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NEGLIGENCE 11/14/2013

 

Cooper v Hobart (2001) SCC CB 291

Ratio   Introduced policy considerations at both steps of the test

1) P/D: proximity AND foreseeability

2) Policy considerations outside the P/D relationship (residual)

 

If D is a statutory body with duties to the public at large, then duty to individuals who

are damaged by their decisions may not claim breach of duty if the body has acted

within their mandate.

o *No statutory obligation = no duty of care

Facts   −Investor (P) in mortgages sued the Registrar of Mortgage Brokers (D) alleging negligence

− P had invested money with a registered mortgage broker (one of 3000 investors)

− P alleges that they lost money on account of the dishonest/incompetent behaviour of the

registered broker

− D had been appointed pursuant to legislation

−

D eventually suspended the broker’s licenseClaim   −D was negligent for failing to act quickly enough to stop unauthorized activities of the

broker (P losing money as a result)

Issue(s)   −Did the Registrar owe a duty of care to investors?

Holding   −No, the courts applied the Anns test to find that there was no duty of care owed to theinvestors (insufficient proximity)

Analysis   −When a case falls within or is analogous to case where proximity has been recognized andreasonable foreseeability is established, there is a  prima facie duty of care.

− Is this a novel duty? (Whether the case falls within or is analogous to category of cases in

which a duty of care has previously been recognized)

o Yes – it is a novel duty. (Regulating body/private investors)

− Proximity in Cooper o “a close and direct” relationship [para 32]

o May involve “expectations, representations, reliance, and the property or other

interests involved” [para 34]

−   Application of the Anns test:

1. Do the circumstances disclose reasonably foreseeable harm and proximity

sufficient to establish a prima facie duty of care?

  Factors giving rise to proximity would come from the statute under 

which the Registrar is appointed 

• Registrar’s duty is to the public, not to investors with

mortgage brokers regulated by the Act

Insufficiently close relationship between the investors and theregistrar

 

 A duty of care to individual investors could conflict with duty to

 public

 

No prima facie duty of care

2. Residual policy factors

Registrar exercises quasi-judicial functions

• Ex: suspending broker’s license

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−  Applying the Cooper-Anns test:

o Proximity  Is the relationship close & direct? (based on effects)

P had been singled out by D – he was the subject of D’s investigation

It is foreseeable that negligent investigation would cause damage to P

o Policy aspects (in favour of finding proximity):

Personal interests of P at stake (freedom, reputation, etc.) Public interests (wrongful arrest/convictions, Charter  values)

 No real conflict between D’s private and public duties

Prima facie duty of care establishedo Residual policy considerations? No – all rejected

Police investigation has a quasi-judicial nature

• D judges are immune to tort liability, so should the police

Police investigation involves discretion

• D ought not encumber police discretion by imposing a

private legal duty

• Court A lot of professional practices involve discretion, but

are still subject to a duty of care in tort Potential confusion with other police standards (e.g. arrest)

• Court get over it!

“Chilling effect” on investigation

• D would make police investigate defensively if there was a

threat of litigation

• Court No threat if they behave reasonably

Indeterminate liability (floodgates)

• Court will not “open the floodgates”

• Limited class

o Particularized suspects

o

Have to be able to establish compensable injury caused bya negligent investigation

May allow the criminally guilty to recover in tort

• D what if someone was acquitted but actually guilty…do we

really want them to be able to recover in tort?

• Court people are always going to “slip through the cracks”;

this type of injustice is present in all tort law

Notes   −When establishing duty could have serious policy implications, courts MUST consider itexternal policy factors

 Palsgraf v Long Island Railroad  Co . (1928) New York CB 322

Facts   −D’s guard collided with a 3rd party− The 3rd party dropped fireworks

− P was injured as a result

Holding   −D not liable (P was beyond the range of foreseeable danger)

Analysis   −P wasn’t a foreseeable, particular  plaintiff

− D could not have foreseen that P would have been injured

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Dissent:

− Everyone has a general duty of care to refrain from acts that unreasonably threaten the

safety of others

− If such an act occurs, all those who are injured are wronged (even if they are outside the

“danger zone” of those to whom harm might reasonably be expected to result)

 Farrugia v Great Western Ry (1947) CA CB 323

Ratio   Duty was owed to anybody who happened to be in the neighbourhood at the crucial

moment

Facts   −Driver (D) had loaded a truck so high that in passing an overhead bridge, a containerwas knocked off and fell on P.

− Shortly before the accident P had been on the truck as a trespasser

− At time of accident, P was running behind the truck trying to get on it

Holding   −D had a duty of care to P

Analysis   −It was argued that D had no reason to foresee P couldn’t owe a duty of care to P

 Law v Visser (1961) Queensland CB 323

Ratio   Duty was owed to anybody who happened to be in the neighbourhood at the crucial

moment

Facts   −At a high speed, a driver (D) saw a large object in the road

− The object looked like an abandoned bundle or an animal killed by a passing car

− D made no effort to avoid it and ran it over

− The object was a person (P) who was drunk and lying in the road

Holding   −D was held liable -- it was no excuse that he did not know the nature of the object

Analysis   −It was not foreseeable that it was a person, but it was foreseeable that it was something

− D ought to have taken steps to avoid it, whatever it was.− P is within the realm of the standard that Def should be held accountable to

− D was driving recklessly and took no steps to avoid that object in the road liability

 Duval v Seguin (1972) Ont. H.C.J. CB 323

Ratio   An unborn child is a foreseeable plaintiff 

Facts   −Car accident child was born damaged as a result of an injury while “en ventre samere”

Analysis   −Mother was within an area of foreseeable risk D owed a duty of care to her

− If a driver drives on a highway without due care for other users, it is foreseeable that

some other highway users will be pregnant women and that a child en ventre sa mere may be injured

− Unborn child is within the area of potential danger that the driver is required to foresee

and take reasonable care to avoid

Notes   −Family Law Act , 1990 (Ontario)o No person is disentitled from recovering damages in respect of injuries for the

reason only that the injuries were incurred before his or her birth

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  UNFORESEEABLE PLAINTIFF OR POLICY?

 Hay (Bourhill) v Young (1943) HL CB 321

Ratio   A duty of care is not owed to the world at large – P must be reasonably foreseeable

− If D can’t foresee P, and P lacks reasonable proximity to D, then D will owe no

duty of care to P

Facts   −D was a motorcyclist , driving recklessly

− D was in an accident with a car and died

− P stepping off a bus saw the accident (saw dead body & blood in the roadway)

− P claimed to be injured due to the shock (wrenched back; stillborn child).

Issue(s)   −Did D owe a duty of care to P?

Holding   −No

Analysis   −D owed, in general terms, a duty of care (Cooper v Hobart ) to those who might beinjured as a result of his actions

− Duty of care is subject to the idea that there has to be reasonable foresight of this

 particular  plaintiff 

− D, in his reckless driving, could not have reasonably foreseen that anyone where P was

would have been affected in that manner

o P was an “unforeseeable plaintiff”

o  Based on Donoghue v Stevenson reasoning

Notes *Distinguishable from Palsgraf : mental injury v. physical injury

Following dissent in Palsgraf , Def may have had a duty to Po Foreseeability and proximity are close together

o Focusing on policy eliminates need to look at them.

 Dobson v Dobson (1999) SCC CB 324Ratio   A pregnant mother owes no duty of care to her unborn child

Facts   −Mother (D) was involved in a car accident while pregnant

− D was driving negligently at the time

− The accident damaged D’s unborn child

− Child’s grandfather brought the suit on behalf of the child

Issue(s)   −Does a mother owe a duty of care to her unborn child?

Holding   −No

Analysis Majority

− D owed a general duty of care to drive safely

− Did D specifically owe a duty of care to this plaintiff (unborn child)? No.

o Is the child foreseeable?

Yes – D knew she was pregnant

o Public policy considerations

To allow this right of action would be against public policy:

• Damage to the mother-child relationship if mother were to be

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found negligent.

• Negatively impact family cohesiveness.  It would pit child

against parent in a situation where a supportive family

structure will be essential for the child.

• It would “involve extensive intrusions and frequently

unpredictable effects on the rights of bodily integrity, privacy

and autonomous decision-making of pregnant women”

Dissent (Major J)

− Policy considerations do not apply with the same strength in situations where the mother

owes a general duty already

o D’s freedom of action with respect to her driving was already limited by the

public duty to other users of the highway

o P was within the reasonably foreseeable ambit of risk caused by D’s negligent

drivingo D didn’t have to take any extra precautions to avoid liability to P than she was

already legally obligated to take

− A duty of care is owed by the mother to a born alive child (as long as she knew/ought to

have known that she is pregnant at the time of the act)

Notes   − Maternal Tort Liability Act  (Alberta) enacted after Dobsono Allows action against the mother, but only to the extent of the insurance

coverage available to the mother

o Legislature seems to prefer the policy decision of Major J to that of the majority

  FAILURE TO ACT “NONFEASANCE” AND “MISFEASANCE” 

Misfeasance = lawful acts performed wrongfully (liability can be imposed )

 

Nonfeasance = failure to act when duty existed (no liability)

o “Should we brand the failure to assist a person in peril as criminal conduct?”

 Horsley et al. v MacLaren (1972) SCC CB 331

Ratio   There is no duty to take positive action in aid of another when D is not the

reason that P is at risk (even if to help P would involve little effort or risk)

 

The burden is on P to prove by a preponderance of evidence that D’s

negligence was the effective cause of [damage]

Facts   −P fell overboard− D operated the boat

− D failed to rescue P

− P died

Issue(s)   −Is there a duty to rescue a person in peril if you have done nothing to put him there?

Holding   −No

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 Buch v Amory Manufacturing Co . (1897) NH CB 332

Ratio   The law does not deal with purely moral obligations

  FAILURE TO ACT RELATIONSHIPS REQUIRING RESCUE

• The law does recognize a duty to rescue or to assist in some circumstances:

o Relationships of economic benefito Relationships of control or supervision

o Creators of dangerous situations

o Reliance relationships

o Statutory duties

  RELATIONSHIP WITH ECONOMIC BENEFIT

 Jordan House Ltd. v Menow and Honsberger (1974) SCC CB 334

Ratio   If D creates risk (in an economic relationship), then they assume a duty of care to P

− Where a business makes profit off consumption of alcohol, they owe a duty to their

customers to ensure they are safe if they become intoxicated.

Facts   −P was a patron of D’s hotel

− D’s employees sold P alcohol

− P was intoxicated and is ejected from the bar

− P was injured on the way home (hit by a car)

Issue(s)   −Does D owe a duty of care (duty to rescue) to the patron after they left D’s premises?

Holding   −D found liable for failing to protect P from the likely risk of personal injury

Analysis Laskin J (3)  duty based on creation of danger

− Duty of care = protect him from risks

− Breach of duty = ejecting P from bar knowing he was intoxicated, failing to prevent

certain risk 

o Put him under charge of a responsible person (or taking charge),

o Not ejected him alone until he could take care of himself , etc.

− P’s injuries were reasonably foreseeable by what D did (ejected P) and what D did not

do (take preventive measures)

Ritchie J, concurring (2)  duty based on economic benefit

− Duty of care (statutory) = not to continue serving alcohol beyond point of apparent

impairment

− Breach of duty = over-serving P

Notes   −Note 3 would the hotel have been liable if Menow had wandered out of the barinstead of being kicked out?

o Majority: duty arose at the point of ejection NO

At that point of ejection the staff would have seen that he was intoxicated

to the point where it would be foreseeable that he would be injured

o Dissent: duty of care is tied to serving of alcohol YES

The duty would have been breached earlier

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− Note 4 would the hotel have been liable if Menow had entered the hotel already

drunk and has been ejected immediately (before he could buy a drink)?

o No

o All the hotel did was have an open door! They are under no stronger duty than

any other innocent passer-by

− Note 6 Would Menow’s friend have been partially to blame if he has not left earlier

but had remained in his seat until, and after, Menow was ejected?

o Good Samaritan scenario

o He did not participate in the creation of the risk 

o The only difference is that he was a “friend”

 Horsley v McLaren  doesn’t matter

  RELATIONSHIP WITH CONTROL OR SUPERVISON

• There are certain categories of relationship (esp. control and supervision) where the law wouldn’t

hesitate to confer positive duty to acto Prevent injury

o Assist those in vulnerable situations

• Key characteristic of these relationships is that the parties enter into them willingly, knowing that

situations may develop which will require them to act in order to assist others

o  Imposing a positive duty to act in these relationships isn’t inconsistent with common

law’s desire not to interfere unduly with one’s freedom of action

• Examples:

o Parent – child

o Teacher – pupil

o

Employer – employeeo Carrier – passenger

o Prisons – inmates

o Hospitals – patients

o These categories are not closed (Stovin v Wise)

 Zelenko v. Gibel Bros. (CB 349) – [1935, U.S.]

Ratio   If a Defendant steps in at any point to assist a Plaintiff at risk, then the Defendant isassuming a duty of care

− Canadian law says that the action must WORSEN the Plaintiffs position for

there to be negligence.

Facts   − Plaintiff in Defendant’s store− Defendant took Plaintiff to infirmary and left her for 6 hours

− left Plaintiff unattended; Plaintiff died.

Issue(s)   − Did the Defendant assume a duty of care by intervening to assist the Pltf?

Holding   −YES

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•  Mercer v S.E. & C. Ty. Co. [1922]

o Train line locks a gate to let people know not to cross the line, one day they forget to lock 

the gate

o Ratio: If a self imposed duty is ordinarily performed, those who knew of it will draw an

inference if on a given occasion it is not performed

• 

 Barnett v Chelsea [1967]o Man gets sick, goes to hospital but is told he will be fine and that he should go see his

family doctor

o In dictum: that because there was a close and direct relationship between the hospital and

the plaintiff, there was imposed on the hospital a duty of care

•   H.R. Moch Co. Rensselaer Water Co. [1928] USA

o The hand once set to a task may not be withdrawn with impunity though liability would

fail if it had never been applied at all

o Of conduct has gone forward to such a stage that inaction would commonly result, not

negatively merely in withholding benefit, but positively or actively in working an injury,

there exists a relation out of which a duty to go forward

o The query always is whether the putative wrongdoer has advanced to such a point as to

have launched a forced or instrument of harm, or has stopped where inaction is at most arefusal to become an instrument for good

   Zelenko v. Gibel Bros

•   Horsley v MacLaren [1970] CANADA

o Where a person gratuitously and without duty to do so undertakes to confer a benefit

upon or go to the aid of another, he incurs no liability unless what he does worsens the

condition of the others

o If a person embarks upon a rescue and done not carry it through, he is not under any

liability to the person to whose aid he has come to so long as discontinuance of his efforts

did not leave the other in a worse condition than when he took charge

  CREATION OF DANGER

• In finding a duty to remedy a dangerous situation, the injury must be foreseeable (Oke)•  Dissent: A person who creates a dangerous situation has a duty to attempt to remedy it (Oke)

Oke v Wiede Transport Ltd  (1963) Man CA CB 347 

Ratio    Dissent: A person who creates a dangerous situation has a duty to mitigate

the risk.

Facts   − D knocked over a traffic sign while driving (not negligent)

− D stopped car and removed debris except for metal post (too securely attached)

− D didn’t report it to authorities

− P was “speared” by the post while driving in an illegal manner

− P is severely injured and diedClaim   − D negligent in failing to notify police of the risk caused by the bent post

Theory of

Proceedings

− Trial D held liable

o Original collision was non-negligent (no legal blame)

o D was negligent on the grounds of failing to notify the police of the hazardous

condition created

Holding   − Action was dismissed (lack of foresight)

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Analysis Dissent

− Is D like any other driver? No

− D created a risk, lessened the risk somewhat (removing debris), but did not go

far enough

− He recognized his duty to control the system

Generally don’t confer duty for positive action (Horsley), but this doesn’t applywhen the person has participated in the creation of the risk (even if they did so

 non-negligently)

•

  STATUTORY DUTIES

• Saskatchewan Wheat Pool

o There is no tort of “breach of statutory duty” in Canada

o A statute that doesn’t provide for civil liability does not automatically give rise to a tort

duty

• The existence of a statutory duty can be used as a factor to be considered by the courts in

deciding whether to create a common law duty• In the public tort liability area, statutory duties have given rise to private law duties of care

O’Rourke v. Schacht (CB 353) – [1973, SCC] 

Ratio   −If a Def has duties under a statute but the statute doesn’t specify what constitutes abreach, then any negligence will be negligence at common law, NOT a statutory

breach.

Facts   −Def police force attended MVA (barrier/lights had been knocked down); Def

failed to set up new barriers; Pltf’s car drove into ditch

Claim   −P claims D acted negligently in exercising their duty

Issue(s)/

Holding

  Did the police have a duty to warn the Pltf of the ditch (i.e. did they create a

risk)? YES

− Was the duty imposed by statute? NO, Common Law Duty 

Analysis   − Police have duties and responsibilities they must fulfill. Duty to warn drivers

of ditch in this case read in as a duty.

− Pltf couldn’t rely on statute to find the duty, but can ask court to read it in.

Notes   − *Statutory breach issue; if you breach a statute = no tort; if you breach a

statute & it outlines duty and breach = statutory breach.

− Generally only deals with acts, omissions are the exceptiono In this care there misfeasance was seen to be a statutory duty

− Dissent: no legislative intent to impose duty on police officers; common law

shouldn’t read it in

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Note 2:

o Distinguished from Sheep on ship case,

The statutory breach was set up in regards to the health of the sheep no protecting

the sheep from falling overboard

In the case at hand the breach in the statutory duty to keep the fence maintained,directly caused and was related to the bus crash with the escaped cow

Bottom line, no exact science, i.e. situational factors are relevant

CATOGORIES OR PRINCIPLES?

• Categories of recognized duties to act (Childs):

o Where a defendant intentionally attracts and invites third parties to an inherent and

obvious risk that he or she has created or controls

o Where there is a paternalistic relationship of supervision and control, such as parent-child

or teacher-student

o Where the defendants exercise a public function or engage in a commercial enterprisethat includes implies responsibilities to the public at large

Childs v Desormeaux (2006) SCC  CB 339

Ratio   If a social host invites D to an event but don’t directly create a risky

situation (D does it themselves), then the host will have assumed no duty of

care and none will be imposed.

Facts   − Private BYOB party hosted by defendants (D) attended by Desmoreaux (Des.)

− Des. drank 12 beers in 2.5hours and became inebriated

− Hosts only provided a small amount of alchohol

−

D did not monitor Des.’s alcohol consumption− Des. left party and drove home (D walked Des. to his car)

− Des. was involved in an accident with Ms. Childs (P)

− P was severely injured

Theory of

Proceedings

− Trial & CA social hosts of private parties do not owe a duty of care to

members of the public who may be injured by an intoxicated guest’s conduct

Issue(s)   − Do “social hosts who invite guests to an event where alcohol is served owe alegal duty of care to third parties who may be injured by intoxicated guests”?

Holding   − No

Analysis   − Novel duty situation social host (no clear precedent)

−  Application of Cooper-Anns test:

o Proximity? No

 

Is it fair to impose liability on social hosts?

 

They did not create or control a risk (didn’t assume duty of care)

o Foreseeability? No

P’s injury was not reasonably foreseeable to D

No evidence that D was aware of Des.’ intoxication

o Policy considerations (within relationship) the wrong is a failure to act,

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where no positive duty to act existed