Negligence: Introduction - UVic LSS · Web viewHedley Byrne v Heller (1964, Eng. HL)53. Queen v...

Sarah Chaster – Law 108C Torts Outline (Final)

LAW 108C: TORTS OUTLINE (FINAL)

Negligence: Introduction..............................................................................................3Mustapha v Culigan (2008, SCC)......................................................................................................................... 3

Duty of Care.................................................................................................................3History: The Importance of Foreseeability.....................................................................................................4

Palsgraf v Long Island Railroad (1928, US)...................................................................................................4Donoghue v Stevenson (1932, Eng. HL)........................................................................................................... 4

Expansion.......................................................................................................................................................................4Home Office v Dorset Yacht Co (1970, Eng. HL)...........................................................................................5

The Modern Approach: Additional Sources for the Duty of Care..........................................................5Cooper v Hobart (2001, SCC)................................................................................................................................ 6Childs v Desormeaux (2006, SCC)....................................................................................................................... 7Fullowka v Pinkerton’s (2010 SCC).................................................................................................................... 8

Standard of Care..........................................................................................................9Unreasonable Risk......................................................................................................................................................9

Bolton v Stone (1951, Eng. HL)......................................................................................................................... 10Paris v Stepney Borough Council (1951, Eng. HL)....................................................................................10Stewart v Pettie (1995, SCC)............................................................................................................................... 11

Cost of Preventative Measures...........................................................................................................................12The “Learned Hand Formula”............................................................................................................................ 12Rentway Canada v Laidlaw Transport (1989, MVR)...............................................................................12

Utility of the Defendant’s Conduct....................................................................................................................13Bittner v. Tait-Gibson Optometrist (1964, Ont. CA)..................................................................................13Good Samaritan Act............................................................................................................................................... 13

Unreasonableness & Fault...................................................................................................................................13Vaughan v Menlove (1837, UK)......................................................................................................................... 14Heisler v Moke (1971, Ont. HC)......................................................................................................................... 15Pope v RGC Management (2002, ABQB)........................................................................................................15Nespolon v Alford (1998, Ont. CA).................................................................................................................... 16Fiala v Cechmanek (2001, ABCA)..................................................................................................................... 17

Evidence of Unreasonableness: Practices & Standards..........................................................................18Waldick v Malcolm (1991, SCC)........................................................................................................................ 19Brown v Rolls Royce (1960, Eng. HL).............................................................................................................. 19Warren v Camrose (1989, Alta CA)................................................................................................................. 19ter Neuzen v Korn (1995, SCC).......................................................................................................................... 20Canada v Saskatchewan Wheat Pool (1983, SCC)....................................................................................21Gorris v Scott (1874, Exchequer Court)......................................................................................................... 22Ryan v Victoria (1999, SCC)................................................................................................................................ 23

Causation...................................................................................................................24The “But For” Test...................................................................................................................................................24

Snell v Farrell (1990, SCC)................................................................................................................................... 25The Adequacy of the “But For” Test.................................................................................................................26

Cook v Lewis (1951, SCC)..................................................................................................................................... 27

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Clements v Clements (2012, SCC)..................................................................................................................... 27Divisible and Indivisible Harm...........................................................................................................................29

Bradley v Groves...................................................................................................................................................... 29

Remoteness...............................................................................................................31General Rule............................................................................................................................................................... 31

Cameron v Hamilton’s Auction Marts (1955, Scotland).........................................................................32The Wagon Mound #1 (1961, Privy Council)..............................................................................................33Hughes v Lord Advocate (1963, Eng. HOL)..................................................................................................33Assiniboine School v Hoffer (1971, Man. CA)...............................................................................................33

The Thin Skull Rule.................................................................................................................................................34Bishop v Arts & Letters Club (1978, Ont. HC)..............................................................................................34Athey v Leonati (1996, SCC)............................................................................................................................... 35

Novus Actus Interviens (Intervening Acts)..................................................................................................35Stansbie v Troman (1948, Eng. KB)................................................................................................................ 35Bradford v Kenellos (1974, SCC)....................................................................................................................... 35Smith v Inglis (1978, NSCA)................................................................................................................................ 36

Subsequent Injuries................................................................................................................................................36Larsen v Wilson (2007, BCSC)............................................................................................................................ 36

Defences....................................................................................................................37

Special Defendants.....................................................................................................38Manufacturers........................................................................................................................................................... 38

Hollis v Dow Corning (1995, SCC).................................................................................................................... 38Medical Professionals.............................................................................................................................................40

Reibl v Hughes (1980, SCC)................................................................................................................................. 41Videto v Kennedy (1981, Ont. CA).................................................................................................................... 41Martin v Capital Health Authority (2007, ABQB).....................................................................................42Duval v Seguin (1972, Ont. HC)......................................................................................................................... 44Dobson v Dobson (1999, SCC)............................................................................................................................ 44Paxton v Ramji (2008, ONCA)............................................................................................................................ 44Liebig v Guelph General Hospital (2010, ONCA)........................................................................................46

Government................................................................................................................................................................46Just v BC (1989, SCC).............................................................................................................................................. 47Brown v BC (1994, SCC)........................................................................................................................................ 48Hill v Hamilton Police Services Board (2007, SCC)...................................................................................48Fullowka v Pinkerton’s (2010, SCC)................................................................................................................ 49BC v Imperial Tobacco (2011, SCC)................................................................................................................. 50

Special Harm..............................................................................................................50Psychiatric Harm......................................................................................................................................................50

Mustapha v Culligan (2008, SCC)..................................................................................................................... 51Devji v Burnaby (1999, BCCA)........................................................................................................................... 51

Pure Economic Loss................................................................................................................................................52Hedley Byrne v Heller (1964, Eng. HL)...........................................................................................................53Queen v Cognos (1993, SCC)............................................................................................................................... 53Hercules Management v Ernst & Young (1997, SCC)...............................................................................54Haskett v Equifax (2003, Ont. CA).................................................................................................................... 55Wilhelm v Hickson (2000, SKCA)...................................................................................................................... 55Winnipeg Condo Corp v Bird Construction (1995, SCC).........................................................................55

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Hasegawa v Pepsi (2002, BCCA)....................................................................................................................... 56Design Services v Canada (2008, SCC)...........................................................................................................56

Negligence: Introduction

Negligence is the biggest area of tort law Refers to conduct that falls below a normal standard, compared to the standard of the

reasonable person Negligence identifies interests worthy of protection and balances the risk of harm with

the utility of conduct Policy rationales: deterrence, compensation Elements of a negligence action:

o Duty of care: Legally recognized duty of care to avoid harm to the plaintiffo Breach of the standard of care: Conduct must fall below the standard of care,

i.e. the defendant acted negligentlyo Causation: Factual causation, i.e. the plaintiff must establish a causal connection

between negligent conduct and his/her losso Remoteness: Legal causation, i.e. defendant’s conduct must be the proximate

cause of the plaintiff’s injuries (damage cannot be too remote in time or place)o Damages: Must cause injury to one of the legally protected interests of the

plaintiff

CASES

Mustapha v Culligan (2008, SCC)Principle: Sets out four requirements for a successful action in negligence.

- A plaintiff must demonstrate:1. That the defendant owed him a duty of care;2. That the defendant’s behaviour breached the standard of care;3. That the plaintiff sustained damage; and4. The damage was caused (legally and factually) by the defendant’s breach.

Duty of Care

Duty of care is a common law, judge-made policy decision used as a control mechanism to limit liability (i.e. determines where you owe a duty and thus are liable)

1960s: expansionary period in negligence law. Since 2000s: contracting period. Often depends on time/context (e.g. during industrialization, courts were reticent to

impose duties of care – did not want to limit industrialization) Historically, only specific relationships established a duty of care (bailees, apothecaries).

This expanded hugely with the neighbour principle in Donoghue v Stevenson

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Decided in 1932, but ideas of reasonable foreseeability/neighbour principle didn’t become generally accepted/applied until the 1960s/70s

The neighbour principle, also called proximity, is the foundation of the modern law of negligence.

“Two-sided face of negligence” (Childs): considers a) plaintiff’s loss, and b) if it is just and fair to impose the cost of that loss on the particular defendant.

History: The Importance of Foreseeability

CASES

Palsgraf v Long Island Railroad (1928, US)Facts: Man running for train – railroad guard pushed him on, man dropped a package containing fireworks, which exploded – scales further down the platform fell and injured plaintiff. Plaintiff sues railway company (remember, negligent act is the push, not the dropping of fireworks).Cardozo: Rights-based view – plf can only win if df’s conduct was wrong in relation to her.

- Proof of negligence “in the air” isn’t enough- Negligence is a “term of relation”: depends on whether the risk was reasonable (i.e.

reasonable foreseeability), and whether the plaintiff was in the “risk zone”- The plaintiff wasn’t in the “risk zone” – no duty was owed to her- Thus there must be 1) foreseeability of harm, and 2) some kind of antecedent relationship

between the parties- Held: Complaint dismissed

Andrews (Dissent): Excessive risk view – plf wins if df’s conduct exposed her to unreasonable risk- Takes a broader approach – you are liable to anyone who suffers harm as a result of your

injuries (up to a point) rather than looking at whether a duty was owed- You owe a duty to everyone – rather than duty, remoteness can be used as a limiting device- Where do we draw the line? This is an arbitrary policy decision – a “rough sense of justice” –

the law simply draws a line at a certain point and refuses to go beyond it- Held: Defendant was negligent, and thus is liable for the proximate consequences, which

include the explosion and resulting injury.

Donoghue v Stevenson (1932, Eng. HL)Facts: Snail in the bottle of ginger beer. Plaintiff sick. NB: Many intermediaries between plaintiff and manufacturer & no contract between them.Issue: Does the manufacturer owe a duty of care to the ultimate consumer?Lord Atkin: Defines the duty of care out of the Christian neighbour principle: “Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”

- Proximity: not just tied to physical proximity, but anyone in “close and direct relation”- This is a sound, common-sense approach, supported by strong social policy reasons

Lord MacMillan (concurring): Recognizes the many circumstances where duties of care may arise – the law must be flexible – categories of negligence are never closed.

- A manufacturer intends for his product to be consumed, thus places himself in a relationship with all potential consumers = duty of care

- Careless manufacturing process - the possibility of injury here was reasonably foreseeable

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Expansion

CASES

Home Office v Dorset Yacht Co (1970, Eng. HL)Facts: Kids in juvenile home escaped & damaged yachts. Yachts sue prison guards who said they were immune (Crown entity).Issue: Did prison guards owe a duty of care (thus vicariously liable) or were they immune?Held: Court found in favour of government liability.Principle: Landmark case – said the neighbour principle should be viewed as a general principle.

- Marked the start of rapid expansion in the scope of negligence by widening circumstances where court was likely to find a duty of care

The Modern Approach: Additional Sources for the Duty of Care

Anns test: Came from Anns v Merton (1978, Eng. HL)o Adopted in Kamloops v Nielson (1984, SCC), reaffirmed in Coopero Two stage test determining duty of care, which requires:

1. A finding of proximity sufficient to create a prima facie duty of care2. Consideration of whether any factors negative that duty of care

o Led to a huge expansion in negligence law – many new duties recognizedo Anns as reformulated in Cooper:

1. (a) Reasonable foreseeability1. (b) Proximity

- Any policy considerations (specific to the nature of the relationship between the parties) that would negate a prima facie duty?

2. Residual policy concerns.o Burden of proof is on the plaintiff to establish a prima facie duty of care – then

shifts to defendant to show countervailing policy concerns (Odhavji, Childs) Odhavji Estate v. Woodhouse (2003 SCC): Affirms the Anns test, formulated as three

requirements: 1) reasonable foreseeability, 2) sufficient proximity, and 3) the absence of overriding policy concerns which override a prima facie duty

Nonfeasance v. Misfeasanceo Misfeasance (act): A positive act that endangers others or their propertyo Nonfeasance (omission): Failure to act for the benefit of others, or to protect

them/their property from impending dangero Courts are reticent to impose liability for nonfeasance (negligence law does not

oblige you to protect someone, or help them from dangers we didn’t create)o Osterlind (1928, US): Man visibly intoxicated, rented canoe from df, fell out,

hung on calling out for half an hour before he drowned. Held that df had no legal duty to assist him.

o Von Valkenburg (1913, Ont): Captain of ship had no legal duty to save someone who fell off (not the case today)

o 1900s: growth of welfare state, ideas about collective responsibility, society becoming increasingly dangerous – changing judicial policy – courts began to recognize some situations where there was a duty to assist others

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o Strict rule of nonfeasance: Still no general duty to assist others, unless defendant has had something to do with creating, or has benefited from, danger

o Cases where courts have grounded a duty to act usually grounded in a special relationship between parties (common features: person has power to prevent injury, or person to whom duty is owed is particularly vulnerable)

Commercial hosts:o One recognized area of duty to act is between commercial hosts and their

customers/third parties injured by their customerso Trilogy of cases pre-Childs in this regard:o Jordan House v Menow (1974, SCC): Menow kicked out of pub, left alone drunk

to walk a mile down the road (pub knew his route home). Commercial host had a duty to ensure he was not exposed to injury because of his intoxication.

Established that duty of care exists between alcohol-serving establishments and intoxicated patrons (invitor-invitee relationship)

o Crocker v Sundance (1988, SCC): Ski resort plied Crocker with liquor, held an inner ski tubing event for profit, he was injured. Court held the resort had a duty to prevent him from participating in a risky event.

o Stewart v Pettie (1995, SCC): Duty extended to third parties (Menow and Crocker were both just to the intoxicated patron himself).

Commercial host owes a duty to third party injured by intoxicated patron, if harm was reasonably foreseeable (here, third party was passenger, intoxicated patron was driver – reasonably foreseeable that he might crash and injure a passenger)

o Common denominator: all defendants had benefited economically Joint and several liability: Apportionment is important here (if apportioned between

commercial host and intoxicated patron, as long as plaintiff is not contributorily negligent then can go after either for 100%)

CASES

Cooper v Hobart (2001, SCC)Facts: Investor alleges that Registrar of Mortgage Brokers is liable in negligence. Registrar suspended licence but didn’t tell investors (investor lost $, pure economic loss).Issue: Does the Registrar owe a private law duty of care to members of the investing public?Reasons: Donoghue established the negligence principle: liability only if there is a) reasonably foreseeable harm and b) a close and direct relationship of proximity or neighbourhood

- What is proximity? Often based on precedent. Categories not closed.- Imp. of the Anns test: Explicitly recognizes policy considerations in determining proximity- Doesn’t really matter at which “stage” they come up, as long as they are considered- Rearticulates the test:

Stage 1: 1) Was the harm reasonably foreseeable? Plus something more - proximity 2) Are there reasons, notwithstanding any proximity, that tort liability should not be recognized? (Policy questions focused on the specific relationship between plf and df).

If foreseeability/proximity established at stage 1, prima facie duty arises.Stage 2: Consider residual policy concerns, outside the relationship between plf and df.

- At stage 1 , reasonable foreseeability of harm must be supplemented by proximity- Proximity characterizes the type of relationship in which a duty arises, often identified

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through categories (usually try to analogize to an existing category) “Proximity” describes the “close and direct” relationship used in Donoghue Can look at expectations, representations, reliance, and property and other

interests involved Numerous factors which determine whether it is fair to impose a duty on the df No unifying characteristic – proximity is a broad concept – depends on the

circumstances of each case- At stage 2 , looks at larger, societal concerns (ensures that tort law develops incrementally

and carefully). What is the effect on legal system/society of recognizing this duty?- NB: Said at this stage the policy/operational distinction can be made for govt actors

Held: Court looks to the statute to define the relationship between the parties/assess proximity- Novel duty of care analysis (no existing category)- No duty for policy reasons (would create a conflict of interest between public duty of

efficient mortgage marketplace, and private duty to individual investors. Public duty trumps.)

- No need to consider stage 2 of the test. Harm may have been reasonably foreseeable, but insufficient proximity between Registrar and investors to ground a prima facie duty of care

- Policy considerations: maintain efficiency, public confidence in the mortgage system

Childs v Desormeaux (2006, SCC)Facts: Desormeaux leaves party, drunk, hits car and paralyzes Childs. Host walked Desormeaux to his car and asked, “Are you okay, brother?Issue: Do social hosts owe a duty of care to a third party injured by an intoxicated guest?Reasons: This is a new duty analysis (social hosts different than commercial hosts). 3 differences:

1. Commercial hosts can monitor patrons’ alcohol consumption & have special knowledge2. Sale/consumption of alcohol is regulated by legislatures – strict rules to control sales, cut

people off, kick them out, etc (unlike private parties)3. Commercial hosts make a profit – are in a contractual relationship with patrons- These differences create a special relationship between commercial hosts and patrons –

social hosts don’t fall in the same category- New duty analysis, stage 1:- Foreseeability: Hosts knew Desormeaux had been drunk driving in the past, but no evidence

they knew he was drunk this time. Thus, injury not reasonably foreseeable. Knowledge that he had drunk driven in the past too weak to support an inference

- Failure to act (nonfeasance): In the case of misfeasance causing physical injury, foreseeability is enough to establish a duty of care (although it may be negated at stage 2). However, in the case of nonfeasance, something “more” is required

Policy concerns: individual autonomy (positive duties to act are not free-standing) A positive duty of care may exist if there is foreseeability and if other aspects of the

relationship between plf/df create a special link or proximity Three situations where such a duty to act has been recognized:

1. If df intentionally attracts/invites third parties to an obvious risk that the df creates or controls (Crocker v Sundance)

2. Paternalistic relationships of supervision and control, e.g. teacher-student3. If df exercises a public function or has implied responsibilities to public at large,

like a commercial host serving people – owes duty not only to patrons but to third party users of the highway (Jordan v Menow, Stewart v Pettie)

To establish proximity w/ a positive duty to act, must fit in one of these categories Three themes which unite all three situations:

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1. Creation/control of a risk to which others have been invited2. Concern over individual autonomy – duty to act only imposed if there is a

special relationship to person in danger or a material role in creating risk3. Reasonable reliance (e.g. if you create risk and invite someone into it, you an

reasonably expect that people will rely on you)- Social host doesn’t fit into any of these categories where a duty has been recognized- The three themes do not come up here (throwing a party isn’t a risk requiring positive

action, no special relationship re: autonomy – guests remain responsible for their conduct, and no reasonable reliance on a private host to monitor alcohol consumption)

- NB: might have been a different outcome if he was visibly inebriated and hosts knew he would later be driving (but no evidence that they knew he was drunk)

Held: Insufficient degree of proximity between social hosts and third-party highway users who might be injured by an intoxicated guest to create a duty of care

- Injury wasn’t foreseeable- Even if it was, this is a case of nonfeasance, and there is no positive duty for the social host

to act (unless the host was implicated in the creation/exacerbation of the risk)

Fullowka v Pinkerton’s (2010 SCC)Facts: Strike at mine in NWT; ongoing violence; Pinkerton’s came in as security guards. Warren set a bomb, killed 9 miners, only then did the govt close the mine. Claim against Pinkerton’s for negligently failing to take safety precautions (thus was a claim based on a failure to act), and govt for failing to maintain safe working conditions.Issue: Was Pinkerton’s negligent in failing to take reasonable care to prevent the harm inflicted n the miners by Mr. Warren? Novel duty of care question.Reasons: Foreseeability – yes (not only was it reasonably foreseeable, but Pinkerton’s actually did foresee the risk of harm).

- Proximity: Was the relationship close/direct enough? (Consider expectations, representations, reliance and property/other interests involved)

- Like Childs, concerned with positive duty to act in the case of a nonfeasance- NB: The 3 categories in Childs re: positive duties to act are non-exhaustive- 3 factors from Childs where law has recognized such a duty:

1. Was df materially implicated in creation/control over risk?2. Concern for autonomy of persons affected by the positive action proposed (can either

be the autonomy of those required to be helped, or for those being required to act – changes depending on context)

3. Did the plf reasonably rely on the df to avoid/minimize risk?- Plfs reasonably relied on Pinkerton’s to take care, Pinkerton’s could reasonably expect this

reliance (it was their job to protect the miners!), and Pinkerton’s did have control over people who came onto property – sufficient to support a finding of proximity, leading to a prima facie duty of care

- Burden then shifts to dfs to establish residual policy considerations (must be compelling, real potential for negative consequences of imposing duty – can’t be speculative)

- Rejects residual policy concerns (can’t be liable for the fault of another – but here they were liable for their own negligence in relation to the fault of another, no indeterminate liability, no conflicting duties)

- While Pinkerton’s couldn’t control Warren, they had significant control of the risk that his activities would kill miners. Further, imposing this duty does not unduly interfere with their autonomy (given their contractual and statutory obligations to guard the miners)

- Thus, prima facie duty not negated by residual policy concernsHeld: Yes, duty of care did exist, but that duty wasn’t breached – Pinkerton’s met the standard.

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Standard of Care

After it has been determined that a duty is owed, the content of duty – the “standard of care” that must be met by the defendant – must be established.

Unreasonable Risk

The standard of care depends on whether the df exposed the plf to an unreasonable risk of injury

The defendant’s conduct is objectively assessed, based on how a reasonable person would behave in similar circumstances

Can be imposed by legislation (rare) or by community standards Central question: Did the defendant depart from the standard that a reasonable,

objective person would expect in the circumstances? Courts will consider quantum of damage Courts can look at party (e.g. physician is required to meet the standard of a physician,

not a normal layperson) Courts can also look at customs, trade practices, industry standards, legislation, building

codes – all can be indicators of reasonableness (court not required to accept them) Essentially asking, did the defendant take a reasonable risk? Courts often balance the dangerousness of the activity with its usefulness Courts will consider:

o The probability of harmo The seriousness of the loss/injuryo Costs of remedial measureso Purpose/utility of the activity

Ryan v Victoria (1999, SCC): Excellent summary of what courts think about when considering the standard of care.

o Conduct is negligent if it creates an “objectively unreasonable risk of harm”o Courts will use the standard of an ordinary, reasonable and prudent person

in the same circumstanceso Measure of what is reasonable will depend on the facts of each case.

Includes: Likelihood of a known/foreseeable harm Gravity of that harm Burden/cost which would have been incurred to prevent injury

o Court may also look to external indicators of unreasonable conduct (like custom, industry practice, and statutory or regulatory standards)

o NB: Should also look to utility of conduct

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Bolton v Stone (1951, Eng. HL)KEY FACTS

Cricket match – ball flew out of grounds, struck and injured respondent on nearby highway. Has happened before, but only 6 times in 30 years (low probability of harm, but high seriousness of injury).

ISSUE Did the defendants fail their duty to take reasonable care to avoid injury to anyone on the road? What is the standard of reasonableness?

HELD No

RSNS o Courts can consider seriousness of harm (if more serious, makes risk more unreasonable)

o Not enough that harm is simply possibleo “People must guard against reasonable probabilities, but they are not bound to

guard against fantastic possibilities”.o Foreseeability of harm may be enough to ground a duty of care, but foreseeability

alone will not determine whether the standard of care has been breachedo Rather than foreseeability of harm, the test is whether conduct was unreasonableo Will always be a context-specific inquiryo Policy: Crowded, modern life – even the most careful person cannot avoid creating

some risks and accepting others. What a careful person must do is not create a risk which is substantial.

RATIO Test: Whether the risk was so small that a reasonable person in the defendant’s position would have thought it right to refrain from taking steps to prevent danger.

The likelihood of harm must be balanced against the seriousness of harm if the risk materializes (standard may be breached if the odds of harm occurring are low, but injury risked is serious).

Paris v Stepney Borough Council (1951, Eng. HL)KEY FACTS o Plaintiff only had one good eye, when working a chip of metal flew into

his eye and blinded him.o NB: It was not ordinary practice for employers to supply goggles in this

scenarioISSUE Was employer negligent in not supplying goggles? Is

special risk of injury a factor in determining the standard of care an employer must meet in his duty to employee?

HELD Yes

RSNS o His injury doesn’t make the probability of risk occurring higher, but does increase risk of seriousness if injury does occur

o Test re omission: Must show a) the thing not done was a thing commonly done by other people in similar situations, or b) the thing so clearly needed doing that it would be folly to neglect it

o Test re precaution: Was the precaution one which a reasonable and prudent man think so obvious that it was folly to omit it?

o Only one good eye – an ordinarily prudent employer would supply goggleso Thus, shifts historical focus from able-bodied people; the standard owed

to him was different than the standard owed to an employee with 2 good eyes

o Remedial measures: simple and inexpensive precaution

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RATIO o Proportionality: must consider not only probability of accident, but also gravity of consequences if accident were to occur

Stewart v Pettie (1995, SCC)KEY FACTS

o Stewart, her husband, brother (Pettie) and sister-in-law, went to a dinner and show. Wives completely sober, while men both drank 10-14 ounces and were intoxicated (server knew, kept track of drinks). They left, decided that Pettie would drive, accident, Stewart paralyzed.

ISSUE Did commercial host meet standard of care, or were they negligent in failing to ensure that Pettie didn’t drive?

HELD No (met standard)

RSNS o New duty of care established (between commercial hosts and third parties who are injured by the intoxicated patron) – logical progression from recognizing duty between commercial hosts and the intoxicated patrons themselves

o Duty of care relates to the relationship between the parties; standard of care relates to the conduct required to satisfy that duty. Don’t confuse!

o Sufficient proximity to create duty of care between parties here. More difficult question is whether the standard of care was breached.

o Plaintiff argued they were a) negligent in over-serving him and b) failed to take positive steps to prevent him from driving and thus prevent harm to a 3rd party

o Over-serving itself is not a breach of the standard of careo Courts reluctant to impose liability for failure to act – requires some “special

relationship” to impose a positive duty (e.g. Crocker v Sundance)o There is a “special relationship” between vendors of alcohol and motoring

public – but to impose a positive duty to act, there must be more. Crucial element is foreseeability of risk. If there is no foreseeable risk, then no action will be required, despite the existence of a special relationship

o Policy: Tort law enforces reasonable standards and prevents risk-creating behavior. It doesn’t require the wisdom of Solomon – it just requires that people behave reasonably in the circumstances.

o They behaved reasonably, had no obligation to take positive steps, thus met the standard of care:

He was with two sober people (wasn’t reasonably foreseeable that he would drive drunk)

If he had been by himself, they likely would have had to call his wife – but she was already there! Clearly no need for them to intervene further, thus the standard wasn’t breached

o Also failed on causation (no evidence that if they had intervened, a different outcome would have occurred)

RATIO Imposition of a positive duty to act requires a “special relationship” and foreseeability of risk.

Cost of Preventative Measures

In determining unreasonable risk (i.e. standard of care), courts will consider:

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Probability of harm Seriousness of loss/injury Costs of remedial measures (explored below) Purpose or utility of activity

Courts will roughly balance these factors to determine if an unreasonable risk was taken.

The “Learned Hand Formula” In US v Carroll Towing (1947, US) Justice Learned Hand explained the concept of unreasonable risk in algebraic terms:

A risk is unreasonable where the seriousness of the risk multiplied by the likelihood of injury is greater than the cost of avoiding the risk from materializing.

I.e. if P (probability of injury) x L (degree of damage/loss) < B (burden of precaution) – no liability

If P x L < B, no liability. If P x L > B, liability. Economic analysis: if larger cost (L) could have been avoided by smaller cost (B), then

the efficient answer is liability Thus, considers three variables: probability of a given event, gravity of the resulting

injury, and the burden of adequate precautions Criticisms of this formula: Not all losses are quantifiable

o Strict economic analysis doesn’t take into account values like privacy, freedom, health, which may be impacted when a df behaves unreasonably

o Best to think of this as a rough metric than an actual formula

Rentway Canada v Laidlaw Transport (1989, MVR)KEY FACTS

o Two trailers collided, both destroyed & both drivers killed. Lawsuit for recovery of truck. Laidlaw argues it was not driver who was negligent (so they can avoid vicarious liability) – instead, argues it was a design defect

o Allege that tire blew, damaged one of the headlights, and because it was on the same circuit the other light went out as well – driver couldn’t see, lost control

o This would make Pakar (the manufacturer) at least partially liableo Manufacturer maintained they were aware of this possibility, but it was such a

low probability of occurring that they took no steps against itRSNS o Huge cost of truck, versus cost of rewiring circuit (very low)

o Use the Learned Hand principles: cost of remedial measures (using different circuits) much lower than probability of injury/seriousness that would arise if there was an injury due to both lights going out

o Law acts as a watchdog to ensure design decisions do not expose product users to unreasonable risks of injury

o Risk (of having both headlights extinguished in a truck at high speed) far outweighed utility (of having both headlights on the same circuit). Plus, considering each trailer cost over $50,000, costs of rewiring were small.

RATIO Risk-utility analysis asks whether risk outweighs utility, plus considers costs of remedial measures.

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Utility of the Defendant’s Conduct

Bittner v. Tait-Gibson Optometrist (1964, Ont. CA)KEY FACTS

o Defendant police officer on duty, saw lights on in optometrists officeo Believed a burglar was in progress, rushed over, slipped on a ice, injured

himselfo Ice was caused by cleaning lady emptying water

ISSUE HELDRSNS o Trial judge: said a reasonable person would have seen the ice & not slip, plus

he was a “beat cop” – it was his duty to monitor his beat/report any danger (but does ice really count here?)

o Court of appeal: Reversed – said duty to detect crime and duty to observe conditions of his beat were not equal duties – his prime duty was detecting crime/preventing robberies, which justifies why he rushed over and didn’t take reasonable care in regards to the ice

o Must consider utility of conduct (e.g. ambulance driver crashes into bus, but must measure the risk against the utility of his conduct – saving a life may justify taking considerable risk)

RATIO Must consider the utility of the conduct when assessing standard of care, i.e. the importance of the end to be served in behaving this way.

Good Samaritan Act

We already know there is no general duty to assist someone in peril, unless you created the risk or have some special relationship (Childs)

This legislation is meant to encourage professionals and laypeople to provide assistance Legislative reduction in the standard of care if you assist someone and actually make it

worse (unless you are employed expressly for that purpose, or do so with a view to gain) Exception: if you are “grossly negligent” (VERY rare finding) NB: if off-duty professional (e.g. doctor) stops to help, they will be protected, BUT

“grossly negligent” will be assessed against what a reasonable person with their training would have done

Unreasonableness & Fault

The Reasonable Person

Who is this reasonable person? A legal fiction composed of a collective of what “reasonableness” is based on ideal community standards

Not based on defendant’s personal characteristics or particular idiosyncracies This test addresses the minimum standard of care we must meet in regards to each

other. Speaks to our intelligence, competence, and also moral qualities Knowledge: We are supposed to have knowledge of every day reality (e.g. water makes

smooth surfaces slippery). We have knowledge of our own experiences, but we are note expected to have specialized knowledge & must recognize the limits to our knowledge

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Rationale: Consistent, predictable minimum standard by which everyone will be judgedo Promotes public safetyo Plaintiff-favourable (subjective test would favour a defendant)o Judges can’t use themselves as measuring sticks (can’t place themselves in

defendant’s shoes and ask what they would have done) Criticisms: Does this sufficiently integrate women, marginalized groups, etc?

o Who is “normal” and who decides what our norms are? (Dominant groups)o Gender bias: historically, pregnant women stayed home, so used to be held that

it wasn’t “reasonably foreseeable” to have a pregnant woman out in publico Up until 1970s, defendants could make successful claims that people with

disabilities shouldn’t be “out and about” (e.g. London case: post office didn’t have to cover manhole to insure blind people didn’t fall in)

Vaughan v Menlove (1837, UK)KEY FACTS

o Defendant “not of the highest intelligence”. Decides to “chance it” regarding a fire starting, rather than take down the hay rick

o Fire starts, spreads to plaintiff’s property, burns down his cottageo Jury found him guilty; he appealed the judge’s charge to the jury based on the

reasonable person test (said as long as he acted honestly and to the best of his ability, he cannot be liable)

ISSUE Should defendant’s low intelligence factor into the “reasonable person” in the standard of care analysis?

HELD No

RSNS o Upheld objective, reasonable person testo To go with this argument would leave no standard at allo To cater the test to each person’s individual characteristics/views on what is

reasonable would be “infinitely various” and too hard to applyo Best to stick to the “man of ordinary prudence” as the standard of conduct

RATIO Care taken by the prudent person is the common standard for all people, regardless of intelligence or other personal characteristics.

Children

Common law sometimes departs from a “reasonable person” standard to adopt a standard consistent with defendant’s personal characteristics

Might be raised for professionals Often lowered for children or those with disabilities which prevent them from meeting

the reasonable person standard No fixed age for where no liability can be found but generally under the age of 5. Parents are not vicariously liable for their children’s torts However statutes have reversed this in some situations – i.e. property damage in BC. Since 1950s, Canada has used the mixed objective/subjective test for children (Heisler)

o Question 1: Is this particular child capable of being found negligent at law? (subjective)

Consider the child’s age, intelligence, experience, knowledge and alertness to see if he can actually be found capable of negligence at law

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o Question 2 : What would a reasonable child of that age be reasonably expected to do and foresee in those circumstances? (objective)

o Thus, starts with a careful subjective analysis of the child’s ability, then an objective analysis

However, children engaging in adult activities may be held to the reasonable person standard (Pope)

o Emerged from motor vehicles (must hold kids driving to adult standard – if you see a car on the street, you expect it is an adult driving, can’t take extra care and adjust your behavior accordingly)

o Strong policy reasons for this: If children engage in adult activities, must take adult responsibilities; would be unsafe to public (cars as lethal weapons); unstated but generally these activities are insured

o Room for argument – what constitutes an adult activity? (Golf, per Pope – seems strange)

Heisler v Moke (1971, Ont. HC)KEY FACTS

o Child was already hurt by defendant and then re-injured himselfo Child was warned not to jump on the clutch because he would re-injure his leg,

but he did so anyway – thus df argues he was negligent in his own re-injuryISSUE Is defendant liable for the re-injury, or was the child

contributorily negligent?HELD Yes (df

liable)RSNS o Three possible approaches re: negligence of children:

1. A completely objective standard (a reasonable child of similar age)2. A completely subjective approach (particulars of that child and what they

understood dangers to be)3. A mixed objective/subjective test – what would a child of similar age,

intelligence and experience as the defendant do? Objective part: age. Subjective par: intelligence/experience

o Held: This child was alert, intelligent, capable of being found negligent. However, a child of 9 wouldn’t be reasonably expected to know that stepping on tractor clutch would exert the same pressure as jumping on it

RATIO Mixed objective/subjective test used for assessing standard of children. Subjectively assess the child to see if the child is capable of being found negligent, then ask objectively whether the child exercised the care to be expected from a child of like age, intelligence and experience.

Pope v RGC Management (2002, ABQB)KEY FACTS

o Pope suffered injury when struck in the face by wayward golf ball hit by Nayykens, who was 12 years old

o Pope was instructing him in a junior golf programISSUE Did Nayykens breach the standard of care owed to Pope? HELD NoRSNS o Uses mixed objective/subjective test to assess child’s negligence

o Nayykens = intelligent, alert, articulate 12 year old – satisfies both objective and subjective tests (capable of exercising reasonable care/understanding risk)

o Children engaged in adult activities will be held to adult reasonable person

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standard (e.g. snowmobiles) – more lenient standard for children driving, for example, would be unrealistic and inimical to public safety

RATIO Children engaged in an adult activity will be held to an adult standard of care.

Nespolon v Alford (1998, Ont. CA)KEY FACTS

o Very drunk 14 year old Snider driven home by Alford and Berard (both 16)o Stopped at Burger King, cop said Snider too drunk – take him homeo Two boys didn’t know where he lived, Snider asked to be let out in front of a

house, drunk and staggering across yardo Boys left & came back twice. Snider staggered onto road and was struck by

Nespolon. Died. Nespolon suffered PTSD and now sues the estateISSUE Can the driver recover damages for psychological injury

from Snider’s estate or from the two teenagers?HELD No

RSNS o Boys found liable at trial (had taken responsibility for Snider, thus had a duty to get him home safely, reasonably foreseeable that he could injure self or others)

o “Adult activity” based on the specific component (dropping him off) not the overall activity (driving). Dropping him off was not an adult activity, thus they are not held to an adult standard

o Use mixed objective/subjective standardo Boys not negligent: based on their experience/knowledge, they had no reason

to suspect Snider was at risk, and wasn’t reasonably foreseeable that dropping him off this way would injure a driver

o Boys had not been drunk before, didn’t know where he lived, dropped him off at a reasonable location

o Probability of risk was low (i.e. not foreseeable), so the defendants took a reasonable risk in dropping him off. Harm was simply too remote and unreasonable for them to be extected to foresee it.

o Further, no negligence on the part of SniderDISSENT

o Uses mixed objective/subjective standard to say boys were negligento Reasonable, mature 16 year olds, had seen drinking/drug use, understood

the responsibility they had to get Snider home, could’ve assisted him further, understood the standard of care that should be reasonably expected of them in getting him home

o They knew, or ought to have known, that leaving him in this state made him a danger to himself and others – the harms were foreseeable.

o They had a duty to leave him in a safe situation, and based on their age, intelligence and experience, they did not meet an appropriate standard

o Further, held that Snider himself was negligent (real and foreseeable danger of intoxication is not being able to respond adequately to circumstances – he had been drunk before – knew not the specific/unexpected circumstances which might arise, but the general danger you create by being drunk)

RATIO When using the “adult activity” analysis, look at the specific activity in question, not the overall activity (dropping someone off isn’t an adult activity, though

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driving is).

Mental Illness

If you have a disability, you are expected to adjust your behaviour to accommodate this Issue of volition: voluntariness of conduct

o If you drive & have heart attack & lose control of car, likely not negligento If you have symptoms of heart attack and then decide to get in car & go to

hospital & lose control of car, you may be held liable Issue of capacity: being able to understand/appreciate consequences of conduct

o If no capacity to understand or discharge duty, no liability Fault-based system: Unfair to hold a df liable who acted without volition or capacity,

because they acted without faulto Tension between finding fault but still ensuring compensation for a plaintiff

Presumption: Our law presumes voluntariness & capacity – defendant must prove lack of either (plaintiff must not establish)

Fiala v Cechmanek (2001, ABCA)KEY FACTS

o MacDonald went for a run; experienced severe manic episode (stemmed from undiagnosed bipolar disorder, so not foreseeable to him)

o Broke through sunroof of Cechmanek’s car and began strangling her; she involuntarily accelerated, hit Fiala’s car, injured both occupants

o NB: Expert testified that bipolar results in lack of control, especially re: emotions (can’t hold a person accountable for their actions)

ISSUE What is the liability of the mentally ill? Is MacDonald liable in negligence?

HELD No

RSNS o Can we “relax” the reasonable person standard for the mentally ill (only talking about real mental illness, not low intelligence or drinking/drugs)?

o Competing goals of tort law: fault and compensationo Four arguments to hold mentally ill to the “higher”, reasonable person

standard:1. Of two innocent parties, the person causing accident should be liable

(victim compensation as the primary aim of tort law)2. Practical difficulties – hard to assess mental illness (what if faking it?)3. Deterrent – holding mentally ill to higher standard will ensure caregivers

will take adequate precautions (imp. in our deinstitutionalization era)4. Holding mentally ill to lower standard will erode the objective standard

o Judge goes through and rejects each argument:1. Fault is still an essential element of tort law (holding someone liable

without fault creates strict liability – only exists in limited circumstances, usually where people choose to act in a certain way for profit, where losses can be distributed over a broad consumer base - clearly doesn’t apply to mentally ill)

- Compensation is a consequence of tort action, but is not its primary purpose

- What about children/physically disabled? Not held to higher standard.- Helps prevent negative stereotypes against mentally ill (shouldn’t allow

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lower standard for physical disabilities and not mental illness)2. Advances in medicine/science = we can create a test. Can’t just reject this

for practical difficulties3. Shouldn’t use tort law to hold caregivers to a higher standard (if they fail in

their duties, they should be held directly liable)4. Subjective test for mental illness will not erode objective standard – will

preserve elements of capacity and volition which are essential in our fault-based system

o US: hold mentally ill to objective reasonable person standard – highly criticizedo Canvasses numerous tests – was the mental disorder manifestly

incapacitating?o Crafts test below. While victim compensation is a worthy goal, this will

preserve crucial element of fault (by recognizing need for volition/capacity)o Held: He was afflicted suddenly & without warning, no meaningful control over

his actions, was unable to appreciate the duty of care that was owed.TEST To be relieved of tort liability due to mental illness (if the defendant is afflicted

suddenly and without warning), he must prove, on a BOP, either:A. He had no capacity to understand or appreciate the duty of care owed at the

relevant time, orB. He was unable to discharge his duty of care as he had no meaningful control

over his actions at the time.Burden of proof on the defendant to prove this.

RATIO Victim compensation is a worthy goal, but does not eclipse the basic fault element of tort law (based on capacity and volition). Establishes test for liability in mental illness.

Evidence of Unreasonableness: Practices & Standards

Common Practices / Standards

Customary practices or industry standards can be evidence/indicators of reasonableness

Conduct consistent with the usual practices of a person similarly situated as the defendant will often be indicative of due care (as long as the practice was reasonable, and

Courts will consider customs/general practices, but won’t always defer to them (used to be conclusive evidence; today, are only considered as a factor in determining what is reasonable and whether the defendant met the standard of care)

Courts will ask:o How long has that practice/standard been followed?o Universalityo Status/reputation of profession or tradeo Degree of difficulty of the activity in issue (e.g. surgeon doesn’t count sponges,

leaves one in patient’s throat – negligent, no special skill needed to count)o Evidence of additional precautions that may have been available (e.g. surgeon

could have counted sponges, or used strings to ensure all were removed)

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Threshold: Must prove thata) that there is a practice, andb) that it is reasonable.

Waldick v Malcolm (1991, SCC)KEY FACTS

o Waldick fell at Malcolm’s farmhouse & was seriously injured. Parking area hadn’t been salted or sanded; few people in the rural region did so.

ISSUE Df argued it was a local custom not to sand/salt icy parking areas. Did they breach standard of care?

HELD Yes.

RSNS o Court said that: a) df failed to prove this even was a practice (party that is relying on it bears the onus of proof), andb) this custom wasn’t reasonable (just because a big group is guilty of negligent conduct doesn’t make it reasonable)o Court emphasized that sand/salt = cheap and easy remedial measureso Accident foreseeable, and costs to prevent it were lowo Court also retains power to evaluate customs and not protect those that are

shown to be negligento Thus the proof of a custom that is unreasonable in no way ousts duty of care

RATIO Party relying on a custom must a) prove that it is a practice and b) prove that it is reasonable.

Just because a df follows a local practice doesn’t mean their behaviour was reasonable (Waldick)

Just because a df departed from a general custom doesn’t mean their behaviour was unreasonable (Rolls Royce)

Brown v Rolls Royce (1960, Eng. HL)KEY FACTS

o Industry practice is to provide a barrier to protect hands from oil. Worker for Rolls Royce contracts dermatitis, sues employer for failing to provide barrier, and relies on industry practice as proof of standard not being met.

ISSUE Does df’s departure from industry standard mean they were negligent?

HELD No.

RSNS o Departure from a normal practice may allow negligence to be inferred; however, if df introduces evidence that this departure was not unreasonable, then okay

o Df took reasonable care (relied on medical advice in not providing barrier cream)o Df was able to show that not providing barrier cream was reasonable – thus they

did not act unreasonablyo NB: No causal link b/w skin condition & failure to provide cream

RATIO Proof of departure from an industry standard might a presumption of negligence which the df can rebut; however, in a negligence claim the primary onus lies on the plaintiff.

Warren v Camrose (1989, Alta CA)KEY FACTS

o Plf dove into pool & suffered injuries. No warning signs posted, though he had swimming lessons & had swum there before.

ISSUE What weight should expert evidence be given regarding a custom or practice?

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RSNS o Experts testified the standard of swimming pool operations had changed in 1970s away from rigid rules/warning signs

o Standard at the time was not to provide warnings (both plf & df experts testified)

o Court accepts this expert testimony. Doesn’t bind the court, but is v. strong evidence. Courts only override if it offends logic or common sense.

o Trial judge can’t substitute his/her view for expert opinion w/out good reason.RATIO Expert evidence as to why a custom is reasonable is not absolutely binding on a

court, but provides very strong evidence.

Professional Standards

If you hold yourself out to be a professional, you will be held to a higher standard of care

Professionals are held to an objective standard, i.e. conduct considered reasonable if it is consistent with the standard of a reasonable competent member of that group

ter Neuzen v Korn (1995, SCC)KEY FACTS

o Plf sues Dr for contracting HIV through artificial inseminationo Procedure in 1985; no common knowledge that HIV could be transmitted in this

wayo Dr’s practice was custom across Canada at the time (Dr’s in Australia were aware

of the possibility at the time, but this info wasn’t widely available in Canada)ISSUE Can a Dr be negligent despite following a standard

practice, custom or procedure?HELD General rule is no (but

there can be exceptions)

RSNS o Physicians/specialist held to a standard according to reasonable physicians or specialists in similar circumstances

o Caution: courts shouldn’t over-rely on hindsight – must measure against prevailing standards/practices at the time

o Dr met standard of other specialists in 1985 – so was that standard unreasonable?o General assumption that medical practices are reasonable – not up to Court to rule

on questions of science or to get involved in controversial questions of assessment of diagnosis or treatment preference (courts/juries don’t usually have the expertise)

o Conformity with general practice usually dispels negligence – however, even a common practice can be condemned negligent if fraught with obvious risks

o Test: matters failing within the ordinary common sense of juries can be judged to be negligent e.g. if obvious existing alternatives could reduce risk, then negligence might be found despite it being a common practice – e.g. Anderson v Chasney, sponges in throat, nobody to count, child suffocates. Negligent despite being standard practice)

RATIO If a procedure involves difficult/uncertain questions of medical treatment, or complex scientific matters, then it is not open to find a standard medical practice negligent.BUT – exception to the general rule – if standard practice fails to adopt obvious and reasonable precautions, apparent to ordinary people, then compliance with custom is NOT a bar to liability.

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Practice/Standards Summary

1. Onus on party relying on it to establish that custom is both in effect, and is reasonable in the circumstances (Waldick)

2. Courts are generally deferential to industry/professional/local practices (Warren v Camrose, ter Neuzen)

3. Courts retain power to decide whether practice is reasonable in the circumstances, despite it being a common practice

Statutory Standards

Modern time, increasing industrialization – increase in negligence law – governments have often regulated these dangerous practices through legislative standards

Statutory standard versus negligence law: o If you violate a statute, you may be fined, but you may not be required to

compensate the person actually injured (fine goes to govt)o Strict liability: you may be fined even if no damage (unlike negligence)

Courts struggle with how to deal with the effect of a breach of a statutory standard in tort law. Four main issues with answers arising from Saskatchewan Wheat Pool:

Issue HeldCan a person injured by conduct in breach of a statute sue in tort?

No. Civil consequences of breach of statute are subsumed into negligence law.

Are statutory standards relevant for determining standard of care in negligence?

Nominate tort of statutory breach is rejected, as is the view that unexcused statutory breach constitutes negligence.

If the df doesn’t follow statutory standards, is that in and of itself an indicator of negligence?

No. Proof of statutory breach, causing damages, may be evidence of negligence.

Should compliance with statutory standards be indicative of duty of care?

The statutory formulation of the duty may provide a useful standard of reasonable conduct (is evidence, but not conclusive).

Canada v Saskatchewan Wheat Pool (1983, SCC)KEY FACTS

o Wheat Pool delivered grains infested with rusty beetle larvae. Exact cause of infestation is unknown.

o Canada (Board) had to pay lots of $ to fumigate ship – now wants to recover lost $o Wheat Pool had taken all precautions, done their duty – but wheat-infested grain

contravened the Canada Grain Act, thus strict liability (i.e. doesn’t matter how or why wheat is infested; you delivered infested grain, you violated Act, you are subject to a penalty)

o Act dictated penalty, so Wheat Pool paid, but Board had incurred almost $100,000 in expenses and wanted compensation for this – penalty didn’t deal with this

o NB: No evidence of negligence, & Board wasn’t making a negligence claimISSUE What are the effects of the breach of a statutory

duty? Is the statutory violate enough to bring private law claim for damages?

HELD No. Court refuses to make a separate tort of statutory breach.

RSNS o At this time, the effect of liability from a statutory breach was unclear. Two issues:

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1. When a statute imposes a standard & creates a penalty for the breach of it, can the person who is injured sue in private law? (I.e. for damages as a civil remedy?)

2. When a statute sets out rules of conduct, how should those rules be used in a negligence action?

o Court said Pool was not civilly liable to the Board. This would create a separate nominate tort of statutory breach that imposes strict liability

o No good policy reasons in support of this (unlike vicarious liability). Tort is about fault. Can’t extend strict liability too far. If no DOC at common law, then a statutory breach should not affect civil liability unless the statute expressly says so

o Preferable to move away from absolute rules/absolute duties/strict liabilities and rather, let the losses “lie where they fall” (i.e. here, with the Board)

o If Pool HAD been negligent, then Board could have sued for damages in negligence – but there was no negligence here, so the Board couldn’t sue simply because they violated the Act in a strict liability sense

o Different approaches: US: Approach #1 = if you breach the statute, this is conclusive

evidence of negligence UNLESS there was some valid excuse (Canada rejected – this negligence per se approach basically creates strict liability and abdicates court’s responsibility to determine what is reasonable – it simply says, if you violate the statute, you are negligent)

US: Approach #2 = breaching the statute is evidence of negligence (not conclusive) and the weight it will be given depends on the circumstances (Canadian courts follow this – a statutory breach may be evidence of negligence, but not conclusively)

UK: Endorsed tort of statutory breach (Canada rejects this - strict liability is contrary to our fault-based tort system)

o Held: Breach of statute has some relevance to civil liability, but only to an extent. Whether the statutory standards become the common law standard of care will be up to the courts to determine, on a case by case basis.

RATIO A statutory standard may be evidence of the standard of care, and a statutory breach may be evidence of negligence, but is not determinative. No independent tort of statutory breach.A statutory breach may be evidence of negligence, and must have caused the damage complained of.

Canadian position: Breach of a statute that leads to damage may be evidence of negligence.

Policy concerns: SCC concerned over slippage. Important for govt liability. Liability must exist outside the statute, at common law.

- Can’t “look for what isn’t there” (i.e. legislative intent to create a civil cause of action)- Due to industrialization, there was historically special consideration for industrial

statutes (i.e. strict liability). This shouldn’t extend to other fields- No need for a tort of statutory breach (many statutes increasingly deal with civil

responsibility/individual compensation – consumer protection acts, rental acts, etc)- Keep our system fault-based (what if you breached a statute but weren’t actually

negligent, and then had to pay lots of $?) Minimum fault could result in heavy liability.

NB: It can either be the plaintiff or the defendant trying to rely on the statute (see next 2 cases).

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For the statutory standard to be relevant to the df’s conduct, it must be:a) in violation of the statute, andb) the purpose of the statute must be to protect people like the plaintiff against the type of

loss they have suffered.

Gorris v Scott (1874, Exchequer Court)KEY FACTS

o Ship with sheep on it, statutory rules dictate how animals must be transported – but this has to do with disease prevention (i.e. sanitary purposes)

o There is a storm – sheep are swept overboardo Turns out statutory requirements haven’t beeno However, legislation has nothing to do with storm safety and is just about diseaseo Plaintiff tries to rely on the breach of statute to sue civilly

RSNS o The Act was clearly to protect disease exposure, not preventing animals from being swept overboard. Thus, the damage complained of is totally different than what the Act contemplated, and the action is not maintainable.

RATIO Damage resulting from a breach of a statutory that is NOT what the statutory duty was designed to protect against (either the individual wasn’t meant to be protected, or the damage was not contemplated by the statute) cannot be used as evidence for an action in negligence.

Ryan v Victoria (1999, SCC)KEY FACTS

o Motorcyclist gets tire stuck in railway track and is injuredo Track is consistent with statutory regulations, so Railway denies liability on the

grounds that it complied with all statutes/regulations re: railway tracksISSUE Does compliance with a statutory duty equate meeting the

standard of care?HELD No.

RSNS o General rule: statutory standards & common law standards are relevant to each other – i.e. concurrent but not co-extensive

I.e. a statutory breach doesn’t automatically give rise to liability (though it may be evidence of negligence); conversely, simply complying with a statute doesn’t necessary preclude liability

Lots of overlap, but neither standard abrogates/supercedes the othero But, statutory standards are highly relevant when assessing reasonable conducto Historically special protection for Railway companies (due to their huge historical

importance, the statutory standard was the common law standard) but not so anymore – they are subject to negligence, like everyone else

o Normal circumstances: compliance w/ a statute = common law standard of careo Exceptional cases: statutory standard is insufficient = additional common law

requirement of reasonableness. Factors: Statutory compliance more relevant in ordinary cases (i.e. cases clearly

within intended scope of statute, not unusual circumstances) Is the statute specific or general? (more detailed = more likely to satisfy) How much room for discretion? A very general statute w/ lots of room for discretion = it is less likely that

compliance with the statute will satisfy the common law duty of careo Policy: This balances between deference to Parliament (on matters of railway

safety, security etc) and protection for those who might be injured due to

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unreasonable choices made by railways.o Summary: If a statute authorizes specific activities and strictly defines the manner

of performance/precautions, then compliance w/ the statute likely satisfies the standard of care. But if the statue is general, permits lots of discretion, or unusual circumstances exist which aren’t clearly within the scope of the statute, then mere compliance with the statute is unlikely to exhaust the duty of care.

o Application: Railway clearly owed a DOC to Ryan and, despite complying with all statutes, failed to meet the standard of care (was the risk “objectively unreasonable in the circumstances?”

Statute didn’t actually apply (to “high way crossings” only – not this case) NB: The presumption is that the common law standard of care applies

(burden on them to show that a regulatory standard is meant to govern a particular situation as a reasonable substitute. They failed to do so here).

Even if regulations did apply, they still had lots of discretion (there was a range instead of a uniform standard for the width of flangeways) – didn’t take all reasonable steps to minimize foreseeable harm

They were aware of risks (had been 3 other accidents)Railway was thus subject to common law standard of care. Harm was foreseeable. B/c of hazard created & remedial measures available, Railway was obliged to take precautions, which they failed to do, and thus were negligent.

RATIO The weight of compliance with a statutory duty in a standard of care analysis depends on the facts. The statute will be unlikely to exhaust the standard of care if it is very general or allows for discretion. However, can be very relevant in “ordinary” or unexceptional cases, or where the regulation is very specific to the incident. If the common law standard is met, but the statutory standard is not met you cannot sue in negligence—but possibly under the statute.

Causation

General on Causation

There must be a causal connection between the negligent behaviour & the loss – otherwise, no liability

Factual causation: Is there a factual/causal link between the defendant’s conduct and the plaintiff’s injury?

Legal causation (proximate cause): Should the defendant actually be held liable for the damages suffered?

o Centres on issue of remoteness & policy considerations Fault-based tort system = causation is incredibly important Courts have been incredibly flexible here (no single test) but the main test is “but-for”

The “But For” Test

This is the primary test for factual causation It is a speculative test (i.e. court must hypothesize what would’ve happened if the

defendant had not acted)

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Must isolate the specific negligent act – if we remove this only, and say the injury would not have happened, then there is factual causation

Causation must be proved on a BOP (but, per Snell, not with scientific precision) Athey v Leonati (1996, SCC): The test for causation is the “but for” test, which requires

the plf to show that the injury would not have occurred but for the negligence of the dfo No need to prove that the negligence is the sole cause (may be a myriad of

other background events which are “necessary preconditions”)o As long as df is part of the cause, df is liable, even if his act alone wasn’t enough

to cause the injuryo No basis for reducing liability because of the existence of other preconditions

(i.e. no apportionment between tortious causes and non-tortious causes)o Dfs remain liable for all injuries caused or contributed to by their negligenceo But there may be apportionment if more than one defendant is liable (joint and

several liability) Common problems:

o V. hard for plf to prove factual causation in medical malpractice, manufacturing of toxic products, etc (often more than one possible cause)

o Courts must be careful not to say that correlation equals causationo Courts have expanded the “but-for” rule slightly to allow inferences to be made,

in cases where factual causation is difficult to prove (see below)

Snell v Farrell (1990, SCC)KEY FACTS

o Plf went to defendant Dr for eye surgery (DOC clearly owed)o Possible complication during surgery but Dr continued (negligent act)o Later, optic nerve atrophied & left eye blind; was the atrophy from the

complication during surgery, or from a stroke suffered by the plaintiff?o No medical experts were able to say what caused the atrophy or when it occurredo Lower courts applied the “material increase of risk” test (which basically says, if

you materially increase the risk and it happens, you are liable and the burden of proof shifts to the defendant to prove that they didn’t cause the harm)

o SCC rejects this and upholds traditional “but-for” testISSUE Should the causation test be changed (shift the burden of proof

= less onerous standard) for malpractice suits, b/c Dr is in better position to know whether they caused the harm?

HELD No. Stays on plaintiff.

RSNS o Problems w/ traditional test: Due to complexities of proof, someone who was likely a victim of tortious conduct may be unable to prove it and thus deprived of relief.

Numerous tortfeasors, man-made diseases, medical malpracticeo Burden of proof: Can shift over time. Based on two “fairness-based” principles:

1. Onus is on the party who asserts a proposition (usually the plaintiff)2. If subject-matter lies particularly within the knowledge of one party, that party

may be required to prove ito McGhee: UK case – labourer exposed to clouds of abrasive dust, contracted

dermatitis, couldn’t establish factual causation on a “but-for” basis. New principle emerged to reverse burden of proof: plf need only prove

the df created risk of harm and that the injury occurred within the area of risk

Test based on material contribution to risk of harm Re-interpreted by HOL: says it doesn’t create a new principle (BOP stays

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with plaintiff) but is a robust/pragmatic approach which allows an inference to be drawn that the df’s negligence materially contributed the plf’s injury

o Rejects shifting BOP (per McGhee) for the df to disprove causation. Why? Traditional rules sufficient (no evidence that many plaintiffs are being

denied compensation due to a failure to prove causation) Risks overcompensating plaintiffs when df didn’t actually cause the loss Don’t want medical malpractice crisis like in 1970s US (insurance up 500%) Would lead to an increase in groundless claims = defensive medicine

o Conclusion: Upholds traditional test, but affirms it can be applied less rigidly and without scientific proof – based on ordinary common sense

BOP is a flexible concept. Ultimate burden still on plaintiff, BUT if facts lie particularly within the defendant’s knowledge, then very little affirmative evidence will be required to justify drawing an inference of causation in the absence of evidence to the contrary

Experts don’t need absolute certainty – reasonable certainty is okay (51%)o Application: Inference can be drawn that the injury was caused due to negligently

continuing with the operation. No evidence to rebut this inference. Thus, causation should be found. (A common sense inference isn’t the same thing as speculation.)

RATIO Affirms traditional “but-for” test, but relaxes it slightly. Ultimate BOP is on plaintiff, but in the absence of evidence to the contrary, an inference of causation may be drawn.(Plf need only bring enough evidence to reasonably allow the court to infer causation; df is then free to bring contrary evidence – the more persuasive the evidence, the more difficult it will be for the plf to satisfy the court that the causation inference is reasonable). NB: This is NOT a shift in burden – it remains on the plf.

Notes on Snell : They reject the “material risk” test (i.e. df created the risk and thus there is causation

unless the df adduces evidence otherwise) – but isn’t this the same as drawing an inference re: causation?

Policy: Perhaps factual causation is also policy drive (like legal causation) – not as objective as we might think

Res ipsa loquitor: “The thing speaks for itself”. Old evidentiary rule allowing court to reverse onus of proof in causation cases (i.e. in medical malpractice, if no other reasonable explanation, then courts could find factual causation). 1997: SCC said, courts CAN’T use this anymore to find causation.

In summary:o Causation = central to a fault-based systemo Standard test is the but-for testo Defendant's negligence need not be the only cause, it must simply be a cause,

where there was a substantial connection/contribution to the injuryo Remember: the "but-for" test isn't actually asking what the central factor of the

injury was… it is simply looking for a link between the defendant's conduct and the plaintiff's harm. A defendant's breach of the standard of care must have been the cause of some harm.

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o How much evidence is required? Per Snell v. Farrell, as long as you lead some evidence which allows an inference to be drawn regarding causation, that is sufficient

The Adequacy of the “But For” Test

Court has adopted a number of ways to get around inadequacies in the “but for” test:1. An inference of causation can be drawn, based on very little evidence (Snell)2. A reverse onus of proof can exist for trespass cases (Cook v Lewis, affirmed in Scalera)3. The material contribution test as a policy-driven exception to “but for” (Clements)

All are justified based on fairness, i.e. policy-driven exceptions to regular rules around causation.

“Material Contribution” Test

Main test for causation is “but for”. MC test is an exception. Policy-driven test (going beyond fault) that courts apply for fairness reasons Available when “but-for” test isn’t adequate. Court has crafted this as an alternative

(though it has never been applied) The highly specific test (must be multiple tortfeasors, etc) prevents plfs from simply

turning to this test as an alternative when regular “but-for” causation is hard to proveo “Impossible” can’t simply mean a) hard to prove, or b) scientifically impossible

(b/c scientific precision isn’t required – just a balance of probabilities)o MC test, as articulated in Clements, says must:

a) more than one defendantb) all have acted negligently, and all can point the finger at each otherc) on a global but-for basis, plf wouldn’t have been injured but for all

of their negligence together

Cook v Lewis (1951, SCC)KEY FACTS

o Cook was shot by one of two people. Problem of proof – impossible to say which one of the men’s bullets it was

ISSUE Should there be an alternative or relaxing of “but for” test in situations of dual action, where causation is impossible?

HELD Yes.

RSNS Cartwright J (Majority)o General rule is that if can’t show which of two people is guilty, then both =

innocento But this is unfair if it is completely certain that one of the two caused the harmo Can’t prove on a strict “but for “test, since it is equally possible for either to be

guiltyo Df’s can’t then escape liability by each pointing the finger at the othero NB: Borrows the reverse onus from trespass law (i.e. plf proves trespass, then

onus shfits to df to prove consent)o Ratio : Plf must prove definitely that one of two (or a group) cause the harm. If

uncertain as to which, then BOTH are held liable unless one can prove that they didn’t do it.

Rand J

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o Plf cannot prove which of two dfs caused injury, yet both were negligento Not only have dfs acted negligently, but by acting in concert have made it

impossible for plf to recover damageso Ratio: In situations of dual action where the plf has proven that one of two

certainly caused the harm, there is a reverse onus on the df to prove that they did not case the harm. Otherwise, both are liable.

NOTE Majority & minority reach same conclusion, but with different reasoning.

Clements v Clements (2012, SCC)KEY FACTS

o Tragic motorcycle accident: overloaded bike, nail in back tire, husband loses control when passing a car, wife suffers TBI.

o Husband was admittedly negligent, but issue was still causation (expert testified that the probable cause of accident was the puncture, i.e. would’ve happened even if husband hadn’t been negligent)

o Trial judge rejected “but for” test due to limitations of scientific reconstruction – used “material contribution” test instead. Overturned at BCCA.

ISSUE When is it appropriate to use “material contribution of risk” test rather than the “but for” test?

HELD In very limited circumstances. Most often, “but for” test will be used. MC test doesn’t apply in this case.

RSNS o Affirms that the generally test for causation is “but-for” – it is a factual inquiry, established on a BOP, which is based on common sense, not scientific precision

o Per Snell, a common sense inference of causation can be drawn, which can be rebutted by the df w/ some evidence to the contrary

o Material contribution to risk of injury (MC) test: Replaces factual “but-for” causation. Only available in exceptional circumstances (if there are multiple wrongdoers who each point the finger at each other, but one one of them in fact did cause the harm & plf can’t prove which)

MC test removes “but-for” causation & substitutes proof of material contribution to risk

Policy-driven rule of law; allows plfs to “jump the evidentiary gap” and recover $, despite failure to prove causation

This is a radical step (eliminating proof of causation) – rarely available Says that instead of the df’s act causing the injury, the act simply

contributed to the risk that injury would occur Many Canadian cases have indicated that the MC test could be applied if

required for fairness reasons, but it has never actually been used (SCC has always ended up using “robust & common sense appl’n” of the but for test)

But SCC has hinted that in cases of multiple tortfeasors, where the but-for test might be impossible, then MC test can be used if fairness demands

o UK : Has adopted MC test in toxic agent cases (e.g. numerous employers exposed one employee to asbestos, developed disease, court used MC test to prevent the employers for all pointing the finger at each other)

Fairness/policy supported relaxing “but-for” here; would’ve been at odds w/ fairness, deterrence & corrective justice to allow them to escape liability

Looks to a global but-for test (i.e. negligence of dfs as a group)o Resurfice: Summarizes when MC test may be available:

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a) If it is “impossible” to prove causation on a but for test- Usually occurs when there are multiple tortfeasors, all are at fault &

one or more has in fact caused plaintiff’s injury- Plf wouldn’t have been injured but for their global negligence- Each can point the finger at the other, thus it is impossible for the plf

to show who caused the injury on a BOP- Thus, the “but for” test works globally, but fails when applied to each

defendant individually- NB: “impossibility” doesn’t simply mean scientific impossibility, or that

causation is simply hard to prove. Depends on the above factors.b) If it is clear that the defendant breached its duty (i.e. acted negligently) in a

way that exposed the plaintiff to an unreasonable risk of injuryo MC test in such cases is supported by policy & satisfies goals of negligence law:

Compensation for the injury Fairness (each df acted wrongfully & each may have actually caused injury,

so holding them liable is fair) Deterrence is furthered (dfs know they can’t just point fingers at each

other) Corrective justice

o Courts in Canada have never applied MC test to cases w/ a single tortfeasoro The traditional “but-for” test still applies in most cases w/ multiple tortfeasors –

MC test ONLY applies if there are multiple tortfeasors, all of whom acted negligently in a way that may have caused the injury, and each can point the finger at the other

o Application: MC test not available here. This is a single-defendant case (not multiple), and scientific precision wasn’t necessary for “but for” causation.

Just b/c plaintiff can’t prove on a “but-for” basis doesn’t mean you go strait to MC test (this would mean MC test would become the dominant test, and this goes against our basic fault-based system – would shift the focus from fault to an enhancement of risk)

While “but-for” test is factual causation, the MC test is policy-driven and is thus about legal causation

RATIO General rule: a robust & pragmatic use of the “but for” test is usually sufficient.Exception: a plf may use the MC test to show the df’s conduct materially contributed to the risk of injury, if:

a) plf establishes injury wouldn’t have occurred “but for” the global negligence of two or more tortfeasors, and

b) plf, through no fault of his/her own, is unable to show which tortfeasor is responsible b/c each can point the finger at the other

Divisible and Indivisible Harm

Lots of litigation around the quantum of loss (i.e. df is found liable – owed a duty, breached the standard and factually caused the harm) – but for what losses are they responsible?

Common concerns:o Some losses simply can’t be compensated for

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o Can’t overcompensate plaintiffo What if there is one accident, plf is recovering, and then there is another

accident involving a different df? How to parse out the loss? Divisible injuries: Injuries that can be separated out and have their damages assessed

independentlyo Df is only responsible for the injury they caused

Indivisible injuries: Injuries that cannot be separated, or have liability attributed to constituent causes

o Df is liable 100% for the injury (even if it was aggravated by a subsequent injury; as long as it is the same injury, df is liable for the whole thing)

Bradley v GrovesKEY FACTS

o Df injured in a car accident; was 80% recovered when she got in a 2nd accidento Trial judge concluded injuries from 2nd accident were indivisible from the 1st and

held defendant from the 1st accident to be 100% liableISSUE Does the holding in Athey (that indivisible injuries require joint

& several liability b/w tortious causes contributing to the same injury) mean the Long formula is no longer available to determine responsibility among multiple tortfeasors?

HELD Yes.

Position of the Parties

o Df’s args: aggravating a pre-existing injury is not the same as an indivisible injury Court should apportion damages between dfs per Long formula (assess

damages from the day before the second accident, assess global damages from both accidents as of trial date, then subtract the first from the second)

Formula allows courts to apportion damages between two defendants, when a second defendant aggravate an injury caused by the first

o Plf’s args: No dif. b/w aggravation of an injury and the concept of indivisibility Absent contributory negligence, any injury found to be indivisible results

in joint and several liability for the tortfeasors Argues the Long approach may apportion liability among tortfeasors, but

that Athey has displaced its application in regards to indivisible injuriesRSNS o The authority on indivisibility is Athey – df’s are jointly & severally liable

o Long formula doesn’t apply in cases of indivisible injuries (only to divisible injuries)o Athey: Involved multiple tortious & non-tortious causes

Court rejected apportioning liability for tortious & non-tortious causes Liability should be apportioned jointly & severally between tortfeasors;

their liability isn’t diminished by the presence of non-tortious contributing causes

If indivisible, then joint & several liability is fine because plf is still 100% compensated (and then dfs can go after each other)

Divisible injuries isn’t really “apportioning”, since you are just making the df each liable for the injury they each caused (e.g. I hurt the plf’s foot, but you hurt the plf’s arm – not the same injury – so we are just each liable for the harm we caused)

Whereas if there is one indivisible injury (in this case, disc herniation), division is impossible – so any defendant that contributed to that injury will be fully liable for it

Thus, liability to a plf for indivisible injuries is joint & severalo Thus, liability for indivisible injuries (whether from a combination of non-tortious

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and tortious causes, or only tortious causes) is joint & several (and then, per the Negligence Act, the various defendants can try to recover from each other).

o Policy: As long as a defendant is part of a cause of injury, even if there are other factors (whether tortious or non-tortious), that defendant is liable, even if his act ALONE wasn’t enough to create the injury

Based on fairness and justice Ensures an injured party receives full compensation Casts the burden of adjusting responsibility for payment on the

wrongdoerso The Long formula can’t apply to indivisible injuries (b/c it pre-supposes divisibility

when it divides the injury over various points in time)o Concerns: Yes, this may mean a tortfeasor might be liable for more $ in the case of

their negligence contributing to an indivisible injury, but this is dealt with by the legislation (which allows them to go after other tortfeasors for $)

o Rejects the idea that aggravation and indivisibility are different If one tort caused an injury, and another tort made that same injury

worse, it is still the same injury Showing multiple causes for the same injury does not excuse a tortfeasor

(there are almost ALWAYS multiple causes for one injury) It is really hard to divide the worsening/aggravation of a single injury Indivisibility is a finding of fact to be determined at trial

o Fault versus harm: Apportionment is based on your degree of fault, not the percentage of

harm caused Apportionment under the Negligence Act is thus based on your degree

of fault, so the Long formula wouldn’t apply here (because this formula has to do with the percentage of actual harm caused)

RATIO At common law, if there is an indivisible injury, defendants are joint and severally liable. Then legislation can kick in (Negligence Act) and let the defendants go after each other for the specific amounts owed (unless the plf was contributorily negligent, in which case joint & several liability doesn’t apply)

Divisible and Indivisible Injuries: Summary

Indivisible DivisibleDefinition Injuries produced by more than one cause that

cannot be separated or have liability assessed independently.

A tort injury which is made worse by another tort in indivisible.

Injuries that are capable of being separated and having damages assessed independently.

One tort injury made worse by another tort is NOT divisible—that is an indivisible injury.

Liability Several tortfeasors whose actions combine to one indivisible injury are each 100% liable for the entire harm (but then can seek indeminification from each other) EVEN IF there are non-tortious causes for the harm as well.

Several tortfeasors whose conduct causes different damage (i.e. divisible injury) are only liable to the extent of the damage they cause.

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Apportionment The burden of adjusting responsibility thus is shifted to the tortfeasors, the court may apportion responsibility or it may not. If the court does not apportion liability, then the Negligence Act says that it is split equally.

No apportionment is therefore necessary.

Remoteness

General Rule

Remoteness is also called legal causation or proximate cause It is a way to limit liability Remoteness test is arguably pro-defendant – but also emerged at a time when

negligence law was expanding rapidly, plaintiffs could now recover in expanded circumstances, so this was a control mechanism

It flips the fairness question: court asks, accepting there was a duty owed, the standard was breached, and factual causation established – is it nonetheless fair to hold the defendant liable for this injury? It is a question of where do courts draw the line?

This is what Andrews referred to in Palsgraf as “rough justice” (an arbitrary line drawn, based on what the court thinks is fair)

Takes the duty analysis and asks, assuming a duty is owed to this class of people, how far do we extend this duty?

Are the plaintiff’s damages sufficiently proximate to the df’s conduct to justify liability? NB: No clear, neat test for this. Lots of room for creative argumentation. Courts use a

variety of terms to describe what a defendant will be liable for (natural consequences, probable causes, immediate causes, foreseeable consequences, etc…)

o Very discretionary – some courts say it has to do with “instinctive feeling”

Mustapha v Culligan (2008, SCC): Remoteness asks whether the harm is too “unrelated” to the wrongful conduct to hold the defendant fairly liable.

- Remoteness is based on reasonable foreseeable consquences- Probability/possibility: Possibility isn’t a good standard (anything is possible)

o The degree of probability is whether it was a “real risk”, i.e. one which would occur to the mind of a “reasonable man” in the df’s position

- Objective/subjective: Need the degree of probability be objectively or subjectively foreseeable?

o The law usually looks to a person of “ordinary fortitude” (and not at this particular defendant’s frailties/vulnerabilities)

Rule: Remoteness, like duty of care, limits liability and is measured based on reasonable foreseeability.Policy: This is fair & accords with principles of tort law (unfair to hold a df. liable for harm they couldn’t have foreseen. How could they have taken any precautionary steps?)

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- Critics argue that reasonable foreseeability is a shield which hides the court’s ability to make hugely discretionary policy decisions

- Kind of damage matters; physical injury is usually not too remote, whereas pure economic loss often is too remote

- Others argue that courts are driven by relative financial position of parties- Value-driven assessment, couched in terms of “reasonable foreseeability”- Linden suggested following factors should/are assessed in finding remoteness:

o Personal injury or property damage?o Is def. an industrial undertaking, or a private party?o Does def. have insurance?o Is there potential for deterrence?o Problems with this: arbitrary, uncertain. Seems unfair to hold a

company liable if we wouldn’t hold an individual liable in the exact same circumstances (or an insured versus an uninsured person)

Cameron v Hamilton’s Auction Marts (1955, Scotland)KEY FACTS

o Defendant’s cow was “excited”, escaped busy street, went up some stairs, broke through a landing into the dairy below, managed to turn on the water-tap, and ruined the plaintiff’s dairy.

ISSUE Were these harms reasonably foreseeable, or too remote? HELD

Too remote. No legal causation.

RSNS o Unless the plaintiff was able to prove the cow had a propensity to act this way, such behavior was not natural or probable

o Thus, nobody could have reasonably foreseen such strange circumstances & consequences. No liability.

o Even if it was natural/probably for a cow to go up the stairs (which it likely wasn’t), still wasn’t foreseeable that the landing would give way – broken chain of causation

o Polemis: UK case that said, if df is negligent, then is liable for ALL the harm that flowed directly from their negligence, even if it is bizarre/unforeseeable

o Held that Polemis isn’t good law in Scotland.RATIO The plaintiff must prove that the harm following the negligent act was a natural and

probable result, foreseeable by a reasonable person.

The Wagon Mound #1 (1961, Privy Council)KEY FACTS

o Oil spills into bay from defendant’s vessel, due to carelessnesso Plf was welding ships, believed oil could not catch fire while spread over watero Plf keeps welding, sparks fall into water, set it alight, whole wharf burns down

ISSUE Is the def. liable for the fire for initially spilling oil into water? HELD No.RSNS o Def enquired, and no one thought that oil spread over water could catch fire.

o Trial judge relied on Polemis (i.e. responsible for all direct results, even if not reasonably foreseeable); Privy Council overturned

o Polemis is NOT good law: offends basic concepts of tort liability/fault (if consequences weren’t reasonably foreseeable, then what else could plf have done?)

RATIO Damage must be reasonable foreseeable to hold the defendant liable. They are NOT responsible for all direct consequences—just those that are reasonably foreseeable

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Wagon Mound told us that consequences must be reasonably foreseeable to hold a defendant liable

But what exactly must be foreseeable? This precise harm/accident, or more general?

Hughes v Lord Advocate (1963, Eng. HOL)KEY FACTS

o Workers left manhole open & lamps lit. Kids found it and played aroundo Lamp & boy fell in manhole – resulted in huge explosion, boy hurt

ISSUE Was this reasonably foreseeable? HELD Yes.RSNS o It was reasonably foreseeable that kids were in the area & would play around with

unattended lamps and manhole (even though the explosion itself was unusual)o Thus it was foreseeable that one of the boys would be burned by an unattended

lamp, even tho the manner in which he was burned was itself unusual/unanticipated

o A defendant isn’t relieved of liability just b/c the harm is to a greater degree than could be anticipated; only relieved if the harm itself was unforeseeable

RATIO Only the type of harm needs to be reasonably foreseeable, not the specific way in which the harm came about.

Seen as a significant retreat from the very defendant-friendly result in Wagon Mound Easier for plaintiffs to recover under this rule; mitigated the harshness in Wagon Mound Rule: As long as the harm is of a general kind that can foreseeably result from the

defendant’s negligence, then there is liability. Adopted in Cdn law in the case below.

Assiniboine School v Hoffer (1971, Man. CA)KEY FACTS

o 14 year old boy too small to start snowmobile; father devised an unsafe way for son to start snowmobile (by standing next to it and pulling throttle with two hands)

o Snowmobile runs out of control, across parking lot, hits gas pipe in a school; gas gets into the boiler room, causes explosion, huge damage to school

ISSUE Was the damage reasonably foreseeable? HELD YesRSNS o Clear duty owed by owner of snowmobile to take care to nod damage

ppl/propertyo Looking just at Wagon Mound #1, would seem to be a strong argument to say this

crazy chain of events and the ultimate explosion was NOT reasonably foreseeableo Notes, however, that this argument is tempered by Hughes v Lord Advocateo Thus, court finds them liable because it was foreseeable in a general way (even if

the manner and extent of damage wasn’t actually foreseeable)o Reasonable foreseeability doesn’t mean the danger that materializes must be

identical to what was foreseen – must just be of the same general typeo Thus, the ambit of reasonable foreseeability is very broado Wagon Mound #2: The test of foreseeability of damage becomes a question of

what is possible rather than just what is probableo Factual causation was clearly made out. Doesn’t matter that his negligence wasn’t

the sole cause; the chain of causation was not brokeno NB: Winnipeg Gas Company also found liable (negligently constructed gas pipe,

huge potential for serious injury, low cost of remedial measures)RATIO Test of foreseeability is just what is reasonably possible, not what is probably. The

extent of damage and manner of injury need not be foreseeable – just the type of

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harm needs to be foreseeable.NOTE: Mustapha overturns the first part (it is about probability, not possibility).

NB: Assiniboine said reasonable foreseeability was about possibility, but this was overturned in Mustapha – it is about probability, not possibility (SCC arguably trying to reign in negligence).

The Thin Skull Rule

Thin skulled rule: A defendant is liable for all consequences of negligence, even if a plaintiff has a particular predisposition to something.

Wagon Mound looked like it might eliminate this rule (i.e. how could an unexpectedly severe injury due to a pre-existing susceptibility be reasonably foreseeable?), but it has continued to be applied

“You must take your plaintiff as you find him”. As long as there is some reasonable foreseeability, then the defendant is liable for all damages.

Policy: Better compensation for plaintiffo Saves courts trying to parse out which injuries are reasonably foreseeable &

which are noto Can treat defendants harshly, but is a well-entrenched ruleo Potential harshness tempered by crumbling skull rule (see below)

Bishop v Arts & Letters Club (1978, Ont. HC)KEY FACTS

o Plf opened door which was usually quite resistant, but this time no resistance b/c door is malfunctioning (Club is aware, but doesn’t say anything to members)

o Plf fell, hurt himself badly – hemophiliac, so his injuries were much worse than they would be in a normal person

ISSUE How much of the damage is compensable? HELD All.RSNS o Tortfeasor must accept his victim as he finds him

o His ongoing injuries are directly attributable to the fall, even if his symptoms are much more extreme and severe

o He is entitled to compensation based on his own special requirementsRATIO Example of the thin skulled rule. If a def. is liable in negligence, then he is liable for all

the harm the victim suffered, regardless if this is due to a pre-existing condition.

Athey v Leonati (1996, SCC)

Case which illuminates thin skulled rule versus crumbling skull rule

Thin Skull Rule Crumbling Skull RuleMakes the tortfeasor liable for the ptf’s injuries even if they are unexpectedly severe due to a pre-existing condition.

The defendant need not put the ptf in a position better than their original position. Def doesn’t need to compensate for any debilitating effects of a pre-existing condition that would have happened regardless of the def’s actions.

o The defendant is only liable for any additional damage they cause, not damage already caused by a pre-existing condition.

o If there was a material risk the ptf would have

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NB: Rule of liability

suffered anyway, (but not certain) then this can be considered and reduce the over-all award.

If it causes the harm to occur earlier, i.e. condition would have led to this result in 10years but it happens now due to the def’s negligence, THEN the def. only need compensate for these 10 years.NB: Rule of damage assessment

The defendant only need put the ptf in the position they would have been in without the negligence, not a better position.

Novus Actus Interviens (Intervening Acts)

When would a subsequent/intervening act absolve the defendant of liability? Depends on whether the intervening act was a reasonably foreseeable consequence of

the defendant’s negligence. Was the 2nd act within the risk set in motion by the 1st act?

Stansbie v Troman (1948, Eng. KB)KEY FACTS

o Contractor working on a house, left the house to obtain wallpaper. Closed door but didn’t lock it. Thief broke in and stole property.

ISSUE Is the contractor liable for the damage caused by the thief? HELD Yes.RSNS o Original act of negligence was closing the door and not locking it

o It was reasonably foreseeable that a thief might enter and commit a robbery; thus, this was within the scope of risk set in motion by the contractor, and he is liable.

RATIO A defendant will be liable for an intervening act if it is within the scope of risk set in motion by the first negligent act. It is only when an act is unforeseeable and interrupts the chain of causation that it will be considered an “intervening act” and thus end the defendant’s liability.

Bradford v Kenellos (1974, SCC)KEY FACTS

o Grease fire negligently caused in restauranto Fire in the kitchen, which was in the centre of the restauranto Restaurant had state of the art fire extinguisher which they used; the sound of the

fire extinguisher caused a panic, someone yelled about a fire/explosion, people stampeded out, patron was knocked off her seat and injured.

ISSUE Should the restaurant be liable for the intervening act? HELD No.RSNS o They were negligent in failing to clean grill efficiently, but they had a “state of the

art” fire extinguisher to deal with the consequences of the fireo The patron’s hysteria was not within the risk created by the defendanto Thus it was an intervening act – not reasonably foreseeable – no liabilityo Policy: They already installed the best possible extinguisher. No deterrence.

DISSENT

o Panic is a human reaction and was created by the risk caused by def’s negligenceo They should be liable; this reaction was reasonably foreseeableo If the subsequent event is a normal consequence of the original act, then the

original actor is liableo Policy: Could deter restaurants from situations where there COULD be a fire

(build-up of grease & rags). Just because you have state of the art fire protection doesn’t mean you can negligently create fire hazards.

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RATIO If an act is unforeseeable an is the cause of harm, it will be regarded as an intervening act and the defendant’s liability will end at the time that it occurred.

Smith v Inglis (1978, NSCA)KEY FACTS

o Man shocked when he touched his refrigerator and oven at the same timeo Part of the problem – 3rd prong was removed (combination of this & bad wiring)

ISSUE Is manufacturer liable for injuries sustained from their product when it has been tampered with, or does the tampering constitute an intervening act?

HELD Manufacturer liable.

RSNS o The third prong was intended as a safety feature to guard against similar shockso However, everyone in the business knew that third prongs were often cut offo Thus, the risk of this should’ve been reasonably foreseeable to the manufacturer

RATIO If the manufacturer is aware that consumers may improperly use a safety feature, they cannot rely on that safety feature to negate their liability & cannot call the improper use an intervening act.

Subsequent Injuries

Larsen v Wilson (2007, BCSC)KEY FACTS

o Plf was injured in a car accident & was in rehab for injurieso At rehab, attempted an elliptical machine, heard a “pop” in her knee, ongoing pain

ISSUE Is the original defendant liable for subsequent knee injury? HELD Yes.RSNS o NB: Injury from the MVA is separate from the knee injury (neither caused nor

contributed to it)o Another key fact: she was not negligent in the subsequent injury (was just

following instructions from the physiotherapist) – no evidence of contributory negligence

o Thus if the plaintiff acts unreasonably, then defendant is not liable for a subsequent injury (many cases distinguished on this point)

o She wouldn’t have been at the gym had it not been for the injuries from the MVAo Df argued the knee injury was unforeseeable/too remote for liability – that the

knee injury was an unrelated intervening evento Court relies on Athey – i.e. defendant’s negligence need not be the sole causeo Plf relies on Papp v Leclerc: Plf injured in MVA, suffers an unrelated injury in an

operation for his MVA injuries, and original defendant is liable for damages, including damages from the additional injury

Every tortfeasor must assume risks of complications, including medical error, if they cause injury to a person and put them in hospital/in need of surgery

Onus is on the df to prove that the chain of causation is broken NB: Court seems to be saying that medical negligence is foreseeable.

Weird.o Deibert v. Giddings: Similar to above – if a first tortfeasor causes injury which

requires medical attention, they assume the risk of medical error, provided the error is reasonably foreseeable/not too remote

This would be the case EVEN if the physio was negligent (which led to the

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subsequent injury)o Policy: Doctors are usually insured.. could this be driving these decisions?o The plf’s injury was a foreseeable consequence of the MVA; she undertook a

reasonable physio plan, conducted herself reasonable, and was not contributorily negligent. It isn’t unforeseeable that someone could be hurt in the course of a physio treatment, even if the injury isn’t related to the original injury.

RATIO A defendant who causes an injury which leads to medical treatment/physiotherapy etc is liable for any foreseeable subsequent injuries, even if not related to the original injury, as long as the plaintiff was not herself negligent.

Defences

After successfully establishing duty, breach, causation and proximate cause, the plaintiff’s claim still may not succeed if the df establishes a recognized defence.

Focus is on the plf’s own conduct, which may limit/exclude df’s liability Three recognized defences in negligence actions:

1. Contributory negligenceo If plf is partly responsible for his/her injurieso Partial defenceo Results in apportionment of damages between plf & df

2. Voluntarily assumption of risko Complete defenceo If plf voluntarily assumes risk, then df is absolved of all liabilityo Plf must agree to both physical risk of injury and legal risko Risk must have been both obvious and necessary to the activity in

questiono Agreement to assume risk may be express (e.g. waiver) or implied (e.g.

accepting a ride from a visibly intoxicated driver)o Based on moral theory that people are allowed to waive their rights,

and if they do they don’t deserve legal protection3. Illegality/ex turpi causa

o Complete defenceo Denies compensation to someone injured while involved in an illegal or

immoral conducto Based on public policyo Hall v Herbert: SCC severely restricted the availability of this defence in

torts (esp. in personal injury claims). The defence is only applicable:(i) To prevent a person from profiting from an illegal

conduct; or(ii) Where a person seeks damages in order to evade

criminal penalty.

Complete defences (voluntary assumption of risk/illegality):o These are very harsh (plf is denied compensation, despite df’s negligence)o Lack of judicial support for these defences – they rarely succeedo Courts want to deter negligent behaviour

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o Contributory negligence is more acceptable (allows courts to apportion liability among all wrongdoers, according to their degrees of fault)

o Courts more frequently will apply contributory negligence if a plaintiff had disregard for his/her own safety, or was involved in illegal conduct (more middle ground way to get around these complete defences)

Special Defendants

Manufacturers

Manufacturers have a duty to:a) manufacture products in a reasonable wayb) warn about any dangers/risks associated

Policy: Consumer protectiono Corrects information deficit (consumers have far less info about product than

manufacturer; this allows them to make informed choices Duty to warn: Don’t need to warn about obvious dangers

o Don’t need to warn about using product improperly (unless the product is commonly misused in this way! E.g. Smith v Inglis)

o This is a continuing duty (explains why products are sometimes recalled)o If danger is particularly acute, then there is a higher duty to warn (esp. for things

we consume or put in our bodies surgically – e.g. implants) Duty is clearly owed by manufacturers to consumers; most of these cases are about

standard of care and causation (i.e. did the failure to warn actually cause the injury?)o Questions of causation come down to subjective or modified objective testo Both of these are plaintiff-friendly, BUT generally it has been very hard for a plf

to prove they would not have heeded doctor’s advice and would have refused operation

Hollis v Dow Corning (1995, SCC)KEY FACTS

o Hollis had tubular breasts, was advised to get plastic surgeryo Dr. Birch failed to warn her of risks of rupture or complicationo NB: Implants can’t be bought by general public. She relied on Dr for advice.o Got implant, developed pain, one of them had ruptured – ongoing problemso Hollis eventually had to have a mastectomy on both breasts; subsequent

depressionISSUE Can the manufacturer be liable to a patient who suffers injury,

if they failed in their duty to warn either the physician or patient?

HELD Yes.

RSNS Duty to Warno Manufacturers have duty to their consumers, and an ongoing duty to warn (nature

and scope of this duty varies – must be detailed enough to warn of specific danger)o E.g. Lambert: flammable lacquer, pilot light in furnace exploded. General warnings

that the product was flammable were insufficiento Very high standard re: duty to warn for things ingested/put inside of body

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o Heavy onus on manufacturers to provide clear, complete info re: possible dangerso Analogy to doctrine of informed consent (risks involved in medical procedures)o Unequal positions (manufacturer has much more knowledge, consumer is

completely dependent on both company and doctor –informational disadvantage)o Danger that manufacturers promote their products while under-emphasizing riskso Summary: It is fair to hold medical manufacturers to a high standard (esp.

regarding bodily integrity) to provide clear, current & complete info re: possible dangers

Learned Intermediaryo General rule: Duty to warn is owed directly consumerso Rare exception: Duty can be satisfied via a “learned intermediary”o E.g. pharmaceutical companies can discharge duty by warning prescribing

physicianso Appropriate if a product is highly technical, intended to be used under supervision,

or if consumer realistically won’t receive a direct warning from manufacturero Duty only discharged when the intermediary’s knowledge approximates that of

the manufacturer (not if they fail to fully warn the intermediary of all inherent risks)

Applicationo Hollis never directly in contact w/ Dow, thus learned intermediary rule can applyo But Dow failed in its continuing duty to warn (knew of potential ruptures, but took

6 years) – particularly bad since this is something inside the human bodyCausationo Two sub-issues:

1. Would Hollis have consented to the operation even if she was fully warned?- Modified objective (Reibl) test or subjective test?- Danger of hindsight (i.e. plf would ALWAYS they wouldn’t have done

it)- Adopts subjective test, supported by strong policy reasons

(manufacturers are self-interested, might underemphasize risks, higher standard has deterrence value, must hold them to a very strict standard when warning consumers)

- It is thus fair to hold manufacturers to a stricter standard than doctors- Not an undue burden – they can easily discharge by disclosing- Says hindsight bias can be addressed by assessing credibility of the

plaintiff (not a very convincing argument)- Either way, satisfies on both a subjective or modified-objective test;

had she been warned, she wouldn’t have gone through with surgery2. Even if Dow had warned Dr. Birch properly, would he have passed on the info?

- Court rejects this – can’t turn the learned intermediary rule into a defence for manufacturers

- They can’t first fail to warn properly, and then avoid liability by saying that the doctor wouldn’t have warned anyway

- Can’t ask plaintiff to prove a hypothetical situation (if properly warned, would Dr have then warned her?) brought about by df’s negligence

- Strong policy reasons against this: might leave plf with no compensation despite Dr’s possible negligence & manufacturer’s actual negligence

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o Held: Dow failed to properly warn learned intermediary & is thus liable.DISSENT

o Emphasizes danger of using a subjective test. After a botched operation, a plaintiff will always assert that, had they known the risks, they wouldn’t have gone through with it – and this may be sincere – but it is unreliable!

o Puts a premium on hindsighto Prefers a modified objective testo Further, same test should be applied for the physician and the manufacturer –

can result in anomalies. Isn’t justified by requiring a stricter standard from manufacturers

RATIO Ultimate duty to warn consumers is always on the manufacturer. As a rare exception, they can discharge this by warning a learned intermediary, but this is only satisfied if intermediary’s knowledge approximates that of the manufacturer.

Manufacturer’s Duty to Warn: Summary

Duty exists when: (a) The product is in market for use by the general public(b) Dangerous when used for its intended purpose(c) Manufacturers know or ought to know of the danger(d) Public does not have the same awareness of the danger as the

manufacturer.Does NOT exist when: (e) There is no duty to warn if the danger is well-known, i.e. knives can

cut you.(f) No need to warn for danger from abuse of products UNLESS the

manufacturer knows or ought to know that abuse may reasonably be anticipated.

Timing (g) Duty does NOT end at the time of sale, but is continuing as new dangerous consequences come to light

Standard: Take reasonable steps to warnFactors (a) Nature of the product

(b) The marketing(c) The commercial practice(d) The habits of reasonable consumers(e) Statutory compliance may not be enough.

Standard Exception: The Learned Intermediary Rule

o Where the manufacturer’s product is highly technical, and the consumer has no chance to see or inspect the product before its use and instead relies on the judgment of a learned intermediary THEN:

o Standard may be satisfied by providing ALL the warnings to the L.I.o This does not require the ptf prove an extra step of causation: no

need to prove that the learned intermediary would have passed on this information.

Causation Ptf must prove that they would have read/complied with the warning had it been given.

Medical Professionals

Physicians have a duty to:a) treat with due care and skill

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b) warn of all material risks associated with the proposed treatment Exact nature/scope required will depend on circumstances of each case NB: Failure to inform does not vitiate consent & lead to an action in battery – rather, can

only bring a claim in negligence here (term 1 info)

Reibl v Hughes (1980, SCC)KEY FACTS

o Reibl went in for serious surgery on an arteryo Surgery was competently performed, but he suffered a massive stroke duringo Left half-paralyzed and impotent

ISSUE Did physician properly warn of all material risks in the surgery? HELD No.RSNS o Material risk: If a certain risk is a mere possibility (ordinarily not disclosed) but has

serious consequences (e.g. paralysis/death), then it is a material risk to be disclosed

o Possibility of stroke in this case was clearly a material riskCausationo Key facts: a) plf had a pension vesting soon (if he’d known of risks, likely would

have waited til his pension vested), and b) elective surgery – no emergencyo Problem with subjective test: hindsight biaso Problem with objective test: patient deference to physicians (i.e. if Dr

recommends surgery, few patients would actually refuse – thus causation very hard to prove)

o One puts a premium on hindsight; the other puts a premium on surgeon’s assessment of the need for surgery (few people would reasonably refuse this)

o Advocates modified objective test: would a reasonable person, in the plf’s position, informed of all material risks, have foregone treatment? (Includes considerations like the anticipation of a full pension, and the plaintiff’s particular concerns – as long as those concerns are themselves reasonable)

o Subjective test results in inevitable liability (plf will always say they wouldn’t have had surgery)

Heldo Plf was simply told he would be “better off to have the surgery than not to have it”

– NOT a sufficient disclosure (didn’t disclose 10% mortality rate, for e.g.)o Causation: plf was close to getting pension, no immediate emergency, mistakenly

thought surgery would relieve him of headacheso Modified objective test: someone in his position would not have had surgery

RATIO Physician must warn of all material risks. On causation, a modified objective test is preferable to see if failure to warn caused harm (responds to hindsight bias).

Videto v Kennedy (1981, Ont. CA)KEY FACTS

o Woman gets elective sterilization procedure; she doesn’t want anyone but husband to know

o When advised of risk, she is not informed of risk of bowel perforation (which, if it occurs, would necessitate another procedure leaving a scar)

o She is v. concerned about scars (if wearing a bikini, doesn’t want anyone to know)o Her bowel was perforated, she almost died, they saved her but left a huge scar

ISSUE Did the physician fail in his duty to disclose (esp. regarding possible scar?)

HELD No.

RSNS o Risk of bowel perforation was 2-3 in 1000; not standard medical practice to warn

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o SCC findings re: duty to disclose:1. Professional standards are a factor, but are not determinative2. What the surgeon knows is relevant to the patient (either from patient or patient’s

family) must be disclosed (if patient asks specific questions, etc). But this is what doctor objectively knew was relevant to the patient, not subjectively.

3. A risk which is a mere possibility need not be disclosed, unless it has serious consequences (e.g. paralysis/death), then it is a material risk & must be disclosed.

4. Explanation of the nature/gravity of the procedure must be given5. Subject to above, dangers from things like anesthetic or risks of infection need not

be disclosed.6. Scope of the duty of disclosure/possible breach depends on all the circumstances7. Emotional condition of plaintiff can negate duty to warn (e.g. if patient is

particularly apprehensive/reluctant, might justify physician withholding info) – BUT never been a successful argument on this point

8. Question of what is a material risk, and breach of duty of disclosure, is to be determined by the trier of fact

o Application:- No evidence that physician knew she was Catholic/worried about size

or visibility of scar- Objective standard: he neither knew nor ought to have known that

the risk of a larger scar was something relevant to her, thus he wasn’t guilty for failing to disclose that risk

- Possibility of a larger scar was not a material fact to be disclosed (not serious enough consequences)

RATIO If a physician knows something is of particular concern to the patient, then a physician could be liable for failing to disclose risks relating to that particular concern – BUT onus is on the patient to communicate special concerns.Suggestion that standard may be higher in an elective procedure than a necessary one.

Duty of Disclosure: Therapeutic v. Non-Therapeutic Medical Interventions

Should duty to disclose be different depending on whether patients have a choice? Certain courts have held that if the operation is cosmetic (i.e. non-therapeutic), the duty

to disclose is absolute (must disclose even minimal risks, not just material) The frequency of the risk becomes much less material when the operation is

unnecessary for medical welfare –thus if an operation is elective, all risks – even minimal ones – must be disclosed

Cases: Hankins v Papillon, White v Turner Issue of timing: What if plaintiff says they would have delayed (but not foregone) risky

medical treatment, if they had been properly warned? See case below.

Martin v Capital Health Authority (2007, ABQB)KEY FACTS

o Plf having elective surgery to remove benign tumour in his brain.o Dr tells him risk of hearing loss & “bleeding in the brain” – plf does NOT

understand this means strokeo Plf looking forward to early retirement, daughter’s wedding, likes to dance, travel

plans, etc. Explains to Dr his immediate concern is that his condition not worseno Plf opts for surgery – risk of stroke materializes (paralyzed, has trouble speaking,

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etc)ISSUE Did Dr discharge duty to warn of all material risks? HELD No.RSNS o Proper test re: duty to warn is in Reibl v Hughes

o NB: No allegation that surgery was negligently performed. Issue is informed consent

Disclosureo Everyone concedes it was an elective surgeryo Requirements: plf must prove, on BOP, that a) there was failure to properly inform

of material risks, and b) the failure caused the harm suffered (modified objective test)

o Martin clearly told Dr of upcoming wedding/travel plans, made it clear his primary goal was not having his condition deteriorate

o They understood the main risk to be hearing loss (nothing about a stroke)o Held: There WAS a discussion of risk, but it was incomplete/ineffective (didn’t use

language that properly conveyed possibility of a stroke, in layman’s terms). Danger of bleeding in the brain doesn’t properly convey possibility of a debilitating stroke. Thus they failed to properly inform, esp. related to Martin’s concerns about attending the wedding. Had he known, he would have postponed surgery – thus, failure to fully inform was the cause of his damage.

Temporal Aspect of Causationo Dr argues Martin would have eventually had the surgery, so no causal connectiono Guiding principle of causation is common sense, not scientific precisiono Plf proves, on a modified objective test, that a reasonable person in his position

would not have consented to surgery, if fully informed of riskso Court need not enter into speculation as to when Martin may have eventually had

the surgery; Martin has established causation by proving he wouldn’t have had surgery if fully informed, and is thus entitled to full recovery

o “It is not upon the Plaintiff to prove anything more than that he would not have had the operation at that particular time.” No need to prove when he would have actually had it, or that he would never have had it at all.

o Further, Court said if we only award damages for this speculative period, we’d be saying that the later stroke would happen, which we can’t know

o Thus, defendant liable for all of the costsRATIO When disclosing material risks, physicians must use language that the patient will

understand so they properly/fully appreciate all material risks.No reduction of damages to cover speculative “gap” period (i.e. period between the actual operation and the hypothetical date when the plf might have later agreed to undergo surgery).

Doctor’s Duty to Future Children

The “Born Alive” Rule: A foetus has no legal rights unless, and until, it is born alive Thus under Cdn law, a foetus is not a separate legal/judicial person from its mother Ancient rule, affirmed in Winnipeg Family & Child Services (1997, SCC) Supported by policy (indivisibility of mother/foetus, protection of mother’s autonomy) Only for certain limited purposes can the law recognize that a child’s existence began

before birth A “born alive” injured in utero can sue third party for injuries stemming from third

party’s negligence (e.g. car accident) –Duval v Seguin

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If child is still-born: Mother might get damages for pain & suffering, but no cause of action for the child

We also know a parent who breaches a duty of care to a living child isn’t immune from liability (child may sue)

Duval v Seguin (1972, Ont. HC)KEY FACTS

o Mother is 27 weeks pregnant, car accident, child born prematurelyo Child has significant health damages & sues defendant

ISSUE Was the unborn child a foreseeable plaintiff? HELD Yes.RSNS o Court held a fetus is foreseeable (i.e. it is foreseeable that some drivers on

highway might be pregnant women), and a duty thus owed to it, but on two conditions:1. Only if a duty was already owed to mother2. The child must be born alive

RATION Establishes test for third party liability with “born alive” children who were injured in utero.

Dobson v Dobson (1999, SCC)KEY FACTS

o Pregnant woman, drives negligently, plaintiff child was born alive and had several disabilities due to pre-natal injuries (accident caused by mother’s negligence).

ISSUE Can a “born alive” child sue mother for pre-natal injuries caused by mother’s negligence?

HELD No.

RSNS o “Friendly lawsuit” (brought by insurers, just to see if mother’s insurer had to pay)o Court said, there is no duty of care owed by a mother to her fetus.o Policy concerns: Violates privacy & autonomy rights of women

Could make a mother liable even in situations where she was alone & not affecting a third party (e.g. carrying laundry) – would infringe too much

Too difficult to articulate a standard of care (to behave as a “reasonable pregnant woman” would in the circumstances?)

Psychological/emotional effects (trauma of being sued in tort by child) – devastating impacts on relationship between mother and child

Would restrict pregnant women’s activities, autonomy & have adverse affect

Wouldn’t further primary purposes of tort law: compensation & deterrence

Main motivation here is financial support for children w/ special needs But availability of insurance isn’t a sufficient basis for imposing duty –

should be left to the legislature if they want compensation to be available here

Alberta actually did this – Maternal Tort Liability Act (allowed a born-alive child to sue mother for injuries from mother’s negligence, as long as it was from a motor vehicle accident, and compensation was limited to the maximum insurance available – very careful exception to the rule here)

RATIO There is no duty of care owed by a mother to her fetus, and she cannot be sued by her born-alive child who suffered prenatal injuries due to her negligence.

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Paxton v Ramji (2008, ONCA)KEY FACTS

o Accutane – teratogenic drug (i.e. may cause birth defects)o Many protocols attached due to risk of fetal abnormalityo Prescriptions regulated through PPP (Pregnancy Protection Program) to ENSURE

no pregnancies (two forms of birth control to be used simultaneously, two negative pregnancy tests must be obtained prior to start of therapy, etc)

o Dr Ramji prescribed Accutane to Dawn – her husband had vasectomy 4.5 yrs earlier

o Vasectomy fails, Dawn is pregnant, daughter born w/ abnormalities, sues doctoro Trial: Judge found duty was owed to future child, but Dr met standard of care.

ISSUE Does a doctor owe a tort law duty of care to a future child? (i.e. as-yet conceived fetuses)?

HELD No.

RSNS o Claim for “wrongful life”: Claims by child saying, if mother had been aware of risks, she would have chosen either not to conceive or to terminate the pregnancy

“If the Dr hadn’t been negligent, I would not have been born” This cause of action is NOT accepted in Canada How can you assess compensation? (Value of disabled existence versus

value of nonexistence?)o Claim for “wrongful birth”: Claim by parents saying negligence prevented them fro

terminating, or avoiding, conceiving. Parents usually seeking compensation associated with birth/care of a child Generally these claims are allowed (though courts are divided on what

damages are actually recoverable)o Court says – these are the wrong questions (how to categorize the claim –

wrongful life or wrongful death?). Instead, the question is whether a duty of care is owed.

o New duty analysis, per Anns test (NB: only arises if child is born alive)o EXCELLENT discussion of Anns test framework & relevant factors and policy

considso Canvasses Cdn jurisprudence & says this is a novel duty of care & no existing

category to analogize (gives three possible categories but says none are analogous: 1) no duty owed by mother to foetus, 2) duty owed by driver of a car to woman’s future child, 3) duty owed by doctor to non-patient third party for harm arising out of doctor’s treatment of a patient). Unique policy considerations at play here.

Duty of Care Analysiso Reasonable foreseeability: Yes – harm to fetus while in utero from exposure to

Accutane is clearly foreseeable.o Proximity: Stage 1 policy considerations negate a finding of proximity here

Conflicting duties (Syl Apps) – impossible conflict for doctor between best interest of future child & best interests of patient

Undesirable chilling effect on physicians (trying to avoid risks of lawsuits) Doctors might treat women in a way that deprives them of autonomy &

freedom of choice, if doctor also owes a duty to unconceived fetuses Issue of directness – doctor’s relationship with future child is necessarily

indirect – relationship is “mediated” through the patient Doctors must respect women as decision-makers (they don’t need to

make decisions on behalf of their future children & they owe no such duty)

Doctor’s direct duty is to the woman as the patient, not the fetus. This

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prevents the requisite proximity between doctor and future childo Residual policy concerns:

Recognizing duty to fetus would adversely affect doctor’s existing duty to the female patient – must act in her best interests, not fetus’s

Would affect woman’s right to consult w/ a doctor & choose to aborto Problems if duty is not recognized:

Children born w/ disabilities will not be able to get compensation for damage suffered

However, remedy is best left for Parliament, NOT courtso Standard of care:

If a dr owes no duty to a future child in this case, how do we ensure doctor meets standard of care when prescribing a teratogenic drug to a woman of childbearing capacity?1. Dr owes duty to patient to properly prescribe Accutane – will be liable

to mother for damages she suffers if she gives birth do a disabled child

2. There are professional/ethical responsibilities and obligations for doctors (regulated by professional bodies) – safeguards

RATIO A doctor does not owe a duty of care to an as-yet conceived fetus. This would create impossible conflicting duties (to mother and to unborn child), and the doctor-fetus relationship lacks the required directness (mediated through mother).Thus, no duty of care owed to a future child if the alleged negligence by a health care provider took place prior to conception.

Liebig v Guelph General Hospital (2010, ONCA)KEY FACTS

o Kevin suffered damages before and during the delivery process – sues in negligence

o Dfs assert they owed no duty of care to Kevin in relation to his deliveryISSUE Do hospitals/doctors owe a duty of care to infants in the

delivery process?HELD Yes.

RSNS o Long line of labour/delivery cases – well established that an infant, once born alive, may sue for damages due to negligence of dr/nurses during labor & delivery

o Follow general tort principle that a child may sue in tort for injury caused before birth, even though a) legal status to sue only arises once child is actually born alive and b) damages are assessed only as at the date of birth

o Dfs argue that Paxton changed the law & that they no longer owe a duty of care to born-alive children who sustain injuries in utero

o Court firmly rejects this. Paxton dealt with duties to future child (i.e. not yet conceived). Law is not changed in the established category of labor/delivery cases

o Based on the established principle that a child born alive may sue in tort for injury caused before birth

RATIO Paxton v Ramji did NOT change the law in the duty owed by physicians to born-alive children in labor and delivery cases.

NB: These last cases are all about a lack of social support for people with disabilities. How fair is our fault-based system in this regard?

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Government

Governments were historically immune from liability (could only sue with their permission – rarely happened)

Today, Crown Proceedings Act gives a right to sue Crown in tort (vicariously or directly) Note: Municipalities were never immune at common law from suit (but must look to

legislation – creates some exemptions/immunities, or very short limitation periods) Today, they can be liable for operational decisions (i.e. once they decide to do

something, the manner in which they can be attacked) but not for policy decisionso Example: deciding to fund airports and not inspect lighthouses instead = policy

decision, thus no liability. BUT, inspecting lighthouses and simply doing it poorly = operational decision, and therefore possible liability

o Court recognizes in these cases that govts balance numerous socioeconomic constraints, and we can’t attack those choices. In theory, if citizens don’t like those choices, they can vote the government out

o Arguably no longer a useful distinction (used less today, arguably unworkable) Problems with suing the government:

1. Procedural: Legislation might have special conditions to be complied witho e.g. limitation rules, must give notice, specific statutes create immunity

2. Substantive: Numerous reasons why courts are reluctant to allow people to sue for political decisions made by govto Govt must balance many competing interests, budget constraints, etc –

inevitably some decisions will hurt someone’s private interestso Courts reluctant to second-guess these decisionso This is why courts allow operational but not policy decisionso Further, floodgates concerns (would prevent govt from being able to

properly exercise their duties if they were afraid of being sued) Nevertheless, courts do allow govt liability in some circumstances Duty of care

o Sometimes the duty is in the statute itself, but rarelyo Courts use the regular Anns test in this case (normal duty of care analysis).

Often fails at the policy considerations (either stage 1 or stage 2)o Operational/policy distinction can be explored at stage 2 – broader policy

concerns (only after the initial hurdle of proximity at stage 1 is met)o Often, policy/operational distinction not even explored anymore

Just v BC (1989, SCC)KEY FACTS

o Plf/daughter driving up to Whistler, narrow highway, boulder fell & killed daughtero Dept of Highways had a system for inspection/remedial work on rock slopeso They would make visual inspections from highway, and only climb up/look closer if

evidence of instabilityISSUE Were the govt’s actions (i.e. system of inspection) in this

regard policy, or operational?HELD Operational

. Sent back for new trial

RSNS o BCCA held actions were policy, thus immune from liability: SCC reversed

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o Considered applicable legislation – clearly imposed obligation to maintain highwayso While today’s complex world of increasing legislation means govt can’t be

completely immune from liability, we must remember the Crown is not a person and must be able to govern and make true policy decisions w/out being subject to tort liability

o Must then draw a line between policy and operational decisionso Policy decisions: Based on social, political or economic factors. Courts cannot be

subject to liability based on their decisions to act (or not act) based on financial, economic, social, or political factors or constraints.

o Operational decisions: The implementation of policy decisions. Often based on administrative direction, expert or professional opinion, technical standards or general standards of care.

o NB: Artificial distinction? Basically, Court is saying if we decide for budgetary reasons that we can’t do something, it is a policy decision and immune. But if we do decide to do something, then its implementation is subject to scrutiny. Weird distinction.

o Higher level versus lower level authority decisions – policy decisions could be made at either level (but usually made at higher levels)

o Embarks on normal duty of care analysis, and says may be negative by policy at first stage if 1) exemption is provided for in the statute, or 2) if it is a pure policy decision

o Don’t confuse duty of care with standard of care (standard for govt must be different than individuals – different constraints for govt, including budgetary limits, personnel/equipment available, etc)

o Held: They decided to inspect the highway (policy decision). But the manner and quality of inspection was clearly part of the operational aspect, thus not immune.

Directed a new trial on the basis that this operational decision was not immune. Duty of care would need to be established, and then standard (Bearing in mind the different factors weighed when assessing the standard required of a govt actor – budgetary restraints, availability of personnel, etc)

RATIO Clear articulation of the operational/policy decision. Generally, tort liability will apply to govt the same way as to individuals, and the duty analysis (per Anns) will be applied in the same way.

NB: Kodar says this policy/operational distinction is unworkable.

Brown v BC (1994, SCC)KEY FACTS

o Appellant skidded on icy patch of highway and went over embankmento 3 other accidents in same area that morningo RCMP had requested a sand truck at 7:25 am, but Highways Department was on

summer schedule and didn’t start til 8:30 amRSNS o Held that the decision to maintain a summer schedule was a policy decision

(based on matters of finance, personnel, and negotiation w/ unions)

After Just, people worried that more govt action would be open to tort liability, but the cases went all over the place

Cooper (2001) – seen as court trying to bring some control over the expansion of tort recovery

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Some commentators suggest it is harder to find a new duty owed by the govt because courts look to private law duty in the language of the statute

Residual policy concerns at stage 2 make it difficult for govt DOC to be established Police: Held in the 1970s that police owe both a statutory and CL duty to individuals

Hill v Hamilton Police Services Board (2007, SCC)KEY FACTS

o Mr. Hill was investigated by police, arrested, tried, wrongfully convicted, and eventually acquitted after spending 20 months in jail

o During his investigation, among other things, they released his picture to the media, put him in a photo lineup with 11 white men (he was Aboriginal)

o After acquittal, he brought civil claim in negligence regarding investigation processISSUE Do police owe a private law duty to suspects in the context of

the investigation process?HELD Yes.

Stage One

Court embarked on new duty analysis (is careful to limit findings – this decision deals only with relationship b/w police and suspect being investigated, not a victim, etc – ensures tort law develops incrementally and maintains certainty)Foreseeability:o Clearly will cause harm to the suspect if the police are negligent in their

investigationProximity:o Once cops had singled out and investigated this suspect, clearly in a close and

direct relationshipo Critical interests engaged: freedom, liberty, reputation

Policy:o The other remedies: tort of false imprisonment, arrest or malicious prosecution

don’t cover a situation like this, so to deny duty would leave ptf with no remedyo Also of public interest: failing to uphold reasonable standards may cause

wrongful convictionso Recognizing a duty here enhances Charter valueso There is no conflict with this duty and the duty to investigate a crime (mandated

by statute) b/c that duty is naturally constrained by law, so can be constrained by tort law as well.

o This doesn’t create a duty for cops to “leave people alone”; simply ensures that they have a duty to take reasonable care in their investigation of a suspect

Prima Facie Duty EstablishedStage Two

o Real potential for negative consequences must exist to negate a prima facie duty (can’t simply be speculative)

o Goes through police counter-arguments (re: residual policy concerns) and rejects them all as being too speculative

o Chilling effect: Policy simply need to act reasonably. If this makes them act more cautiously/reasonably, this isn’t a bad thing! (Plus, police are indemnified)

o Quasi-judicial nature: Police are just gathering evidence, not making decisions about guilt or innocence

o Discretion: Professionals all over the place make discretionary decisions and can be held liable – same should apply to police (the standard of care will determine whether they exercised their discretion reasonably – this doesn’t factor into DOC)

o Floodgates: Plaintiffs are particularized, not indeterminate (i.e. suspects, and must show they were injured by investigation – another limiting factor)

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o Risk of unjust recovery: There are existing safeguards for this (requirement of plaintiffs to prove every element of their case, etc).

o None of these concerns is sufficient to negate the duty.o Duty should be owed for ‘operational’ government decisions but not ‘policy’

police have mandate to investigate and use discretion when investigating people and thus this is operational all about how they should do something, not if they should do it.

Fullowka v Pinkerton’s (2010, SCC)FACTS o Violent strike in a mine in NWT, survivors sue govt for failing to close the mineISSUE Was there a duty of care owed by the mining safety regulators

and the miners?HELD Yes

RSNS o Stage 1 - Reasonable foreseeability made outo Stage 1 - Proximity: Look to statuteo Miners = defined group, inspectors had close/direct/personal dealings with them

(whereas in Cooper, was a large undefined group, no close personal dealings)o Prima facie duty at stage 1o Stage 2: Df raised specter of indeterminate liability, conflicting duties – would

holding a mine inspector responsible for the criminal acts of others expose him to indeterminate liability? Would it conflict with their duty to regulate in the public interest? Court said no.

o No discussion of policy/operational!o However, standard in this care was met b/ government relied on competent, good

faith, legal advice from lawyers who said they didn’t have authority to close the mine – so this was reasonable in the circumstances

BC v Imperial Tobacco (2011, SCC)KEY FACTS

o Two claims against the govt:1) Smokers suing Health Canada2) Action brought by tobacco companies who are being sued by smokerso Smokers claim govt/tobacco companies negligently promoted low-tar

cigarettesISSUE Does govt owe a duty of care to smokers or to tobacco

companies?HELD No

RSNS o Insufficient proximity to owe duty to smokerso Sufficient proximity to owe duty to tobacco companies, but negated because this

was a policy decision (based on economic/social/policy factors)o You can’t attack a policy decision unless it was made in bad faith or was irrationalo But could arguably be operational – thus, good thing this distinction rarely comes

up

Special Harm

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Psychiatric Harm

Psychiatric harm can arise in three situations:1) Plf has physical injury caused by negligence plus psychiatric injury2) Plf has suffered psychiatric injury only (e.g. Mustapha)3) Plf has psychiatric injury because of their connection to a third party injured by df’s

negligence (e.g. Devji)

1st category: Not problematic (courts usually compensate for this plus physical harm) 2nd/3rd categories: More controversial – courts reluctant to recognize liability for pure

psychiatric harm Historically, psychiatric harm construed very narrowly, limited recovery

o Just “get over it”o Not as worthy of compensationo Hard to prove, possibility of fraudo Perceived floodgates problem

Today, more broad (medical advances – we see true effects of psychiatric harm) Courts have awarded damages from a shock to the system Courts usually don’t award damages for ordinary grief, sorrow or loss Limiting factor: must be a recognized psychiatric illness Limiting factor: must be “reasonably foreseeable in a person of ordinary fortitude”

o Violates thin-skulled ruleo No recovery for specific vulnerability/predisposition, unless defendant knew

about thiso But thin-skulled rule might still apply for damages (i.e. as long as person of

“ordinary fortitude” would have also suffered psych. harm, then if specific plaintiff suffered even more due to particular vulnerability, can recover for this)

Mustapha v Culligan (2008, SCC)KEY FACTS

o Plf discovers fly in unopened water bottle – cleanliness very important in his house

o Phobia, develops anxiety, resulting depressionISSUE Can Mustapha recover damages? HELD No. Too remote.RSNS o Not reasonably foreseeable for a person of “ordinary fortitude” – his reaction was

particularly severe/unusualo Good discussion of psychiatric harm: Must be serious, prolonged, more than usual

negative emotions/anxiety we all face in life. High threshold.o Went through elements of negligence:

1. Duty of care clearly owed (Donoghue)2. Breached standard (allowing flies into water to be consumed)3. Damages – pure psychiatric harm – high threshold (more than upset, disgust,

anxiety, etc – must be serious and prolonged). Made out here (plf developed debilitating psychiatric illness)

4. Causation – factual causation clearly made out. Problem is legal causation – harm was too remote

- Based on probability, i.e. a “real risk”- Remoteness inquiry is based on an objective assessment of the

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plaintiff, i.e. a person of “ordinary fortitude” (thin-skull only applies to damages)

- Df didn’t know of plf’s particular susceptibilityRATIO Psychiatric harm must be objectively assessed against a person of “ordinary

fortitude”. Particular susceptibilities are only relevant if the defendant actually knew of them (otherwise, the thin-skulled rule only applies when assessing damages, not causation)

Devji v Burnaby (1999, BCCA)KEY FACTS

o Example of pure psychiatric harm arising from a plf’s connection to a third partyo Mother was killed, cop told family, they went to hospital to ID the bodyo Understandably upset, and now they all claim psychiatric harm

ISSUE Can the Devji’s recover damages for psychiatric harm? HELD No.RSNS o White: UK case, established circumstances of recovery for psych. harm:

1. Plf must have close ties of love/affection to victim2. Plf must have been preset at the accident or in the immediate aftermath3. Psych. injury must have been caused from direct reaction to the accident or its

immediate aftermath (not hearing about it from someone else)o There must be something shocking about the accident, you must see it yourself,

must have a relationship with victim (unlike if you just see a stranger in a crash)o Test: “Foreseeability of injury by shock” – UK has adopted control mechanismso Proximity: locational, temporal, relational (locational/temporal related to the

negligent act; relational to the third party)o Immediate aftermath: Attend on the scene after, or presumably in the hospitalo Rhodes: Woman’s son killed in a train crash, run-around trying to find memorial

service, chronic depression. However, her shock was not reasonably foreseeable – there would need to be something alarming, horrifying, shocking – more than ordinary sorrow or grief

She wasn’t actually at the scene or the immediate aftermath Must be some exposure to plf’s negligent act (not just the consequences)

o Alcock: 95 people crushed to death at sold-out soccer match Those at the stadium could recover for psychiatric harm, but not those

who saw it unfold on TV (no locational proximity, plus they didn’t actually see loved ones killed on TV – just knew which section they were in)

o Held: Insufficient shock factor, therefore their psychiatric harm was not reasonably foreseeable. They knew she had died and were just going to ID the body – very sad, but still within the scope of ordinary grief/suffering

o Policy: Accidents happen, people must ID bodies – floodgates concern if they allowed recovery here

o NB: Say result might have been different if she had been horribly mutilated or if she had died in the presence of her family.

RATIO Psychiatric harm must be more than ordinary grief and sorrow. To recover in terms of your connection to a third party, there must be relational, temporal and locational proximity. There must be some sort of a shock element (e.g. viewing a horrific accident). “Immediate aftermath” arguably includes a hospital.

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Pure Economic Loss

Consequential economic loss: Financial loss that is causally connected to physical damage to someone’s person/property (e.g. injured employee takes time off work, loses wages – no problem recovering damages for this)

Pure economic loss: Economic loss only (not tied to physical/property damage). Courts uneasy here; negligence law is designed to protect physical/property damage.

General rule: no recovery for pure economic loss Recognized categories (these are exceptions to the rule – Winnipeg Condo):

1. Independent liability of statutory public authorities2. Negligent misrepresentation (Hedley Byrne, Hercules)3. Negligent performance of a service (e.g. lawyer negligently prepares a will)4. Negligent supply of shoddy goods/structures5. Relational economic loss

Policy concerns: Indeterminate liability

o Lots of ripple effects on economic interests Blurring between tort/contract boundaries

o Business relationships (parties should protect themselves in contract, not turn to tort law for recovery)

Insurance implications o Significant insurance implications if courts start to recognize liability for pure

economic loss Market objections

o Free market economy – it is permissible to inflict pure economic loss on business rivals

Category #1: Negligent Misrepresentation

Hedley Byrne v Heller (1964, Eng. HL)KEY FACTS

o Foundation case on pure economic loss.o This was the first time the court allowed recovery for economic loss (prior to this,

recovery for a negligent statement was only allowed if they were a) in a contractual relationship, b) a fiduciary, or c) the statement was fraudulent)

o Plaintiff (HB) had contract with Easipower, became concerned about their ability to pay, asked the defendant bank (Heller) about Easipower’s financial situation

o Heller said Easipower is financially solid, but nobody should rely on their lettero Easipower subsequently went under, HB lost $17,000

ISSUE Can HB recover from Heller for the negligent statements in the letter regarding Easipower’s credit worthiness?

HELD No

RSNS o HB would have been liable except for the disclaimer (so, recovery for pure economic loss recognized here, though not awarded)

o Careful to limit their findings (fear of indeterminate liability)o Will not apply to social situations (i.e. giving casual opinion in an informal setting)o Usually, a negligent misrepresentation won’t result in a cause of action – requires

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something more – a special relationship between parties where one has undertaken some responsibility (here, they were specifically asked for information)

o There must be proximity, involving reasonable reliance by the plaintiff on the defendant’s advice/opinion

o Thus, establishes requirements for duty to exist in the context of a negligent misrepresentation1. Reasonably foreseeable that plf would rely on representation2. Plf’s reliance on representation must itself be reasonable

o Here, the disclaimer made reliance unreasonable (they said not to rely on it and thus didn’t undertake any special responsibility)

RATIO If one party reasonably relies on the other party, and the other party knows, or ought to know, that the information it gives is being relied on, then recovery may be had. Social situations are generally excluded. Key here is reasonable reliance.

Queen v Cognos (1993, SCC)RATIO Court adopted Hedley Byrne into Canadian law. Set out five requirements for a

successful claim in negligent misrepresentation (see below).RSNS 1. Duty based on special relationship between the parties;

2. A statement that is untrue, inaccurate or misleading;3. The representor was negligent (not fraudulent) in making the

representation;4. The representee reasonably relied on it; and5. Reliance resulted in economic loss.

NB: First is a duty (special relationship/reasonable reliance), second and third are the standard, fourth is causation, and fifth is whether there are actually damages.

Note: Reliance is a critical factor in determining liability. See Hercules.

Hercules Management v Ernst & Young (1997, SCC)KEY FACTS

o Accountants negligently prepare audits of a company, which shareholders rely upon to make their investments.

o Company then goes into receivership and shareholders lose money.o Shareholders claim economic loss, EY argues no duty owed to shareholders

ISSUE Did the accountants owe the shareholders a duty of care? HELD No.RSNS o Uses Anns test to do a new duty analysis (same as any other new duty analysis, but

with different considerations for pure economic loss)Stage 1o Proximity: This arises in the context of negligent misrepresentation thru reliance

by the plaintiff on the defendant’s words (i.e. is the df somehow responsible to the plf?)

o Reasonable foreseeability: Df must reasonably foresee plf’s reliance on his wordsThus, prima facie duty arises if:a) the df ought reasonably to foresee that the plf will rely on his representation,

&b) the plf’s reliance is reasonable.

Looking to reliance (and not just reasonable foreseeability) In cases of physical injury, reasonable foreseeability is enough (the law presumes it is reasonable that we rely on other people not to hurt us)

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In cases of negligent misrepresentation, reasonable reliance is not presumed and must be proved (not always reasonable for us to rely on the statements of others). Therefore, foreseeability plus reasonable reliance is needed to make out a prima facie DOCStage 2o Complex modern industry, growth of corporations = many people now rely on

audit reports for many reasons = main policy concern is indeterminate liabilityo Duty would create expenses (insurance premiums, lawyers to draft excl. clauses,

lost opportunity cost/time to generate reports) = costs don’t outweigh the benefitso These policy concerns negate the prima facie DOC of auditors. Exception:

a) If df knows the ID of the plf (or class of plaintiffs), andb) If df’s statements are used for the specific transaction for which they were

made If both met, then duty will exist (because indeterminate liability won’t be an issue)Five indicia of reasonable reliance (Prof. Feldthusen – not a strict test)

1. Df had direct/indirect financial interest in the transaction concerned2. Df was a professional or possessed special skill, judgment, knowledge3. Advice/info was given in the course of the df’s business4. Advice/info was given deliberately (not on a social occasion)5. Advice/info was given in response to a specific enquiry or request

Held First 4 indicia of reasonable reliance met, thus prima facie duty owed ID of plaintiffs known, BUT purpose of the audit reports was to oversee

management, not to guide investments – thus DOC negated by policy concerns over indeterminate liability

o Criticisms: We rely on auditors to keep people honest. Would recovery here have good deterrent value? Is this too protective of accountants? Some argue duty here would be an incentive to auditors and thus have good econ/social benefits

o REMEMBER: This was pre-Cooper. If it were post-Cooper, the discussion around proximity and “special relationships” would likely be subsumed in the Anns test

RATIO Sets out 5 indicia of reasonable reliance.General rule: no duty owed for pure economic loss from negligent misrepresentation. Exception: if indeterminate liability isn’t an issue (depends on ID of plaintiffs and purpose for which the statement was used).

Note: What if the person suffering the loss from negligent misrepresentation is not the person to whom the misrepresentation was made? See Haskett.

Haskett v Equifax (2003, Ont. CA)KEY FACTS

o Haskett went bankrupt thu no fault of his own (bad economy). Declared bankruptcy, at the end was discharged & all pre-bankruptcy debts should have disappeared

o So he was discharged from bankruptcy, all old debts are gone, he’s earning a good income, yet he kept being refused credit – because old debts still on his credit report

o Problem is that agencies made a negligent misrepresentation about him to someone else (previous cases only allowed where the plf was the one who had relied on the statements – here, he wasn’t himself relying on them)

ISSUE Were the credit reporting agencies liable for negligent HELD Yes

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misrepresentation?RSNS o Analogous duty: Yes – analogous to negligent misrepresentation. Doesn’t matter if

the injured party didn’t actually rely on the statement – dfs know third parties will rely on the statements in a way that will affect the plf (basically extends reliance to the plf in this case)

o New duty: Yes. Indeterminate liability not an issue (credit report is individual, made at one point in time, for a specific credit request – deals with unlimited class, time and amount concerns)

o Credit is v. imp. in today’s world – consumer reliance on credit reports is reasonable

o Specific legislation exists to govern credit reporting agencies (ensure fair treatment)

o Existing legal duties not sufficient (don’t provide a remedy in damages to the plf, statutory procedures are difficult/expensive to access, etc)

RATIO A claim in negligent misrepresentation can succeed even if the plaintiff isn’t the person to whom the negligent statements were made.

Category #2: Negligent Misrepresentation & Negligent Provision of a Service

Negligent provision of a service usually comes up in professional services (e.g. lawyer negligently preparing a will, disappointed plaintiff doesn’t receive $ and sues)

Wilhelm v Hickson (2000, SKCA)KEY FACTS

o Plf stood to benefit from will between the defendant (lawyer) and a third partyo Plf suffered economic loss since will was not drawn up properlyo Biggest issue here is privity of K

ISSUE Is a lawyer who negligently draws up a will liable to the intended beneficiary?

HELD Yes.

RSNS o Uses reasoning of Lord Goff in White v Joneso Concerns:

Plf expected to benefit but didn’t actually have a right to benefit Privity of contract (between testator and lawyer, not beneficiary) Indeterminate liability Testator doesn’t owe a duty to the beneficiary (no duty to give a gift) –

illogical to now impose a duty on the lawyer? Expanded estate argument: frustrated plf sues/receives compensation,

original estate negligently went somewhere else, now it is expanded Deterrence (we want people to properly prepare wills)

o But court rejects concerns: Indeterminate liability not an issue: class of liability is limited (lawyer

knows who the beneficiary is) & amount of liability is known (controlled by estate)

Testator autonomy (mistakes should be rectified) Public policy: lawyers should prepare wills properly Even if no actual reliance, the plf’s well-being is still dependent on the

proper discharge of lawyer’s duty, plus lawyer has assumed responsibility Must allow a remedy for a disappointed beneficiary when lawyer messed

up

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Held: Lawyers owe a duty for negligent provision of services (STEP ONE: 1) Foreseeability made out, since lawyers know they are in control of beneficiary’s wellbeing, 2) lawyers assume responsibility voluntarily, so reliance by the beneficiary is reasonable. STEP TWO: Not negated by residual policy concerns).

RATIO If there are no indeterminacy concerns, and good policy reasons in support, then a court will allow a third party adversely affected by the negligent performance of a contract to sue.

Category #3: Negligent Supply of Shoddy/Dangerous Products

Issues here also turn on privity of K (i.e. subsequent purchaser of a structure) If a consumer incurs significant losses rendering a defective product safe, should the

manufacturer be liable? Questions coming out of Winnipeg Condo :

o La Forest emphasizes this in the context of housing – should it apply elsewhere?o La Forest develops the “real and substantial danger” test – what about

products that are merely shoddy, not dangerous? Junior Brooks: Earlier Scottish case recognized liability in negligence for economic losses

in relation to shoddy goods (was later overruled, but was positively cited in Kamloops)

Winnipeg Condo Corp v Bird Construction (1995, SCC)KEY FACTS

o Exterior cladding falls off. WC spends $1.5 million fixing whole claddingo Bird, the original contractor, was at fault – but WC wasn’t original purchaser, thus

no privity of contractISSUE Can a 3P sue for cost of repairing dangerous structural defects? HELD Yes.RSNS o NB: Case preceded Cooper (they are not doing the Anns test here).

o Court rejected characterizing the claim as property damage (“complex structure theory”), but did allow the claim as pure economic loss (4th category – shoddy goods)

o Why did the court allow recovery? Public policy = protect against injury in the community to

persons/property Protect both bodily integrity and property interests to every inhabitant

during the “useful life of the building” Reasonably foreseeable that if a contractor negligently constructs a

building, it might hurt other people or property Encourage socially responsible behavior (discourage reckless or hazardous

behavior, reward parties who move quickly to fix dangerous defects) Limited to a “real and substantial danger” (but leaves door open to

shoddy goods, where the issue would be quality of work/fitness for purpose)

Tort v. K: Contractors owe a duty in tort to take reasonable care when putting a structure into the community – this is separate from (and extends beyond) their duty in contract to the original property owner

Contract duties do not eclipse duties owed in tort Otherwise no remedy for subsequent purchasers (puts them @

risk) The presence of a contract doesn’t bar the right to sue in tort

o Courts recognize prima facie duty. Dfs raise policy concerns, which Court rejects:

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Just leave it: No. Not like a defective article that can be discarded. Privity of K: No. Tort duty runs independently of contract here – duty to

construct buildings free of dangerous defects is not dependent on the contract. Can’t use privity of K as a shield against tort liability.

Indeterminate liability: No. Class limited to people in the building and subsequent purchasers, amount limited to reasonable cost of repairs, time limited to the useful life of the building.

Caveat emptor: No. This is based on an outdated understanding – used to be that the purchaser was in the best position to inspect/bear the risk of latent defects, but that is no longer the case (plus, in this case, they DID inspect, and half the freaking cladding fell off anyway!)

o Overall: strong public policy reasons to recognize this duty as a) an incentive for people to construct buildings safely and b) to ensure they are fixed before someone is actually hurt. No good policy reasons to negate this.

RATIO Test: if someone negligently constructs something, and that negligence poses a real and substantial danger to persons or other property, then the original contractor will be liable for the reasonable costs of repairCourt specifically leaves the door open for non-dangerous (merely shoddy) defects.

Hasegawa: Tries (and fails) to extend Winnipeg Condo to shoddy goods situations where the goods are not ‘dangerous’

Things to think about: o What qualifies as a "real and substantial" danger? Leaky roof, cracked foundations?o What about shoddily constructed buildings that people live in? o NB: 4th category is called "negligent supply of shoddy goods/structures" - but these

categories were jurisdictions all over the place - in Canada, the SCC has said that this category is CONFINED to dangerous defects only (not just shoddy)

Hasegawa v Pepsi (2002, BCCA)KEY FACTS

o Japanese company buys bottled water, mold found in 3%o Can’t sell in Japan (but due to govt requirements, not because the water is

dangerous) so they try to sell elsewhere (opportunistic)ISSUE Can recovery for pure economic loss from shoddy good/service

apply to non-dangerous goods?HELD No.

RSNS o Plf tries to characterize this as “negligent services” (3rd category of pure econ. loss – thus no need to prove it was dangerous) but court rejects this arg

o Hasegawa could’ve gotten contractual protection to ensure quality, but didn’t. Judge held that they should have addressed risk allocation in the contract – can’t now turn to tort law because that didn’t work out for them

o Conducts Anns test. Proximity for “negligent supply of shoddy goods” requires a real & substantial danger – not met here

o Thus, in Anns test, fails on proximity portion of the duty analysiso Plf argued there should be a new category in relation to food products, but court

rejected – the bottled water did not impose a health hazard to humans (plus, plf attempted to sell the water to other parties! Clearly not a health hazard).

RATIO When analyzing a new duty in negligent supply of shoddy goods, for there to be the requisite proximity the shoddy goods must pose a “real and substantial danger” (per Winnipeg Condo).

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Category #4: Relational Economic Loss and New Duties Relating to Economic Loss

Relational economic loss: allows a party to recover pure economic loss suffered as a result of property damage/personal injury to a third party (no actual K required)

o Allowed only in special circumstances (though categories not closed)o Per Bow Valley Huskey (1997, SCC) allowed where:

1. Claimant has possessory/proprietary interest in damaged property2. General average cases (doctrine in maritime law re liability of cargo owners)3. Cases where relationship between claimant/property owner constitutes a

joint venture E.g. Norsk: Barge owner is negligent, damages bridge. Bridge owned by Public Works,

who is allowed to recover loss due to property damage. But CN rails regularly uses the bridge for its trains, and they are allowed to recover pure economic loss because of their relationship to the bridge owner. Thus arises out of a relationship (not necessarily contractual) with the third party.

Key component: Property/physical damage is required in order to recover

Design Services v Canada (2008, SCC)KEY FACTS

o Tendering process: Public Works accepts the tender of Westeinde, a non-compliant bidder

o Design Services was the sub-contractor who would’ve been hired had Olympic been given the contract as the compliant bidder

o Olympic settled & recovered its losses for breach of Ko DS tries to sue PW for their pure economic loss, since they have no privity of K

ISSUE Does an owner who puts out a call for tenders owe a duty of care in tort to the subcontractor of a bidder?

HELD No.

RSNS o Note: Govt actor not problematic in this context (was simply a private actoro DS argued 1) their situation is analogous to relational economic loss (i.e. they

suffered loss in relation to Olympic), or 2) that a new duty should be recognizedo Court says it is not analogous to relational economic loss since there is no physical

or property damageo Turns instead to a new duty analysis:o Stage 1: Clearly reasonable foreseeability that awarding a K to a non-compliant

bidder would cause economic loss to subcontractors of the bid that should’ve won Proximity – looks to expectations, representations, reliance & other interests DS spent time/energy preparing the bid – so clearly relied on PW to treat fairly Process was formal, led them to expect PW to treat fairly/fair selection process However: they could have protected themselves in K, via a joint venture.

Should have used this contractual remedy. Tort law is not an “after-the-fact” insurer. We won’t allow the claim simply b/c you failed to properly protect yourself in K

Thus, policy negates proximity – no prima facie duty owedo Stage 2: Even if had been made out at stage 1, would’ve failed here due to policy

concerns around indeterminate liability Not all subcontractors are included in the wording of the bid – could seep

down through lower levels of companies to subsidiaries, etc Tendering is a common process – would result in huge increase in tort

litigation What about suppliers of contractors and subcontractors – would this duty

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extend down to them? Would make for a huge indeterminate class

RATIO Relational economic loss requires physical injury or property damage.Parties that fail to arrange their affairs/properly protect themselves in a contract can’t then turn to tort law as an “after-the-fact” insurer.

Extras

Negligence broken down into 6 elements:1. Duty of care (must be a duty owed)2. Unreasonable risk (conduct below the standard of care)3. Causal connection (between negligent conduct and injury)4. Remoteness (injury can't be too remote)5. Damages (must be proof of damage)6. Defences (can't be a defence that limits the liability)

Proximity is a policy question. You must consider things about the nature of the relationship between parties (property interests? Reliance?) and at stage 2, the broader implications: (is there an equivalent effective remedy? Institutional roles? Think about the conflicting duties in Cooper, for example)

Approaches for a big fact pattern:

DutyFirst question: Has this duty been previously recognized?Second question: If no, is it analogous to a previously recognized duty? (Argue why it is analogous, and then say, if I’m wrong, then here is why it should be recognized as a new duty)Third question: Misfeasance or nonfeasance?

- If df caused physical injury to plf and it was a misfeasance, then you only need to prove reasonable foreseeability to establish a prima facie duty of care

- If physical injury but caused by nonfeasance, or not physical injury (e.g. psychiatric, pure economic loss) then you need to make arguments about proximity

- General catchall re: nonfeasance = creating or having control over a situation of risk- Misfeasance v nonfeasance: usually room for arguments either way

Standard- Only get here if there WAS A duty owed- Statutory standards may be relevant- Best definition of standard of care: “

Freya's Flow Chart Duty: Central question - is this person my neighbour? Standard: Central question - did they take an unreasonable risk? Causation: Main test = "but for"

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Remoteness: This is a limiting device Defences Don't forget about vicarious liability! She strongly advises us to map it out by hand/make a flow chart. There will DEFINITELY be a new duty question. Be prepared to answer this, but also know that not every question will be a new duty - some will have an existing duty and the central issue might be standard, or causation, or remoteness.

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