant health and safety standards, but was hit in the face by a door swinging open

Here, the agency had the statutory power to implement more stringent health and safety standards, but chose not to do so tortious liability here could be based on either wrongful omission contrary to unwritten standards of care to enact protective legislation, or on the wrongful administrative acts or omission subject to judicial review

A fireworks depot which was not respecting regulation rel. to storage, to the knowledge of law enforcement, and it exploded causing many deaths and damages totaling $500M

Here we have a problem of alleged failure to enforce regulatory standards and an alleged failure to introduce more stringent regulatory standards

Regulators liability in EU Overall picture is one of restraint – ie: the court is reluctant to second-guess the regulator’s decisions

This reflects a desire to leave sufficient space to the administration to prioritize policy objectives Restraint is demonstrated by applying a high threshold for liability

Ex: threshold of qualified negligent omission to be passed before a claim succeeds, such as faute lourde Ex: no claim where the is a lack of a protective purpose of the statute at hand

French law is exceptional in that it is more accommodating to victims of personal injury (whereas most jurisdictions take the position that legislative acts are owed to the public in general and not to individuals tortious liability vis-à-vis citizens for regulatory failure is hard to construe)

The example given is with rel. to tobacco and asbestoso France recognizes a general obligation of the State to regulate health and safety risks. Its court held

that it is up to the public authority in charge of the protection of professional risks to keep itself informed of the dangers that persons (esp. workers) could face in the exercise of their professional activity, esp. with regard to substances and products they use or come into contact with, and decide according to scientific knowledge what the most appropriate measures for limiting or eliminating such dangers are

o This position is one of liability for the State based on fault, not strict liability. It is under an obligation of means, not results. It has a duty of supervision and vigilance, and a duty of reaction

The State is liable only for those kinds of risks that were known or that could have been known 53

at the time they arose and that could be prevented or at least alleviatedo A very important question arises as to the precise scope of the obligation of the State to prevent and

regulate health and safety risks is it only extended to professional risks (as in asbestos case), or to any kind of health and safety risks? Seems there’s no obvious reason to limit it to professional risks

Possible developments European Convention on Human Rights

The Convention may demand a duty to react to known health and safety risks – it can imply positive obligations both rel. to enforcement and regulation

A breach of the Convention rel. to the provisions on life, security, and family and home life may occur if a known health or safety risk of some proportion is ignored and the public authorities do not actively pursue a policy of protection

In principle, the positive obligation under the Convention is not restricted to a duty to actively enforce existing regulation but may also include a duty to implement additional legislative measures

Deliberate and lawful omission as an excessive burden to the few A possible development is the extension of the liability for lawfully caused losses. This would entail a shift of

the burden of regulatory action from particular groups within society to the public purse Here the regulator is liable to compensate But what do we do about regulatory inaction in this context? There are good policy reasons to restrict

compensation to cases of wilful and deliberate State intervention because inaction is virtually boundlessBalancing arguments Question which arises is what functions liability would have to perform?

Efficient deterrence of administrative negligence? Compensation for victims? Accountability of the State?

Some argue that liability of the State cannot further optimize the pressures that democratic institutions and the political process already exert on it, and consequently such liability is not necessary Cane argues that there can only be one justification for allowing tort standards to go beyond standards in public regulation, namely providing a mechanism for the judicial input into the standard-setting process There is a danger in imposing liability on regulators in the sense that it may stifle gov action or induce regulators to start defensive legislating

Cilinger c Québec (PG) [2004] – CVL

FACTS C is bringing an action for civil liability against all hospitals in QC where radiotherapy treatments are given to

cancer patients for breast cancer, as well as against the PGQ as the representative of the Ministry of Health and the gov

o The claim is for liability for not providing radiotherapy treatments within the acceptable delay of 8 weeks after women receive surgery for breast cancer

HISTORY: the claim was allowed against the hospitals, but the claim against QC was rejectedISSUE

Is there a claim in civil responsibility against QC? NO

REASONINGThere is no evidence of negligence in the conduct of the hospitals or the Minister of Health The argument is that the budget imposed by QC and the norms governing the hospitals, incl. their respect of budgetary constraints, is what prevented the women from receiving the required treatment within the appropriate delay

Thus, the plaintiffs are attacking the legislative and administrative decisions of the gov She wants to show that in making these decisions, the gov was at fault

Court’s role in gov decisions Court states that it is not its place to interfere with legislative and administrative decisions of the gov where the case is not about the gov overstepping its sphere of jurisdiction

The State can be held liable for damages where the allegedly negligent act falls within the operational sphere, but will be immune from liability where the act is part of the exercise of its political role

o This is essential to the division of powers (between gov and the legislature)

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o The PLCW is not the appropriate platform to assess the appropriateness of social, political, and economic decisions

The difficulty is in drawing the line between what is operational and what is politicalo Generally, where the action requires the exercise of discretion rel. to the allocation of resources, as

opposed to the material execution of a given decisions, it will be considered a political acto Where the decision is operational, the traditional analysis of fault can follow

In this case, the claim is against the Assemblée Nationale and the Minister of Health and the legislative and regulatory frameworks put in place to curb spending and stay within budget

These are political decisions, and not subject to claims in the PLCW

RATIOThe State can be held liable for damages where the allegedly negligent act falls within the operational sphere, but will be immune from liability where the act is part of the exercise of its political role

Williams v Ontario [2009] – CML

FACTS W is bringing a claim for negligence against ON for its failure rel. to reacting to SARS

o W alleged that ON failed to control the first outbreak of SARS, failed to properly manage prevention measures, failed to have an adequate health care system in place, failed to issue proper directive, and prematurely lifted the state of emergency

The argument is that ON knew or should have known that a failure to eradicate SARS completely would result in a recurrence of the outbreak

It is also alleged that ON acted in bad faith, and that its actions were motivated by a concern over a WHO travel advisory on Toronto

ISSUEDoes Ontario have a private law duty of care to individuals who contracted SARS during the outbreak, such as W, sufficient to ground an action in negligence for damages? NO

REASONING The duty of care asserted by W doesn’t fall within a recognized category to determine the existence of a

duty of care, the court will apply the Cooper-Anns testCooper-Anns testDoes the relationship between the parties justify the imposition of a duty of care? NO 1. Foreseeability and proximity

Foreseeability: Must be reasonably foreseeable. YES Proximity: Is the relationship proximate enough? NO

o Have to consider the expectations, representations, reliance, and the property of other interests involved

o W argues that the Directives were detailed enough the engage ON is the management of SARS in a manner that establishes a duty of care

o In a prev. case (Eliopolous) the Court rules that the exercise of the extensive discretionary powers to take measure to protect the public from the spread of infectious disease did not create a private law duty because this power is to be exercised in the general public interest

The duty of care is owed to the public as a whole, rather than to individualso Cases where even narrower classes of individuals were targeted (Cooper and Edwards) did not find a

duty of care the argument here is even weaker since this case is concerned with a general risk faced by all members of the public and a public authority mandated to promote and protect the health of everyone in its jurisdiction

2. Policy considerations Policy: Are there any external policy consideration rel. to the nature of the relationship between which

warrants refusing to establish a duty of care? YES – but also UNNECESSARY because part 1 failso Even if this step was considered, the court states that they would agree with ON’s submission that

imposing a private law duty of care on the facts would create an unreasonable and undesirable burden

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on the province that would interfere with sound decision-making in the realm of public health Ministry is balancing the interests of affected individuals and those of the population at large

Bad faith Argument dismissed

RATIO1. The Anns test is adopted to assess whether or not there exists a duty of care, incl. between the State and individuals.2. The exercise of discretionary powers by public bodies is done in the general public interest. That is, they are required to balance a number of competing interests, the nature of which are inconsistent with a private law duty of care

R v Imperial Tobacco Canada Ltd [2011] – CML

FACTS 2 cases before BC courts:

o Costs recovery: BC seeking to recover cost of paying for med treatment of people suffering tobacco-related illnesses from a group of tobacco companies, incl ITC

o Knight case: class action brought against ITC alone on behalf of people who purchased ‘light’ or ‘mild’ cigarettes, claiming they underplayed the amount of tar and nicotine on the packaging and seeking a refund of their cost and punitive damages

ISSUE

REASONINGWhat constitutes a policy decision immune from judicial review? Wide consensus that the law of negligence must account for the unique role of gov agencies

On the one hand, it’s important for public authorities to be liable in gen for their negligent conduct in light of the pervasive role they play in all aspects of society

On the other hand, the Crown isn’t a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions

Need a just and workable test 2 approaches in caselaw:

Discretion: focuses on the discretionary nature of the impugned conduct: public authorities should be exempt from liability if they’re acting within their discretion, unless the challenged decision is irrational

o Main difficulty: has potential to create an overbroad exemption for the conduct of gov actors as many decisions can be characterized as discretionary the test has often been refined to be more narrow

Policy: emphasizes the policy nature of protected state conduct: are a subset of discretionary decisions (focused on things like economic, social and political decisions) and are exempt from judicial consideration and can’t give rise to liability in tort, provided they’re neither irrational nor taken in bad faith

o Policy/operational (variant of policy): true policy decisions are distinguished from operational decisions which seek to implement or carry out settled policy this is the approach used in CA

o Main difficulty: courts have found it difficult to decide whether a particular gov decision falls on the policy or operational side of the line

Finding the workable test is hard, and many jurisdictions have come up with diff systems (UK, AUS, US etc) Reviewing the decisions in these jurisdictions shows:

o A test based simply on the exercise of gov discretion casts the net of immunity too broadlyo There’s considerable support in all jurisdictions for the view that ‘true’ or ‘core’ policy decisions

should be protected from negligence liability o Defining a core policy decision negatively as a decision that isn’t an ‘operational’ decision may not

always be helpful as a stand-alone test because in real life there’s no stark dichotomy between the 2 categories

The ‘core policy’ gov decisions protected from suit are decisions as to a course or principle of action that are based on public policy considerations (economic, social, political_ provided they are neither irrational nor taken in bad faith

Emphasizes positive features of policy decisions, instead of relying exclusively on the quality of being “non-operational”

In this case, the impugned gov decision is a policy one the claim may properly be struck on the ground

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that it can’t ground an action in tortRATIO

The ‘core policy’ gov decisions protected from suit are decisions as to a course or principle of action that are based on public policy considerations (economic, social, political) provided they are neither irrational nor taken in bad faith

4. Defining the Scope of Civil Liability: Legal Causation

A. Legal Causation: Directness and Foreseeability (Mar 9-14)

Legal vs factual causation Factual causation: would the damage have occurred but for the negligent action of the defendant?

There are always basically limitless factual causes – so many factors that go into an event occurring but not all are relevant (ie: are not the determinative cause)

o Natural events, actions of 3rd parties, actions of the plaintiff themselves, the condition of the plaintiff, etc Legal causation: the factor that made the difference, what was determinative

It’s a control device just like DOC to restrict liability Breaking the link of legal causation is breaking the link of responsibility not the link of causality (there is always

factual causation) We are in an explicitly normative realm here; we are trying to ascertain what is just or unjust in rel. to our

defendant. Is it just or fair to hold the defendant responsible for whatever outcome? The question of whether we should hold the defendant responsible can come up in 1 of 2 ways:

1. Whether we have an injury at all2. Whether they should be held liable for all consequences of the injury

There is no neat, clean test: courts have trouble putting into words what they’re doing here – there is no neat, clean test There are tests but they’re not precise The law isn’t perfect but on the whole the results are pretty much what you’d think in a common-sense way, if

you knew no lawo Because the basic idea is one of responsibility – should you be liable for the consequences

Tests for legal causation CML Polemis: damages need only be a direct consequence of a negligent act in order to impute liability, the need not have been a foreseeable consequence of the act

You can be liable for greater extents of damage so long as the initial damage was foreseeable, but not for damage that does not seem to be a direct consequence of the negligence

Directness means more than a simple factual link Wagon Mound 1: overturns Polemis and establishes a new test: liability for damages is based upon the reasonable foreseeability of the outcome

The type of damage, the extent or severity of the damage, and how it occurs all need to be foreseeable consequences of the negligence

o Not a subjective test: involves asking whether a reasonable person in the defendant’s position would have foreseen the type, manner and extent of the damage

Hughes: refines the test in Wagon Mound 1: liability for damages is still based on the foreseeability, but it is only the type, not the extent or the manner of occurrence (precise “concatenation of events”), of the damage which needs to be foreseeable

CVL Is the injury a direct and immediate consequence of the negligence? Will only fall within the scope of the defendant’s responsibility if yes

CML Is the injury a foreseeable type of harm for the defendant? It will only fall within the scope of the defendant’s responsibility if yes

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CML has tried to be a bit more precise in defining legal causation in specific situations than CVL which just has the ‘direct and immediate’ requirement

Possibly because CVL has to use causation more than CML which has duty of care to take care of a lot of stuffo So CVL may be leaving it vague to give them more leeway

Diff between CVL and CML: why does CVL use directness and CML doesn’t: privity of rights re relational eco and emo harm, in CVL, we explain you can recover from them because ____ you acted badly and you acted at your own risk so we’ll hold you liable whereas in CML, they ask did you act badly vis-à-vis the actual thing that happened (both toward the plaintiff and the particular injury the plaintiff had) ?????

Art 1607 CCQ

The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor's default.

Causation in the Law – Hart & Honoré

SUMMARYThis article draws a distinction between the notion of causation for the philosopher and the notion of causation for the lawyer and the historian. The philosopher’s characteristic concern with causation is to discover connections between types of events, and to formulate laws and generalizations, while the lawyer and the historian seek to apply generalizations, which are already known or accepted as true, to particular concrete cases.

KEY POINTSThe lawyer and the historian are primarily concerned with making causal statements about particulars – to establish that on some particular occasion some particular occurrence was the effect/consequence of some other particular occurrence There are difficulties peculiar to singular causal statements

Ex: when generalizations are used to identify the cause of a particular event on a particular occasion, the question arises whether something should be said to be the cause of something else, or only its “occasion”, a “mere condition” or “part of the circumstance” in which the cause operated

o Think of the fire example, was it caused by the lit match, or the oxygen present? Will depend on context for the lawyer and historian

Ex: the refusal to cite or accept the first answer or to carry things too faro Think of a person having been shot, we will not consider the cause of his death to be the sale of the

gun nor the lack of oxygen getting to his blood cells

Chapter 5 – Cane – pp. 118-129

SUMMARYThis article looks at legal causation and limits on liability. It is important to distinguish legal causation from the concept of factual causation, as it has distinctive features which are explicable in terms of the purpose of tort law, ex: in terms of remoteness and foreseeability, which are concerned with allocating responsibility for life’s misfortunes.

KEY POINTSLimits on the liability of factual causes Even where the tortfeasor’s conduct was the factual cause of the harm, he may not be held liable for damages that has occurred in an unexpected or unforeseeable way

This limitation covers 2 different situations:o Prevents liability for consequences of a tort where these are too remote in time and space from the

tortious conduct, esp. where another event intervenes between the tortious conduct and the occurrence of the harm

o Prevents liability where although the harm closely follows the tortious conduct closely, it occurs in an unusual or freakish way or is of an unexpected kind

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3 policy justifications:o Tortious conduct was not the cause of the harmo The harm was not within the risk required to be guarded againsto The damage was not foreseeable

Legal Causation The “but-for” test is very indiscriminate

It will identify many factors which are merely necessary conditions, while the court is actually looking for the effective, or proximate cause (causa causans) – ie: the cause in law

o All of the causes are causes in fact, but this approach involves selecting one or more as a cause in lawo Here, we are asking: “did the allegedly tortious conduct really cause the victim’s injury?”

generally, once it is established that the defendant committed a tort, and that the injury would not have occurred but for it, it is held as the legal cause of the harm (rare that another factual cause can be pointed to as a stronger candidate than the tort for the ‘legal cause’)

The issue of legal causation in tort law is concerned with an attributive (and not explanatory) question – ie: whether we should attribute responsibility for a given consequence to a given cause

o This amounts to asking whether the defendant should be held responsible to pay compensationo Note that the answer will not be no simply because there is another factual cause which the court

thinks ought to share responsibility with the defendant, but only whether that factual cause is so potent that it ought to relieve the defendant of responsibility

Also, more than one person may be held liable Criteria used in tort law to identify the legal cause of harm for the purpose of deciding whether or not to impose liability (N.B. The criteria are closely rel. to the idea of personal responsibility for conduct and allocation of responsibility)

Human conduct tends to be identified as the cause of an event in preference to non-human or natural, occurrences

o A natural cause will only be preferred where it is totally unexpected or a sheer coincidence The tortfeasor’s conduct tends to be identified as the cause of an event in preference to the conduct of a 3 rd

partyo Only conduct which is out of the ordinary (ie: very unreasonable) will relieve the defendants of

liabilityo Three possible outcomes here: (1) the defendant is solely responsible for the initial and further injuries;

(2) only for the initial injuries; (3) solely responsible for the initial injuries and jointly for the further The agent of harm is more likely to be treated as its cause that the sufferer of harm Tortious conduct is more likely to be treated as the cause of harm than non-tortious conduct More culpable conduct is more likely to be treated as the cause of harm than less culpable conduct

A basic function of tort law is to allocate responsibility for harm and the concepts of causation neglect this purpose There’s a long history of courts saying that issues of legal causation should be resolved on the basis of

common sense o However, there is empirical research which throws doubt on the idea that legal concepts of

responsibility and causation mirror notions which are widely held outside the law Suggests that people may often sue someone they don’t hold responsible because there’s the

best possibility for compensation or not sue people they do hold responsible because it would be too aggressive, or not outweigh the expense, upset, etc

Research suggests that legal attributions of responsibility are not based on morality or on ideas of justiceo Rather, this morality is worked out by judges, and not the common person, which is not surprising

given the complex factual situations which arise in court Important, however, not to jump from this conclusion to the view that causation in the law is really ‘all a matter of policy’ and that the language of causation is used merely as a cloak for attributions of responsibility on non-causal grounds

There are concepts in tort law that can be used to relieve people of liability for harm which they can be said to have caused: “scope of risk”, “foreseeability”, and “duty of care”

Policy considerations do play a role rel. to damages not within the risk Liability for breach of a rule only extends to consequences the risk of which that rule was designed to guard against This is also the idea the one will not be negligent in rel. to a risk where that risk was unforeseeable, as it cannot be negligent not to have taken precautions against an unforeseeable risk

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There are problems with this risk theory of the extent of negligenceForeseeability It is one component of the legal concept of negligence Used in tort law as a criterion to determine the extent of liability for the consequences of negligence conduct.

It requires that the type or kind of damage suffered, though not its exact extent or manner of occurrence, be foreseeable

o A tortfeasor can be held liable for consequences of negligence, which are a direct result of foreseeable consequences, but which were not themselves foreseeable

Under certain circumstance the tortfeasor may be held liable for unforeseeable consequences of negligence Under other circumstances, there may be no liability for foreseeable consequences of negligence if they were

(partly) the result of the (foreseeable) conduct of a human agent following the tort: ex: ‘unreasonable’, but foreseeable, conduct by the injured person, or criminal conduct by a third party

There may also be no liability for foreseeable consequences in cases which involve economic loss It is only in a very qualified sense that foreseeability is the test of the scope of liability and for consequences of which negligence is the actual factual cause

A negligent tortfeasor may be held liable for unforeseeable consequences of the tort, and may escape liability for foreseeable consequences of the tort

In Re Polemis and Furness, Withy & Co [1921] – CML (UK)

FACTS A fallen plank caused a fire on a ship chartered by F and owned by P which completely destroyed the ship

o The plank fell due to the negligence of the defendants’ servants

ISSUEAre the defendants liable for the fire and damages caused? YES

REASONINGNegligence is key, foreseeability is not relevant The plank fell due to the negligence of the defendants’ servants

It does not matter that the spark caused by the falling plank was not foreseeableo “Given the damage as a direct result of [the negligence], the anticipations of the person whose

negligent act has produced the damage appear to me irrelevant. I consider that the damages claimed are not too remote”

If the act is determined to be negligent, then the question whether particular damages are recoverable depends only on the answer to the question whether they are the direct consequence of the act

The reasonable man would have foreseen that the knocking out of planks while unloading cargo would be likely to cause damage, either to the workmen, cargo or ship. In that it was negligent, and caused a fire, the defendant is liable for the damage inherent in the fire

Where an act reasonably foreseeable to be likely to cause some kind of damage causes a type of damage that itself would not have been reasonably foreseen the defendant is liable for this unforeseeable damage

A defense would exist if the damage were too remote from the negligenceo “If the act would or might probably cause damage, the fact that the damage it in fact causes is not the

exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes”

o “Once the act is negligent, the fact that its exact operation was not foreseen is immaterial”

RATIO1. Provided some damage is foreseeable from a negligent act, the defendant will be held liable for all direct consequences of his negligence 2. Damages need only be a direct consequence of a negligent act to impute liability, they need not have been a foreseeable consequence of the act

If an act is negligent, the question of whether particular damages are recoverable depends only on whether the damages are the direct consequence of the act [proved to be wrong in Overseas Tankship]

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COMMENTS CML case but actually similar to how CVL decides things

Overseas Tankship v Morts Dock (Wagon Mound 1) [1961] – CML (UK)

FACTS M owned and operated a wharf, and OT were charterers of the Wagon Mound, which was docked across the

harbor unloading oilo A large quantity of oil was spilled into the harboro M asked the manager of the dock where Wagon Mound was berthed whether the oil could catch fire on

the water, and was informed that it could noto Thus, his employees continued to work, taking precautions not to ignite the oil

However, it eventually did ignite when a piece of molten metal fell into the water and ignited a rag that in turn ignited the oil

Considerable damage was sustained both by the wharf and the ship docked there HISTORY: trial judge found that OT couldn’t have reasonably foreseen the fire but applied Polemis since the

minor damage was foreseeable OT was liable for the fire as well FUTURE: Wagon Mount 2 will decide that the fire was foreseeable – this explains the contradictory holdings

ISSUEIs OT liable for the damages? NO

REASONINGThe test developed in Polemis was overturned – foreseeability IS important Liability is in respect of the damage caused by the action alone

Not consonant with ideas of justice that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage to the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be “direct”

It is a principle of civil liability that a man must be considered responsible only for the probable consequence of his act

If liability for injuries depends on the foreseeability of the plaintiff as an injured party, then the liability for damages should depend on the foreseeability of the resulting damages

Thus, Polemis is overturned The essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen

The court finds that it was not reasonable that OT would expect their spilling of oil to result in the large fire that happened, and they are not liable for the damages sustained by M

RATIO1. Liability for damages is based upon the reasonable foreseeability of the outcome (ie: reasonable foreseeability is the appropriate test for causation in law)2. Tortious liability is founded not on the negligent act itself but rather on its consequences (ie: even if an act is negligent, the defendant is liable only for damages which are a foreseeable consequence of the act)

COMMENTS The test here was purported to be more fair and just for the defendant than the test in Polemis

Obligations: Responsabilité Délictuelle – Starck, Roland & Boyer

SUMMARYSufficient causation rests on the notion of “active wrongfulness” which put the danger into effect, yet most situations of damage involve a confluence of factors, each necessary to have caused the accident in the sense that “but for” these factors, it would not have occurred. But, law is not a science, rather a normative evaluation which requires causation to

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distinguish from amongst the causes one that deserves to be sanctioned. The condition of “directness” flows from this fact

KEY POINTS Sufficient causation rests on the notion of ‘active wrongfulness’ which puts the danger into effect

However, most situations of damage involve a confluence of factors, each necessary to have caused the accident in the sense that ‘but for’ these factors, it would not have occurred

Law is not a science: it is a normative evaluation that hinges upon the notion of blameworthiness and is directed toward promoting social utility

Thus, it requires causation to distinguish from amongst these causes the one that deserves to be sanctioned, and the condition of directness in causation flows from this

Ie: must make a distinction between factual and legal causes Examples of direct & indirect causality from French jurisprudence:

Direct: an errant fan at a football match shoots a firecracker which kills an opposing fan – the football club is at fault, as it should have separated the fans in light of the foreseeability of violence, and this fault is the direct cause of the injury. An infirmity in the victim (ie: a thin skull) ‘but for’ which the accident would not have occurred, does not intervene in the finding of a direct causal link

Indirect: a man forgot his chequebook in a phone booth and his cheques are used in a supermarket, but he refuses to honour the cheques – his fault in forgetting his chequebook is not the direct cause of any losses incurred by the supermarket

Direct/indirect: (1) A harms B in a car accident, and months later B, who has a history of mental illness, kills himself – here, the court finds direct causations; (2) C steals from D, and is sent home without shoes to indicate his guilt and subsequently throws himself from a window – here, the court doesn’t find direct causation

Two areas that remain unclear in the jurisprudence are suicide (causality has been found both ways) and “dommages en cascade” such as a botched medical procedure that follows a car accident

Cascading damages: in CVL, where one fault causes injury that necessitates action that causes further injury, direct causation is posited on the basis of the ‘but for’ test however, note that the jurisprudence is inconsistent here

Theoretical approaches to causality Equivalence of conditions

All conditions without which the injury would not have occurred have the same causal value However, note that this is actually fallacious reasoning: the conditions that were not causes should be

eliminated – only conditions proven to be faulty are really withheld Generally criticized/rejected as being too wide

Adequate causation Not all conditions are causally equal: only those causes that would normally or foreseeably lead to the damage

caused should be considered Causes that would lead to the damage only in exceptional or unbelievable circumstances will not apply

Fault and causality As in CML, the gravity of the fault tends to interact with determinations of causality

If the fault was intentional, the judge will hold the defendant liable for all consequences of the fault, no matter how unlikely

If the fault was unintentional, or if liability is imposed by a no-fault regime, causality will not be traced as far

Brisson c Potvin [1948] – CVL

FACTS P parked his truck in the street while making a delivery

o Pedestrians had to walk around the truck as it blocked the sidewalk T was driving his car and struck B’s 6-yr old daughter who was walking around the van on the street

o B sustained a severe head injury and lost her eye

ISSUEIs there a sufficient causal link to hold P responsible for B’s injury? NO

REASONING62

MajorityP acted negligently

P did act negligently There is factual causation: if truck hadn’t been there, B wouldn’t have gotten hit – but was there legal

causation…P is not the direct cause of the accident – was the injury the “normal and foreseeable consequence” of the act… For P to be held liable, it has to be shown that he was the direct cause of the accident – ie: his fault in parking the truck as he did must be the direct and immediate cause pursuant to art. 1075 CCLC (art. 1607 CCQ)

A link of causality between a fault and an injury is only drawn where the injury is the logical consequence of the negligent act or omission – ie: there’s no intervening cause

What would break the chain of causation? The damage isn’t reasonably foreseeable (ie: a logical or natural consequence of the act) – not ‘but for’ the act

o For P to have to have foreseen the danger to inattentive children, he’d have had to be aware of their presence since he wasn’t, it’s not reasonable he’d have foreseen a child be hit by a car

The act of another has a more direct relationship to the damage and is not normally foreseeable by the tortfeasor

o B was skipping and was likely not being attentive when she walked in front of the truck Constitutes an intervening act

o And T’s car was a more direct cause of the accident P’s parking obstructing the sidewalk is not the immediate and natural cause of B’s injuries no liability

Dissent The collision was ultimately caused by P, whose parking forced motorists into the wrong lane and blocked B’s vision P had a duty to take the appropriate precautions to avoid an accident

P didn’t act as a reasonable person; “bon père de famille” (no cones, stop sign, etc) The correct test in this case is directness rather than foreseeability

B is 6 yrs old – it’s unfair to hold her responsible for not making the best possible calculation re visibility The only reason T was driving through a dangerous space in the first place was P’s parking

RATIOA link of causality between a fault and an injury is only drawn where the injury is the logical consequence (“suite normale/prévisible des choses”) of the negligent act or omission – ie: no intervening (ie: more direct) cause

COMMENTS T: was he careless? No because they presume if truck hadn’t been there, accident wouldn’t have occurred P was found to be negligent but no liability based on legal causation

Makes no sense because they were looking at foreseeability which doesn’t happen in CVL – it’s sloppy reasoning because the lang they use is foreseeability, not directness – and foreseeability has never in principle been part of CVL but this still happens a lot when they use the lang of foreseeability in CVL decisions

Should age even be a factor? She was only 6… This case is stupid

Morrissette v McQuat [1958] – CVL

FACTS M delivers propane between Montreal and Lachute

o He picks up the propane tanks from McQ’s storage depot One day, as he is loading his truck, one of the cables holding the propane tanks in place snaps, and he falls

backwards onto a 10-inch steel stem on a concrete landing, used to prop open the doorso The injury was serious, but he recovered well and quite quickly

HISTORY: M brings claim pursuant to art. 1053 (negligence) and 1054 (as the master or guardian) CCLC but Superior Court holds there was no causal link

ISSUE

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Can M claims damages from McQ (ie: was there a causal link between the alleged negligence and the injury)? NO

REASONINGMajorityIs there a link between the alleged negligence and the damage suffered which is sufficient to find causality? The direct causes of an event are not just those factors which made the event possible, but rather the ‘efficient’ factors that actively brought the event into being

The chain snapping was the ‘efficient’ cause: the spike was normally not dangerous and it was only when the chain snapped that M fell onto it (no liability under art. 1053)

o Even if we accept that the installation of a sharp, protruding rod was a fault on the part of McQ, the rod was but an indirect and remote cause of the damage

It’s insufficient that McQ was the guardian of the ‘thing’ without also showing it was the ‘efficient’ cause (no liability under art. 1054)

ConcurringThe defendant is not liable The determining cause was the breaking of the chain He might have fallen off the platform and injured himself in a different way This situation might have been different if he had tripped on the spike

RATIO1. Recovery is possible where the plaintiff can establish that the fault was the ‘efficient’ cause of the injury suffered2. Environmental factors which are merely “permissive” rather than “efficient” causes, are not normally treated as legal causes

Joly v La Ferme Ré-Mi [1974] – CVL

FACTS J was driving her car and crashed into a Hydro QC pole causing a power outage which lasted 9h on a very hot

day The power outage caused the ventilation systems in L’s chicken coops to shut down After 3h and despite efforts to save the chickens, the damage was done and around 22,500 chickens suffocated,

as they were older and more vulnerable

ISSUEIs J liable for the death of 22,500 chickens (ie: is it a direct and immediate consequence)? YES

REASONING It was found that both the farm owners and Hydro QC acted with reasonable diligence in attempting to save the chickens and effecting the repairs respectivelyThere was a causal link between J and the harm – solely responsible Pursuant to Art. 1075 CCLC (now Art. 1607), the defendant is liable for damages which are shown by the plaintiff to be the immediate and direct consequence of their fault

The death of the chickens was an immediate and direct consequence of the accident J argues that she should be exonerated as she argues that the negligent party should only be held liable in cases where the damage follows as a logical consequence of the fault – ie: where the damage is caused by the fault in the ordinary course of things

But this would be brining in notions of predictability in through the back door, and so this is dismissed

RATIO1. Pursuant to art. 1075 CCLC (art. 1607 CCQ), the defendant is liable for damages which are shown by the plaintiff to be the immediate and direct consequence of their fault2. Foreseeability is not used to analyze causality or limit the extent of damages in QC

Hughes v Lord Advocate [1963] – CML (UK)

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FACTS Post office employees were working on telephone cables, and needed to remove a manhole cover

o They did so and put a canvas shelter tent over it and, in accordance with normal procedure placed four red warning lamps around it lit by paraffin

o They closed the flap of the tent when they went off for a 15-minute lunch break The area where they were working was not residential and they testified that they had never been bothered by

children in that area Two boys, age 8 and 10, entered the shelter while the workers were on their lunch break

o They brought rope, a ladder that had been left beside the tent, and one of the lamps in with themo At some point, one of them knocked the lamp into the manhole, causing a significant explosion, and

then fell into the manhole and sustained severe burns

ISSUEAre the post office workers liable for the kid’s injuries? YES

REASONINGMajorityThe workers owed a duty of care to the kids They breached their duty of care: leaving the manhole open and unattended constituted negligence

Had they not done this, the accident would never have occurred Although the manner and degree to which they were injured was unexpected/unforeseeable, there’s no denying the injuries were caused by a known source of danger

The injuries were caused by burns, and injuries from burns were foreseeable – given the lamps there, it was likely that someone entering would take one and that it breaking would cause an explosion and burns

Can only escape liability if the damage can be regarded as differing in kind from what was foreseeable

Concurring Focusing on the unusual chain of events leading up to the explosion ignores the larger question of whether damage from the lamp was foreseeable (ie: in establishing a coherent chain of causation, the precise details leading to the accident need not be reasonably foreseeable)

Sufficient if the accident which occurred is of a type which should have been foreseeable by a reasonably careful person

The site was clearly an attraction to children, and once children were at the site it was foreseeable they’d play with the lamps

o It was then foreseeable that the lamps would be dropped or broken, resulting in damage via burningo The explosion was just one particular instantiation of this damage by burning

RATIO1. Only the kind of injury need have been foreseeable by a reasonably careful person, and not the extent or the precise “concatenation of events” which led to the event or the extent of the injury need have been foreseeable1.5. Ie: As long as the kind of damage is foreseeable, the defendant will be liable for the full extent of the harm he has caused

COMMENTS Important because reached a diff result AND actually changed the rule in Wagon Mound

Must foresee the kind of damage, not the exact type of injury (ie: extent/precise nature) Do you think Hughes was right? Let’s assume we think there was fault but let’s also accept that no one thought what happened could have happened Dealing with probability here and in Wagon Mound

Palsgraf v Long Island Railroad [1928] – CML (US)

SEE ABOVE

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B. Multiple Wrongdoers and Multiple Causes (Mar 16)

Can we draw a legal causation line between the 1st fault and the harm to the plaintiff? Or does the presence of a 2nd

fault make the diff in whether or not we can draw this line? Note: in these cases, we’re talking about a single, indivisible damage Note: strange to talk about chain of causation breaking – because the chain of factual causation isn’t broken but

rather the legal causation

Novus actus interveniens In the case of a novus actus interveniens, we are looking at cases where a fault, subsequent to the initial fault, is considered to be the legal cause of the injury (Caneric Properties v Allstate)

Ie: a fresh, independent cause In such cases, the original wrongdoer escapes liability entirely

Solidarity liability In certain cases, 2 faults come together to cause an injury In these cases, both wrongdoers will be held liable – each party is held fully responsible and the damages are apportioned on the basis of the severity or seriousness of the respective faults

In CVL: guided by arts. 1526 and 1478

Jointly and severally liable (Wikipedia) Joint liability: each party is liable up to the full amount of the relevant obligation and if one party is unable to pay (dies, bankrupt etc) the other party remains fully liable Several liability: the parties are liable for only their respective obligations Joint and several liability: a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment (defendant must pursue the other obligors, not the original claimant)

Premised on the theory that the defendants are in the best position to apportion damages amongst themselves Ex: Deguire v Adler: tenant had sued one of them, now D and A are in court to determine what proportion each is

liable for

Q v Minto Management VS Deguire v Adler The cases are different in the facts

In Minto, the landlord’s duty was to stop the other harm that happened – but that’s not the duty in Deguire – the reason you need to turn the gas off is more general

Deguire v Adler [1963] – CVL

FACTS A administered a vacant apartment on the behalf of D, the owner A was also a contractor, and had hired painters to work on the apartment

o The painters who were working in the unoccupied apartment detached the gas stove from the feeder pipe and never reattached it

They turned off the gas in the basement, but did not block the open pipe in the apt A month later, concierges employed by D opened the gas meters to resolve a gas problem for another apt

o They accidentally opened the meter to the unoccupied apt, which began to fill with gas Later that day, the concierge showed the apt to a potential tenant when they detected the presence of gas

o The potential tenant left immediately They immediately opened the windows and blocked the pipe, but an explosion still occurred 15 minutes later,

the exact cause of which was unknown (because something was required to ignite the explosion) o It caused damage to the adjacent unit and injured the tenant

ISSUEWho is liable for the explosion? D & A are jointly and severally(?) liable

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REASONINGMajority3 factors are causally connected to the explosion and injury The failure of the painters employed by A to reconnect the pipe to the stove

The painters should have foreseen that leaving the pipe unconnected risked a gas leak The accidental reopening of the gas meter by D’s employees

The workers opened the gas line without considering why it was initially shut They should have foreseen it could have been because the pipe was disconnected

The origin of the spark This is a fault, but cannot determine who committed it – insufficient proof This factor does not negate liability rel. to the two other faults

Judge explains that there is a “concours de fautes” A and D were both equally involved (through their employees) in causing the explosion

Liability should be shared jointly between the two parties

ConcurringIt is the union of the two faults (“synergy” between the faults), rather than the two faults individually (sequentially) which resulted in the explosion it’s impossible to determine how much each contributed Mazeaud states that joint liability exists where 3 criteria are met:

1. A fault was committed by each party2. There is a causal link between the damages and the faults committed3. A single, unique damage resulted from the faults

In this case, the criteria are met, so A and D are held jointly liable

ConcurringWhere an accident arises in consequence of independent acts of negligence committed by 2 sets of persons, both directly contributing to the accident and to the injury suffered by the plaintiff, they are severally liable under QC law to the plaintiff for the damages sustained It does not matter whether the independent acts occurred simultaneously or sequentially This applies to the facts of the current case

Dissenting The painters hired by A did not act negligently

A will not be liable Something ignited the gas to cause the explosion

This can be blamed on the negligence of the janitors, and it is D, the owner of the building, and not A, the contractor, who is therefore liable

RATIO1. Solidarity in liability can be found where there are independent acts of negligence that contributed directly to the harm caused2. In event of a collective fault (in which two or more faults are necessary to create a single injury), defendants will be held jointly and severally liable

Q v Minto Management [1988] – CML

FACTS Q was raped in her apt by an employee, H, of her landlord, MM It is likely that the H gained access to the building using a master key, which he had access to H was subsequently found guilty of the offense as well as for another rape which occurred in the same apt

building three months earlier MM knew about the earlier rape, and knew it had likely been committed by someone with a master key

o Nevertheless, he did nothing to warn the tenants or take any additional security measures

ISSUEIs MM liable? YES

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REASONINGThe action was not too remote as not to be reasonably foreseeable MM could have reasonably foreseen the risk of a person with a master key gaining entry to an apt and committing rape

The risk of some person entering in the circumstances was a foreseeable risk – doesn’t have to foresee that it was specifically H who would rape

o If MM fails to provide proper locks, the likelihood of criminal activity increasesIntervening intentional and criminal conduct Damages from intervening intentional and criminal conduct may have to be paid for by a negligent actor who creates an unreasonable risk of such a paid consequence

If what is relied upon as the novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence

o Ie: the ‘intervening act’ is NOT a novus actus intervienens doesn’t break chain of legal causationo The person guilty of the original negligence (MM) will still be the effective cause if he ought

reasonably to have anticipated such interventions MM is liable

RATIO1. If what is relied upon as the novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence1.5. If intervention is foreseeable, original negligence will still be the effective cause2. You cannot escape liability on the grounds of a 3rd party’s wrongdoing if that wrongdoing was the very thing you were supposed to help prevent against

COMMENTS What would have happened if Q could also have sued H?

And were suing both of them – would the landlord still be liable or would he have to say the employee had to pay the full amount? Or would it be 50-50 liability?

Smith thinks it’s not wrong to say if they can sue H, that he should have to pay all of it – it’s not saying MM’s not at fault but that H’s actions fully outweigh M’s

Caneric Properties v Allstate [1995] – CVL

FACTS C owned property which had been vacant for some time and was slated for demolition Pipes in the basement of C’s property had broken and the water was flooding into the basement of the

neighbour’s building which was insured by A A contacted C and the City of Mtl to fix the problem

o A team from the City arrives and shut off some, but not all the valves as a vapour machine was needed to thaw some of the pipes before the valves could be shut

o A second team was dispatched, but upon arriving to the site, found no one there and left they claimed that they were under instruction not to do anything if there was no one on site

o Nothing was done and as a result, the pipes burst a week later, flooding the neighbour’s basement

ISSUEWho is liable for the flood? C and the City of Mtl are held jointly and severally liable

REASONINGThere is a sequence of faults which occurred in this case Caneric

C allowed the abandoned building to sit through the winter without taking any precautions, while they should have foreseen that the pipes might burst they should at least have turned off the water too remote

City of Montreal

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The 2nd team was negligent they could have taken any number of steps to help the situation and furthermore, the ostensive direction to do nothing if no one was on site was contradicted direct

Caneric Having been made aware of the problem, C should have taken steps to ensure that the problem was resolved

a reasonable and diligent proprietor with reasonable concern for his neighbours would have verified that the work was done direct

Establishing causation with multiple faults It is difficult to establish causation where there are multiple faults General rules:

We are looking for “causalité adéquate”, meaning the direct and immediate cause of the damage We are also looking to satisfy the criteria of foreseeability

In this case, the 2nd and 3rd faults are considered to be direct causes of the damage (1st is considered too remote in time)

They are considered to have equally contributed to the risk, and therefore the defendants are jointly and equally liable

RATIO1. When multiple faults of different severity are present, legal causality may be attributed to the larger fault, even if both were factual causes of damage2. Reasonable foreseeability is part of the test of causalité adequate

COMMENTSPubdocs: Baudouin’s reasoning is weird on a lot of levels. He introduces Common Law notions like foreseeability in to causation, which is incorrect. He also discusses the second two faults as having made the damage “possible” – but mere possibility/opportunity is not normally sufficient to establish adequate causality

Home Office v Dorset Yacht [1970] – CML (UK)

SEE ABOVE

COMMENTS Point of the duty of not ramming into the ship isn’t to protect you against storms but against damage to your ship

Purpose of the duty is not to protect against storm No one could predict there would be a storm before or after – if the reason the plaintiff had wanted to leave was because of the storm, it would have been different

C. Consolidation (Mar 21)

D. Predisposition of the Victim (Thin Skull Rule) (Mar 23)

Predisposition of victim (thin skull rule) Plaintiff ends up suffering in a more serious way than would be ‘expected’ CML and CVL In the cases below, can we say that the ultimate injury was a foreseeable consequence, or a direct and immediate consequence, of the wrongdoer’s negligence?

The general rule is that you take the victim as they come, thin skull and all the answer to the above question is generally YES (Viney)

The only exception we will consider is cases in which a pre-existing condition which translates to a prejudice already suffered by a victim exists, in which case this should be taken into account on the basis of restitutio in integrum

For thin skull rule (TSR) to apply: must have fault, negligence, breach of DOC TSR in relation to Wagon Mound 1’s standard of foreseeability (see Smith v Leech Brain)

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Prior to WG1, courts had already adopted the principle that a defendant takes his victim as he finds him (TSR) policy decision

WM1 didn’t eliminate the TSKo In situations of the sort (type of relationship and specifically the type of injury), the courts have always

adopted a pro-plaintiff approach, which explains why they maintained the TSRo Court also didn’t want to have to go into a normative analysis of what should be the ‘normal’ response to

a type of injury to determine damages Basically, didn’t want to set a standard of normality for physiological or psychological ways of

dealing with injuries Rel. to psych injury (Marconato v Franklin)

Psych injury isn’t reasonably foreseeable BUT uphold TSR so claimants can claim damages Foreseeability is a strange concept that courts use diff throughout – depends on policy considerations

o TSR reduces this unpredictability because it basically assigns blanket liability when there’s a predisposition

General rule from R v Mustapha: don’t apply thin skull rule if the only resulting harm is psychological, not physical (?)

Crumbling skull doctrine Pre-existing conditions are inherent in the victim’s ‘original position’ and thus absolve the tortfeasor of liability for injuries that pre-dated the tortious act or which would have occurred anyways – ie: likely to suffer the injury or some degree of it anyway

The defendant need not put the victim in a position better than the original position From Athey: “…if there is a measureable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can… [reduce] the overall damage award” Ex: Smith v Leech Brain: if S was going to get cancer anyway in X time, LB is only liable for the time until he would have without the injury Ex: immediate death cases: Guy falls off train tracks, on the way down was electrocuted train company and hydro company are both liable, but the hydro company barely has to pay damages because if not for their negligence he would have lived an additional 4 more seconds

Les Conditions de la Responsabilité – Viney

SUMMARY

This article is referring to French law. Viney argues that it is important to guard the principle of restitution in integrum and ensure it is not detrimentally affected by a consideration of a victim’s pre-existing predispositions or pathologies, especially in terms of workplace accidents where doctrinal authors have observed a decline in the presumption of imputability. Only pre-existing conditions which translate to a prejudice already suffered by the victim should be taken into consideration when it comes to a consideration of the damage imputable to the wrongdoer’s negligence.

KEY POINTS

French law does not recognize partial exoneration of the defendant due to the victim’s predispositions The general principle which has been adopted in most jurisdictions is that the wrongdoer must take the victim as they find them Balancing act

“… concilier deux impératifs fondamentaux de la responsabilité: le responsible doit indemniser totalement la victim, amis il ne doit réparer que le dommage qu’il a causé”

Approaches to the above question were inconsistent, but doctrine has lately come to some agreements Authors recognize that predispositions cannot, in themselves, be assimilated to a “fait de la victim” which would justify a partial exoneration

A partial exoneration is possible only where there is fault on the part of the injured party Positive law has generally followed this doctrinal trend, at least in the civil and criminal courts

General principle: “Les arrêts reproduisent alors souvent le motif selon lequel le droit à reparation ne saurait 70

être réduit par des predispositions lorsque d’affectation qui en resultait n’avait révélée ou provoquée que par la fait de l’accident ou de l’infraction […] Il arrive cependant que l’état antérieur soit pris en consideration […] invalidité préexistante se traduisant par un prejudice déjà souffert par la victime”

The norm in civil law of Torts is to “take the victim as they come” Even if the victim has a predisposition that exacerbates the damages that the defendant’s actions cause, that defendant is liable for totality of the injuries that accrue The victim’s condition is not a fault nor is it an action under the victim’s control The injury could not occur without the negligent intervention of the defendant, it should be 100% defendant’s responsibility Apportionment of responsibility should not be a recourse

Viney argues that this approach is the correct one Otherwise, we would place the burden on the weakest the consequences of their own weaknesses, and this is not the objective a modern tort law system supported by insurance schemes should have

Smith v Leech Brain & Co. Ltd [1962] – CML (UK)

FACTS S’s husband worked as a galvanizer for LB His job carried a high risk of being hit by molten metal, but L provided only inadequate protection One day, he was hit by burning metal on his lip which was treated at the time

o However, it never healed, became ulcerated, was declared cancerous, led to more growths, and he eventually died from his cancer

Having previously worked in the gas industry for a decade, he was prone to cancero Even possible that he had a re-malignant condition resulting from contact with tar, and so trauma, such

as burns, could have caused cancer to develop, or the cancer may have developed in the absence of the burn

ISSUESIs LB liable? YES

REASONINGFault and injury are both clear There was a clear and known danger of molten metal splattering

It was reasonably foreseeable that any worker without protection would be liable to get molten metal on him, and cause serious harm reasonable employer would have required adequate protection

Clear case of negligenceCausation Now we have to consider whether the cancer and resulting death was in part or in whole caused by the burn3 possibilities re causality:

1. Burn directly caused the cancer – unrelated to any pre-exiting malignant condition (would have been unusual)2. Cancer predated the burn and was independent of it3. Predisposition to cancer that was triggered by the burn

Judge accepts the 3rd view on a balance of probabilities But for the burn, S wouldn’t necessarily have developed cancer, though many other promoting agencies

exist and there was a strong likelihood he would eventually develop cancerDamages The general rule that the defendant takes the victim as he finds him

(Rejection of the position in Wagon Mound that a man is only liable for the extent of damage which he could anticipate)

Question is whether the type of injury is reasonably foreseeable, not the resulting injury o Here, the burn was foreseeable – the fact that the cancer wasn’t foreseeable is not relevant

While this damage was clearly unforeseeable, they apply the thin skull rule and hold LB liable for all damages caused by the burn, including death

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RATIO1. Liability is based on the reasonably foreseeability of the type of harm, not its extent2. According to the thin skull rule, the tortfeasor must take his victim as he finds him – that is, if the type of injury the victim suffers is reasonably foreseeable, the actual extent of the injury, which is dependent on his personal chars, is immaterial

COMMENTS Unlike the other cases here (Marconato v Franklin; Corr v IBC Vehicles), the plaintiff suffered a physical injury as the final damage Wagon Mound 1 had recently been decided (1961) – so court here analyzed the TKR with regards to WG1’s standard of foreseeability

Marconato v Franklin [1976] – CML

FACTS M was injured following a car accident when her car was hit by another vehicle

o She then developed symptoms of pain and stiffness for which there was no physical explanationo She also became acutely depressed, hostile, and anxious, and suspicious of her doctors and others

Psychiatric evidence was given that she had paranoid tendencies and that the impact of the accident on her personality had brought about her present condition

ISSUESIs the other driver liable? YES

REASONINGThin skull rule Clear that F could have foreseen the probability of physical injury The consequences of M’s injury were unusual and not foreseeable

They arose because of her pre-existing personality traits she has an increase vulnerability to suffer greater consequences from physical injury

However, a wrongdoer takes his victim as he finds him, with all their peculiar susceptibilities and vulnerabilities

Furthermore, the damage is not too remote per Smith v. Leech Brain where remoteness on the lack of foreseeability was dismissed

RATIOA wrongdoer takes his victim as he finds him, with all their peculiar susceptibilities and vulnerabilities (ie: thin skull rule applies – to the consequences of injuries)

COMMENTS RE: Smith v Leech Brain: S only sued for the physical injury that resulted from a 1 st physical injury whereas M is suing for psych injury that resulted from a physical injury

In strictly applying WG1, there’s no liability because the injury isn’t reasonably foreseeable BUT the judges reiterate Smith v Leech Brain by saying that TSR wasn’t eliminated by WG1

Corr v IBC Vehicles [2006] – CML (UK)

FACTS C was nearly killed in an industrial accident at IBC and lost his ear After the surgery, he continued to experience dizziness, severe headaches, and difficulty sleeping

o He eventually developed psychological symptoms, including depression, withdrawal, and suicidal thoughts and later killed himself

C was receiving compensation from his employers for his physical and psychological injuries, but his widow is now suing under the Fatal Accidents Act

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ISSUESIs IBC liable for C’s death? YES

REASONINGLord Sedley The question of causality requires a determination of whether the suicide was a discrete event or a byproduct of the depression

While in some cases it may be a discrete event, in this case the evidence shows that the sole cause of C’s depression was the accident

o There is no reason then to cut the chain of causation at suicide it was caused by his depression, which was in turn caused by the accident IBC is liable for his death

Lord Wilson There are 2 issues:

1. Does C need to establish foreseeability?o NO, as long as the physical harm was foreseeable, the defendant is liable for any ensuing psychiatric

complications2. Does C’s suicide break the chain of causation?

o NO, the evidence establishes that the suicide was caused solely by his depression

Lord Ward (dissent) Factual causality is established

The accident caused C to become depressed, and his depression caused him to commit suicide Legal causality is not established

Per Wagon Mound I, we must ask whether the suicide was a reasonably foreseeable type of damageo Suicide is not a normal outcome of depression, and thus is cannot be said that IBC should have

foreseen C’s suicide, so they should not be held liable

RATIO1. So long as the physical harm was foreseeable, the defendant is liable for ensuing psychiatric conditions2. The thin skull rule applies to psychiatric injuries triggered by physical injury

COMMENTS Ward (dissent) seems to be using Polemis rather than WM1 because argues that suicide was a far away consequence of an accident that happened 6 years prior mixes the notions of foreseeability and remoteness This case could also be decided under the thin skull rule if it was found that the victim had a predisposition to suicide Majority decision reflects a modern view of attitudes towards suicide: not a free and voluntary choice (required for novus actus intervenus)

E. Victim’s Behavior (Mar 28)

Contributory negligence CML: historically, didn’t allow any compensation when there was negligence on the plaintiff’s part, even if it was minor in comparison to the defendant’s – changed with statute and legislation CVL: have always considered the relative degree of fault from the plaintiff and defendant to attribute liability (1478) Plaintiff is contributorily negligent if he acts in a way contrary to how a reasonable person would have behaved in that position – same criteria apply as when determining breach of the duty on the defendant’s part

There are exceptions for people who intervene in certain situations, even if liability could be imputed (ex: CVL 1471 – exemption for people who come to the assistance of another or dispose of property for unselfish motives for the benefit of another)

Establishes that damages/fault should be apportioned so that the plaintiff has judgment only for so much as is proportionate to the degree of fault imputable to the defendant The plaintiff has a responsibility to look out for his own safety

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N.B. He is here not held to the standard of the reasonable person we aren’t looking for negligence on the part of the plaintiff but rather to see whether he took the appropriate steps to protect himself

o If he didn’t, then liability is apportioned between the plaintiff and the defendant NOTE: Where it isn’t practicable to determine the respective degrees of fault, it will be apportioned equally (jointly and severally liable) (Hydro v Girard;

Volenti non fit injuria in CML Ask whether the plaintiff ‘took on’ or ‘voluntarily assumed’ (subjective acceptance) the risk that they might be injured

(volenti non fit injuria = “to a willing person, injury is not done”) So even if everything is checked off the for the defendant to be liable, if they can show the plaintiff didn’t look out for his own interests (ie: voluntary assumption of risk), the entire case falls apart It’s a complete defence: entirely abolishes the defendant of any liability Interpreted extremely narrowly in the CML

Can’t voluntarily assume risk while drunk (Crocker v Sundance) Requires both (1) knowledge of the risk and (2) consent to the legal risk (Waldick v Malcolm)

CVL: doesn’t exist at all (1477)

CCQ 1477

The assumption of risk by the victim, although it may be considered imprudent having regard to the circumstances, does not entail renunciation of his remedy against the author of the injury.

Hydro v Girard [1987] – CVL

FACTS While driving, G noticed a broken HQ wire hanging 8 ft. above the road, due to a burning hydro pole When he reached his destination, he notified HQ On his way home, he passed the wire again now hanging only 5 ft. from the road

o He tied a plastic knot around it as a warning and was electrocuted HISTORY: trial judge found G was 75% liable and HQ 25% liable

ISSUESCan HQ avoid liability on the grounds that G was contributorily negligent? YES

REASONINGHQ makes arguments against the finding of liability:

G’s action was a novus actus interveniens which broke the causal chain The role and direct cause of the accident was the extremely imprudent behaviour on the part of G The trial judge erred in holding the HQ has committed a fault of omission

HQ is not liable To hold Hydro liable, a fault must be found under art. 1053 and it must be the cause of the injury

It’s G’s gross imprudence, not HQ’s actions, which was the only effective cause of the damages he sustained

o Neither he nor the public was in immediate danger, so he had no reasonable reason to act as he did, and good intentions cannot justify his actions

But for his imprudence, the accident would not have happenedo This is what constitutes a novus actus interveniens broke the chain of legal causation

RATIO1. A gross imprudence but for which the accident would not have occurred constitutes a novus actus interveniens breaking the chain of causality and saving the defendant from liability.2. The existence of a danger per se won’t absolve a party of gross negligence except in the case of a trap, emergency, absolute necessity, or an immediate danger

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COMMENTS Not a voluntary assumption of risk because he didn’t know he would get electrocuted – he didn’t think it was dangerous and then did it anyway

Contributory Negligence Act

Crocker v Sundance [1988] – CML

FACTS C and his friend participated in a tubing competition hosted by S He signed a K which incl. a waiver

o As he did not actually read the form, he did not take notice of the waivero He also did not notice televised showings of the previous year’s race which showed participants being

thrown off their tubes C was drinking prior to the first heat

o They won the first heat and he suffered a small cut from a fall Between the first and second heats, C had several more drinks

o Both the owner of S and a manager noticed that C was inebriated, and suggested to him that it might be best if he did not continue the competition

o However, when C insisted on participating, neither took any further steps to dissuade or restrain him The tube flipped during the second heat, and C suffered a neck injury which had rendered him quadriplegic

ISSUE1. Did S owe a duty of care to C? YES

1.1 If so, what was the standard of care required and was it met? NO1.2 If so, did the failure to meet the standard of care cause the harm suffered? YES

REASONINGThere was a duty of care owed to C by S The CML distinguished between misfeasance and nonfeasance, and has traditionally been reluctant to recognize affirmative duties to act, except in limited exceptions

However, the court has become more willing to expand the number of special relationships to which a positive duty to act attaches

This incl. situations where there is some element of control or some economic benefit inuring the person as a result of the relation, which justifies the creation of the duty – ex: Jordan House recognized that a Tavern had a duty of care to an intoxicated patron

The general notion is that one is under a duty not to place another person in a position where it is foreseeable that the person could suffer injury

The plaintiff’s inability to handle the situation in which he or she has been placed – ex: through youth, intoxication, incapacity, etc – is an element in determining how foreseeable the injury is

In this case, S set up an inherently dangerous situation in order to promote its resort and improve its financial future It also provided liquor and knew of C’s inebriated and injured condition, which officials were aware

heightened his chance of injury S is not a stranger to C, the nexus between the two is close enough to justify S assuming the responsibility of

taking all reasonable steps to prevent a visibly incapacitated person from participating in a dangerous sportS did not meet the standard of care required The standard of care is dependent on context, and a court should consider the relation between the probability and gravity of the injury to the burden that would be imposed upon the defendant in taking preventative measures

Many options were open to S to dissuade C from competing, none of which would have imposed a serious burden on the resort

However, S did not do any of these, and did nothing beyond mildly suggest to C not to do the second heatThe causal link between S’s failure to meet its duty of care and the injury is sufficient Drunkenness does in fact increase the risk of injury, despite S arguing that tubing is an inherently dangerous activity so there are risks drunk or not

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An attempt could be made to find a volenti defence either on:1. C’s voluntary participation in a sport that was dangerous

a. C’s mind was clouded by alcohol – it is not clear if C could have consented to the legal risks as required by volenti

2. The fact that C signed a waiver 2 days before competinga. C didn’t read the waiver – he thought it was simply an entry form S cannot rely on the waiver to

exclude its liability

Contributory Negligence: The 25% award was not appealed, so it will be allowed to stand

RATIOThere is a duty of care not to place another person in a position where it is foreseeable that the person could suffer injury

Waldick v Malcolm [1991] – CML

FACTS There was a storm 4 days previously W fell in the icy unsalted driveway of M’s rural property and fractured his skull W was aware the driveway was icy Few people in the community salt their driveways HISTORY: Trial judge found M liable, appeal denied by ON CoA

ISSUES1. Was M at fault by failing to meet the statutory duty of care under the Occupier’s Liability Act? YES2. Was there contributory negligence on W’s part? NO

REASONINGM’s behavior was negligent Duty of care owed per the Act is to take care that people on their premises are reasonably safe

The conditions of the lane were not unexpected because the storm was 4 days prior foreseeable Cost of avoidance was minimal because salting was cheap cost of avoidance

Not exonerated from liability by customary behavior because it itself was unreasonable Custom was unproven no evidence, only M’s word Even if proven, custom was unreasonable adherence to unreasonable custom W was not contributorily negligent Voluntary assumption of risk means both: 1) knowledge of the risk and 2) consent to the legal risk (volenti doctrine)

No evidence that W willingly assumed a risk in walking on the driveway No evidence of contributory negligence THIS IS PROBLEMATIC – CONFLATING THE 2 THINGS: CONTRIBUTORY NEGLIGENCE AND

VOLUNTARY ASSUMPTION…?

RATIOCustomary practice does not exonerate liability where that practice is itself unreasonable.

COMMENTSRE: Roberge: this is the CML version of CVL Roberge

Court is ‘entering into the community’ and deciding what is reasonable and notRE: Ter Neuzen: Notice no recognition of expertise here

Gaudet v Lagacé [1998] – CVL

FACTS G, L, and a friend (age 11-13) took gas and a lighter from L’s home into the forest to light fires (not the first

time) G dipped branch in gas and lit it and set it down

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o Flames spread toward gas so 3rd friend tried to put flames out but accidentally kicked the bowlo Fire hit the gas and caused an explosion

G severely burned, L had moved away and wasn’t present for explosion HISTORY: trial judge found L and 3rd friend not liable since couldn’t conclude who started the fire

ISSUES1. Are the children liable for the damages sustained by G? YES2. Are the children’s fathers liable for the damages sustained by G? NO

REASONINGAll 3 share contributory negligence equally Boys knew of the dangerous nature of the activity

Parents had warned them about danger of playing with fire Old enough to understand danger and foresee risk of injury Accepted the known risk in participating in the activity

Contributory negligence doesn’t preclude recourse to liability (1477) Liability shared equally among 3 boys (1478)

No parental responsibility Successfully refuted the presumption of liability (1459) 3 main consideration incl.

1. Advanced age of children lessens the presumption of fault2. Parents not expected to supervise teens at every minute or lock up items not inherently dangerous3. Parents showed proper education in that they had warned children not to play with fire

RATIO1. Liability can be shared among individuals who committed a wrongdoing which has a direct causal link to the injury, and one’s contributory negligence does not preclude recourse to liability.2. The presumption of parental fault can be rebutted by proof of proper education and surveillance. Factors specific to the child must be considered in assessing the amount of surveillance necessary (age, foreseeability, etc)

F. Consolidation (Mar 30)

For every event there’s never just a simple but for cause – other things need to happen for an even to come abouto Never talked about them last semester, because they’re not really important, don’t need to worry about

themo But sometimes the other but for causes become important when distinguishing responsibility

Negligent misrepresentation Look like cases of pure eco loss

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