Torts Outline- Melanie Labossiere Term 2.docx

Torts Outline

Melanie LaBossiere

Torts Outline Winter 2017 Porcin Melanie LaBossiere

April 21st, 2017

Torts Outline

Melanie LaBossiere

April 21st, 2017

TABLE OF CONTENTS INTRODUCTION TO NEGLIGENCE ................................................................................................................ 6 NEGLIGENCE DEFINED ................................................................................................................................................. 6 M’Alister (Donoghue) v. Stevenson ................................................................................................................................ 6

ELEMENTS OF AN ACTION IN NEGLIGENCE .................................................................................................................. 6 DUTY OF CARE ................................................................................................................................................................... 6 STANDARD OF CARE .......................................................................................................................................................... 6 CAUSATION ....................................................................................................................................................................... 6 REMOTENESS OF DAMAGES............................................................................................................................................... 6 ACTUAL LOSS ..................................................................................................................................................................... 6 DEFENSES .......................................................................................................................................................................... 7 Dunsmore v. Deshield ..................................................................................................................................................... 7

DUTY OF CARE............................................................................................................................................ 7 ESTABLISHING A DUTY OF CARE .................................................................................................................................. 7 GENERAL TEST TO ESTABLISH A DUTY OF CARE ............................................................................................................ 7 EVOLUTION OF THE TEST .............................................................................................................................................. 8 Heaven v. Pender............................................................................................................................................................ 8 Donoghue v. Stevenson .................................................................................................................................................. 8 ANNS TEST ......................................................................................................................................................................... 8 Anns v. Merton London Borough Council ....................................................................................................................... 8 Kamloops v. Nielsen ....................................................................................................................................................... 9 COOPER TEST ..................................................................................................................................................................... 9 Cooper v. Hobart ............................................................................................................................................................ 9 POST-COOPER DEVELOPMENTS ....................................................................................................................................... 10 Fullowka v. Pinkerton’s of Canada Ltd. ........................................................................................................................ 10 Childs v. Desmoreaux ................................................................................................................................................... 11 Mustapha v. Culligan of Canada Ltd. ........................................................................................................................... 11 Hill v. Hamilton-Wentworth Regional Police Services Board ........................................................................................ 12

REASONABLE FORESEEABILITY .................................................................................................................................... 12 FORESEEABLE RISK OF INJURY.......................................................................................................................................... 12 Moule v. New Brunswick Electric Power Commission .................................................................................................. 12 Amos v. New Brunswick Electric Power Commission .................................................................................................... 12 Minister Administering Environmental Planning and Assessment Act v. Sebastien Pty. Ltd ........................................ 13 FORESEEABLE PLAINTIFF .................................................................................................................................................. 13 Palsgraf v. Long Island Ry Co. ....................................................................................................................................... 13 Nespolon v. Alford ........................................................................................................................................................ 13 King v. Philip ................................................................................................................................................................. 14 Chadwick v. British Transport ....................................................................................................................................... 14 Haley v. London Electric Board ..................................................................................................................................... 14

SPECIAL DUTIES OF CARE........................................................................................................................................... 15 DUTIES OF AFFIRMATIVE ACTION ............................................................................................................................... 15 THE DUTY TO RESCUE ...................................................................................................................................................... 15 Osterlind v. Hill ............................................................................................................................................................. 15 Matthews v. Maclaren ................................................................................................................................................. 16 Stevenson v. Clearview Riverside Resort ...................................................................................................................... 16 Kent v. Griffiths............................................................................................................................................................. 17 STATUTORY ADDITIONS ..................................................................................................................................................... 17 College of Physicians and Surgeons .............................................................................................................................. 17 DUTIES OWED TO RESCUERS ............................................................................................................................................ 17 Horsley v. Maclaren...................................................................................................................................................... 17 Corothers v. Slobodian ................................................................................................................................................. 18 Urbanski v. Patel .......................................................................................................................................................... 18 Meyer v. Parker ............................................................................................................................................................ 18 Good Samaritan Protection Act .................................................................................................................................... 19 McCulloch v. Murray .................................................................................................................................................... 19 THE DUTY TO PREVENT CRIME AND PROTECT OTHERS ..................................................................................................... 19

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Torts Outline

Melanie LaBossiere

April 21st, 2017

Jane Doe v. Metropolitan Toronto Police Commissioners ............................................................................................ 19 Okanagan Exteriors Inc. v. Perth Developments Inc. .................................................................................................... 20 Cragg v. Tone ............................................................................................................................................................... 20

MISCELLANEOUS SPECIAL DUTIES OF CARE ................................................................................................................ 21 DUTY OF CARE OWED BY A BARRISTER ............................................................................................................................ 21 Demarco v. Ungaro ...................................................................................................................................................... 21 Finney v. Barreau du Quebec........................................................................................................................................ 21 Mantella v. Mantella .................................................................................................................................................... 21

PURE ECONOMIC LOSS .............................................................................................................................................. 22 NEGLIGENT MISREPRESENTATION .............................................................................................................................. 22 Headley Byrne v. Heller ................................................................................................................................................ 22 NEGLIGENT MISREPRESENTATION CAUSING PURE ECONOMIC LOSS ................................................................................ 23 Hercules Management Ltd. v. Ernst & Young ............................................................................................................... 23 Deraps v. Coia .............................................................................................................................................................. 24 R v. Imperial Tobacco Canada Ltd. ............................................................................................................................... 24 NEGLIGENT MISREPRESENTATION AND CONTRACTS ........................................................................................................ 24 BG Checo International Ltd. v. B.C. Hydro & Power Authority ...................................................................................... 25

SPECIAL DUTIES OF CARE AND RECOVERY OF PURE ECONOMIC LOSS ....................................................................... 25 Martel Building Ltd. v. Canada ..................................................................................................................................... 25

NEGLIGENT PERFORMANCE OF A SERVICE ................................................................................................................. 26 BDC Ltd. v. Hofstrand Farms Ltd................................................................................................................................... 26 James v. B.C. ................................................................................................................................................................. 26

NEGLIGENT SUPPLY OF SHODDY GOODS OF STRUCTURES ......................................................................................... 27 Winnipeg Condominium Corp. No. 36 v. Bird Construction .......................................................................................... 27

RELATIONAL ECONOMIC LOSS OF SHODDY GOODS OR STRUCTURES ........................................................................ 27 Bow Valley Huskey (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. .............................................................................. 28

STANDARD OF CARE ..................................................................................................................................28 COMMON LAW STANDARD OF CARE ........................................................................................................................ 28 THE REASONABLE PERSON TEST ................................................................................................................................. 28 Arland v. Taylor ............................................................................................................................................................ 28 Ryan v. Victoria ............................................................................................................................................................ 29 Caine Fur Farms Ltd. v. Kokolsky .................................................................................................................................. 29

FACTORS TO BE CONSIDERED IN DETERMINING A BREACH ....................................................................................... 29 Roe v. Minister of Health .............................................................................................................................................. 30 PROBABILITY AND SEVERITY OF HARM ............................................................................................................................ 30 Bolton v. Stone ............................................................................................................................................................. 30 Miller v. Jackson ........................................................................................................................................................... 30 Paris v. Stepney Borough Council ................................................................................................................................. 31 COST OF RISK AVOIDANCE ............................................................................................................................................... 31 Vaughn v. Halifax-Dartmouth Bridge Commission ....................................................................................................... 31 Law Estate v. Simice ..................................................................................................................................................... 32 Lovely v. Kamloops ....................................................................................................................................................... 32 SOCIAL UTILITY ................................................................................................................................................................ 32 Watt v. Hertfordshire County Council ........................................................................................................................... 32

SPECIAL STANDARDS OF CARE .................................................................................................................................. 33 STANDARD OF CARE EXPECTED OF THE DISABLED ..................................................................................................... 33 Filala v. Cechmanek ...................................................................................................................................................... 33 Buckley and TTC v. Smith Transport ............................................................................................................................. 34 Canada v. Connolly ....................................................................................................................................................... 34 Hutchings v. Nevin ........................................................................................................................................................ 34 STATUTORY ADDITIONS ..................................................................................................................................................... 35 The Mental Health Act ................................................................................................................................................. 35

STANDARD OF CARE EXPECTED OF CHILDREN ............................................................................................................ 35 Joyal v. Barsby .............................................................................................................................................................. 35 Ryan v. Hickson ............................................................................................................................................................ 35 Imbree v. McNeilly........................................................................................................................................................ 36 STATUTORY ADDITIONS ..................................................................................................................................................... 36

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The Parental Responsibilities Act ................................................................................................................................. 36 LaPlante (Guardian ad Litem of) v. LaPlante ................................................................................................................ 36 C.S. (Next Friend of) v. Miller ........................................................................................................................................ 36

STANDARD OF CARE EXPECTED OF PROFESSIONALS .................................................................................................. 37 White v. Turner............................................................................................................................................................. 37 Layden v. Cope ............................................................................................................................................................. 38 Crits v. Sylvester ........................................................................................................................................................... 38 Shakoor v. Situ .............................................................................................................................................................. 38 CUSTOM .......................................................................................................................................................................... 38 Ter Neuzen v. Korn ....................................................................................................................................................... 38 Heeny v. Best ................................................................................................................................................................ 39

CAUSATION...............................................................................................................................................39 THE BUT-FOR TEST .................................................................................................................................................... 39 Kauffman v. Toronto Transit Commission .................................................................................................................... 39 Barnett v. Chelsea and Kensington Hospital Management Committee ....................................................................... 40 Steinbach v. Fraser Health Authority ............................................................................................................................ 40 Mangal v. Osler Health Center ..................................................................................................................................... 40 Ediger v. Johnston ........................................................................................................................................................ 41

ESTABLISHED EXCEPTIONS TO THE BUT-FOR TEST...................................................................................................... 41 MULTIPLE NEGLIGENT DEFENDANTS RULE ....................................................................................................................... 41 Cook v. Lewis ................................................................................................................................................................ 41 LEARNED INTERMEDIARY RULE ........................................................................................................................................ 41 Hollis v. Dow Corning Corp. .......................................................................................................................................... 41 INFORMED CONSENT ....................................................................................................................................................... 42 Reibl v. Hughes ............................................................................................................................................................. 42 Hopp v. Lepp................................................................................................................................................................. 42 Arndt v. Smith............................................................................................................................................................... 42

RECENT ATTEMPTS TO MODIFY THE BUT-FOR TEST ................................................................................................... 43 MATERIALLY INCREASED RISK OF INJURY TEST................................................................................................................. 43 McGhee v. National Coal Board ................................................................................................................................... 43 Wilsher v. Essex Area Health Authority ........................................................................................................................ 43 Snell v. Ferrell ............................................................................................................................................................... 44 MATERIAL CONTRIBUTION TO INJURY TEST ..................................................................................................................... 44 Hanke v. Resurface Co. ................................................................................................................................................. 44 Clements v. Clements ................................................................................................................................................... 45 PROPORTIONATE CAUSE AND LOSS OF CHANCE .............................................................................................................. 45 Sindell v. Abbott Labratories ........................................................................................................................................ 45 MULTIPLE CAUSES ........................................................................................................................................................... 46 INDEPENDENT INSUFFICIENT CAUSES .............................................................................................................................. 46 Athey v. Leonati............................................................................................................................................................ 46

REMOTENESS ............................................................................................................................................46 DIRECTNESS ................................................................................................................................................................. 47 Re Polemis and Furness, Withy Co................................................................................................................................ 47

FORESEEABILITY .......................................................................................................................................................... 47 The Wagon Mound 1; Overseas Tankship Ltd. v. Mock Dock and Engineering Co. ...................................................... 47 MODIFICATIONS TO THE FORESEEABILITY TEST................................................................................................................ 48 THE KIND OF INJURY ........................................................................................................................................................... 48 Hughes v. Lord Advocate .............................................................................................................................................. 48 THE THIN SKULL RULE......................................................................................................................................................... 48 Smith v. Leech Brain & Co............................................................................................................................................. 48 Marconato v. Franklin .................................................................................................................................................. 49 Kavanagh v. Akhtat ...................................................................................................................................................... 49 THE CRUMBLING SKULL RULE............................................................................................................................................. 49 THE THIN WALLET RULE ..................................................................................................................................................... 50 Dredger Liesbosch v. Steamship Edison ........................................................................................................................ 50 THE POSSIBILITY OF INJURY ................................................................................................................................................ 50 The Wagon Mound 2; Overseas Tankship Ltd. v. Miller Steamships Co. Pty. ............................................................... 50 Bolton v. Stone ............................................................................................................................................................. 51

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Assiniboine South School Division No.3 v. Greater Winnipeg Gas Co. .......................................................................... 51 Mustapha v. Culligan of Canada Ltd. ........................................................................................................................... 51

INTERVENING CAUSES ................................................................................................................................................. 52 Bradford v. Kanellos ..................................................................................................................................................... 52 Jolley v. Sutton London BC ............................................................................................................................................ 53

DEFENCES IN NEGLIGENCE .........................................................................................................................53 CONTRIBUTORY NEGLIGENCE.................................................................................................................................... 53 DEVELOPMENT OF THE DEFENCE................................................................................................................................ 53 Zsoldos v. Canadian Pacific Railway ............................................................................................................................. 54 Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipping Ltd. ...................................................................................... 54

CONDUCT CONSTITUTING CONTRIBUTORY NEGLIGENCE........................................................................................... 54 CONTRIBUTING TO THE RESULTING LOSS ......................................................................................................................... 54 Walls v. Mussens .......................................................................................................................................................... 54 Marshall (Litigation Guardian of) v. Annapolis County District School Board .............................................................. 55 ENTERING A DANGEROUS SITUATION .............................................................................................................................. 55 Gagnon v. Beaulieu ...................................................................................................................................................... 55 CREATION OF AN ACCIDENT............................................................................................................................................. 55 Mortimer v. Cameron ................................................................................................................................................... 55

VOLUNTARY ASSUMPTION OF RISK .......................................................................................................................... 56 Dube v. Labar ............................................................................................................................................................... 56 Loychuk v. Cougar Mountain Adventures..................................................................................................................... 57

PARTICIPATION IN A CRIMINAL OR IMMORAL ACT ................................................................................................... 57 Hall v. Herbert .............................................................................................................................................................. 57 Beljanski v. Smithwick .................................................................................................................................................. 57 BC v. Zastowny ............................................................................................................................................................. 57

INEVITABLE ACCIDENT .............................................................................................................................................. 58 Rintoul v. X-Ray and Radium Industries Ltd. ................................................................................................................. 58 Boutcher v. Stewart ...................................................................................................................................................... 58

PROOF OF NEGLIGENCE .............................................................................................................................58 Wakelin v. London & South Western Ry. Co. ................................................................................................................ 59 Mohamed v. Banville .................................................................................................................................................... 59 R.C. v. McDougall ......................................................................................................................................................... 60

EXCEPTIONS TO THE GENERAL PRINCIPLE ................................................................................................................. 60 STATUTES AND SHIFTING BURDENS OF PROOF .......................................................................................................... 60 Highway Traffic Act ...................................................................................................................................................... 60 MacDonald v. Woodard ............................................................................................................................................... 60 Parental Responsibilities Act ........................................................................................................................................ 61

DIRECTLY CAUSED INJURY: UNINTENDED TRESPASS .................................................................................................. 62 Dahlberg v. Naydiuk ..................................................................................................................................................... 62

MULTIPLE NEGLIGENT DEFENDANTS .......................................................................................................................... 62 Cook v. Lewis ................................................................................................................................................................ 62 Clements v. Clements ................................................................................................................................................... 63

RES IPSA LOQUITUR..................................................................................................................................................... 63 Bryne v. Boadle............................................................................................................................................................. 63 Fontaine v. B.C.............................................................................................................................................................. 63

ASSESSMENT OF DAMAGES .......................................................................................................................64 PURPOSES OF AWARDING DAMAGES ....................................................................................................................... 64 Fisher v. Knibbe ............................................................................................................................................................ 64 Robtialle v. Vancouver Hockey Club ............................................................................................................................. 65

PRELIMINARY ISSUES ................................................................................................................................................ 65 STANDARD OF PROOF ................................................................................................................................................. 65 MITIGATION OF DAMAGES ......................................................................................................................................... 65 THE SET OFF OF PARALLEL EXPENDITURES ................................................................................................................. 65 USE OF LUMP SUM PAYMENTS ................................................................................................................................... 65 ROLE OF JUDGES, JURIES AND APPELLATE COURTS .................................................................................................... 66 DAMAGES FOR PERSONAL INJURY ............................................................................................................................ 66 Melanie LaBossiere

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Torts Outline

Melanie LaBossiere

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Sandhi (Litigation Guardian of) v. Wellington Place Apartments ................................................................................. 66 Gordon v. Greig ............................................................................................................................................................ 66

THE TEST ...................................................................................................................................................................... 67 Andrews v. Grand & Toy Alberta Ltd. ........................................................................................................................... 67

FATALITIES ................................................................................................................................................................ 68 Fatal Accidents Act ....................................................................................................................................................... 69

SPECIAL RULES FOR PUBLIC AUTHORITIES ..................................................................................................70 TYPES OF ACTIVITIES ................................................................................................................................................. 70 JUDICIAL ACTIVITIES .................................................................................................................................................... 70 Welbridge Holdings Ltd. v. Greater Winnipeg .............................................................................................................. 70 Bradley v. Fisher ........................................................................................................................................................... 70 Provincial Court Act ...................................................................................................................................................... 71

LEGISLATIVE ACTIVITIES .............................................................................................................................................. 71 Parliament Act of Canada ............................................................................................................................................ 71 The Legislative Assembly Act ........................................................................................................................................ 72

CROWN IMMUNITY ..................................................................................................................................................... 72 Crown Liability and Proceedings Act ............................................................................................................................ 72 Proceedings Against the Crown Act ............................................................................................................................. 72 Sutherland v. Canada ................................................................................................................................................... 73

SCOPE OF LIABILITY ................................................................................................................................................... 74 Just v. BC ...................................................................................................................................................................... 74

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Torts Outline

Melanie LaBossiere

April 21st, 2017

INTRODUCTION TO NEGLIGENCE NEGLIGENCE DEFINED   

Broad sense: refers to the cause of action that constitutes a branch of tort law concerned with liability for careless conduct. Narrow sense: one particular component within the cause of action that is; did D’s conduct meet the standard of care? The issue is always: was D under any legal obligation, or duty to exercise care with respect to P’s interests?

M’Alister (Donoghue) v. Stevenson Ratio: Neighbour Principle: one must take reasonable care to avoid acts or omissions which once can reasonably foresee would be likely to injure their neighbour; those are, persons who are closely and directly affected by one’s act that they ought reasonably to have had them in contemplation of carrying out the act or omission. **Establishes the basic framework for duty of care test. Reasonable foreseeability and proximity.

ELEMENTS OF AN ACTION IN NEGLIGENCE DUTY OF CARE  

Was D under any legal obligation to exercise care with respect to P’s interests? Determines the nature and scope of the obligation.

STANDARD OF CARE  

Establish the standard of care that D is ordinarily expected to meet, and the standard of care that would be expected based on all the circumstances. Trier of fact applies the standard of care to D’s conduct to determine whether he or she has breached their obligation by acting carelessly.

CAUSATION 

Was D’s careless conduct the cause of P’s loss?

REMOTENESS OF DAMAGES  

Was the relationship between the breach and the injury too tenuous or remote to warrant recovery? Was the loss a reasonably foreseeable consequence of D’s negligent act?

ACTUAL LOSS 

Not actionable per se.

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DEFENSES 

Once P establishes prima facie claim, burden shifts to D.

Dunsmore v. Deshield Facts: P buys a specific heavy duty pair of glasses from Ds (supplier and manufacturer). P is injured when the glasses break during a football game. P alleges that if supplied with the right glasses the injury would not have happened. Ds plead contributory negligence. Issue: Were the manufacturer and/or supplier negligent? Ratio: It must be established that D had a duty of care to P on a balance of probabilities. D’s wrong cannot be the cause of the injury if it would have happened without the wrong. All tortfeasors are collectively and individually liable for the plaintiff’s loss. Analysis/Conclusion: FOR P. Ds are jointly and severally liable, indemnification for the supplier from the manufacturer. 7500 in general damages and 646.50 in special damages. To be paid by the manufacturer, as the supplier was entitled to rely on the manufacturer to supply the right lenses notwithstanding the supplier’s duty to his patient. Both Ds had a duty to test the lenses following protocol. Supplier rested on the manufacturer and failed to test the lenses, accepting and adopting the manufacturer’s negligence. P proved that it was more likely than not that the blow was gentler than a blow which would break the sturdier lenses and that even if they broke, that they would have broken in a different way causing less damage. P would not have worn the glasses if he knew the lenses were not the ones he had ordered.

DUTY OF CARE ESTABLISHING A DUTY OF CARE GENERAL TEST TO ESTABLISH A DUTY OF CARE 1. Is the alleged duty of care within a PREVIOUSLY ESTABLISHED CATEGORY or analogous to an established category? a. If yes, there is no need to proceed, a duty of care exists. 2. Was the harm to P reasonably foreseeable? a. Was the risk of injury REASONABLY FORESEEABLE? b. Was there a foreseeable risk to P themselves? 3. Was there a sufficient relationship of PROXIMITY? a. Was there a close and direct relationship of proximity or neighbourhood? b. Are there any policy considerations that arise from the relationship? i. Expectations, representations, reliance, statutory or contractual framework, or a physical, emotional or economic interest? If there was foreseeable harm AND a sufficient relationship of proximity a prima facie duty of care exists. Melanie LaBossiere

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4. Are there any residual policy considerations that negative the duty of care? a. Can D prove that there is some effect on the legal system or society in general, an issue of indeterminacy, or a policy decision versus the execution of policy, that are not merely speculative, should negate the imposition of a duty of care?

EVOLUTION OF THE TEST 

Relief is not available unless the court is satisfied that D was under a legal obligation to exercise care with respect to P’s interests.

Heaven v. Pender Ratio: A duty to take care arises when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by one to the other.

Donoghue v. Stevenson Facts: P sues D (manufacturer) after her friend notices a decomposed snail in a bottle of ginger-beer she had bought for P. Issue: Was the manufacturer under a legal duty to take reasonable care that the beer is free from defect likely to cause injury to heath to the purchaser or consumer? Ratio: Neighbour Principle: one must take care to avoid acts or omissions which once can reasonably foresee would be likely to injure their neighbour. Proximity is not confined to physical proximity, but to close and direct relations between D and the person the act directly affects, that makes it so D would know their careless acts might affect the person to whom the alleged duty of care is to be owed. Analysis/Conclusion: FOR P. There was a duty of care owed to the consumer. In instances where the goods cannot be inspected between manufacturing and consumption, manufacturers owe the final customer of their product a duty of care. There need not be a contractual relationship or privity in order for the final consumer to sue in negligence.

ANNS TEST Anns v. Merton London Borough Council Facts: Ps (lessees) claim damages in negligence against D for approving and failing to inspect the foundations of their building after structural movement causes a number of defects. Ds issued a notice of approval which required builders to give notice to the council upon commencement of building and gave the council power to inspect the foundations and require corrections. Issue: Was the council under a legal obligation to inspect the building during the building process, and owed a duty of care to Ps? Melanie LaBossiere

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Ratio: A prima facie duty of care arises when there is a sufficient relationship of proximity between the alleged wrongdoer and the person who suffered harm such that it is within reasonable contemplation of the wrongdoer that carelessness may cause damage to the other. If a prima facie duty of care is established, the scope of the duty or class to whom the duty is owed may be reduced or limited if D can prove it should be so based on policy considerations. Analysis/Conclusion: FOR Ps. There was a duty of care owed to Ps which could be negated by any policy considerations.

Kamloops v. Nielsen Facts: A (contractor) failed to follow requirements set by city bylaws while building a house later sold to R. City inspectors instructed A to stop building until issues with the plan were corrected, but A continued to work anyway. R’s contractor found foundational issues upon inspection. R sued A and the city. Issue: Was there a duty of care owed to R by the city and/or A? Ratio: A duty of care can be established if there is a sufficiently close relationship between parties such that D could have reasonably contemplated that carelessness may cause harm to P. Duty of care will be imposed unless there are policy considerations that limit or negate the scope of the duty, the class of persons to whom it was owed or the damages the breach may give rise to. Analysis/Conclusion: FOR R. There was a duty of care. City is liable in 25% and A is liable in 75% of damages.

COOPER TEST 

TO BE FOLLOWED ON EXAM.

Cooper v. Hobart Facts: P invested money in a corporation governed by the Mortgage Brokers Act. Statute allowed D (government actor) to investigate complaints, freeze funds and suspend the licenses of brokers who breach statutory obligations. D suspended the corporations license. P lost money and sues D alleging that if D would have acted faster, P would not have suffered such a magnitude of loss. D brings motion to strike. Issue: Did D owe a duty of care to P? Ratio: STAGE 1: 1. Was the harm that occurred the REASONABLY FORESEEABLE consequence of D’s actions? 2. Was there sufficient proximity of relationship between P and D; that is, the type of relationship in which a duty of care to guard against foreseeable negligence may be imposed? 3. Are there policy reasons why the duty should not be imposed despite FORESEEABILITY AND PROXIMITY OF RELATIONSHIP? Melanie LaBossiere

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Melanie LaBossiere

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a. Is it just and fair having regard for the relationship to impose duty of care on d? i. Expectations, representations, reliance, property or other interests involved? STAGE 2 (arising in cases where the duty does not fall into a previously recognized category of recovery): 1. Are there any policy considerations that should negate or limit the imposition of a duty of care a. Residual policy considerations that are NOT concerned with the relationship between parties but rather the effect of recognizing the duty of care on other legal obligations, the legal system, or society. i. Does the law already provide a remedy? ii. Indeterminacy. Would recognition of a duty create the danger of unlimited liability to an unlimited class? iii. Are there reasons of policy that suggest a duty should not be recognized? iv. Distinction between government policy and execution of policy: 1. Government actors are not liable for negligence for policy decisions, but operational decisions. 2. Courts should be able to impose liability for the consequence of a policy decision but should be able to impose liability for the manner in which it executes or carries out policy. 3. It is inappropriate for courts to second-guess legislators on policy matters. A government actor who may reasonably foresee that losses to individuals could result if careless in carrying out her or his duties under legislation, does not have a prima facie duty of care to those individuals if the duty is not specified in the legislation. Analysis/Conclusion: FOR D. There is no duty of care owed to investors by government actors whose powers are conferred by statute. Stage 1: The issue at hand does not fall into a previous category of negligence. It may be foreseeable that the alleged negligence would result in P’s financial loss. The statute is the only source of duty and it does not impose a duty of care on D to investors. D’s duty is to the public as a whole, not to specific individuals. Stage 2: Even if a prima facie duty was established, the decision to suspend brokers has a quasi-judicial element. Acting in a fair and judicial manner is inconsistent with a duty of care to investors. Discretionary decisions must be allowable as long as they are made within the limits of power conferred by legislation. Indeterminate liability could be an issue and the effect on taxpayers would be great. **Different than Kamloops because a prima facie duty only arises when there is reasonable foreseeability of harm PLUS a close and direct relationship of proximity.

POST-COOPER DEVELOPMENTS Fullowka v. Pinkerton’s of Canada Ltd. Facts: Owner of a mine hires replacement workers during a strike. Owner hires D (security company). Strikers stole explosives and threatened replacement workers. After a miner evades D and sets up a bomb, 9 people are killed in an explosion. P (surviving replacement worker) sues D and the government in negligence.

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Issue: Did D and/or the government owe a duty of care to P? Ratio: If the harm to P was reasonably foreseeable and there was a sufficient relationship of proximity then a prima facie duty of care is established, policy considerations may prove that the duty of care should not be imposed, or should be limited. Analysis/Conclusion: FOR P. There was a duty of care owed by both D and the government to replacement workers. D’s job was to protect property and people, they had control over risks, therefore there was an obligation that they take precautions to prevent harm. D knew the explosion was possible, there was access to explosives and miners had threatened violence. The government had duty to inspect and identify risks to P and were aware they had not taken steps to prevent harm. They knew in the event of an explosion death of a replacement worker was likely. There are no policy considerations great enough to negate the duty. No issue of indeterminacy because there is a finite number of workers and a specific activity.

Childs v. Desmoreaux Facts: Ds host a party and serve alcohol to Desmoreaux. D is a known alcoholic and although he is clearly intoxicated, Ds take no steps to prevent him from driving. P is severely injured in a car accident caused by Desmoreaux. Issue: Is there sufficient relationship of proximity between social hosts and third-party drivers? Is the evidentiary burden of P or D in proving or disproving policy considerations? Ratio: If the harm to P is a reasonably foreseeable consequence of D’s act AND sufficient degree of proximity is established, there is a prima facie duty of care. Once P establishes a prima facie duty of care the evidentiary burden of showing countervailing policy considerations falls to D. The party asserting a point should be required to establish it. The law does not impose a duty to eliminate risk, it permits third parties to witness risks and decide not to become rescuers. Analysis/Conclusion: FOR Ds. There was no duty of care owed to P. Hosting a party at which alcohol is served does not, without more, establish the degree of proximity required. Unlike commercial hosts, social hosts have little control over their guest’s alcohol consumption.

Mustapha v. Culligan of Canada Ltd. Facts: P sues D (manufacturer) suffers psychiatric harm after seeing a dead fly in a sealed water bottle. Analysis/Conclusion: FOR P. There was a duty of care owed to P. A duty of care to consumer is owed by manufacturers, it is a previously existing category.

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Hill v. Hamilton-Wentworth Regional Police Services Board Facts: P wrongfully convicted after an allegedly negligent police investigation. Issue: Should there be a duty of care imposed on police officers? Ratio: Policy considerations raised against imposing a duty of care must be more than speculative and must have a real and apparent potential for negative consequence. Analysis/Conclusion: FOR P. There was a duty of care owed to an accused by police. D argued that the quasi-judicial nature of police work, potential for conflict between duty of care in negligence and other police duties, need to recognize discretion present, the need to maintain standard of R&P grounds, potential for chilling effect on investigations, and possibility of a flood of litigation against wrongfully accused are policy considerations that negate duty. None of the considerations are enough to provide a convincing reason for rejecting a duty of care on police to a suspect under investigation. There is actually a positive implication to imposing duty of care as it raises standard of police work.

REASONABLE FORESEEABILITY FORESEEABLE RISK OF INJURY Moule v. New Brunswick Electric Power Commission Facts: Child playing on a tree steps onto a rotten branch, breaking it. The child falls onto wires and is electrocuted. Issue: Did the electric company owe a duty of care to the child? Ratio: In order for D to be held liable, the injury to P must have been a reasonably foreseeable consequence of D’s carelessness and P’s conduct must not have been isolated from normal human conduct. Analysis/Conclusion: FOR D. There was a duty of care, but D took reasonable precautions to protect against injury. It is foreseeable that young children that climb trees around wires may be at risk of injury, however, the sequence of events that occurred when the child climbed much higher than could have been anticipated and stepped onto a rotten branch which caused the fall was not reasonably foreseeable. D should not be responsible for every accidental contact with the wires by children climbers.

Amos v. New Brunswick Electric Power Commission Facts: Child is climbing a tree around hidden electrical wires, the tree bends and falls into the wires and the child is electrocuted. Melanie LaBossiere

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Issue: Did the eclectic company take proper precautions to prevent injury to P? Ratio: If the injury to P could have been a reasonably foreseeable consequence of D’s carelessness, D may be held liable. Analysis/Conclusion: FOR P. There was a duty of care owed, and proper precautions were not taken. The injury was reasonably foreseeable. The tree was outside the child’s house, the electrical wires were hidden, the company took no precautionary steps like the ones taken in Moule.

Minister Administering Environmental Planning and Assessment Act v. Sebastien Pty. Ltd Ratio: The breach question requires proof that it was reasonably foreseeable as a possibility that THE KIND of carelessness charged against D might cause damage of SOME KIND to P’s person or property. The remoteness test requires proof that THE KIND of damage sustained was a foreseeable as the possible outcome of THE KIND of carelessness charged against D.

FORESEEABLE PLAINTIFF Palsgraf v. Long Island Ry Co. Facts: P was standing on railway platform, two men run to catch a train and one reached the car the other was carrying a package and jumped onto the train losing grip on package after two guards tried to steady him. The package had fireworks in it and they exploded when they hit the ground. Issue: Was there foreseeable risk to P? Ratio: Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of the right. P must prove that D’s conduct gave rise to a duty of care and that duty of care was owed specifically to them as a class of person. Analysis/Conclusion: FOR D. There was no duty of care owed by the guards to people on the platform. It was not reasonably foreseeable that there was a risk that P would be injured by the package. D accidently dropped the package without knowledge of its contents.

Nespolon v. Alford Facts: P suffered nervous shock after he struck and killed an intoxicated teenager who had fallen onto the highway. Sued the teenager’s estate and 2 acquaintances that dropped the teenager at her house. Issue: Was it reasonably foreseeable that P would be injured by the teenager that would require the two Melanie LaBossiere

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acquaintances to take precautions to prevent such an occurrence? Ratio: If the injury to P was reasonably foreseeable, then D can be held liable. Conclusion/Analysis: FOR D. There was no duty of care owed. It was not reasonably foreseeable that the teenager would stumble onto the highway. The acquaintances did not have a duty of care to P to prevent the nervous shock of a result of their failure to prevent this.

King v. Philip Facts: D (taxi driver) backs up his cab and hits a child on a tricycle. P (mother of child) runs out and sees the accident and suffers nervous shock. Issue: Was the injury to P a reasonably foreseeable consequence of D’s carelessness? Ratio: Breadth of foreseeability is narrow with regards to nervous shock. Analysis/Conclusion: FOR D. There was no duty of care owed. Third party nervous shock was not foreseeable harm in this case.

Chadwick v. British Transport Facts: P volunteered to take part in a rescue operation of Ds. P witnessed several dead and trapped people and suffered nervous shock that caused her serious injury. Issue: Was injury to P reasonably foreseeable? Ratio: Nervous shock may be considered a foreseeable consequence, must be examined on a case-by-case basis. Analysis/Conclusion: FOR P. There was a duty of care owed by Ds to volunteers. It was foreseeable that rescuer would undergo nervous shock. It is possible to recover for fear of another's safety, not just your own.

Haley v. London Electric Board Facts: D’s workmen dug a trench outside of P’s home. P was blind and tripped over a barrier, hit his head and became deaf. Issue: Was the injury to P a reasonably foreseeable consequence of D’s carelessness? Melanie LaBossiere

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Ratio: D may be found liable for injury caused to Ps that are unusually vulnerable to harm. Analysis/Conclusion: FOR P. There was a duty of care owed by workmen to those in the neighborhood. Ds argue that reasonable precautions were taken in relation to able bodied people and that is to whom they owed the duty of care. Reject this argument, people who are handicapped that go out alone should not be considered to go out at their own peril, there must be protection of all people.

SPECIAL DUTIES OF CARE DUTIES OF AFFIRMATIVE ACTION 

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Courts distinguish between: 1. Malfeasance: positive action. 2. Nonfeasance: failure to act. Generally, courts will impose liability for malfeasance, and tend to be hesitant in imposing liability for nonfeasance. Courts may recognize duties of affirmative action if parties shared a “special relationship” or if D had a statutory or contractual obligation to intervene. Special relationships of proximity that have been recognized by the courts include: 1. When D intentionally attracts or invites a 3rd party to do something dangerous that the defendant has created. 2. When there is a paternalistic relationship of control: o Ordinarily when P has specific weakness/vulnerability and D has position of power. 3. If the defendant exercises a public function or commercial enterprise that affects the public at large. 4. Reliance: o Is the situation one where a person would reasonably believe that the other would take certain measures?

THE DUTY TO RESCUE Osterlind v. Hill Facts: Osterlind is intoxicated and rents a canoe from D. The canoe flips over and Osterlind calls for help and holds onto the side of the canoe for half an hour. D fails to respond and Osterlind drowns. Estate sues. Issue: Was D under an obligation to act in response to Osterlind’s calls for help? Ratio: To establish a duty P must have been so intoxicated as to be incapable of caring for himself in any way. Negligence requires that some legal right of P has been breached. Analysis/Conclusion: FOR D. There was no duty of care owed. Melanie LaBossiere

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D did not violate a legal duty by renting P the canoe. P was able to hang onto the side of the canoe for half an hour, therefore was not in a completely helpless state.

Matthews v. Maclaren Facts: Ps take action under the Fatal Accidents Act after two of their relatives die after one falls off a boat owned and operated by D, and the other jumps into the water to save him. There were allegations that D, who was driving the boat, had been drinking. Issue: Was D under a legal obligation to rescue any passenger that fell overboard, even if it was a result of the passengers own recklessness with no negligence on the part of D? Ratio: A duty to attempt to rescue must be imposed on master when this can be done so without harming the vessel, her crew and other passengers. Burden of proof on P to prove D was effective cause of P's death. To trigger liability, it must be proved that there was a possibility of saving P. Analysis/Conclusion: FOR D. No negligence can be found when D is not the cause of injury to P. Danger invites rescue. Statutory provision that protects those people who may be lost at sea and imposes a duty for a master to rescue them. Common law must keep pace with the demands of society, sense of social obligation and brand as negligence the failure to help a man overboard in accordance with the universal customs of the sea. There are no statutory guidelines covering how to respond to a man overboard situation. D adopted the wrong procedure negligently and constitutes a failure to exercise reasonable care. His failure was a result of excessive alcohol consumption. Despite this, D is not responsible for fall overboard.

Stevenson v. Clearview Riverside Resort Facts: D (off-duty ambulance attendant) failed to advise civilian rescuers about the proper method of stabilizing the spine of P after an accident. P was pulled out of the water in a way that caused more damage to her spine. Issue: Was there a legal duty for D to instruct the rescuers? Ratio: Where D is a private third party at the time of a rescue, there is no duty to assist. Conclusion/Analysis: FOR D. There was no duty of care owed by an off-duty ambulance attendant to civilians. There was no special relationship between P and D, therefore, D was under no legal obligation to rescue. **Agony of the moment rule was applied to the friends who pulled P out of the water given their limited first aid training and the urgent circumstances. They were not negligent to drag P out of the water in the circumstances.

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Kent v. Griffiths Facts: P suffered an asthma attack in her home and called to 911. D (911 operator) indicated she would send help immediately. Forty minutes passed before an ambulance arrived. P suffered respiratory arrest due to the delay. Conclusion/Analysis: FOR P. There was a duty of care owed by the 911 operator to callers. A duty of care did arise in the circumstances because the ambulance service was part of the health service and more akin to a hospital than to a police or firefighting service, there was no conflict between P’s interests and the larger public, and no question of resource allocation.

STATUTORY ADDITIONS College of Physicians and Surgeons Bylaw 11: 47(2) Requirements: A member who is asked to attend a medical emergency must respond to render prompt and appropriate medical care to any person, whether or not the person is a current patient. Standards of Practice of Medicine: A member who does not attend a medical emergency when requested to do so must have a valid reason for the failure to attend. The following circumstances are recognized as potentially valid reasons for failure to attend: (i) The member is already attending another medical emergency; (ii) Attending the emergency places the personal safety of the member at an unreasonable risk; (iii) Any situation where the member believes that his or her level of competence, health, or personal circumstances may compromise his or her ability to provide an appropriate level of care necessary to deal with the medical emergency. The member’s duty when called to an emergency is: (i) to provide service within the scope of his or her proper professional competence and level of skill and, if he or she has no appropriate competence or skills, to present as a person with some knowledge of emergency first aid. The member is in the best position to know whether his or her area of competence and level of skill is sufficient to provide more than basic first aid. (ii) to apply his or her knowledge and skill to save life, to relieve suffering and to establish the most favourable conditions for the patient’s ultimate recovery.

DUTIES OWED TO RESCUERS Horsley v. Maclaren **See Matthews v. Maclaren Melanie LaBossiere

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Ratio: If a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. If the rescuer is killed or injured in the attempt can recover damages from the one whose fault has been the cause of it as long as the attempt was not a wanton interference. Analysis/Conclusion: FOR D. D cannot be held liable. Any duty to P must stem from the fact that the new situation of peril was created by D’s negligence which induced P to act. Maclaren failed to comply with established rescue procedure. However, D’s actions were not faulty enough to induce P to risk his life. The error made by D was one of judgement not negligence. **Moral approbation of the assistance of a person in peril has involved a break with the “mind your own business” philosophy.

Corothers v. Slobodian Facts: P attends to the scene of a car accident caused by D’s negligence. P is hit by a truck which attempting to rescue a victim of the car accident caused by D. Issue: Can a rescuer have an independent cause of action against D? Ratio: A rescuer can have an independent cause of action against a negligent D if the scope of the peril could have been foreseen by D.

Urbanski v. Patel Facts: P donates a kidney to his daughter after D (surgeon) negligently removed her only kidney. P claims his loss of his kidney was a result of D’s negligent removal of his daughters. Issue: Does the defense of voluntary assumption of risk apply? Ratio: The defense of voluntary assumption of risk is inapplicable where P consciously faces a risk in an attempt to rescue another person imperiled by D’s negligence. Analysis/Conclusion: FOR P. There was a duty of care owed by the surgeon to a donator who acted as a result of carelessness. P’s choice to donate his kidney to his daughter was a reasonably foreseeable consequence of D’s negligent act.

Meyer v. Parker Facts: P went to a convenience store after getting a call from his friend who was employed there and found 3 youths arguing with his friend. P convinced the youths to leave the store. P leaves the store later and is beaten up. Melanie LaBossiere

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Issue: Does the rescuer doctrine apply? Ratio: If P has not taken reasonable care for his own safety, the rescuer doctrine will not apply. Analysis/Conclusion: FOR D. P left safety and put himself at risk by confronting youths outside the store. He had not taken reasonable care for his own safety. Leaving a place of safety and deliberately putting self at risk is not held under the rescuer's doctrine

Good Samaritan Protection Act No liability unless gross negligence: 1 A person who voluntarily provides emergency medical services, aid or advice to the victim of an accident or medical emergency at the immediate scene of the accident or emergency is not liable in damages for injury or death to the victim caused by the person's acts or omissions in providing the medical services, aid or advice unless that person is grossly negligent. Exception: 2 Section 1 does not apply if the person providing the medical services, aid or advice: (a) is employed expressly for that purpose; or (b) does so with a view to gain. Members of volunteer organizations covered: 3 For greater certainty, section 1 applies to a member of a volunteer organization that provides first aid, ski patrol, neighborhood watch or patrol or other similar services who receives a payment or other benefit in recognition of his or her services, so long as the payment or other benefit is not provided as a result of an employer-employee relationship.

McCulloch v. Murray Ratio: A person who voluntarily provides emergency services to the victim of an accident will not be held liable unless there was gross negligence. A very marked departure from the standards by which a reasonable and competent person habitually governs themselves constitutes gross negligence.

THE DUTY TO PREVENT CRIME AND PROTECT OTHERS Jane Doe v. Metropolitan Toronto Police Commissioners Facts: P sues after the police failed to warn her of the potential harm she was at risk of being raped by a serial rapist who had a pattern of raping women in a specific area, targeting the same type of woman. P was raped by the serial rapist despite ample opportunity of the police to warn her of the danger to her. Issue: Was there a duty to warn P of the serial rapist?

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Ratio: Under s.57 of Police Act police are charged with the duty of preserving peace, preventing robberies and other crimes. Common law recognizes existence of conventional or customary duty in the police force to protect the life, limb and property of the subject. Analysis/Conclusion: FOR P. Awarded 220 000 in damages. There is a duty of care owed by police officers to vulnerable subsections. There was a duty to warn and the police failed in that duty by choosing not to take steps that could have helped P protect herself. There was a foreseeable risk to P and the knowledge that P belonged to a small population that was at risk. This established the necessary special relationship of proximity. Not only did police fail to warn about the potential danger, they failed to take necessary steps to protect P without disclosing.

Okanagan Exteriors Inc. v. Perth Developments Inc. Facts: D owned an abandoned construction site and knew children would start fires there. D failed to control third parties and the fire damaged P’s neighbouring property. Issue: Was D under a duty to prevent the harm caused to P’s property? Ratio: Knowledge of third parties partaking in risky activities which could foreseeably cause injury to P, and failing to control them may result in liability. Analysis/Conclusion: FOR P. There was a foreseeable risk of harm.

Cragg v. Tone Facts: P calls non-emergency police number to report that his vehicle was vandalized by a man who threatened him. D (dispatcher) failed to forward the report to police for 20 minutes, by which time P had been assaulted at his home by the vandal. Issue: Was D under a legal duty to prevent the possible harm to P? Ratio: A duty to prevent crime arises when D has direct or indirect control and there is a foreseeable risk of injury to P. Analysis/Conclusion: FOR D. D was not negligent. It was not foreseeable that D, by failing to prioritize P’s call, would result in P being assaulted. D acted reasonably in the circumstances.

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MISCELLANEOUS SPECIAL DUTIES OF CARE DUTY OF CARE OWED BY A BARRISTER   

General obligation to a client to act competently. It is reasonably foreseeable that careless litigation may expose a client to loss. To deprive clients of recourse if their cases are negligently dealt with, will not, to most residents of a province, appear consistent with public interest.

Demarco v. Ungaro Ratio: A lawyer must exercise reasonable care, skill and knowledge in the conduct of litigation and must be properly diligent in the prosecution of the case. Lawyers (in Ontario) are not immune from action at the suit of a client for negligent conduct during a client’s civil court case. Analysis/Conclusion: Four main issues argued by P as to why there should be no duty: 1. Risk that barristers would prolong proceedings contrary to his or her best judgement to prevent being sued in negligence by a client: there is no empirical evidence that the risk is so serious that an aggrieved client should be rendered remediless. 2. Harm to the public interest by allowing the relegation of something already tried: the undesirability of this does not justify the recognition of immunity. Better a matter be essentially tried over than a client be left without recourse. 3. Obligation of a barrister to accept any client: there is not actual duty related to accepting all clients in the practice of civil litigation. 4. Absolute privilege that protects everything someone says in court: this is a fundamental aspect of the law of slander and is not concerned with the relationship between people. It relates to proceedings in court, the relationship between the barrister and client is not involved in this as it is in negligence.

Finney v. Barreau du Quebec Facts: P claims that D (law society) acted negligently in sending a report saying lawyer was incompetent. Another client filed a complaint against the lawyer and P says D had the obligation to protect the public. Issue: Was the law society under an obligation to protect the public form an incompetent lawyer? Ratio/Analysis/Conclusion: FOR P. There was a duty of care owed by the law society to the public. C can be held liable for it negligence regarding lawyers. There is a duty of care to protect the public form negligent lawyers.

Mantella v. Mantella Facts: P (husband) and wife sign a separation agreement which the wife later challenges on the basis of undue influence and inadequate financial disclosure. P brings a claim against D (wife’s lawyer) who provided independent legal advice on the agreement. Melanie LaBossiere

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Issue: Did P’s wife’s lawyer owe a duty of care to P as a third party? Ratio: Lawyers owe no duty of care to third parties unless there are extenuating circumstances. Analysis/Conclusion: FOR D. No duty of care owed by a lawyer offering independent advice to their client to a third party. There was insufficient proximity between a party to an agreement and another parties lawyer. Policy considerations would negative any prima facie duty of care, especially in the area of family law litigation.

PURE ECONOMIC LOSS   

Historically, there was no protection against pure economic loss. Issue concerning indeterminacy. There are 5 categories of pure economic loss that have been established in common law: 1. Negligent misrepresentation. 2. Independent liability of statutory public authorities. 3. Negligent performance of a service. 4. Negligent supply of shoddy goods or structures. 5. Relational economic loss.

NEGLIGENT MISREPRESENTATION 

Actions differ from statements: 1. People tend to be more careful about actions: o The potential for damage is more apparent in cases of physical conduct. o People tend to be less cautious, especially on social occasions to speak loosely. 2. Words are more volatile than deeds: o They are used without being expended and take effect in combination with innumerable facts and other words. o Statements have greater durability and portability and can cause damage long after and far removed from when they were made. 3. Careless actions trigger injuries once, negligent words may repeatedly inflict harm: o Freedom of speech is protected under CCR. Imposing liability may undercut, be careful with that. 4. Nature of P’s loss: o Physical injury to one’s person or property vs. pure economic loss (sometimes physical injury but rare). o Courts are more restricted when carelessness causes pure economic loss, especially if the carelessness in question consists of negligent misrepresentation.

Headley Byrne v. Heller Facts: P wanted to know if it would be advisable to extend credit to a customer. P’s banker asked D (customers banker) to provide a rating. D responds and says it was good. In reliance, P extends credit to the company which goes into liquidation without reimbursing P for expenses.

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Issue: Is there a remedy available for pure economic loss? Ratio: There can be a duty of care that arises with respect to careless statements causing pure economic loss. Analysis/Conclusion: FOR D. There was no duty of care owed. There was no duty simply because D had a disclaimer that advice given was done so without responsibility. Without the disclaimer P could have recovered. Certain situations could impose a duty of care. Principles of negligence can apply to words.

NEGLIGENT MISREPRESENTATION CAUSING PURE ECONOMIC LOSS Hercules Management Ltd. v. Ernst & Young Facts: R (accountant) prepared audited financial statements for two companies, as required by statute. A (shareholders) claimed that as a result of R’s carelessness in preparing the statements, they suffered economic loss due to their reliance on the statements in making decisions to invest more into the companies because of their existing shareholdings. Issue: Did R owe A, a duty of care? Ratio: The general framework ought to be used in cases of pure economic loss. A duty of care exists when a prima facie duty is established which is not negated by policy considerations. There will be consideration of the special circumstances unique to cases of misrepresentation. Proximity can inhere between representor and representee when 2 criteria relating to reliance may be said to exist on the facts: D ought to have reasonably foreseen that P would rely on the representation and reliance by P would be reasonable. Analysis/Conclusion: FOR R. They owe prima facie duty of care, negated by policy considerations which are not removed by the facts and indeterminacy is an issue here. The relationship between P and D arises through reliance by P on D’s words. There cannot be a duty of care on auditors as the issue of indeterminacy outweighs the benefit of deterring negligent action. In some cases, a duty of care may arise where the issue of indeterminacy will not become an issue: where there is knowledge of P, or use of the statements at issue for a precise purpose for which they were prepared were relied on. This limits the scope. **5 indicia of reasonable reliance: 1. D had a direct or indirect financial interest in the transaction in respect of which the representation was made; 2. D was a professional or someone who possessed skill, judgement or knowledge; 3. The advice or information was provided in the course of D’s business; 4. The information or advice was given deliberately and not on a social occasion; 5. The information or advice was given in response to a specific inquiry.

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Deraps v. Coia Facts: P (wife) and gravely ill husband go to D (benefits counsellor). D carelessly omits information which causes P not to realize that by signing a waiver she would lose all of her benefits when her husband dies. Husband dies and she no longer enjoys any benefits. Issue: Did D owe P a duty of care? Ratio: Failure to divulge information may be actionable as providing positively misleading advice. Analysis/Conclusion: FOR P. There was a duty of care owed by a benefits counsellor to a person seeking advice.

R v. Imperial Tobacco Canada Ltd. Facts: B.C. sues to recover costs of medical treatment for people with tobacco related illnesses. Class action law suit was brought on behalf of people who purchased “light” cigarettes. D turns claim against government for negligent misrepresentation claiming Canada represented that “light” cigarettes were less harmful. Issue: Did Canada have a duty of care to tobacco companies and consumers? Ratio: A special relationship will be established where D ought to reasonably foresee that P would rely on the misrepresentation and reliance by P was reasonable in the circumstances. In cases of pure economic loss, a duty can only be recognized where the class of Ps, the time and amounts are determinate. Analysis/Conclusion: FOR P. Despite a duty of care owed to tobacco companies, flow-through liability causes indeterminacy. Two relationships in the claim: Canada and consumers, and Canada and tobacco companies. Canada does not owe a duty of care to consumers, but did owe a duty of care to tobacco companies. Statutes create duty to the general public, but not to individuals. Canada carried out a programme of cooperation with manufacturers which involved advising and directing manufacturers about the desirable amount of nicotine based on lectures by specialists in the area. This went beyond interactions with the public and created a role for Canada which extended beyond general duties. Canada’s regulatory power and specific advice took place outside of casual interaction make it reasonable that tobacco companies and manufacturers relied on the information.

NEGLIGENT MISREPRESENTATION AND CONTRACTS  

Concurrent liability: D can incur liability in both contract and tort on the basis of the same event. Although there is no possibility of double recovery. The rule is not that one cannot sue concurrently in contract and tort where the contract limits or contradicts the tort duty. It is rather that the tort duty, a general duty imputed by the law in all the relevant circumstances, must yield to the parties' superior right to arrange their rights and duties in a different way. In so far as the tort duty is not contradicted by the contract, it remains intact and may be sued upon.

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BG Checo International Ltd. v. B.C. Hydro & Power Authority Facts: D and P enter into a contract to erect transmission towers and string of transmission lines. P had a representative inspect the area and assumed there would be full clearing before P commenced work. D accepts tenders and the documents. Contract says that cleaning would be done by others and was no to be performed by P. P’s responsibility to inform itself of all aspects of work and if there were conflicting conditions that it was P’s responsibility to obtain clarification. No clearing occurs and caused P difficulty. P sues for negligent misrepresentation and breach of contract. Issue: Was is the remedy available for pre-contractual representations made during the tendering process? Ratio: Unless the contract expressly or impliedly negatives the right to sue in tort, there can be action brought in both tort and contract. Whether parties will be held to have intended to oust tort remedies in favour of contract remedies will depend on the context, including: whether a contract is commercial or noncommercial, whether the parties were of equal bargaining power, and whether the court is of the view that to find such intention will lead to an unjust result in the court action. Analysis/Conclusion: FOR P. Breach of contract. The contract did not limit the duty of care owed by D to P nor did P waive its right to bring such tort actions as might be open to it. The theory of concurrency. It is possible to sue in both contract and in tort so long as the tort duty is not contradicted by the contract. 3 situations: 1. If contract provides for remedies higher than tort (less likely to sue in tort); 2. If rules in contract in terms of liability which are weaker than what you would have in tort (contract can limit the tort); 3. If there is nothing in the contract in the tort, both actions available absolutely. Dissent: If the parties to contract choose to define a specific duty as an express term of the contract then the consequences of a breach of that duty ought to be determined by the law of contract not tort. If a duty is an express term of the contract, it can be inferred that the parties wish to govern with respect to that duty.

SPECIAL DUTIES OF CARE AND RECOVERY OF PURE ECONOMIC LOSS Martel Building Ltd. v. Canada Facts: P leased building to D. When the lease is almost up, negotiations commenced regarding renewals. D let P to believe that it would be amenable to renewing the lease on certain terms. P extends offer and D rejects and call for tenders for building owners to lease to them. D accepts tender from another party. P claims D breached duty of care to negotiate in such a way as to avoid causing pure economic loss by delaying matters, ignoring requests, breaking appointments, and failing to put P into contact with the appropriate people. Issue: Is there a duty of care as it relates to parties involved in ongoing negotiations and pre-contractual Melanie LaBossiere

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agreements? Ratio: Given the bilateral nature of most negotiations, gains are sometimes obtained at the other party’s expense. Although negotiations often provide synergistic effects for all concerned, the prospect of causing deprivation by economic loss is implicit in the negotiating environment. Analysis/Conclusion: FOR D. Prima facie duty of care, but negated due to deleterious effects. The pre-existing lease agreement and the communications between P and D are indicators of proximity. The expression of interest does not automatically create proximity, but if there is evidence of genuine and mutual intent, which is apparent in the disclosure of both parties of a readiness to arrive at an agreement. Inherent nature of negotiations places a definable limit on the ultimate extent of liability. Indeterminacy is not an issue. There are ancillary policy considerations that necessitate precluding the extension of negligence into commercial negotiations.

NEGLIGENT PERFORMANCE OF A SERVICE BDC Ltd. v. Hofstrand Farms Ltd. Facts: A (courier company) contracted with B.C. to deliver an envelope. Unknown to A, letter contained a grant in favour of R. If R missed the deadline, they would lose the ability to bind a third party to contract for the sale of land. A delivered the envelope late and R suffers economic loss. Issue: Was there a duty of care? Ratio: If there was proximity between P and D, and injury to P was foreseeable there is a primes facie duty, which may be negated by policy considerations. It is required that there is no issue of indeterminacy, that is; the scope of the duty extends only to a limited class and over a definite period of time. If there is no reasonable reliance from P then D cannot be held liable. Analysis/Conclusion: FOR R. Lacking proximity. A had knowledge of the existence of R nor the nature of the documents being forwarded. There was no reliance on R. The situation of risk was already present for A as a result of the contract and the government’s refusal not to deliver the grant themselves.

James v. B.C. Facts: P’s employer held a tree farm licence from B.C. which contained a provision that would have prevented employer’s sawmill from being closed by the employer without the approval of the Minister of Forests. Minister inadvertently omitted the protective clause and the employer closes the mill. P launches class action D saying negligence caused loss of income.

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Issue: Was there a duty of care? Ratio: Proof of reliance is essential to prove causation. It is incumbent on P to plead and prove reliance on false representation. There is a duty of government officials not to be negligent in their duties especially when one voluntary accepts to do so. Analysis/Conclusion: FOR P. There was a duty of care owed. The lack of reliance does not preclude recovery because its place was taken by the voluntary assumption of responsibility by the solicitor. It was unnecessary for P to act at all on the implied representation in order to attract the loss he suffered and the solicitor could have reasonably foreseen that if he, in performance of duties failed to see, then that neglect would cause the very loss P suffered without P doing anything.

NEGLIGENT SUPPLY OF SHODDY GOODS OF STRUCTURES 

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Each province has statutory rules: 1. Federal: Competition Act. 2. Provincial: Consumer Protection Act, Business Practices Act. General rule, recovery is possible when there an effect, causing harm which is a real and substantial danger.

Winnipeg Condominium Corp. No. 36 v. Bird Construction Facts: Land developer contracted with R (contractor) to construct apartment. Building was converted into a condominium when A (purchaser) became registered owner. A’s directors became concerned about the work on the exterior of the building. Retained people to inspect the building and they found it was structurally sound. Eventually, cladding fell and further inspection found structural defects in masonry. Issue: Was there a duty of care owed to A? Ratio: Where a contractor is negligent in planning or constructing a building, and where the building is found to have defects from the negligence which poses a real and substantial danger to the occupants of the building, the reasonable cost of repairing the defects or putting into a non-dangerous state are recoverable. Analysis/Conclusion: FOR A. There is a duty of care owed by a contractor to inhabitants of a building. Lack of contractual privity between a contractor and inhabitants at the time the defect manifests does not make the potential for injury less foreseeable. Reasonable likelihood that a defect will cause injury is sufficient grounds for a contractor’s duty. The duty serves as a preventative function. Duty to create a building without dangerous defects is independent of contractual duty. Liability will be limited to reasonable cost of repair, not indeterminate.

RELATIONAL ECONOMIC LOSS OF SHODDY GOODS OR STRUCTURES 

Three categories: 1. Possessory/proprietary interest:

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o

When someone has some sort of interest in property, they have the right to take action even though they have no link with the person who causes the harm. 2. General average: o Several people contracting to transport goods together on a boat. If, for whatever reason, some goods on a boat is destroyed, loss is shared by all people together. You can take action even though it was not your stuff lost. 3. Joint-venture: o Two companies or more investing in one thing.

Bow Valley Huskey (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. Facts: D builds platform for P, D uses flammable insulation on the pipes and doesn’t tell P. Catches fire. P sues creator of material and D. Issue: Was there a duty of care? Ratio: Duty of care owed to all companies if it is known that the parent company is bound to lose money, even though there is no contract. If one has the ability to allocate risk and fails to do so, there should be no duty of care. Analysis/Conclusion: FOR D. There is a duty of care, but it is negated by policy considerations.

STANDARD OF CARE COMMON LAW STANDARD OF CARE  

Once it is established that D owed a duty of care to P, it becomes necessary to formulate a standard of care and determine whether it was breached. Issue raises questions of law and fact.

THE REASONABLE PERSON TEST  

The reasonable person test is based on the ordinary and prudent person. The reasonable person is not a standard of perfection. The court must distinguish between an error in judgment and actionable carelessness.

Arland v. Taylor Facts: A was injured in a car accident. Jury held that R had not breached the standard of care. A appeals on basis that trial judge misdirected the jury by instructing the jurors to base their decision on what they would have done if they were in the situation. Issue: Did the trial judge err in his charge to the jury? Melanie LaBossiere

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Ratio: The standard of care by which a jury is to assess the conduct of parties is the care that would have been taken in the same circumstances by the “reasonable and prudent man”. Standard does not require the highest degree of care which mankind is capable, rather it is the standard adopted by persons of ordinary intelligence and prudence. Analysis/Conclusion: FOR R. No breach of standard of care. There was a misdirection but there was no substantial wrong caused by the misdirection. The reasonable man test is based on a man who is not superhuman, extraordinary, and does not possess unusual powers of foresight. Ordinary prudence is guide for the reasonable person’s actions. Does involve a subjective element.

Ryan v. Victoria Ratio/Analysis: Conduct is considered negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would expected of an ordinary, reasonable and prudent person in the same circumstances. Measure of what is reasonable includes the likelihood of known or foreseeable harm, the gravity of the harm, and the burden of costs incurred to prevent the injury. External indicators include customs, industry practice, and statutory or regulatory standards. Although, a statutory or regulatory violation does not automatically equate negligence. What is reasonable depends on the facts of each case.

Caine Fur Farms Ltd. v. Kokolsky Facts: D let his dog roam freely on P’s property. Minks react to dogs poorly at a specific time of the year. One of the minks reacts poorly and kills a bunch of other minks. D knew that minks eat their young when they are scared. Issue: Did D meet standard of care? Ratio: D should take steps that the reasonable person would take to prevent injury. Analysis/Conclusion: FOR P. Evidence showed that D had knowledge of the issue with minks. D needed to take reasonable steps to stop his dog from straying.

FACTORS TO BE CONSIDERED IN DETERMINING A BREACH 

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Two important factors: 1. The probability of injury; 2. Severity of the harm. These factors are balanced against: 1. Private and social costs of avoiding the risk; 2. Social utility of D’s conduct.

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Considerations must be assessed at the time of the alleged breach, rather than in hindsight.

Roe v. Minister of Health Facts: D ran a hospital and stored anaesthetics in a glass container that was placed into a solution as a sterilization measure. P suffered injury because the anesthetic was contaminated with the solution as a result to tiny cracks. Issue: Did D breach standard of care? Ratio: If the reasonable person would have acted in a similar manner at the relevant time, then D will not be said to have breached the standard of care. Analysis/Conclusion: FOR D. D did not breach the standard of care expected of a physician in 1947. The medical community recognized the risk at the time of the trial, but at the time when P’s operation took place the risk was unknown and therefore, was not reasonably foreseeable. Cannot look at the 1947 incident with 1954 spectacles.

PROBABILITY AND SEVERITY OF HARM Bolton v. Stone Facts: P was walking on a road beside cricket ground and was struck and injured by a ball that had been hit out of bounds. Issue: Was there a breach of standard of care? Ratio: Standard of care is not to create a substantial risk to others. The courts must account for both remoteness and the seriousness of the consequences if x were to happen. Analysis/Conclusion: FOR D. No substantial risk. P claims that once a ball is hit out of bounds during a match, D would know that it may happen again, and if it did, could injure someone. P argues this alone should be enough to impose a duty and a standard of care. It is not possible to avoid all risks at all times. Reasonable men do take into account the degree of risk but do not act on a mere possibility, as they may if there was a substantial risk.

Miller v. Jackson Facts: P owned home by a cricket field and ball went out of bounds and hit house. Ratio/Analysis/Conclusion: FOR D. Melanie LaBossiere

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A risk of injury must be more probable than not. D need not guard against dangers that are fanciful or farfetched. Generally, if D can show that their actions were what sensible, ordinary people would do, the courts will agree.

Paris v. Stepney Borough Council Facts: P has one eye. While serving as a garage hand a piece of metal pierced his good eye rendering him completely blind. Issue: Did P’s employer breach standard of care? Ratio: The standard of care is the care that an ordinarily prudent employer would take in all the circumstances, accounting for both risk and potential severity of injury. As circumstances vary infinitely, it is often impossible to adduce evidence of what care an ordinarily prudent employer would take, it is up to the judge to weigh up the risk of injury and the extent of damage. Analysis/Conclusion: FOR P. D breached the standard of care. Ordinarily prudent employer, knowing that there was a high risk of injury and that P, lacking one eye could be severely injured would have provided safety goggles. Although the risk of steel getting into a workman’s eye may be low, because P only had one eye, which increases the severity of injury if it should happen. He was owed a special duty of care. The reasonable man takes into account the foreseeability of every individual man. Dissent: In considering precautions which an employer ought to take for the protection of his workmen, it must be right to take into account both the likelihood of injury and the gravity of consequences. There are two possibilities in this case: D was negligent in failing to provide goggles to all employees, or the risk of an eye injury was so remote that no employer could be found negligent in failing to take such precaution. It must be the latter.

COST OF RISK AVOIDANCE Vaughn v. Halifax-Dartmouth Bridge Commission Facts: Bridge operated and maintained by D was painted and flecks of paint were blown onto nearby cars. Owners of the cars sue. D argues that they had taken all proper measure to prevent or minimize injury to P. Issue: Was the cost of any further damage prevention so high as to make it impractical or unreasonable? Ratio: It is the duty of D to take all reasonable measures to prevent the results or to minimize the damage to P. If precautions are of little expense, it is easier to breach the standard of care. Analysis/Conclusion: FOR P. There was a breach of standard of care, risk avoidance was inexpensive. Melanie LaBossiere

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There were no efforts made to tell people to move their cars, or make them aware that there was painting. D occasionally told security that the painting was taking place and cars would be moved which did prevent damage. The wiping operation was not completed in a timely manner by the employee tasked with wiping paint flecks off of cars.

Law Estate v. Simice Facts: P sued D (doctor) in negligence claiming that her husband died because of D’s failure to provide timely and skillful emergency care. Among other things, D had not taken a CAT scan of the patient. Issue: Was the cost of care so high as to render it impractical? Ratio: If it comes to a choice between a physician’s responsibility to his or her individual patient and his or her responsibility to the Medicare system overall, the former must take precedence. Analysis/Conclusion: FOR P. There was a breach of the standard of care expected of medical professionals. Insurance plans and the medical association standards restricted D’s requests for CAT scans. Constraints worked against patient’s interest by inhibiting D in his judgement of what needed to be done. The severity of harm that may occur if a patient goes undiagnosed is far greater than the financial harm that will occur to the Medicare system if one more CAT scan reveals that a patient was not suffering from a serious condition.

Lovely v. Kamloops Facts: P was disposing of garbage at D’s transfer station and fell, injuring his leg resulting in amputation. Analysis/Conclusion: FOR P. The reasonable person would have taken precautions such as setting up guard rails, which are inexpensive and would prevent such injury from occurring.

SOCIAL UTILITY  

Generally, the courts will only consider the social utility of D’s conduct if he or she is a public officer or is employed by a public authority. There are a couple scenarios where D may not be found liable for not taking proper precautions: 1. Emergencies: D may not take precautions to the best of their ability, due to the nature of the incident. 2. Custom in a field. 3. Post-accident precautions: steps to prevent further harm after the fact does not necessarily mean a person committed the fault in the first place.

Watt v. Hertfordshire County Council Facts: P (firefighter) responded to a call which required he use a special jack. Truck fitted for the jack was Melanie LaBossiere

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unavailable so it was loaded on another vehicle. When driver pressed the breaks it dislodged and harmed P. P sues D (employer). Ratio: In measuring due care, a balance must be struck between risk and the measures necessary to eliminate risk. If the social utility outweighs the level of risk, D may not be found liable. Analysis/Conclusion: FOR D. There was a breach of standard of care. When balancing the risk against the end, it is clear that the saving of lives justifies taking considerable risks. The risk associated with sending out the jack was not so great as to prohibit an attempt to save a life.

SPECIAL STANDARDS OF CARE  

There is tension between the foundation of negligence and its compensatory goals. There must be avoidance of imposing as standard as variable as the length of the foot, it is not one size fits all.

STANDARD OF CARE EXPECTED OF THE DISABLED 

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Test specific to questions of physical disability: 1. Should standard of care be modified? o The law accommodates those persons who suffer from a serious physical disability with a standard of care that is compatible with their condition. Test specific to questions of mental disability: 1. Is there fault, was the action taken or omitted voluntarily causing harm? o Not liable if D can show on a balance of probabilities that:  As a result of mental illness, D has no capacity to understand or appreciate the duty of care at the relevant time; or  Was unable to discharge his duty of care as he had no meaningful control over his actions at the time the relevant conduct fell below the objective standard of care. o The test will not erode the objective reasonable person standard. Only VOLITION triggers liability.

Filala v. Cechmanek Facts: MacDonald experiences a severe bipolar I manic episode and jump’s onto D’s car, breaks the sunroof and strangles D. As a result, D hits the gas pedal and runs into P’s car and injures P. Issue: Did MacDonald have a duty of care and did he breach standard of care? Ratio: Holding the mentally ill to a strict objective standard would essentially create a no-fault regime. Unless the mentally ill person has the capacity to conform to the objective standard they will be relieved of liability. Analysis/Conclusion: MacDonald cannot be held liable. Melanie LaBossiere

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When two innocent people are in an accident, presumably the element of fault is absent. In negligence, fault is associated with falling below the requisite standard of care in the circumstances. Holding a mentally ill person liable for actions would create a strict liability regime. The elements of the negligence action ought to conform and be interpreted by courts according to the notion of fault and the goal of correcting wrongs. If compensating is the overriding goal the legal process is rife with fictions leading to the application of legal principles in a result-oriented manner compromising the system of corrective justice. Differentiating an epileptic person from a mentally ill person seems wholly unjustified. Instead of holding mentally ill liable, caregivers should recognize legal ramifications of a failure to execute duties.

Buckley and TTC v. Smith Transport Facts: D (truck driver) suffers from an insane delusion that his truck was controlled by a remote control. Issue: Does D’s mental illness prevent him from being held liable? Ratio: If D could appreciate the duty of care owed and could discharge that duty, then D will not be held liable. Whether D could understand his actions were “wrong” is irrelevant. Different than criminal law test. Analysis/Conclusion: FOR D. D was either incapable of appreciating the duty to take care or incapable of discharging the duty by reason of mental illness and cannot be held liable.

Canada v. Connolly Facts: D, who suffers from bipolar disorder, drove his car forward while P’s arm was pinned inside. Issue: Can D be held liable despite suffering from a mental illness? Ratio: If there was an absence of foreseeable harm, then the courts will not hold D liable. Analysis/Conclusion: FOR D. Absence of foreseeable harm. D’s bipolar disorder prevented him from foreseeing that the result of driving the car forward could cause injury. The essential element or foreseeability is absent and therefore, he cannot be held liable.

Hutchings v. Nevin Facts: D was having delusions and caused a car accident which injured passengers. P’s counsel argued that Ontario’s compulsory automobile insurance legislation shifted the risk of mentally ill drivers onto D’s insurers.

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Analysis/Conclusion: FOR D. Court rejects the argument put forward by P’s counsel.

STATUTORY ADDITIONS The Mental Health Act In Manitoba, the Mental Health Act stipulates at s.118 that caregivers to the mentally ill can be held liable should they fail to carry out their duties, unless carried out in good faith. Protection from liability: 118 No action for damages or other proceeding lies or may be brought personally against the director, a medical director, a psychiatrist, a physician, a member of the review board or of the Review Board established or designated for Manitoba under Part XX.1 of the Criminal Code (Canada), or any other person acting under the authority of, or engaged in the administration of this Act or the regulations for anything done or omitted in good faith in the performance or exercise, or the intended performance or exercise, of any duty or power under this Act or the regulations, or for any neglect or default in the performance or exercise, or intended performance or exercise in good faith of such a duty or power.

STANDARD OF CARE EXPECTED OF CHILDREN Joyal v. Barsby Facts: P (Six-year-old) moves towards a truck which approached him with his horns sounding. Truck slows down. After thinking P had stopped moving, truck moved forward. The P ran into D’s vehicle and suffered grievous injuries. Ratio: The courts will look at whether an infant exercised care to be expected from a child of like age, intelligence and experience. Analysis/Conclusion: FOR P. There was no contributory negligence. Negligence is concerned with a want of care in particular circumstances. The ordinary child of like age and intelligence would have acted as P did. Dissent: The child had knowledge of the dangers of traffic and experience with the highway and without looking both ways walked into traffic. P was contributorily negligent. P can recover 60% of damages.

Ryan v. Hickson Facts: Twelve-year-old child takes nine-year-old snowmobiling and gets into an accident, injuring the nine-yearold. Issue: What is the standard of care expected of the twelve-year-old? Is the child or his guardian liable? Ratio: When a child is engaging in an activity that is usually considered an “adult activity”, the child is held liable Melanie LaBossiere

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and responsible as an adult as compared to an adult’s standard of care. Analysis/Conclusion: FOR P. D and D’s father breached standard of care. All children know that snowmobiling is a potentially dangerous activity and are aware of the dangers it poses. The father let his son operate without any training.

Imbree v. McNeilly Ratio/Analysis: The standard of care for an inexperienced driver is the same as any other person’s and is not to be qualified by reference to the level of experience of the driver. A passenger in a car being driven by a less experienced driver is not owed a lower standard than others using the road.

STATUTORY ADDITIONS The Parental Responsibilities Act Parental liability: 3 The parent of a child who deliberately takes, damages or destroys the property of another person is liable for the loss suffered by the owner of the property as a result of the activity of the child, and the owner of the property may commence a civil action under this Act against the parent of the child to recover damages, in an amount not exceeding $10,000., in respect of the owner's loss. Standard of care is “reasonable parent of ordinary prudence”. If a parent proves they exercised reasonable supervision and made efforts in good faith to prevent or discourage the child, then they will not be held liable.

LaPlante (Guardian ad Litem of) v. LaPlante Facts: D (father) permitted son who recently obtained his licence, to drive in traffic in highway speeds under icy conditions. Analysis/Conclusion: FOR P. D held liable. A reasonable parent of ordinary prudence would not have allowed their son to drive in those conditions.

C.S. (Next Friend of) v. Miller Facts: A five-year-old was molested by Millar, a friend of the child’s parents while visiting Boy Scouts camp. Camp Chief witnessed the assault and took no action to stop it or prevent further assaults while the child was at camp. P (mother of child) sues Boy Scouts, and Camp Chief. Issue: Is the Camp Chief liable in negligence for her failure to act, even though she was a volunteer? Ratio: If a person enters into a relationship of supervisory care over children, then an obligation to take appropriate steps to protect those children is imposed. Melanie LaBossiere

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Analysis/Conclusion: FOR P. Camp Chief breached standard of care expected of a volunteer taking on a supervisory care position. She did not take appropriate steps to protect the victim despite her position of supervisory care, which she took on willingly and knowingly. Boy Scouts were vicariously liable.

STANDARD OF CARE EXPECTED OF PROFESSIONALS    

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Generally, the standard of care expected of professionals is that which would be reasonably expected of a person in their field with the same experience and standing. Volunteers need not meet a professional standard of care, but are expected to know her limits and complete any training necessary to know how to do their tasks competently. Agencies may be held liable if they fail to adequately screen, train and place volunteers. The standard of care expected of an intern is that of a reasonably competent intern in the circumstances. In contrast, residents will be held to the standard of care of a general practitioner, but not a fully qualified specialist. Individuals may be held to a professional standard of care if they implicitly or explicitly suggest that they have the skills and training of a professional.

White v. Turner Facts: D (plastic surgeon) performed a breast reduction on P. P sues after she experiences post-operative complications. Issue: What is the standard of care for a surgeon? Did D breach standard of care? Ratio: Professionals may make mistakes during the course of their practice, not all such mistakes equate to negligence. For D to be held liable in negligence, it must be established on a balance of probabilities that D performed their work in a substandard way according to the standards unique to their specialty. Patients must be told of unusual and material risks: 

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MATERIAL: Big risks; very likely to occur or are very damaging and likely to happen. Material being any serious risks that cause endangerment to the patient, even a 1% chance of dying is considered material. The more serious a risk is, the more likely it is considered material. UNUSUAL OR SPECIAL: extraordinary and uncommon; but should be described to a reasonable person even if they aren't material.

Analysis/Conclusion: FOR P. D breached standard of care expected of a specialist in his field. D was not negligent in his use of the chosen procedure or the planning of the procedure, as proven by two experts. D was however negligent in the actual carrying out of the operation by failing to remove the proper amount of tissue as a result of moving too quickly and suturing before checking if the right amount of tissue was removed. Usual required time was 3-4 hours and D only took 1 hour 35 mins. D did not check tissue before suturing which is standard practice for plastic surgeons.

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Layden v. Cope Facts: P had gout in the past and D (general practitioner in a rural town) continued to treat P for gout even though P’s condition continued to deteriorate and nurses expressed concern. P was finally referred to a specialist who found that his leg had to be amputated. Issue: Did D breach the standard of care expected? Ratio: The standard of care expected of a general practitioner in a small town is not different than on in a large city. Analysis/Conclusion: FOR P. Breach of standard of care. D should have considered other diagnoses when P’s condition did not improve.

Crits v. Sylvester Facts: Boy was getting a routine procedure and was put under anesthetic. After surgery, the anesthetist forgot to turn off gas and the boy’s face caught fire from the static electricity and gas in the operating room. Issue: What is the standard of care expected of a specialist in a particular field? Ratio: A professional is bound to exercise that degree of care and skill which could reasonably be expected to a normal prudent practitioner of the same experience of standing. If D holds him or herself out as a specialist, a higher degree of skill is required than of one who does not profess to be so qualified by special training and ability. Analysis/Conclusion: FOR P. Breach of standard of care. No precautions were taken by D, despite specialized training which gave a reasonable degree of knowledge and experience that would allow him to prevent the injury.

Shakoor v. Situ Ratio/Conclusion: A practitioner of traditional Chinese medicine who did not hold himself as an orthodox physician was required to meet the standard of care appropriate to his “art”.

CUSTOM Ter Neuzen v. Korn Facts: A contracted HIV as a result of artificial insemination. The risk was not widely known at the time of the procedure. R (doctor) was responsible for screening semen donors. R had adopted the standard medical practice. Melanie LaBossiere

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Issue: Is it open to the jury to find that the standard practice itself fell short of the standard of care? Under what circumstances will a professional standard practice be judged negligent? Ratio: Where a procedure involves difficult or uncertain questions of medical treatment or complex scientific or highly technical matters that are beyond the ordinary experience and understanding of a judge or jury, it will not be open to find a standard medical practice negligent. If the standard fails to adopt an obvious or reasonable precaution, readily apparent to the ordinary finder of fact, then it is no excuse that a practitioner was merely conforming to a negligent common practice. Analysis/Conclusion: New trial ordered.A specialist such as R who holds himself as possessing a special skill and knowledge, must exercise the degree of skill of the average specialist in his field. The court does not have the expertise to know whether a doctor was acting according the standard. It is assumed that medical professionals in the field have adopted procedures which are in the best interest of patients and are not inherently negligent. The court can only find fault where there has been a violation of universally accepted rules of medicine. Conformity with common practice will generally exonerate physicians, there are situations where the standard itself may be found negligent, but the standard can only be found negligent when fraught with obvious risks. At the time of treatment, R had complied a standard practice that was beyond the reasoning of the lay person and was not fraught with danger that it could be careless.

Heeny v. Best Ratio: The party relying on either compliance with, or breach of custom has the burden of proving such a custom exists. The custom must be a well-established and recognized practice that has been widely accepted in a trade, industry or profession.

CAUSATION    

The primary test used to establish causation is the but-for test. P must establish that D’s negligence was a cause of the injury suffered. P need not prove that it was the sole, immediate, direct or most important cause. Factual causation is established on a balance of probabilities. There are two types of loss that can be suffered by P: 1. Divisible loss: loss that can be attributed to one tortfeasor. 2. Indivisible loss: loss that can be attributed to more than one tortfeasor.

THE BUT-FOR TEST 

If P’s injury would not have occurred but-for D’s negligent act, then the act is a cause of the injury.

Kauffman v. Toronto Transit Commission Facts: R stepped onto an escalator and some kids start scuffling and fall back onto a man in front of R. The man Melanie LaBossiere

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falls onto R and R tumbles down the escalator with a few people on top of her and suffers severe and lasting injuries. Issue: Was A’s failure to invest in a specific kind of handrail a cause of R’s loss? Ratio: The causal relationship between the alleged negligence and the injury must be made out by the evidence, not simply left for the jury to infer the existence of such causal relationship. Analysis/Conclusion: FOR A. There was no evidence that the handrails contributed to the fall, nor was there evidence that there had been a different handrail that would have prevented the injury from occurring.

Barnett v. Chelsea and Kensington Hospital Management Committee Facts: Three men went to D (hospital) complaining about becoming ill after drinking tea. Nurse calls a medical casualty officer who advises them to go see their own doctors. They die of arsenic poisoning hours later. The dismissal of the complaints without examining the deceased was a breach of the standard of care. Issue: Was there sufficient causation? Ratio: If P can establish, on the balance of probabilities, that the loss suffered resulted from the negligent action of D, there will be sufficient causation. Analysis/Conclusion: FOR D. There was a lot of technical evidence put before the court. The men died from dehydration and a disturbance to enzyme processes. Evidence suggests that it may not have been possible to provide the antidote on time. P failed to establish that the deaths were a result of D’s negligence. The casualty officer was negligent in failing to send them for examination, his duty was to admit the deceased to the ward and have them treated.

Steinbach v. Fraser Health Authority Facts/Analysis/Conclusion: A nurse’s negligent failure to report findings to a doctor, and the doctor’s negligent assessment of a fetus was held to be causes of the baby being born with cerebral palsy.

Mangal v. Osler Health Center Facts/Analysis/Conclusion: An anaesthetist’s negligence to promptly inform an obstetrician at a critical stage of the birthing process was held not to be a cause of a patient’s death.

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Ediger v. Johnston Facts/Analysis/Conclusion: A doctor’s negligence in performing a forceps delivery without a surgical team being immediately available was held to be a cause of the baby’s brain damage and quadriplegia.

ESTABLISHED EXCEPTIONS TO THE BUT-FOR TEST  

Exceptions apply to a narrow category of cases to address perceived unfairness that would result from the application of the but-for test. The exceptions include the: 1. Multiple negligent Ds rule. 2. Learned intermediary rule. 3. Objective/subjective test in informed consent cases.

MULTIPLE NEGLIGENT DEFENDANTS RULE Cook v. Lewis Facts: P was shot in the face when two negligent hunters fired int eh same direction at the same time. P could not prove on a balance of probabilities who had shot him. Issue: What should the test be in a case where the but-for test would result in multiple Ds being absolved of liability? Ratio: The burden of proving causation shifts to D if P can prove that: all involved Ds were negligent, one had to have been the cause of his loss and it was impossible to prove which one actually caused the loss. Unless D can disprove causation on a balance of probabilities, each D will be held liable.

LEARNED INTERMEDIARY RULE  

Manufacturers of products that are not directly available to the public may discharge their duty to inform consumers onto a learned intermediary who will become responsible for informing consumers. The duty to inform may be discharged if the products are highly technical, is used under the supervision of specialists, or the consumer would not realistically receive a direct warning from the manufacturer.

Hollis v. Dow Corning Corp. Facts: P was injured as a result of one of D’s implants rupturing inside of her. D had negligently failed to inform P’s surgeon of the risks of non-traumatic rupture, but argued that they had to be absolved of liability on the basis of causation. Submitting that P could not prove on balance of probabilities that her doctor would have warned P, even if D had sufficiently informed him. Issue: What is the test to be applied when there is a learned intermediary?

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Ratio: It may be possible for manufacturers of a product to discharge their duty to inform consumers onto a learned intermediary. A D cannot use the learned intermediary rule as a shield from claims as a result of their own negligence. Analysis/Conclusion: FOR P. D is liable for P’s injuries. The court rejected D’s argument because it would great an anomalous situation in which P, who was negligently injured, would have no cause of action. As the doctor was unaware of the risks, a claim against him in negligence would fail. P would not have gotten the procedure had she known the risks.

INFORMED CONSENT   

In some situations, the court may find it appropriate to apply an objective/subjective test of causation. The test asks whether the reasonable person in P’s position would have consented if her or she had been adequately informed. There are concerns that a subjective test would allow for self-serving evidence and that looking at a situation in hindsight may affect the determination of whether a reasonable person would consent.

Reibl v. Hughes Facts: P underwent surgery to remove a blockage from an artery. P was not made fully aware of the possible complications and suffered a stroke and was left paralyzed. Issue: Should there be a subjective test in causation? Ratio: There are two elements that must be examined in determining causation, the first is a subjective test, which is to be followed by an objective test. It must be determined if P would have consented had they known associated risks. Then, the court must assess if the reasonable person would have consented had they been made aware of all risks.

Hopp v. Lepp Ratio: Healthcare professionals have a duty to put patients in a position to make informed decisions about whether to consent to a proposed treatment.

Arndt v. Smith Ratio/Analysis: Majority: the objective/subjective approach is appropriate. A purely subjective test would require that the court hypothesize about how a patient would have reacted if properly informed. The patient’s testimony would be coloured by hindsight and bitterness and leave the question of causation to be determined solely on the patient’s testimony as to how he or she would have acted. Dissent: applied the standard subjective test of causation.

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*Despite the split in Arndt the Canadian courts continue to apply the subjective/objective test in informed consent cases.

RECENT ATTEMPTS TO MODIFY THE BUT-FOR TEST MATERIALLY INCREASED RISK OF INJURY TEST  

Science has made it possible to establish that events and exposures to substances increase the risk that a person will develop a disease or disability. Under the but-for test, increased risk must be enough ot make it more probable than not that D’s negligent act was the cause of P’s loss.

McGhee v. National Coal Board Facts: D employed P to clean out a brick kiln. The working conditions were such that by the end of the day, P was covered in dust. In breach of the requisite standard of care, D failed to provide showers at the work site. P developed dermatitis. Issue: Did D’s negligence increase the risk of injury, such that D can be held liable? Ratio: If D’s conduct materially increases the risk of a particular kind of injury occurring and that very injury befalls P, then D will be deemed one of the causes. In such circumstances, the burden shifts to D to disprove causation. This test is limited to cases where sound policy warrants an exception to the but-for test. Analysis/Conclusion: FOR P. Even though experts could not directly link the lack of showers to the dermatitis, it was enough to materially increase the chance of the loss suffered by P.

Wilsher v. Essex Area Health Authority Facts: P undergoes a procedure and proves that for a period of time, he was supersaturated with oxygen. P goes blind. A number of factors could have been the cause of the injury, evidence presented was conflicting. P sues D (health authority) in negligence. Issue: Is there sufficient causation? Ratio: There is a requirement that proof of fault causing damage is presented to impose liability. It is not accurate to say there is a shifting of the burden of proof, what is meant is that there are circumstances where evidence adduced by P may result in an inference being drawn adverse to D. Analysis/Conclusion: FOR D. Melanie LaBossiere

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A likely cause, although not definite, was the supersaturation of oxygen. The burden is on P to prove that D was a cause of injury.

Snell v. Ferrell Facts: D performed a cataract operation on P. After injecting local anaesthetic into muscle behind the eyeball, D noticed discolouration which he stated was due to a small bleed. D examined further and then waited thirty minutes before proceeding. Following the surgery there was blood in her eye which cleared nine months later but the nerve atrophied and caused blindness. Damage to the nerve could have been caused naturally or the result of continuing the operation. Issue: Is the traditional approach of causation no longer satisfactory in that Ps in malpractice cases are deprived of compensation because they cannot prove causation where it in fact exists? Ratio: In circumstances where D has a substantial connection to the injury and are escaping liability simply because P could not prove causation, the alternative in McGee may be adopted. Analysis/Conclusion: FOR P. It is often difficult for P to prove causation in medical malpractice cases. The burden of proof may be shifted to increase fairness. A physician will usually be in a better position than P to know the cause of injury. The continuation of surgery was more likely than not a cause of injury based on the evidence. Continuing the surgery made it impossible for anyone else to detect the bleeding which is alleged to have caused the injury. There is no evidence to rebut this inference. It is not mere speculation but the application of common sense to draw inference where the circumstances other than a positive medical opinion permit.

MATERIAL CONTRIBUTION TO INJURY TEST  

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Where the but-for test is unworkable, causation may be established when the negligence materially contributed to the injury. Negligence is material when it falls outside of the de minimus range. P cannot succeed unless she shows as a matter of fat that she would not have suffered the loss but for the negligent act of D. Trial judge is to take a robust and pragmatic approach to determine if P has established that D’s negligence caused her loss. Scientific proof of causation is not necessary. Exceptionally, P may succeed by showing that D’s conduct materially contributed to the risk of P’s injury where P has established that her loss would not have occurred but for the acts of two or more each possibly in fact responsible for the loss and P through no fault of her own is unable to show that any one of the possible tortfeasors in fact was the necessary but for cause of her injury because each can point to one another as the possible but for cause of the injury defeating a finding of causation on a balance of probabilities against anyone.

Hanke v. Resurface Co. Ratio: The material contribution test will apply if P can establish that it is impossible to prove causation based on the but for test and that the impossibility is a result of factors beyond P’s control, that D breached the standard of care, and that his or her injuries fell within a scope of risk created by D’s breach. Where these two requirements are satisfied, liability may be imposed, even though the “but-for” test is not satisfied, Melanie LaBossiere

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because it would offend basic notions of fairness and justice to deny liability by applying a “but-for” approach. *Unclear whether the test refers to material contribution to P’s INJURY or the material contribution to the RISK OF INJURY. The former duplicates the but-for test, and the latter modifies the material increase of risk test in Snell.

Clements v. Clements Facts: D was driving his motorcycle, which was overloaded by 100 pounds, on a wet road, and was going 120km/hr when passing a car. Unbeknownst to D, a nail had become lodged in his tire. The nail fell out, he swerved and crashed. P (wife) sued to recover for severe brain injury alleging that it was caused by D’s actions. Issue: Should the material contribution test apply? Ratio: The material contribution test removes the “but-for” causation requirement and substitutes proof of material contribution. This may be appropriate where it is clear D breached duty of care in a way that exposed P to unreasonable risk of injury and where it is impossible for P to prove on the but-for test. This will only apply in situations with multiple Ds. Analysis/Conclusion: FOR D. The law of negligence has never required scientific proof, therefore scientific impossibility does not affect P. It is simply a balance of probabilities. Impossibility does not shift the burden. Impossibility refers to the idea that in a case that has multiple possible tortfeasors it may be impossible to point the finger at one with certainty. *NOT APPLICABLE IN CASES WITH ONE TORTFEASOR

PROPORTIONATE CAUSE AND LOSS OF CHANCE   

Major problem appears to be the all-or-nothing approach to losses occurring prior to trial. The but-for test suggests that if there is a 49% chance that D’s negligence caused the injury P’s claim would fail but where there is a 51% chance, it will succeed. Future losses: hypothetical events need not be proven on a balance of probabilities. Weight will be given according to their likelihood.

Sindell v. Abbott Labratories Ratio: P should recover based on the possibility that D was the cause of the injury. If P can establish a substantial or reasonable possibility that D’s negligence will cause a future loss, P can recover for part of the loss. *If there is a 30% possibility that D caused P’s injury, P can recover 30%. If there is a 40% chance that P will go blind due to injury, P can recover 40% of the cost he or she would incur if he or she did go blind.

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MULTIPLE CAUSES  

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The issue of causation becomes more complicated when P’s injuries are brought on by two or more causes. If injuries can be divided into distinct losses that are readily attributable to the conduct of a single D, then there will be a separate cause of action against each of the tortfeasors and the but-for causation test will apply. In situations where Ds are independent tortfeasors D is only liable for the injuries that he or she causes. Joint tortfeasors will be held liable for the torts committed by his or her fellow tortfeasors even if he or she did not contribute to P’s loss.

INDEPENDENT INSUFFICIENT CAUSES  

Several factors combine to cause P’s loss. Each factor is individually necessary as loss would not have occurred without it, however no factor is individually sufficient to have caused a loss in the absence of the other factors.

Athey v. Leonati Facts: P, who had a pre-existing back condition suffered neck and back injuries, is in a crash negligently caused by Ds. P begins an exercise program on doctors’ advice and sustains a herniated disc. The incident resulted in a permanent disability and D had to leave his job. Ds admitted they were negligent. Issue: Was the disc herniation caused by the injuries sustained by the accident, or was it the pre-existing condition? Ratio: It is not necessary that P prove D’s negligence was the sole cause of the injury. As long as D was part of the cause, D is liable. A pre-existing condition is not a basis for a reduction in liability. Analysis/Conclusion: FOR P. The crumbling skull rule recognizes that a pre-existing condition was inherent in P’s original position. D is liable for injuries that were caused, even if they were extreme, but not for debilitating effects that would have been suffered anyway. The fitness world incident was not the cause of the injury; it was the effect. Mere stretching would not cause disc herniation in absence of some latent issue. Future or hypothetical events can be factored into the calculation of damages according to the degrees of probability, but causation of the injury must be determined to be proven or not proven. It was necessary that both the accident and pre-existing condition were present for herniation to occur, therefore, causation is proven. Even though it played a minor role, it was a necessary contributing cause.

REMOTENESS 

Even if D breached the standard of care in a way that caused P to suffer a loss, liability will be denied if the connection between the breach and the loss was too remote.

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Remoteness is a CONTROL MECHANISM: striking a balance between the desirability of holding D responsible for a loss that he carelessly inflicted and the desirability of relieving D of an unreasonable burden. Causation is concerned with the FACTUAL connection between D’s breach and P’s loss, whereas remoteness is concerned with the LEGAL connection between D’s breach and P’s loss.

DIRECTNESS Re Polemis and Furness, Withy Co. Facts: D’s servants carelessly dropped a plank into the hold of P’s ship of cargo which contained benzene. Spark ignited the benzene fumes and P’s ship was destroyed. Issue: Was the loss too remote to impose liability? Ratio: If P’s loss is the direct result of D’s carelessness, then P’s loss is not too remote to be recoverable. Analysis/Conclusion: FOR P. The sequence of events was not reasonably foreseeable but imposed liability on the basis that there was a direct connection between D’s breach and P’s loss. *This decision has fallen into disfavour.

FORESEEABILITY  

Foreseeability inquiries emerge at the DUTY, BREACH and REMOTENESS stages and raise DIFFERENT issues which progressively move from the general to the particular. Foreseeability is defined differently at each stage: 1. Duty of care: D and P were placed in relation to each other in a way that made it reasonably foreseeable that careless conduct of any kind on the part of D may result in damage of some kind to P. 2. Breach of standard of care: it was reasonably foreseeable that the kind of carelessness charged against D might result in some kind of loss to P. 3. Remoteness: the kind of loss suffered by P was a reasonably foreseeable outcome of the kind of carelessness charged against D.

The Wagon Mound 1; Overseas Tankship Ltd. v. Mock Dock and Engineering Co. Facts: A (charterers) carelessly permitted oil to spill into a harbour while taking on fuel. The oil was left to spill for days and was carried by the wind under R’s wharf. R’s employees were using welding equipment and metal fell, which ignited a fire, which then fell onto the water where it hit the oil and set the wharf on fire. Issue: Was the ultimate loss too remote for D to be held liable with respect to any damage caused by the fire (not the oil itself)?

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Ratio: It is not consonant with the principles of negligence or civil liability to find an actor liable for all consequences, however unforeseeable and however grave, so long as they can be said to have been “direct”. If the reasonable man ought to have foreseen the consequences of D’s negligent act, D will be held liable. Analysis/Conclusion: FOR A. The direct consequence test should not be considered good law as it leads nowhere but to a never-ending and insoluble problem of causation. It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more is too harsh a rule, to demand less is to ignore that civilized order requires observance of a minimum standard of behavior.

MODIFICATIONS TO THE FORESEEABILITY TEST THE KIND OF INJURY Hughes v. Lord Advocate Facts: D’s employee left a paraffin lamp next to an open manhole and left it unattended. An 8-year-old knocked the lamp into the manhole, which broke the lamp and let out paraffin, resulting in an explosion. The boy was badly burned. Issue: What is the appropriate test for remoteness? Ratio: D may escape liability if the loss suffered by P was differing in kind from what was foreseeable. As long as the general type of injury was foreseeable there will be proximate cause. If the accident was caused by a known source of danger, but caused in a way which could not have been foreseen, D will be held liable. Analysis/Conclusion: FOR P. P’s injuries were mainly burns; D says burns were unforeseeable. There was a duty owed by the workmen. If they had fulfilled their duty and done what they ought to have done there would not have been an accident. The injuries suffered by P, although different in degree, did not differ from the kind of injuries that may have resulted from an accident foreseeable in nature supports a finding that D is liable.

THE THIN SKULL RULE  

If it was not reasonably foreseeable that D’s carelessness would cause any injury to P, then P cannot recover even if, because of a peculiar vulnerability, he suffered a great deal. However, if it was reasonably foreseeable that D’s carelessness would cause some injury of a particular type, then P can recover in full, even if, due to a peculiar vulnerability, he or she suffered to a greater extent than what could have been reasonably foreseen.

Smith v. Leech Brain & Co. Facts: P’s husband was employed by D. P’s husband was operating a crane and metal struck him, burning his lower Melanie LaBossiere

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lip. The burn later ulcerated and he was diagnosed with cancer, from which he died. D was found to have been negligent and that the burn had promoted cancerous tissues, which had a pre-malignant condition as a result of exposure to tar, to spread. P made a claim under the Fatal Accidents Act. Issue: Can D be held liable? What is reasonable foreseeability? Ratio: If D could have reasonably foreseen the type of injury which P suffered, D will be held liable. There is no defense in suggesting that because P was not at a high risk of x, D should not be held liable. Analysis/Conclusion: FOR P. A tortfeasor takes his victim as he finds him. The test is not whether D could reasonably foresee that the burn would cause cancer and P’s husband would die from the cancer, it is whether D could have foreseen the burn. D could have reasonably foreseen that a burn could injury P’s husband.

Marconato v. Franklin Facts: P suffered minor injuries in a car accident caused by D’s negligence. She later developed pain for which there was no explanation and became depressed, hostile and anxious. P had paranoid tendencies prior to the accident but it was not until the accident that a major personality change was triggered. Issue: Was the injury suffered reasonably foreseeable? Ratio: A wrongdoer takes his victim with all the victim’s peculiar susceptibilities and vulnerabilities. Analysis/Conclusion: FOR P. The fact that the physical injury suffered brought about a mental illness which P was predisposed to is enough to get compensation. D could have foreseen the possibility of physical injury, the consequences suffered were greater due to P’s peculiar susceptibility, but that does not absolve D of liability.

Kavanagh v. Akhtat Facts/Conclusion: P was injured when a heavy box fell on her at D’s store. P was forced to cut her hair short due to the injury, which limited mobility in her shoulder. P’s husband reacted poorly to the haircut for religious reasons and the marriage failed as a result. P successfully sued and recovered damages for psychiatric injury suffered as a result of the physical injury.

THE CRUMBLING SKULL RULE 

The crumbling skull rule is different than the thin skull rule in 2 ways: 1. A P with a thin skull is more vulnerable to harm than the normal person, but may successfully avoid injury, whereas a P with a crumbling skull is doomed at the outset. 2. D must compensate a thin-skulled P for the entirety of the injury suffered, whereas D must only compensate a P with a crumbling skull to the extent that he worsened P’s condition.

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The thin skull rule asks whether D should be held for carelessly cracking a skull that, while weak, may have otherwise survived. The crumbling skull rule asks whether D should be held liable for hastening the onset of injury that would have eventually occurred in any event.

THE THIN WALLET RULE Dredger Liesbosch v. Steamship Edison Facts: P’s ship sunk due to D’s carelessness. P was not financially stable and failed to fulfill his obligation of chartering a ship to a third party as he could not afford to buy a new ship. P claims additional damages due to his financial vulnerability. Issue: Can a P who is vulnerable to financial harm receive additional damages? Ratio: P cannot claim additional damages that flow from the fact that he or she had a “thin wallet” and therefore was unusually susceptible to economic harm. Analysis/Conclusion: FOR D. D cannot be held liable for additional damages as a result of P’s “thin wallet”.

THE POSSIBILITY OF INJURY The Wagon Mound 2; Overseas Tankship Ltd. v. Miller Steamships Co. Pty. Facts: Ps own two boats that were damaged in the harbour fire. Ps succeeded in nuisance but not negligence because it was held that the damage was too remote. P appeals. Issue: Was the damage too remote to be recoverable? What does foreseeable and reasonably foreseeable mean? Ratio: Would the reasonable man having the knowledge and experience to be expected of them in the circumstances have known that there was a real risk of a specific event occurring in some way and if it did, loss was not only foreseeable but very likely. Analysis/Conclusion: FOR A. Findings of fact are that the officers would have regarded furnace oil as difficult to ignite on water, in their experience, it rarely happened (not never happened), and that they would have regarded it as a possibility but one that would only become an actuality in exceptional circumstances. There was no justification not to take steps to eliminate a risk that the employee ought to have known is a real risk. The reasonable man would not remain inactive even though the risk was such that it should only occur in exceptional circumstances, especially when it was easy to prevent. *Relied on Bolton v. Stone. Melanie LaBossiere

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Bolton v. Stone Facts: A cricket ball was hit onto an unfrequented adjacent public road and severely injured P. Ratio: It is justifiable not to take steps to eliminate a real risk if it is small and the specific circumstances are such that a reasonable man would think it right to neglect it. Analysis/Conclusion: FOR D. There are two classes of cases: the first occurs where before the event, the risk of its happening would be regarded as unreal either because it would have been thought to be physically impossible or the possibility of its happening would have been regarded as so far-fetched that the reasonable man would have paid no attention to it. The second is where there was a real and substantial risk that something like the event might happen, and the reasonable man would have known to take the necessary steps to eliminate risk. A third should be added where it is not possible to say that it was a far-fetched possibility but that the risk was so small it was justified not to take steps. *This case did not alter the principle that a person must be regarded as negligent if he does not take steps he knows, or ought to know, is a real risk. It recognized and gave effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is so small it is reasonable to neglect it.

Assiniboine South School Division No.3 v. Greater Winnipeg Gas Co. Facts: A Ski-Daddler was operated by an 11-year-old. The driver’s father had specially altered the vehicle to allow his son to start the machine, which required a change into high gear. The boy forgot to put the kickstand down and then lost control. The accident fractured a pipe under a city road and let gas into a boiler room in a school which caused an explosion, causing over 50 000 in damage. Issue: Was the damage too remote to hold the driver’s father liable and/or the gas company that installed the pipes liable? Ratio: Liability depends on whether the damage is of such kind that a reasonable man could have foreseen that should and event occur, it was probable causing the damage. It is not what is possible, but what is probable. Analysis/Conclusion: FOR P. Father and Gas Co. each 50% liable. D was liable as their installation of the service was negligently constructed in a way that would make the type of damage that ensued likely to occur. D ought to have reasonably foreseen the damage that occurred as it was clear that in the unlikely event that a pipe did burst, the damage would be severe. Protective pipes could have been installed at very minimal cost.

Mustapha v. Culligan of Canada Ltd. Facts: P sues for psychiatric injury sustained as a result of seeing a dead fly in his water bottle and a piece of a fly in the replacement bottle he was given. Melanie LaBossiere

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Issue: Did D’s breach cause P’s injury in fact and in law? Ratio: If the harm is too unrelated to the wrongful conduct of D, then D cannot be held liable. The possibility that harm could occur alone is not a meaningful standard for the application of reasonable foreseeability. Analysis/Conclusion: FOR D. Any harm which actually occurs is possible, therefore it is important to draw a line at reasonable foreseeability. The law expects reasonable fortitude and robustness of its citizens and will not impose liability for exceptional frailty Unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable. Case draws a line not at perfection but reasonable foreseeability. Once P has established foreseeability that mental injury would occur in a person of ordinary fortitude, D must take P as he finds him for the purposes of damages. Not to be confused with the thin skull rule where the resulting injury causes damages more serious than expected. If D had knowledge of P’s particular sensibilities, then ordinary fortitude may not be required.

INTERVENING CAUSES  

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An issue arises where P’s loss is a result of D’s breach and a subsequent intervening act. There are three categories of intervening acts: 1. Naturally occurring or non-culpable: generally, do not break the chain of causation. 2. Negligent intervening acts: generally, absolve the original tortfeasor of liability. 3. Deliberate, wrongful, or illegal acts: invariably break the chain of causation unless the tortfeasor had a specific duty to prevent the act. “Within the scope of risk” test: looks at whether the LOSS caused by the intervening act was within the scope of risk created by the original tortfeasor. Alternatively, courts may ask whether the INTERVENING ACT ITSELF was within the scope of the risk created.

Bradford v. Kanellos Facts: A (husband and wife) were customers at R’s restaurant. A flash fire occurs and an automatic fire extinguishing system is activated. The fire was extinguished immediately. The extinguisher made a noise that caused a patron to yell that there was going to be an explosion. Panic ensued and A was pushed and sustained injuries. Issue: Was there reasonable foreseeability? Was the chain of causation broken? Ratio: If the consequence can be regarded as within the risk created by R’s negligence, then liability will be imposed. Analysis/Conclusion: FOR R. Although R’s negligence caused the flash fire, evidence supports that their system stopped the fire without any damage being caused to As. The noise made and the hysterical act of a patron resulted in As injury. On Melanie LaBossiere

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the facts, it is apparent that the injuries were the result of the patron’s conduct in response to the safety appliance properly fulfilling its function. Dissent: The person guilty of the original negligent act ought to have reasonably anticipated such subsequent intervening negligence and that if it were to occur the result would be his negligence leading to loss. The appliance which in a stressful situation makes a loud noise would be reasonable to foresee as possibly causing panic. The person shouting a warning should not be held liable.

Jolley v. Sutton London BC Facts: D had a decrepit boat on property under his authority which he planned to remove, but never ended up moving it. P and a friend (fourteen-year-olds) found the boat and decided to repair it. When they hoisted it onto a car jack, it fell on P and rendered him a paraplegic. Ratio: If P’s actions are unforeseeable and extraneous the loss may be considered too remote. Generally, P’s carelessness will not sever causation unless it satisfies a very high threshold of being unwarranted. If the threshold is not met, ordinary contributory negligence would reduce the amount of damages awarded to P. Analysis/Conclusion: FOR P. D is liable, subject to a 25% reduction in damages as a result of P’s contributory negligence.

DEFENCES IN NEGLIGENCE  

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Even if P proves that he or she was negligently injured by D, damages may be reduced or denied on the basis of a defence. There are four defences: 1. Contributory Negligence. 2. Voluntary assumption of risk. 3. Participation in a criminal or immoral act. 4. Inevitable accident. The burden of proof is on D.

CONTRIBUTORY NEGLIGENCE DEVELOPMENT OF THE DEFENCE  

Last chance or last opportunity rule: If D had the last chance to avoid negligence but negligently failed to take it, P was permitted to recover, despite his or her contributory negligence. P will be found to have been contributorily negligent where his or her own negligence caused the accident or contributed to the severity of his or her injuries. It need not be the only cause, but rather that it was proximate.

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Zsoldos v. Canadian Pacific Railway Facts: P was injured on his motorcycle, which struck a train at a rural crossing at night. D argues that P was contributorily negligent as he was driving impaired and speeding. Issue: Is there a defense in contributory negligence available for D? Analysis/Conclusion: The collision would have happened whether or not P has been impaired, the impairment does not amount to contributory negligence. However, the excessive speed at which P was driving did constitute contributory negligence.

Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipping Ltd. Analysis/Conclusion: Newfoundland and Labrador’s Contributory Negligence Act does not apply to claims related to maritime law. So long as the injured party can be shown to have been marginally at fault, the tortfeasor’s conduct will go unpunished no matter how egregious.

CONDUCT CONSTITUTING CONTRIBUTORY NEGLIGENCE 

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P may carelessly: 1. Contribute to the resulting harm. 2. Enter into a dangerous situation. 3. Contribute to the creation of an accident. Doctrine of identification: attributes the negligence of one party to another party if there is a special relationship between them, this no longer applies to parent/child relationships, but does apply to: 1. Master/servant relationships. 2. Car owner/Driver relationship.

CONTRIBUTING TO THE RESULTING LOSS Walls v. Mussens Facts: D (serviceman) obtained permission to repair a machine at P’s service station. A propane gas torch was being used, which ignited a pool of gasoline that had leaked from a tube leading to the gas tank. Someone yelled for someone to get a fire extinguisher, but instead D and others scooped snow onto the fire. P arrived and also started to shovel the snow onto the fire. After realizing it was not working, D moved the machine, most of the service station was destroyed. The fire was found to be the result of D’s negligence. Issue: Was P contributorily negligent? Ratio: If P did something that the ordinarily prudent man might have reasonably done under the stress of an

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emergency, there will be no finding of contributory negligence. The “agony of the moment” rule, may allow P to extricate himself from an emergency that was no caused by his own antecedent negligence. Analysis/Conclusion: FOR P. No contributory negligence. The ordinarily prudent person in the emergency P was confronted with, would have joined in on shoveling snow and assumed it was the most effective way to extinguish the fire. Even though evidence shows that the damage would have been greatly reduced had someone used one of the four fire extinguishers on site.

Marshall (Litigation Guardian of) v. Annapolis County District School Board Facts: P (four-year-old) ran into the road and was struck by a bus. Trial judge found that he was not capable of contributory negligence as he was too young. The jury still found for D. P appeals on the basis that the judge erred in her instructions to the jury. Conclusion: FOR D. Decision upheld.

ENTERING A DANGEROUS SITUATION Gagnon v. Beaulieu Facts: O was injured in a collision while riding as a passenger in a car being driven by D. D admitted he was negligent, but maintains that P was not wearing a seatbelt and if he was he would not have suffered such serious injuries. Issue: Was P contributorily negligent for failing to wear a seatbelt? Ratio: If there is a failure by P to take reasonable steps to ensure one’s own safety, and in such circumstances, taking such steps would have prevented or lessened the severity of injury, the failure to take those steps constitutes contributory negligence. Onus is on D to satisfy the court that not only was there a failure to take those steps, but that the injuries would have been lessened. Analysis/Conclusion: FOR P. Damages reduced because of contributory negligence. D’s car was equipped with the safety device that could have prevented the injury. P does not know if she was or was not wearing her seatbelt, but expert evidence suggests that P’s injuries were consistent with those that may have been suffered by a person who was not wearing a seatbelt. *All provinces have enacted legislation that require that occupants of motor vehicles wear seatbelts.

CREATION OF AN ACCIDENT Mortimer v. Cameron Facts: P attended a party at a friend’s apartment, and began talking to D at the top of a set of stairs. P and D were Melanie LaBossiere

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mildly intoxicated. As they were joking around, P and D pushed each other around and as they did fell over a landing. Issue: Did the trial judge err in holding that P’s injuries were not proximately caused by his own conduct or the conduct of D who were engaging in “horseplay”? Ratio: D’s negligence is only actionable so far as it falls within the scope of risk that makes the offending conduct possible. P’s contributory negligence will not limit recovery unless it is a proximate cause. Analysis/Conclusion: FOR P. Damages to be paid 60% by city and 40% by Stingray. Here, neither D’s negligence, nor P’s contributory negligence entailed a foreseeable likelihood of risk that would lead to what actually injured P. It was reasonable for them to assume that what appeared to be a properly constructed wall would not break and cause them to fall over a landing causing serious injury. In regulating their conduct, having regard for their own safety, they were entitled to rely on the wall, no matter how imprudent the conduct was. Stingray failed to inspect or maintain the stairway, which lead to the continuance of the hazardous condition.

VOLUNTARY ASSUMPTION OF RISK 

Although the defence is theoretically available, the courts have been reluctant to find that P voluntarily assumed risk by encouraging or “consenting” to D’s carelessness.

Dube v. Labar Facts: A (P) and R were coworkers. After a night of drinking, A drove, while R drank in the passenger seat, to a spot where they drank more. R got into the driver’s seat after they picked up hitchhikers and A moved to the passenger side. R looked back at the hitchhikers and drove off the road. A tried to grab the wheel, but the car flipped and A was injured. Volenti non fit injuria and contributory negligence were raised. Issue: Was there a voluntary assumption of risk by A? Ratio: If D can prove that P expressly or by necessary implication, agreed to exempt D from liability if any damage were suffered by P occasioned by D’s negligence, D will not be liable. Analysis/Conclusion: FOR A. Volenti non fit injuria only arises where P in essence bargains away his right to sue for injuries. It is hard to prove that P consented to absolve D from his common law duty of care by saying or implying in effect that they are prepared to take the risks of their negligence and if injured will not be legally responsible for the damage.

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Loychuk v. Cougar Mountain Adventures Facts: Ps were in a collision on a zip like as a result of D’s negligence. There was nothing that could have been done to avoid the collision. Ps had signed a waiver on arrival and argue that because they had paid for the zip lining, there was no consideration provided for signing the waiver. Analysis/Conclusion: FOR D. The waiver was neither unconscionable, nor contrary to public policy. Consideration was being allowed to participate in the activity.

PARTICIPATION IN A CRIMINAL OR IMMORAL ACT  

Ex turpi causa non oritur actio Precludes recovery altogether.

Hall v. Herbert Facts: P and D got drunk. D allowed P to drive his car, which he flipped into an embankment. P sued D for allowing him to drive drunk. Issue: Can P recover when the injury was a result of his illegal act? Ratio: No duty should be postulated where it is either impossible or improper for the courts to establish a standard of care to govern the conduct of an issue. Ex turpi causa non oritur actio only applies when it would be necessary to invoke the doctrine to maintain the internal consistency of the law. Analysis/Conclusion: FOR P. The defense is not relevant to the current situation. P need not be denied recovery; he is seeking compensation for injuries he obtained. There may be a reduction in the amount of damages awarded as a result of contributory negligence but damages should not be denied.

Beljanski v. Smithwick Facts/Analysis/Conclusion: Children of a career criminal brought a claim when their father was killed negligently. Courts refused to base any award on the illegal income that the deceased would have made through criminal activity.

BC v. Zastowny Facts/Analysis/Conclusion: P successfully sued D for sexual battery. In assessing P’s loss of income flowing from the battery, the court refused compensation for periods of time that he was in jail for various offenses. They found that allowing recovery would undermine the goals of the justice system.

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INEVITABLE ACCIDENT Rintoul v. X-Ray and Radium Industries Ltd. Facts: R’s (employer) employee was driving and the breaks on his vehicle worked all five times he applied them. R takes his foot off of the accelerator and tries to press the break but it does not work. Ge tries to pull the hand break, which slows him down, but does not prevent the collision. Issue: Was the collision the result of an inevitable accident or R’s negligence? Ratio: One who relies on inevitable accident must show that something happened over which he had no control and the effect of which could not be avoided by the greatest care and skill. Analysis/Conclusion: FOR A. R failed in two ways. One, he failed to prove that the service breaks could not have been made safer for use had R exercised reasonable care. Further, R assumed that if there was negligence on the part of R, that he could not have prevented the incident by exercising reasonable care. Onus resting on R was not discharged.

Boutcher v. Stewart Ratio: Inevitable accident is no more than a denial of negligence and does not alter either P or D’s cases.

PROOF OF NEGLIGENCE 

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There are two burdens: 1. Legal burden. 2. Evidentiary burden. To be successful, it must be proven that D was negligent on a balance of probabilities. P’s burden: 1. Burden of proving all elements of a negligence action. o The legal burden remains on P. 2. Burden of adducing sufficient evidence to establish a prima facie case. o If P is able to discharge the evidentiary burden, it will shift to D. o If before D presents his case, the judge does not believe P’s evidence on its own could support an imposition of liability a nonsuit will be ordered. D’s burden: 1. D is not required to prove that he was not negligent. o If D wants to avoid the risk of liability, he should adduce sufficient evidence to rebut P’s prima facie case to prevent the trier of fact from concluding P has established his case on a balance of probabilities. 2. Burden of proving any defence.

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Wakelin v. London & South Western Ry. Co. Facts: P (administratrix) alleged that Ds negligently drove a train onto a line that passed a public footpath and killed her husband. D admitted that P’s husband was on the footpath and was struck, but denied negligence. Alleged that the death was a result of P’s husband’s own negligence. Oral evidence was given that the cottage was a ten-minute walk from the footpath and that the body was found near the crosswalk. Witnesses for P gave evidence as to the limited number of yards at which an oncoming train could be seen. D’s called no witnesses and submitted that there was no case for P. Issue: Where does the burden of proof lie in an action in negligence? Ratio: P must establish, based on evidence, that the injury or loss suffered was a result of some negligent act or omission by D. Onus of proof my shift as a matter of evidence, but ultimately, the question is whether the person who is bound to prove the affirmative of the issue, has discharged herself of that burden. Analysis/Conclusion: FOR D. P did not prove that her husband’s death could not have occurred without his own negligence. There was no direct evidence, nor any reasonable inference available to come to any conclusion regarding the circumstances around the death. There is no evidence for a jury to look at. The company may have been negligent in many ways, but a mere allegation that they were negligent without any proof, is irrelevant if there is no connection with the injury for which redress is sought. D did not try to assert that there was contributory negligence, without a counter-claim, we assume they are arguing that there was no contributory negligence.

Mohamed v. Banville Facts: P sued D alleging that he negligently caused a house fire. D was a drunk and was known to smoke when under the influence. The insurance investigator had the opinion that the fire was likely caused by careless smoking, although there was no direct evidence that D had been smoking in the house. Issue: Has P discharged her evidentiary and legal burden? Ratio: If P is unable to present evidence that proves D’s alleged negligent act or omission was a cause of the loss suffered, P will fail in discharging his or her legal and evidentiary burden. Analysis/Conclusion: FOR D. There was no evidence that the fire started due to electrical fault or arson, nor is there evidence that it was started by careless smoking. Even if the fire originated near where D slept, in an absence of direct evidence, P fails.

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R.C. v. McDougall Ratio: The standard of proof at common law is a balance of probabilities. Context is all important and courts must be mindful, where appropriate, of inherent probabilities and improbabilities and the seriousness of allegations and consequences. However, these considerations do not change the standard of proof. Analysis/Conclusion: The court rejected the notion that there is an intermediate standard of proof falling between a balance of probabilities and beyond a reasonable doubt to be applied in civil cases involving serious issues in sexual battery cases.

EXCEPTIONS TO THE GENERAL PRINCIPLE STATUTES AND SHIFTING BURDENS OF PROOF Highway Traffic Act Onus on owner or driver 153(1) Where loss or damage is sustained by any person by reason of a motor vehicle upon a highway the onus of proof that the loss or damage did not arise entirely or solely through the negligence or improper conduct of the owner or driver is upon the owner or driver. 153(2) Subsection (1) does not apply in case of a collision between motor vehicles on the highway or to an action brought by a passenger in a motor vehicle other than a public service vehicle in respect of any injuries sustained by him while a passenger. Certain drivers deemed agents of owner 153(3) In an action for the recovery of loss or damage sustained by a person by reason of a motor vehicle upon a highway, every person driving the motor vehicle who is living with, and as a member of the family of, the owner thereof, and every person driving the motor vehicle who has acquired possession of it with the consent express or implied of the owner thereof, shall be deemed to be the agent or servant of the owner of the motor vehicle and to be employed as such and shall be deemed to be driving the motor vehicle in the course of his employment; but nothing in this subsection relieves any person deemed to be the agent or servant of the owner and to be driving the motor vehicle in the course of his employment from liability for such damages.

MacDonald v. Woodard Facts: P (service station proprietor) was struck while standing in front of D’s car. P had given D’s battery a boost, and their cars were positioned nose to nose. Issues: What does P have to establish to succeed in his action? Ratio: Res ipsa loquitor: the owner or driver of a vehicle is prima facie liable for damage unless he satisfies, on a balance of probabilities, that he was not in fact negligent. P must therefore show, in order for s.153 of the Melanie LaBossiere

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Highway Traffic Act to apply, that his damages were occasioned by the presence of a motor vehicle on the highway. It is only required that P prove that the collision was the cause of damage, not necessarily the driver. Analysis/Conclusion: FOR P. P remained silent during the trial and let D fight it out. In light of Ds confusion on the words of his own testimony, and his inability to personally, or through witnesses, who gave evidence that a car if properly operated could leap forward, D failed to satisfy the onus imposed by the statute.

Parental Responsibilities Act Defence: 7(1) It is a defence to an action under this Act if the parent establishes to the satisfaction of the court that he or she: (a) was exercising reasonable supervision over the child at the time the child engaged in the activity that caused the property loss; and (b) made reasonable efforts in good faith to prevent or discourage the child from engaging in the kind of activity that resulted in the property loss. Onus on parent: 7(2) The onus of establishing a defence under subsection (1) rests with the parent. Factors to be considered: 7(3) In determining whether a parent exercised reasonable supervision over a child or made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the property loss consider: (a) the age of the child; (b) the prior conduct of the child; (c) the potential danger of the activity; (d) the physical or mental capacity of the child; (e) any psychological or other medical disorders of the child; (f) whether the danger arising from the child's conduct was reasonably foreseeable by the parent; (g) whether the parent was responsible for the care and control of the child at the time when the child engaged in the activity that resulted in the property loss; (h) if the child was temporarily out of the care and control of the parent when the child engaged in the activity that resulted in the property loss, whether the parent made reasonable arrangements for the supervision of the child in the temporary location; (i) whether the parent has sought to improve his or her parenting skills by attending parenting courses or otherwise; (j) whether the parent has sought professional assistance for the child designed to discourage activity of the kind that resulted in the property loss; and (k) any other matter that the court considers relevant to the determination.

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DIRECTLY CAUSED INJURY: UNINTENDED TRESPASS Dahlberg v. Naydiuk Facts: D fired at a deer and missed. The bullet went 250-300 yards and struck P. D had obtained consent to hunt from the owner of the land he was on, but had not gotten P’s permission to fire over his property line, or hunt on his farm. Issue: Was there trespass, negligence or both? Ratio: If P relies on negligence, the onus rests on himself to prove that D was negligent. However, if P relies on trespass, D must satisfy the onus of establishing that there was an absence of negligence and intention on his part. Analysis/Conclusion: FOR P. It is unclear whether the word negligence, with respect to the assertion that the onus is on D to disprove negligence, in an action in trespass refers to a negligent/careless trespass or something that gives rise to an action in negligence. D failed in his duty to take care and failed to prove he was not negligent. Hunters know that firing over land without permission constitutes trespass to land, and if injury occurs, trespass to the person, A hunter who fires in a direction which he knows, or ought to know, buildings are located must accept responsibility for any damage as a result.

MULTIPLE NEGLIGENT DEFENDANTS  

Alternative liability: the legal consequence, is that the onus is shifted to the wrongdoer to exculpate himself. The onus attaches to culpability, and if both acts bear that taint, the onus or prima facie transmission of responsibility attaches to both, or all, Ds and the question of sole responsibility is one between the Ds themselves.

Cook v. Lewis Facts: R (P), was hit when As fired simultaneously at different birds. Jury found that R was shot by one of the As, but could not, with any certainty, determine which A fired the shot that injured R. Issue: Where does the burden of proof lie in a case involving multiple negligent Ds? Ratio: The onus is on D to prove that he or she was not negligent. The question of sole responsibility is a matter between the negligent Ds. Analysis/Conclusion: New trial ordered.

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The victim should not be helpless and left without recourse. The jury found that one or both of Rs were negligent based on the evidence presented, and at the same time, found that the consequences of the two shots cannot be segregated. No liability will attach to the innocent act of shooting, but a culpable actor, against alternative actors, bears the burden of exculpation.

Clements v. Clements Analysis/Ratio: The present state of the law in Canada is: 1. As a general rule, P cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act by D. A trial judge will take a robust and pragmatic approach to determine if P has established that D’s negligence caused her loss; 2. Exceptionally, P may succeed in showing that D’s conduct materially contributed to the risk of P’s injury where: a. P established that the loss would not have occurred “but for” the negligence of 2 or more Ds, each possibly in fact responsible for the loss; b. And, P through no fault of her own is unable to show that one of the possible tortfeasors was in fact the necessary, or “but for”, cause of her injury as they are able to point the finger at one another.

RES IPSA LOQUITUR  

In some cases, P may rely on circumstantial evidence to prove D was the cause of the injury suffered. May apply in circumstances where the occurrence of an accident provided circumstantial evidence that P’s evidence was caused by D’s carelessness, and an inference can be drawn to reach a conclusion.

Bryne v. Boadle Facts: P was walking down the sidewalk and was struck by a barrel of flour that had fallen out of one of D’s warehouse’s window. Issue: Although there is no direct evidence that D was negligent, can P still be successful based on circumstantial evidence? Ratio: The maxim of res ipsa loquitur can be applied if: 1. The occurrence was one that would not have happened in the ordinary course of events, without carelessness and therefore, an inference can be drawn that D was careless. 2. The instrumentality of harm must have been under the sole management and control of D, or someone for whom D was responsible, and an inference can be drawn that D was careless as opposed to someone else. 3. There is no direct evidence as to how or why the accident occurred upon which the court could have resolved the legal issue. In such cases, there is a prima facie case, and D will be given a chance to rebut.

Fontaine v. B.C. Facts: P went missing during a hunting trip with a friend. Three months later their truck was found on a riverbed Melanie LaBossiere

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with P in the passenger seat and his friend behind the wheel. There was no direct evidence regarding the circumstances of their deaths, although circumstantial evidence indicated that there had been torrential rain near the time the truck went off the road. Physical evidence suggested that there was a dip in the road where the truck, going at a sufficient speed to cut through a small patch of trees, left the road. P’s widow claims that the mere occurrence of the accident was enough to establish that the death was attributable to P’s friend’s negligence. Issue: Does the maxim res ipsa loquitur apply in these circumstances? Ratio: Res ipsa loquitur should be considered as an expired maxim. The courts should weigh the circumstantial evidence, with the direct evidence, if any, to determine whether P has established on a balance of probabilities, a prima facie case of negligence. Once P has done so, D must present evidence negating P’s evidence. Analysis/Conclusion: FOR D. There are some cases where res ipsa loquitur has been applied to infer negligence in cases where a vehicle has left the road. There is a minimal, if any, evidentiary foundation from which an inference can be drawn in this case. Many of the circumstances are not known. Weather conditions may impose a higher standard of care on drivers to take increased precautions, but human experience shows that severe weather is more likely to produce accidents regardless of how much care is taken. If it is accepted that a vehicle leaving the road supports an inference of negligence, it would essentially subject D to strict liability in such cases.

ASSESSMENT OF DAMAGES PURPOSES OF AWARDING DAMAGES 

Damages are traditionally divided into four categories: 1. Nominal: generally, not awarded in negligence. 2. Compensatory. 3. Punitive: rarely appropriate, but may be awarded for one of five purposes: o Punishment; o Deterrence; o Denouncement; o Relive a wrongdoer of profits made from their wrong. o D acted with arrogant, high handed, or blatant disregard for P’s safety interests. 4. Aggravated: reluctance by courts to award.

Fisher v. Knibbe Conclusion: P was awarded 100 in nominal damages because the original action would not have succeeded in any event.

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Robtialle v. Vancouver Hockey Club Facts: D’s medical staff had consciously ignored P’s complaints about a serious injury. As a result, P suffered a debilitating injury when he was forced to play hockey in his condition. Issue: What kind of damages should be awarded? Ratio: When D acts with high handed, arrogance, or has a blatant disregard for P’s safety, punitive damages may be awarded. Analysis/Conclusion: FOR P. 35 000 in punitive damages. The behaviour of the medical staff was high handed and showed a reckless disregard.

PRELIMINARY ISSUES STANDARD OF PROOF   

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P must prove on a balance of probabilities the existence and quantum of losses suffered. If proven, P can recover 100%, but if it is not proven, P cannot recover at all. The standard of proof is different for losses that may occur after the trial is concluded. For losses that may occur post trial, P must establish that there is a substantial, or reasonable probability of such an injury occurring. Once established, P is entitled to recover based on the likelihood that the injury will occur. Losses before trial = balance of probabilities, losses post-trial = substantial possibility.

MITIGATION OF DAMAGES   

P is under an obligation to act reasonably in all of the circumstances to mitigate his or her loss. P must take reasonable steps to mitigate his or her loss, and may recover for losses incurred in taking such reasonable steps. P cannot recover for losses that could have been avoided. This rule is applied more rigorously for property loss, than for personal injury.

THE SET OFF OF PARALLEL EXPENDITURES  

D is allowed to set off against P’s damage claim, any parallel expenditures that P would have occurred if the tort had not been committed. Generally, this is only permitted if D can establish that two items: 1. Are truly parallel; 2. Have values that are readily calculable.

USE OF LUMP SUM PAYMENTS 

The trier of fact is forced to speculate on a range of issues including: 1. The future condition of the injured P;

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2. The probable increase in health care costs and inflation, There are no means of reassessment if the loss ends up being much greater, or lesser than was calculated at trial. It may delay rehabilitation as all costs are determined at the time of the trial, compensation may not occur until well after the incident. This may put pressure on P to settle in order to start rehabilitation. The positive aspects of lump sum payments are that they are final, predictable and are administratively efficient.

ROLE OF JUDGES, JURIES AND APPELLATE COURTS  

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Jury must assess damages on their own, the law does not allow for much assistance. Special damages, consist of pre-trial pecuniary losses such as expenses incurred and income lost before the trial. It must be specifically pleaded and proven by P, on a balance of probabilities and the jury will be provided with guidance for the purposes of quantification. General damages, consist of pre-trial non-pecuniary losses and future losses such as pain, suffering and loss of income. Neither counsel, nor judges are allowed to suggest a rage of awards that are appropriate for a specific case. Appellate courts are not to interfere with a jury’s assessment of damages unless there is a clear error of law, or the amount is so grossly out of line that it is a wholly erroneous estimate of the damages.

DAMAGES FOR PERSONAL INJURY  

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Andrews v. Grand and Toy; Arnold v. Teno; and Thorton (Next friend of) v. Prince George School District #57: are considered as “the trilogy” which established the framework for quantifying damages. The trilogy left behind the global assessment approach and started a separate assessment of each head of recovery that has been established by P. This includes: 1. Pecuniary loss: o Future loss; o Loss of earning capacity; o Considerations relevant to both heads of pecuniary loss. 2. Non-pecuniary loss. This has increased the size of damages that are awarded as the courts now assess inflation adjustments, home care, increasing of future care costs, offset the impact of taxes, and costs to hire professional financial managers.

Sandhi (Litigation Guardian of) v. Wellington Place Apartments Facts/Conclusion: A 2-year-old suffered a frontal brain injury and was awarded 14 000 000 based on future loss, and the loss of a life of income earning.

Gordon v. Greig Facts/Conclusion: A car accident left one P paraplegic. P was awarded 12 000 000, the vast majority of which was for the cost future care.

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THE TEST Andrews v. Grand & Toy Alberta Ltd. Facts: P was rendered a quadriplegic in a car accident for which D was liable. Trial judge awarded over 1 000 000. Court of appeal awarded 500 000. Brought to the SCC. Issue: Did the court of appeal err in assessing the damages? Ratio: The decision made by the court of appeal can only be interfered with if the wrong principle of law was applied or the amount was wholly erroneous. When determining the total appropriate award, rather than make an overall assessment of the total sum, it is more appropriate to make an overall assessment under each head of future care, prospective earning and non-pecuniary loss in each case, in light of the general considerations such as, awards in similar cases and an assessment of reasonableness. The heads of care should be assessed as follows: 1. Pecuniary loss: a. Future care: i. Standard of care:  there is no duty to mitigate damage, but rather, to be reasonable. An award must be moderate and fair, assuring that the claims against a party are legitimate, and based on the injuries of the innocent victim.  Where one manner of care is more expensive, but evidence provides that the other options are inappropriate and in conflict with the goal of compensation, the more expensive option may be chosen. ii. Life expectancy:  Statistical average based on the appropriate group should be used to help with a determination. iii. Contingencies and hazards of life:  In the context of future care, relate essentially to the duration of expense. They are not merely added to factors that may affect future earnings such as unemployment, accident or illness, they are wholly different. iv. Duplication with compensation for loss of future earnings:  Proper future care is the paramount goal for damages for personal injuries. To determine the needs and costs in terms of future care, basic living expenses should be included. The cost may well be different when in an infirm state than that of health. The level of expenses may be seen as attributable to the accident and therefore, should be included in the calculation of future cost of care. v. Cost of special equipment:  If there is an initial capital amount needed for special equipment, it should be awarded; b. Prospective loss of earnings: it is not about loss of earnings, but, rather, loss of incoming eaning capacity: i. Level of earnings; Melanie LaBossiere

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ii.

Length of working life:  Capitalization should be based on expected working life span prior to the accident. It is the loss of income earning capacity which existed PRIOR to the accident for which the victim must be compensated. iii. Contingencies and hazards of life:  Take into account possibilities such as unemployment and business depression. iv. Duplication of costs based on future basic maintenance:  Cost of a basic person in the position of the victim prior to the accident may result in a reduction of income. c. Considerations relevant to both heads of pecuniary loss: i. Capitalization rate: allowance for inflation and the rate of return on investments.  Use the present rate of return on long term investments and to make some allowances for the effects of future inflation. ii. Allowance for tax:  The impact of taxation upon the income from the capital sum for future care is mitigated by a.110(1)(c)(IV.1) of the Income Tax Act in respect of the deduction of medical expenses.  Where no allowance is made to adjust the amount assessed for future care in light of the reduction from taxation, there is no allowance for that item.  With respect to the determination of the present value of the cost of future care, the calculations should provide a self-extinguishing sum. One-time lump sum. To allow a residual capital amount would be to over-compensate the injured person. 2. Non-pecuniary loss: a. Factors considered should include: pain and suffering, loss of amenities, and the loss of expectation of life. b. Functional approach attempts to assess the compensation required and provide reasonable solace for misfortune. Solace in terms of making physical arrangements more endurable. c. The amount should not vary by province. Analysis/Conclusion: Awarded 613 000. 1000 a month for homecare. Homecare is more expensive but evidence shows it is inappropriate. Life expectancy is about five years less than average. 20% discount for contingencies of life under the standard of care head. There will be an award for cost of special equipment. 1 200 a month for future earnings reduced to 564 as a result of duplication of the cost of future basic maintenance. 20% reduction for contingencies. Took into account taxes and capitalization. Award of 100 000 for non-pecuniary losses, should be seen as the upper limit. Neither high compensation for pain and suffering, nor punitive awards help P, but they do unfairly burden D.

FATALITIES 

At common law, death terminates tort litigation.

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Fatal Accidents Act Liability for damages caused by death 2(1) Where the death of a person is caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the deceased to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, is liable for damages, notwithstanding the death of the deceased, even if the death was caused in circumstances amounting in law to culpable homicide. When cause of action arises 2(2) Subject to subsection (5), the liability for damages under this section arises upon the death of the deceased. Effect of settlements made by deceased 2(3) No settlement made, release given, or judgment recovered in an action brought, by the deceased within a period three months after the commission or occurrence of the wrongful act, neglect, or default causing his death is a bar to a claim made under this Act or is a discharge of liability arising under this Act, but any payment made thereunder shall be taken into account in assessing damages in any action brought under this Act. Effect of settlement made by deceased 2(4) Unless it is set aside, a settlement made or release given, or a judgment recovered in an action brought, by the deceased after the expiration of the period mentioned in subsection (3), is a discharge of liability under this Act. Prior death of tortfeasor 2(5) If, at the time of the death of the deceased, the tortfeasor is himself dead, the liability arising under this Act shall be conclusively deemed to have been subsisting against the tortfeasor before his death. Subsequent death of tortfeasor 2(6) Where the tortfeasor dies at the same time as the deceased, or in circumstances rendering it uncertain which of them survived the other, or after the death of the deceased, the liability and cause of action arising under this Act shall be conclusively deemed to lie upon, and continue against, the executor or administrator of the tortfeasor as if the executor or administrator of the tortfeasor were the tortfeasor in life. Person entitled to benefit 3(1) Every action under this Act shall be for the benefit of the spouse, common-law partner, support recipient, parent, child, brother, and sister, or any of them, of the deceased; and, except as hereinafter provided, shall be brought by, and in the name of, the executor or administrator. Amount of damages 3(2) Subject to subsection (3), in every such action such damages as are proportional to the pecuniary loss resulting from the death shall be awarded to the persons respectively for whose benefit the action is brought. Damages for loss of companionship 3.1(2) Subject to section 4, the court shall award damages for the loss of guidance, care and companionship of the deceased in the following amounts: Melanie LaBossiere

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(a) $30,000. to each of the spouse of the deceased, the common-law partner of the deceased and the support recipient of the deceased and to each parent and child of the deceased; (b) $10,000. to each family member of the deceased. No application of Equality of Status Act 3.1(3) An award may be made under this section notwithstanding The Equality of Status Act. No need to establish damages 3.1(4) An award of damages under this section shall be made without reference to any other damages that may be awarded and without evidence of damage. Adjustment for inflation 3.1(5) In making an award under this section, the court shall adjust the amounts set out in subsection (2) to take into account inflation after 2002.

SPECIAL RULES FOR PUBLIC AUTHORITIES TYPES OF ACTIVITIES JUDICIAL ACTIVITIES 

There is no liability for judicial activities.

Welbridge Holdings Ltd. v. Greater Winnipeg Facts: Land was leased in Winnipeg with the intention to build a multi-story building, which relied on an amending zoning bylaw. When the building permit was first applied for, it was refused because there was litigation pending regarding the validity of the bylaw. After the bylaw was declared invalid, no permit was issued. P started to work and when the permit was revoked, had to stop. P sued for negligence claiming D was negligent in passing an invalid bylaw. Issue: Was there a duty of care owed? Ratio: A municipality at the legislative of quasi-judicial level where exercising discretionary statutory authority, may act beyond its powers, albeit acted on the advice of counsel. It would be incredible to say that in such circumstances a duty of care giving rise to liability in in damages for it breach was present. Analysis/Conclusion: FOR D. No duty of care owed. There will be no liability for judicial activities.

Bradley v. Fisher Facts: Melanie LaBossiere

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P (attorney) brought an action against D (judge) to recover damages alleged to have been sustained by reason of the wilful, malicious, oppressive and tyrannical acts of D, whereby P was deprived of his right to practice as an attorney. Issue: Can a member of the judiciary be sued in a civil tort claim? Ratio: A member of the judiciary cannot be sued in a civil tort claim for activities they have partaken in while performing their duty as a judge. Analysis/Conclusion: FOR D. There are a number of policy considerations, including the fact that the legal system would be thrown into disrepute if the judiciary cannot be seen as competent or trustworthy that prevent the imposition of a duty of care.

Provincial Court Act Section 71: Except as provided in this Act, no action shall lie or be instituted against a judge or justice of the peace for any act done by him or her in the execution of a duty unless the act was done maliciously and without reasonable and probable cause.

LEGISLATIVE ACTIVITIES Parliament Act of Canada Proceedings based on a published report 7(1) Where any person is a defendant in any civil or criminal proceedings that are commenced or prosecuted in a court in any manner for, on account of or in respect of the publication of any report, paper, votes or proceedings, by that person or the servant of that person, by or under the authority of the Senate or the House of Commons, that person may bring before the court or any judge thereof, after twenty-four hours notice of intention to do so given in accordance with subsection (2), a certificate: (a) Given under the hand of the Speaker or the Clerk of the Senate or the House of Commons, and (b) Stating that the report, paper, votes or proceedings were published by that person or servant, by order or under the authority of the Senate or the House of Commons, together with an affidavit verifying the certificate. Marginal note:
 Notice of intention
 7(2) The notice of intention referred to in subsection (1) shall be given to the plaintiff or prosecutor in the civil or criminal proceedings or to the attorney or solicitor of the plaintiff or prosecutor. Marginal note:
 Stay of proceedings


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7(3) On the bringing of a certificate before a court or judge in accordance with subsection (1), the court or judge shall immediately stay the civil or criminal proceedings, and those proceedings and every writ or process issued herein shall be deemed to be finally determined and superseded by virtue of this Act.

The Legislative Assembly Act No liability for act done under authority of assembly 44 No person is liable in damages or otherwise for any act done under the authority of the Legislative Assembly and within its legal power or under or by virtue of any warrant or subpoena issued under that authority. Protection of members from actions 45(1) No member of the Legislative Assembly is liable to any civil action or prosecution, arrest, imprisonment, or damages: (a) By reason of any matter or thing brought by him by petition, bill, resolution, motion, or otherwise; or (b) By reason of anything said by him before the assembly or any committee thereof.

CROWN IMMUNITY Crown Liability and Proceedings Act Liability 3 The Crown is liable for the damages for which, if it were a person, it would be liable (a) In the Province of Quebec, in respect of: (i) The damage caused by the fault of a servant of the Crown, or (ii) The damage resulting from the act of a thing in the custody of or owned by the Crown or by the fault of the Crown as custodian or owner; and (b) In any other province, in respect of: (i) A tort committed by a servant of the Crown, or (ii) A breach of duty attaching to the ownership, occupation, possession or control of property.

Proceedings Against the Crown Act Liability of the Crown in tort 4(1) Subject to this Act, and notwithstanding section 49 of The Interpretation Act, the Crown is subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject: (a) In respect of a tort committed by any of its officers or agents; (b) In respect of any breach of those duties that a person owes to his servants or agents by reason of being their employer; (c) In respect of any breach of the duties attaching to the ownership, occupation, possession, or control, of property; and (d) Under any statute, or under any regulation or by-law made or passed under the authority of any statute. Liability of Crown for acts of its officers or agents

Melanie LaBossiere

Porcin

72

Torts Outline

Melanie LaBossiere

April 21st, 2017

4(2) No proceedings lie against the Crown under clause (1)(a) in respect of any act or omission of an officer or agent of the Crown unless the act or omission would, apart from this Act, have given rise to a cause of action in tort against that officer or agent or his personal representative. Liability for acts of officers performing duties legally required 4(3) Where a function is conferred or imposed upon an officer of the Crown as such, either by any rule of the common law or by statute, and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort shall be such as it would have been if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. Application of statutes limiting liability of officers of the Crown 4(4) An enactment that negatives or limits the amount of the liability of an officer of the Crown in respect of any tort committed by that officer, in the case of proceedings against the Crown under this section in respect of a tort committed by that officer, applies in relation to the Crown as it would have applied in relation to that officer if the proceedings against the Crown had been proceedings against that officer. Property vesting in the Crown 4(5) Where property vests in the Crown by virtue of any rule of law that operates independently of the acts or the intentions of the Crown, the Crown is not, by virtue of this Act, subject to liability in tort by reason only of the property being so vested; but this subsection is without prejudice to the liability of the Crown under this Act in respect of any period after the Crown, or any person acting for the Crown, has in fact taken possession or control of the property, or entered into occupation thereof. Limitation of liability in respect of judicial acts 4(6) No proceedings lie against the Crown under this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process.

Sutherland v. Canada Facts: Airport opened a new runway that created noise and the control measures used were not sufficient to fix the problem. Issue: Can the crown use the defense of statutory authority to avoid liability as a result of acts committed by servants? Ratio: It is not uncommon for the Crown to defend against the claim of government interference with individual rights by relying on the defense of statutory authority. Where the defense is successful, the result from P’s perspective is often unfortunate, and may appear unfair. Analysis/Conclusion: FOR D. The defense of statutory authority applies. Although the successful defense results in many people being left without redress, that without more does not constitute a rare and special case that would warrant apportionment of costs.

Melanie LaBossiere

Porcin

73

Torts Outline

Melanie LaBossiere

April 21st, 2017

SCOPE OF LIABILITY   

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Actions and omissions of public authorities. Negligence is the biggest source of public liability. Statutory discretion vs. Statutory duties: the goal is to find a balance 1. Statutory duty: when an authority relies on a statute to act, or not to act. 2. Statutory discretion: when an authority exercises discretion related to a policy decision. The question is under which statute is the authority acting: 1. Most carry out their activities under a certain statute. 2. An authority may do x or y: use the wording to provide the authorities to use more government services, and give more discretion on how they conduct those activities.

Just v. BC Facts: P and his daughter went to Whistler. There was heavy snowfall so they stopped on the highway and while waiting for traffic to move forward, a bolder fell onto P’s car, killing his daughter and seriously injuring him. Rocks had fallen in this area before and trees were known to be a factor in loosening rocks. The Department of Highways had a system of inspecting and fixing rocks. P argues that BC was negligent and failed to maintain the highway. Issue: Was the government’s decision as to the quality of inspection a “policy” decision, exempting them from liability? Ratio: A duty of care cannot arise in relation to acts and omissions which reflect the policy making and discretionary elements involved in the exercise of statutory discretion, but do apply to operational decisions. factors and operational factors. A public authority is under no duty of care in relation to decisions which involve financial, social or political factors or restraints. Allocation of resources cannot be made subject to duty of care. With respect to action or inaction that is the product of administrative direction, expert opinion or technical/general standard or reasonableness, the court may apply a standard of care (follows Anns). Analysis/Conclusion: FOR P. This was an operational decision. A duty of care should apply to a public authority unless there is a valid basis for exclusion, when it comes to government agencies they may be exempt if there is explicit statutory exemption, or the government is making a pure policy decision. Decisions made in good faith, and by a person of high authority are more likely to be considered policy decisions. The plans to inspect the rocks were the product of administrative discretion. It was operational. Dissent: this was a policy decision. The courts cannot review the police decision made in accordance with a statute. A decision to inspect and the manner of inspection is within the discretionary power of the public authority. The courts cannot second guess policy decisions. There is a danger of indeterminate liability.

Melanie LaBossiere

Porcin

74