LAW 430: Tort s

Term 2

OGBOGU

Table of Contents

Introduction...................................................................................................................................................1

Standard of Care............................................................................................................................................2Vaughan v Menlove.................................................................................................................................................2Buckley v Smith Transport........................................................................................................................................2Roberts v Ramsbottom (QB, 1980) wrong decision....................................................................................................3Mansfield v Weetabix (CA, 1998)..............................................................................................................................3McHale v Watson (HCA, 1966)..................................................................................................................................3R v Hill (SCC, 1986)....................................................................................................................................................4McErlean v Sarel (ONCA, 1987).................................................................................................................................4Fleming, Law of Torts...............................................................................................................................................4United States v Carroll Towing co. (1947).................................................................................................................5Bolton v Stone..........................................................................................................................................................6Wagon Mound No 2.................................................................................................................................................6Latimer v AEC...........................................................................................................................................................6The Role of Statutes.................................................................................................................................................7Saskatchewan Wheat Pool v The Queen...................................................................................................................7Whistler Cable Television..........................................................................................................................................8YO v Belleville (City) Chief of Police...........................................................................................................................8The Role of Custom..................................................................................................................................................8Trimarco v Klein.......................................................................................................................................................8TJ Hooper.................................................................................................................................................................9Malcolm v Waldick...................................................................................................................................................9Ter Neuzen v Korn....................................................................................................................................................9Proof of Negligence................................................................................................................................................10Byrne v Boadle.......................................................................................................................................................10Fontaine v British Columbia....................................................................................................................................10

Standard of Care in Medical Negligence Cases..............................................................................................11Sylvester v Crits......................................................................................................................................................11Tailleur v Grande Prairie General............................................................................................................................11Error of judgment...................................................................................................................................................12Wilson v Swanson...................................................................................................................................................12Lapointe v Hôpital le Gardeur.................................................................................................................................12

Duty of Care.................................................................................................................................................13Winterbottom v Wright..........................................................................................................................................13Donoghue v Stevenson...........................................................................................................................................14Deyong v Shenburn (1946, CA)................................................................................................................................16Palsgraf v Long Island RR Co (NYCA, 1928)..............................................................................................................16Home Office v Dorset Yacht Co Ltd..........................................................................................................................17Anns v Merton Borough Council..............................................................................................................................17Caparo Industries v Dickman..................................................................................................................................18Cooper v Hobart.....................................................................................................................................................18Cooper v Hobart Explained.....................................................................................................................................18Problems with Cooper............................................................................................................................................19James v British Columbia........................................................................................................................................20Childs v Desormeaux...............................................................................................................................................21

Remoteness.................................................................................................................................................23

Re Polemis..............................................................................................................................................................23Wagon Mound, No. 1.............................................................................................................................................24Mustapha v Culligan...............................................................................................................................................25Smith v Leech, Brain and Co....................................................................................................................................25Thin Skull Rule........................................................................................................................................................26Cotic v Gray............................................................................................................................................................27Wright Estate v Davidson.......................................................................................................................................27Mechanics of the Accident......................................................................................................................................27Hughes v Lord Advocate.........................................................................................................................................28Cf Daughty v Turner Manufacturing........................................................................................................................29Jolley v Sutton London Borough Council (2000, HL)..................................................................................................29Novus Actus Interveniens - Breaking the Chain........................................................................................................30Bradford v Kanellos (SCC, 1973)..............................................................................................................................30

Causation.....................................................................................................................................................31Barnett v Chelsea and Kensington Hospital Mgmt Comm........................................................................................32Lambton v Mellish..................................................................................................................................................33Corey v Havener.....................................................................................................................................................33Kingston v Chicago & NW Rwy [Suspect]................................................................................................................33Sunrise Co v The Lake Winnipeg..............................................................................................................................34Baker v Willoughby................................................................................................................................................35Jobling v Associated Dairy......................................................................................................................................35Apportionment of loss among causes - Athey v Leonati..........................................................................................36Factual Uncertainty................................................................................................................................................37Cook v Lewis...........................................................................................................................................................37Sindell v Abbott Laboratories..................................................................................................................................38McGhee v National Coal Board...............................................................................................................................39Wilsher v Essex Area Health Authority....................................................................................................................39Fairchild v Glenhaven Funeral Services....................................................................................................................39Factual Uncertainty................................................................................................................................................39Canadian Approach................................................................................................................................................40Snell v Farrell..........................................................................................................................................................40Resurfice Corp v Hanke [NEVER BRING THIS UP].....................................................................................................41Clements v Clements...............................................................................................................................................41Loss of Chance [not on exam, doesn't apply in Canada]..........................................................................................42

Defenses to Negligence Claims.....................................................................................................................43Contributory Negligence.........................................................................................................................................43

Butterfield v Forrester (KB 1809).................................................................................................................................44Davis v Mann (Exch 1842)...........................................................................................................................................44Froome v Butcher (ECA 1975).....................................................................................................................................44Lewis Klar....................................................................................................................................................................45

Voluntary Assumption of Risk.................................................................................................................................45Dube v Labar (SCC 1986).............................................................................................................................................45Crocker v Sundance Northwest Resorts Ltd (SCC 1988)..............................................................................................45Waivers and Volenti....................................................................................................................................................46Cf Dyck v Manitoba Snowmobiling Assoc. Inc (SCC 1985)...........................................................................................46Labelling.....................................................................................................................................................................46Lambert v Lastoplex (SCC 1971)..................................................................................................................................46

Illegality.................................................................................................................................................................47Hall v Hebert (SCC, 1993)............................................................................................................................................47

Damages: Pecuniary Loss.............................................................................................................................49

Janiak v Ipolito.......................................................................................................................................................50Personal Injury.......................................................................................................................................................50Andrews v Grand & Toy Alberta Ltd........................................................................................................................50

Non-Pecuniary Losses..................................................................................................................................53Liebeck v McDonald's Restaurants..........................................................................................................................54Morrow v Zhang.....................................................................................................................................................54Ratych v Bloomer...................................................................................................................................................55Cf: Cunningham v Wheeler.....................................................................................................................................55Young plaintiffs......................................................................................................................................................56

Occupier's Liability.......................................................................................................................................57Occupiers' Liability Act...........................................................................................................................................57Cullen v Rice...........................................................................................................................................................58Roasting v Blood Band............................................................................................................................................59

Government liability....................................................................................................................................59Odhavji Estate v Woodhouse..................................................................................................................................60Roncarelli v Duplessis.............................................................................................................................................60First national Properties Ltd v Highlands (District)...................................................................................................60Government Negligence.........................................................................................................................................60Cooper v Hobart (2001, SCC)...................................................................................................................................61Kamloops v Nielson (SCC 1984)...............................................................................................................................61Just v British Columbia (SCC 1989)..........................................................................................................................62Cf Brown v BC.........................................................................................................................................................62Swinamer v AG Nova Scotia....................................................................................................................................63

NERVOUS SHOCK (PSYCHIATRIC HARM).......................................................................................................63Victorian Railway Commissioners...........................................................................................................................63McLoughlin v O'Brien..............................................................................................................................................64Alcock v Chief Constable of the South Yorkshire Police [CITE THIS]..........................................................................64Reception in Canada...............................................................................................................................................66

Rhodes v CNR..............................................................................................................................................................66Vanek v Great Atl. And Pac. Co...................................................................................................................................66Cf Mustapha...............................................................................................................................................................66

Introduction Negligence: failure to take proper care in doing something - carelessness Intention: an act or instance of determining mentally upon some action or result About negligence: most prevalent cause of action in the law of torts, both in terms of number of claims and

the attention it receives from lawyers Expanded in recent decades as a result flexible judicial interpretation and application of core

elements 3 core elements:

(1) The negligent act (2) Causation (3) Damage No negligence if any element is not proved

The negligent act: determined by identifying the appropriate standard of care to which defendant should have adhered

Then, that SOC is applied to the facts of the case to see if the defendant adhered to it Must show that the defendant fell below the standard of care

Causation: Determined by showing a causal link between the defendant's negligent act and the plaintiff's damage

Ask: Did D's negligent act cause P's injury? Or is there some other cause or way to explain the injury?

Damage: Vital element that triggers the claim and launches the entire litigation process No harm no foul

Control devices: Existence of 3 elements doesn't automatically translate to liability (may not award damages).

Courts have developed control devices to keep negligence liability within the appropriate boundarieso (1) Duty of Care

Unless D owes a duty to take reasonable care of P's interests, harm to P can't result in liability to D

We can exclude certain persons from the scope of the defendant's responsibilities Negligent act itself! Reasonable foreseeability NB - plaintiff must show the consequence

is within contemplationo (2) Remoteness of damage

Similar to duty, it excludes liability for certain kinds of losses On the basis that they were utterly improbable consequences of defendant's negligent act

or responsibility Defenses:

(1) Contributory negligenceo Partial defenceo Applies where P was also negligento Reduces amount of damages D is liable for

(2) Voluntary assumption of risko Complete defense! No negligence on the part of D - P assumes all risko Volenti non fit injuria

(3) Illegalityo P was engaged in illegal conduct when the negligent act occurredo Operated as a full defenceo But scope severely restricted by the SCC

  Negligence analysis:

(1) Does the defendant owe the plaintiff a duty of care? (2) Did the defendant's conduct fall below the standard of care? (3) Did the defendant's negligence cause the plaintiff's injury? (4) Did the defendant's conduct result in actual injury or damage to the plaintiff?

o Usually a right in property or bodily integrity1

o Sometimes, pure economic loss - loss is simply monetary in this case 5 kinds of PEL; only two are recoverable (not important for exam)

(5) Was the damage reasonably foreseeable? (remoteness) Defence: Are there any defences that might shield the defendant from liability in whole or in part?

  EXAM: Duty of Care: optional! Do not attempt.

SCC - don't need to make argument if precedent covers ito Ex: write "Doctors owe their patients a duty of care"

Standard of Care   Proving that the defendant's conduct was negligent:

Did the defendant's conduct fall below the standard of care (that the law expects)? Generally the SOC required of D is objective, not subjective

 Vaughan v Menlove

D built haystack with chimney to prevent risk of fire When warned of possibility of fire, said he would chance it Haystack caught fire and destroyed P's property Trial court found D liable on the basis of failing to meet standard of ordinary prudence On appeal, D argued conduct should not be measured by that standard because he's dumb - doesn't

possess "highest order of intelligence" Standard should be whether he aced bona fide to the limits of his personal intelligence. Held: NO. Standard is that of a "prudent man"

o It is the OBJECTIVE STANDARDo No allowances for personal quirks and idiosyncrasieso Standard provides certainty - can't fluctuate to accommodate personal nuanceso A reasonable level of conduct is expected of all

But does the law accommodate some allowances from the general rule?  

Buckley v Smith Transport D's truck hit a streetcar; P alleged that D, corporation, was VL; P had to prove that D's employee was

neg. o (fell below the SOC)

Employee had syphilis of the brain - he was under delusion while driving Held: no negligence

o Had insane delusion - he was incapable of discharging objective standard of care Q: is the defendant free from liability when his insane delusion does not affect his ability to

appreciate risk? Should persons of lesser intelligence be held to a lesser standard? o Negligence law penalizes D for careless actionso The law assumes D is capable of exercising reasonable care or discharging duty of careo Understand/control actions and consequences

On intelligence: what about lesser intelligence today, with the advent of IQ taken into account? o Ogbogu: who knows? Perhaps ought to operate like mental illness

   Negligence law penalizes D for careless actions

Law assumes D is capable of exercising reasonable care or discharging duty Understand/control actions and consequences

  Diminished physical capacity

Same thing as mental incapacity?  

2

Roberts v Ramsbottom (QB, 1980) wrong decision D suffered minor stroke while driving, no previous strokes, unaware of possibility of stroke happening Felt strange but kept driving and had two accidents, kept driving and collided with p and injured her

daughter Did D fail to meet objective standard of care? Held: Yes – despite impaired awareness, D had a sense of what he was doing and of his

surroundings He was able to control the car voluntarily and deliberately, even if inefficient Total loss of consciousness only thing that warrants exculpation Consistent with Buckley? Not much difference Note: less than average intelligence does not have an impact on standard of care

 Mansfield v Weetabix (CA, 1998)

D’s employee had a condition that caused his brain to malfunction when blood sugars were low Caused a series of accidents by driving when hypoglycemic Held: NO liability [Roberts is WRONG] Physical ability to drive affected, like Roberts Masfield: Standard is that of a reasonably competent driver unaware that he is suffering from

a condition that impairs drivingo But did the D in this case not have sufficient consciousness to have an idea of this condition?

 McHale v Watson (HCA, 1966)

Watson, 12, threw sharpened piece of welding rod at post after a game of tago Bounced off and hit McHale in the eye. She was rendered permanently blind

Windeyer, J (trial): not liable – true that standard of care doctrine does not allow for idiosyncrasies, but childhood is not an idiosyncrasy 

HCAo Did trial judge err in applying a different standard?o If not, was defendant liable on the lowered standard?

Majority: held for defendant but for very different reasons McTiernan ACJ: semi-subjective duty of care – childhood is not peculiarity - three standards that

apply to children objectivelyo (1) Babies: incapable of perceiving risk, incapable of negligenceo (2) Young adults: haven’t attained majority age, but nonetheless capable as adults of

foreseeing risk/probable consequences of actions - held to usual standard of care (reasonable person)

o (3) In-between group (children): capacities to appreciate risk vary by age, intelligence, and experience, held to standard of a child with same age, intelligence, and experience

Semi-subjective as standard accounts for intelligence/experience Kitto J, concurring: no room for subjectivity—we can deviate from adult standard to account for

childhood, BUT can’t say that D is slow-witted or inexperiencedo Doesn't mean that age is irrelevant: Can be relied on as limitation to capacity that is not

personal but a general characteristic of stage of development Standard of ordinariness for a 12-year old Q: did D do anything a reasonable 12-year old boy with foresight and care expected of 12 year old

boys would not have done?o Would any normal boy have thrown the spike? (apparently yes)

"[A] piece of wood [the post] and a sharp instrument have special affinity' for a boy of 12 Who would not have weighted risk of hard vs soft wood and the likelihood of the spike

sticking Kitto J: did not frame this issue correctly

o No 12 year old would consider softness of the woodo But perhaps a 12 year old would think to not throw a sharp object, esp with someone standing

so close

3

Dissent –Menzies J: No deviation (correct decision)o Reasonable person applies without variationo Reasonable person would not have thrown dart at head heighto Even on lowered standard, D still liable—it’s not reasonable for a boy to throw this

object Summary:

o McTiernan: semi-subjective; take into account age, intelligence, experienceo Kitto: no subjectivity - no intelligence or experience; maybe age as a general characteristico Menzies: no altered standard - CORRECT

 R v Hill (SCC, 1986)

Wilson, J (dissent): standard lowered for minors, but on the road to objectivity, the standard should be adjusted incrementally in accordance with age

But note: McEllistrum v Etches (SCC, 1956)o semi-subjective standard was applied

  What if a minor engages in activity associated w/ adults?

 McErlean v Sarel (ONCA, 1987)

Two teens involved in trail bike accident Issue of whether d should be held to standard of adults Held: no special treatment when child engages in adult activity Rule: held to same standard as adults when engaging in an adult activity (1) Operating a motor vehicle is different from playing ball

o One cannot know whether operator of approaching car is minor or adult (2) Machines capable of high rates of speed regardless of operator and inherently dangerous in

wrong hands (3) When activity is insured minor is protected from ruinous liability Should law hold person who granted minor access instead?

 Rules:

Standard of care applicable in negligence cases is assessed objectively  Defendant is negligent if conduct does not accord with that of a reasonable or prudent person No allowances for low or less than average intelligence (Vaughan) Exceptions to general rule: courts sometimes accommodate or allow lowered standard Defendant may be excused

If acting under insane delusion and unable to appreciate risk or consequences (Buckley) If unable to discharge duty of care duty to physical impairment

o Even if still conscious - total loss of consciousness not required (Mansfield, overruling Roberts)o Provided defendant was unaware of condition triggering impairment (Mansfield)

  Physically impaired defendant liable if she knew or ought to have known of condition AND failed to take

reasonable steps to address condition before engaging in risky activity (Mansfield) For young persons (minors), age matters – adjust standard of care in accordance with age (Hill –Wilson J)

Intelligence and experience also matter (McTiernan in McHale) BUT no adjustment for minors engaged in adult activity (McErlean)

 Fleming, Law of Torts

(1) Reasonable person standard eroded over time (2) Objective standard necessary for welfare of society (compensation of injured plaintiffs) (3) Often changed when does not meet or hinders objective (4) Cases sometimes make adjustments to RP standard based upon specific factors

o Converse is not true (if person has higher level of experience, they may be judged to this experience)

4

o Knowledge/Experience No allowances for substandard knowledge/experience BUT converse is not true If a person has a higher level of experience, they may be judged according to that

experience E.g. lawyer w specialized skills held to higher standard than general practitioner Though lower intelligence/experience does not affect judgment

Physicians: Held to average of a reasonably skilled practitioner of the class to which she belongs or holds herself out to belong (i.e. surgeon held to higher standard than GP)

Beginners – no lowered standard of care: held to standard of reasonably skilled and proficient persons in that calling

Layperson engaged in expert activity: Layperson undertaking this type of task will be judged by the standard of the expert especially when public safety is implicated

Physical and intellectual impairments: Physically disabled people often judged by standard of reasonably prudent person with the same disability ( think blind man example from the textbook)

No allowances for intellectual or emotional characteristics Lunacy

Depends on whether D can appreciate risk and need to take care Fleming: Weight of authority suggests no allowances (Fleming) – but Buckley says otherwise

 Standard of Care 

What does it mean to be a reasonable person? Who, by definition, takes reasonable care Posner – ‘Learned Hand Formula’United States v Carroll Towing co. (1947)

Barge broke away from moorings while unattended and collided w another ship Question of whether leaving barge unattended in harbour negligent? Failure to meet expected standard of care of reasonable person? Held: Learned Hand, J: test for reasonable person:

o B = burden/cost of precautionso P=probability of accident occurringo L=loss/cost of loss

If B<PL= reasonable to take care Reasonable to take precautions where cost of avoidance (B) is less than cost of loss (L)

discounted by statistical probability of accident occurring (P) Where the cost of avoiding accident is lower than the expected cost of the accident - that is, it is

cheaper and more reasonable to pay to avoid the accidento Then defendant ought to take reasonable care - should not have left barge unattended

  How does the Learned Hand test relate to the RP standard?

If B<PL then D acted unreasonably - reasonable person standard not met If B>PL, then D acted reasonably - reasonable person standard met (not reasonable to take

precautions here) Difficult test to apply in practice

Posner: McCarty v Pheasant Runo LH test is really just RP test phrased differently o Analytically better, but difficult to apply in practice because:

B (cost of burden/precautions) is fairly easy to quantify, but VERY difficult to monetize L and P

If B is high, then it is not negligent to inflict harm on the plaintiff! So - okay to sacrifice the plaintiff's wellbeing for the social or economic good without any compensation? Test is based on the assumption that everything is reducible to monetary terms

Bender: Economic analysis turns people into abstractions Weighed against profits or benefits to be earned from injury-causing activity

o Rather, no one should be hurt5

B can never be high enough to absolve D of taking precautions Reasonable person test is one of conscious care and concern of a reasonable neighbour under

similar circumstances Posner's response to Bender: The caring person does not really get us anywhere - most neighbours really

couldn't care less about each other.  

Bolton v Stone P hit and seriously injured by cricket ball - probability of injury extremely low, but not inconceivable.

Ball hit clear out of grounds only 6 times in 30 years. Landed in lane that was back entrance into row of houses

Test: D's actions are to be assessed on the RP standardo But what does it mean to act reasonably in the context of this case? o That D must have considered the cost of avoidance (B) and expected cost of harm (PL)?

Lord Reid: Def not liable: We must draw a distinction between unforeseeable risk and foreseeable real risk o Sounds like P! o Unforeseeable risk arises from events so bizarre and freakish no one could reasonable foresee

the outcome Foreseeable risk is risk one can foresee.... To impose a foreseeable risk on another can be a breach of the standard of care

o But, once an unforeseeable risk occurs once, it is now foreseeable, right? (P's argument)o Court: we can refine to account for the degree of foreseeable risk

Foreseeable but small or infinitesimal risk VS Foreseeable and substantial risk The law doesn't seek to protect people from all risks We live in a crowded society and even the most careful person creates risk. Defendant only required

to refrain from creating FORESEEABLE AND SUBSTANTIAL risks D must also consider seriousness of the consequences - sounds like L! Where does B come in? Lord Reid said "I do not think that it would be right to take into account the

difficulty of remedial measures?" 

Wagon Mound No 2 Wagon Mound docked to take on oil - due to bad fitting, oil was discharged into the harbour by the

defendant, covering part of the harbour. Dock owner welding, molten metal fell into water - ignite, fire, burn.

Trial: foreseeable but infinitesimal risk, so no liability OVERTURNED by Lord Reid!

o Bolton: risk was so small a reasonable person would be justified in disregarding ito Another reason it was reasonable to ignore the risk in Bolton was the considerable expense in

eliminating it! o In the case at hand, no avoidance costs - all it will take is to tighten the fitting, therefore the RP

would not create the risk. Ratio: a RP would not disregard a foreseeable but small risk, if that risk could have been avoided

without difficulty, disadvantage or expense - sounds like B!  

Latimer v AEC Flood factory floor - slip and fall Held: NOT LIABLE - cost of avoidance would have been to shut down the plant Ratio: if the risk is foreseeable and substantial, cost of precaution is irrelevant, but relevant

consideration if the risk is foreseeable but small If the risk is foreseeable and small, but the cost of precaution is LOW, defendant may be found to

have acted without reasonable care.  

Summary: (1) If risk is unforeseeable, no liability

6

(2) If risk is foreseeable, is it small or substantial? o (a) if small, consider:

Seriousness of consequences Cost of precautions - if low, D may be liable

o (b) if substantial: Consider seriousness of consequences DO NOT consider cost of precautions

 The Role of Statutes Q: In assessing the reasonableness of a defendant's conduct, is the fact that such conduct breached a

statute a relevant consideration? If there's a breach of statute, can we bring that to negligence?

Remember: tort law and statutory regulation are distinct legal devices - tort law developed exclusive of state regulation of hazards, which came later

Breach of statutory rule matters to the regulator, but should it matter to the relations between the plaintiff and defendant?

Three possibilities: (1) Breach of statutory duty is determinative of liability

o Breach of statute is breach of SOC; the statutory rule IS the SOCo The breach of the statute is itself a tort

(2) Breach of statutory rule is totally irrelevanto Such cases deal with the interaction between two private parties - plaintiff and defendanto Not between the defendant and the stateo In determining the standard of care, obligations owed by defendant to the state does not

matter. (3) Somewhere in between: can be considered, but not determinative

o [CANADA] 

Saskatchewan Wheat Pool v The Queen D stored and transported P's grain - loaded a quantity that was later discovered to be infested with

rusty grain beetle larvae - P was required to divert ship to Kinston, unload and fumigate, at cost of $100k , which sought to recover

Plaintiff didn't allege negligence or any other specific tort here!! o Alleged breach of section to Canada Grain Act that prohibited delivery of infested grain to the

Board Dickson J: No general principle or rationale can be identified from existing cases

o From England, the painful emergence of a new nominate tort of statutory breach Involves a search for non existent Parliamentary intent to create a civil cause of action Arduous tests developed to determine whether duty is owed primarily to the state and

only incidentally to the individual, or VVo In the US, some confusion in the cases (dominant position is that violation of statute is

negligence) o Canada:

(1) (side note) none of this applies to industrial statutes, which historically involve absolute liability - no fault required

(2) Cdn law rejects the idea of a civil action for breach of statutory duty To hold otherwise is judicial legislation RULE: Mere fact of a statutory breach does not give rise to a civil cause of

action No tort of statutory breach or civil cause of action for SB

(3) instead, the fact of a statutory breach should be considered within the context of a claim for negligence - as part of the evidence

RULE: evidence of a breach of statutory requirements is a relevant consideration in assessing whether the defendant breached the SOC, but is not determinative

7

o Other considerations in this case include whether D operated the terminal to accepted trade standards, made regular checks for infested grain, and tested samples and carried out visual inspections.

Breach of statute does NOT, in itself, constitute a tort OR a basis for a standalone civil actiono HOWEVER, a statute may be used as evidence of the standard of care, and a breach of that

statute as evidence of breach of that SOC TOF has 2 options:

o (1) reject the statutory offense for the purposes of negligence lawo (2) throw in the bag with all other evidence and treat as a factor in assessing if the standard of

care was breachedo CANNOT treat the breach on its own as determinative of whether negligence occurred

Questions remain: What if the stat breach was intentional?? Then you wouldn't sue in negligence Cases exist where courts have treated a breach as forming the basis of a private right of action By attempting to distinguish Sask Wheat Pool as applying only to cases of negligence

 Whistler Cable Television

Absent a statutory breach, has D committed a tort? NO. To compete is not to commit a tort. However, Broadcasting Act made it an offence to broadcast without a license, subject to a fine HELD: SWP confined to negligence law. Doesn't eliminate the 'tort of breach of statute'! [NOT A

THING] 

***EXAM: BREACH OF STATUTE DOES NOT AUTOMATICALLY AMOUNT TO NEGLIGENCE*** 

YO v Belleville (City) Chief of Police Police disclosed youth CR - contrary to statute and penalty is criminal prosecution P sued for negligence No tort of breach of stat duty - case should be determined on negligence principles

o BUT: all defendants had a duty to the plaintiff to use reasonable care to keep his youth record confidential

Ds were negligent and breached that duty. What tort was committed here? Hard to say... HOW is this negligence?

o Can't 'negligently' disclose the youth's CR to their employer. In this case, appears as though the judge treated the breach of statute as determinative

o What should have been done: just prosecute the defendant as per the statute! Rule is not applicable in cases where statute expressly provides that person harmed by breach has

action for damages caused by breach P recovers if able to prove breach of statute and that breach caused damage!

  NO TORT for Statutory Breach

If the provision outlines a penalty - go for the outlined penalty If the provision says that the plaintiff is entitled to seek damages in a civil suit, then the plaintiff may

do so If you're going for negligence then the breach is merely part of the evidence, and is not

determinative 

The Role of Custom In determining whether there has been a breach of the SOC, is it relevant to know how similarly situated

persons conducted themselves? "Accepted trade standards"

 Trimarco v Klein

Bathtub glass shatters, commonplace to use shatterproof glass since 1950s, law in 1973 (door installed prior though) - criminal sanction doesn't apply

8

Should evidence of custom influence the SOC? YES it is influentialo Proof of an accepted practice and conformity be defendant may establish due care as well!!

Why? o (1) Custom shows collective judgment of many people on the issue

Better than having a judge make it up - the community generally thinks that acting reasonable entails the customary practice

o (2) shows that precautions that the court is imposing on the defendant are feasible If everyone can do it, then the defendant can as well.

When certain dangers have been removed by a customary way of doing things, this may be considered in determining whether a defendant has met the SOC or not

Custom is not determinative Must the custom be universal? NO

It is enough that it is fairly well defined and in the same calling or business, such that D either knows about it or is negligently ignorant.

Is the evidence of custom conclusive? NO Finder of fact must still be satisfied that the custom itself is reasonable. Just because everyone is

doing it doesn't mean it is reasonable. Focus is not just on what everyone else is doing, but also on what is reasonable.

 TJ Hooper

Barges, tugs, storm and sink, no radio No general custom requiring the use of radio sets Even though they could be obtained at little expense, fairly reliable with maintenance, and offers

great protection D held liable at trial, but appealed on the basis that use of radio sets was not customary in the

industry - tried to use custom as a shield. LH: the custom itself is unreasonable - barges are unmaneuverable ships - sets are their 'ears' and

are quire necessaryo RULE: Custom is often helpful in the standard of care analysis, but only if the custom

itself is reasonable. SUMMARY

Evidence of custom is never determinative or conclusive in the standard of care analysis It is influential, but only if it is a reasonable custom

 Malcolm v Waldick

Waldick slipped on D's icy driveway and fractures skull. D didn't salt/sand driveway - claimed this was local practice in their rural community.

Trial and ONCA ruled D's failure to salt was negligent, regardless of custom SCC: dismissed appeal in which defendant claimed that custom wasn't considered

o D is wrong. Local custom was taken into account but it is not determinative. Because it wasn't applied, doesn’t mean it wasn't considered.

o Didn't offer sufficient proof of this 'custom' - relied only on testimony of one defendant Local standard, if it did exist, is in itself negligent No amount of general community compliance will render negligent conduct reasonable Ogbogu: Good decision

Hypothetical: say there's a practice adopted by most or all astronauts, which exposes others to risk. How do we determine the reasonableness of the complicated astrophysics that underlies such practice?  

Ter Neuzen v Korn HIV transmission via AI - sued for negligence on physician's part - failed to warn plaintiff of the

dangers of contracting HIV from AI procedure Only one letter in a journal that was not heavily circulated warned of risk, no practice of screening

donors or warning anyone of risk. Physician complied with standard of medical practice in not warning patient of risk of HIV. He did

screen donors, but one was not completely forthright about sexual practices9

Trial: negligent; CA overturned. SCC (Sopinka) upheld CA Only two ways jury could have found D negligent

o (1) Jury could find that D violated the custom Evidence of custom in case was unambiguous. Defendant action COMPLIED with that custom - and did slightly more even by screening

donors. No jury acting judicially can correctly reach a conclusion that D failed to conform to

custom of the profession. o (2) Jury could find that the custom itself was negligent

Impossible conclusion for the jury or judge to reach in the case at hand. Case here involves a complex area of practice. Highly technical and scientific, beyond the competence of a TOF! Therefore not open to

a TOF to find such custom or standard practice negligent. Note: experts only say whether or not the practice is custom - not whether the custom, if

there, is negligento ONLY ONE EXCEPTION: Custom or standard practice if fraught with obvious risks

The standard practice fails to take precautions that are readily apparent to anyone with the experience or knowledge base of the TOF.

As a general rule, where the standard practice or custom involves complex, scientific or highly technical matters which are beyond the ordinary comprehension of a judge or jury, it is not open to the judge or jury to find the standard practice or custom negligent (or unreasonable). o Such situations are not reviewable by judge or jury unless the standard practice or custom is

fraught with obvious risks that any reasonable layperson can detect.  

Proof of Negligence The plaintiff in a torts case must prove their case on the balance of probabilities

Evidence can be direct or circumstantial Res ipsa loquitur (the thing speaks for itself)

Mechanism for dealing with circumstantial evidence Traditionally, RIL was considered to be sufficient evidence where:

o (1) The thing that caused the damage was under the defendant's controlo (2) The event would not have occurred without negligenceo (3) There is no evidence as to why or how the event took place

Morphed into interpretation that BOP shifted to the defendant to disprove negligenceByrne v Boadle

o Barrel of flour rolled out of defendant's shop, struck and seriously injured the plaintiffo HELD: Barrels of flour don't just get up and exit buildings - can only result from

negligenceo Accident reveals evidence that defendant can either rebut or be found negligento Q: What kind of evidence can defendant use to rebut RIL?

 Fontaine v British Columbia

o Appellant's husband was travelling in car driven by hunting buddy - car veered off road in bad weather. Both killed - nobody saw the accident and nobody knew when it happened exactly.

o Evidence of driver's negligence: car was moving with sufficient force to plough through small trees, but also circumstantial evidence of other non-negligent causes like weather or worn tires.

o So, do the alternative explanations negate RIL? SCC: RIL no longer applies: it's technical, confusing, and unhelpful.

Intended as a way of dealing with circumstantial evidence. o NEW TEST for dealing with circumstantial evidence:

(1) TOF must weigh circumstantial evidence against any existing direct evidence to determine whether plaintiff has established, on BOP, a prima facie case of negligence

10

(2) If P successfully establishes a prima facie case, it falls to the defendant to present evidence to negate the plaintiff's evidence, or the plaintiff will succeed on the prima facie case.

..how different is this test really? EXAM: Apply this test (prima facie), not RIL.

 

Standard of Care in Medical Negligence Cases Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must

exercise a reasonable degree of care Bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent

practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability

Conduct must be assessed against the conduct of a prudent and diligent doctor placed in the same circumstances

General principles Typically assessed by looking at conformity of the defendant's conduct with the accepted or

approves standard practiceo Standard practice is the first thing you look at!!!

Consistent with ter Neuzen, courts will NOT overrule approved practice unless clearly unnecessary or unduly hazardous

Sylvester v Crits 5yo plaintiff injured during medical operation when anaesthetic exploded Anaesthetist created a highly explosive mixture of oxygen and ether; also placed the ether can on

the operating table, close to the plaintiff's head. Explosion caused by static electricity igniting escaped ether-oxygen mixture accumulated near the

plaintiff's head Court found there was a 'minimum of evidence' on approved standard practice

o However, obvious to a non-technical person that turning off the O2 tank would have prevented the accident

o Rand J: It does not require a technician's understanding to see that a dangerous volume of the gaseous mixture had built up in the immediate area in which the flash of flame appeared

Approved standard practice Typically determined through expert testimony by reviewing professional standards of practice

o Often taken as conclusive evidence of the standard of care, unless 'fraught with obvious risks' o Courts show deference as they lack technical expertise to determine what is appropriate

 Tailleur v Grande Prairie General

Plaintiff sustained an injury to her heel and Achilles tendon. Doc referred her to Dr. Sendziak, an orthopaedic surgeon, for repair of the Achilles tendono Applied cast running from above the toe to below her kneeo Later diagnosed with gas gangrene requiring immediate above the knee amputation - rare but

devastating infection caused by clostridia perfringens, a cousin of clostridia tetanus (exists in areas contaminated with fecal waste of domestic animals)

Plaintiff sustained injury after swimming in an earthen dugout full of runoff water on an acreage that had domestic animals

Gas gangrene infection professes rapidly and results in amputation or death. Diagnosed if crushed, dead, or devitalized tissue, dirt, or other sign of contamination present on wound site

Tx includes proper cleaning, leaving wound open, monitoring, and antibiotics

11

At trial, accepted that plaintiff's wound was a 'clean wound' - expers agreed that defendant followed proper practice in treating wound. Every orthopaedic expert testified they would have done exactly the same

All agreed the cast did not cause gas gangrene. While the cast could delay detection, it would not contribute as a cause

Most likely cause was inoculation of the bacteria when the wound was sustained Cooke J: held that Dr. Sendziak breached the SOC because he failed to consider and react to the risk

of infection in the circumstances, especially since he is a part time farmero Reasoned that defendant should have used an alternative cast

Would have made the lower limb visible, aiding visual inspection and earlier detection - may not have prevented the gangrene but may have resulted in below the knee amputation

o Basically subbed in expert facts for his own Overturned on appeal - no evidence to support factual findings that:

o (a) risk of infection increased by circumstanceso (b) the doctor breached the SOC by selecting the wrong type of casto (c ) earlier detection was possible by visual inspection

No evidence to support a breach of accepted orthopaedic practice. TJ didn't have the expertise to comment on technical matterso Not his place to review the matter, as he lacks the expertiseo Accepted practice not fraught with obvious risks that are detectable without diagnostic or clinical

expertise. "Where a common and accepted course of conduct is adopted based on the specialized and

technical expertise of professionals, it is unsatisfactory for a FOF to conclude that such a standard was inherently negligent"o ***Use this verbatim if you're dealing with medical negligence and custom on an exam!***

However, "matters falling within the ordinary common sense of juries can be judged to be negligent" 

Error of judgment Medical professionals should not be held liable for mere errors of judgment that are distinguishable from

professional fault Doctors make mistakes! Sometimes they arise out of bad judgment call, not necessarily negligence

o If tx A and B are options arising from the symptoms presented, and the doctor chooses the wrong one, it's not negligence, but rather an error of judgment, provided that both are actually reasonable options (within SOC) - doctors will sometimes explore a number of options

Ask: is the wrong option a reasonable option? What distinguishes error of judgment from professional fault? Reasonableness

o ***There will be an exam question from here***o Could a reasonably competent and similarly skilled professional have made the same error? o An error of judgment is an error made in the context of the exercise of reasonable careo "A doctor will not be found liable if the diagnosis and tx given to a patient correspond to those

recognized by medical science at the time, even in the face of competing theories" (-L'Heureux-Dubé, LaPointe)

A typical example: misdiagnosis that is consistent with approved standard practice However, doctor still negligent if she fails to reconsider diagnosis

o Ex: if tx A doesn't work, ought to consider tx B 

Wilson v Swanson Defendant surgeon found growth in patient's abdomen during surgery Test by pathologist showed growth was "probably malignant" Defendant made judgment call to remove organs that would have been untouched in the surgery, and

not to wait for confirmatory test o Turns out the growth was benign - patient sued

"an error in judgment has long been distinguished from an act of unskillfulness or carelessness or due to lack of knowledge"

12

o Court characterized this as an error of judgment, not negligenceo The option the doctor went with was indeed reasonable

"The honest and intelligent exercise of judgment has long been recognised as satisfying the professional obligation"

"He obtained the opinion of a pathologist of recognized competence. He then made an admittedly difficult decision - in making that decision I am satisfied he exercised his best judgment in what he considered to be the best interest of his patient"

 Lapointe v Hôpital le Gardeur

5yo cut elbow, resulting in severed artery and severe blood loss Attended to be emergency GP, who realizing he could not fix artery, made judgment call to send her

to pedso So - was the judgment call negligent?

Didn't perform blood transfusion, but communicated gravity of case to peds, including possibility of shock

Patient suffered massive cario-respiratory arrest due to O2 loss upon arrival in pedso Left with irreversible brain damage

So - should the doctor have performed the blood transfusion before transferring her to pediatrics? o Remember - setting up the transfusion is likely to take a fair bit of time

SCC held that the doctor made an error of judgment - exercised proper judgment in ordering transfer. o Decision to transfer without giving her a transfusion was reasonable

Reasonable because defendant stopped bleeding and replaced lost fluidso Insertion of intravenous drip took almost an hour - defendant had to balance delays in

transferring patient with waiting for bloodo His actions were reasonable and something that would not be considered negligent - this was a

reasonable decision to have made!   Summary

A medical professional is held to a standard of care expected of a prudent, diligent, and reasonable skilled practitioner of the same standing and experience.

A medical professional who acted in conformity with approved standard practice is not negligent, unless the standard practice is fraught with obvious risks

Medical professionals are not legally responsible for error of judgment that are distinguishable from professional fault

 

Duty of Care ***Will not test this on the exam - do not argue that it's been established*** Remoteness Unless a defendant owes a duty to take reasonable care for the plaintiff's interests, breach of SOC resulting

in harm to the plaintiff is not enough Even if you've shown the SOC has been breached and have satisfied the 3 criteria, still have to

determine whether a duty of care is owed - whether the defendant is responsible Legal artifact made by the courts to exclude certain defendant's from liability

Liability is confined to a certain type of person A person who is under a legal obligation or duty to exercise the requisite standard of care with

respect to the plaintiff Duty to care for your interests or welfare Even if plaintiff can show the other elements of negligence, defendant not liable if they fall outside the

duty of care Question of law - the judge determines if the duty exists

Not a question of fact Must convince the judge that DOC exists

13

  Donoghue v Stevenson

Seminal decision - starting point for duty of care analysis Pre-Donoghue Winterbottom v Wright

Defendant is a coach manufacturer Contracts with postmaster to maintain coaches in good working order Postmaster contracted with third party, Atkinson, to deliver coach Atkinson contracts with plaintiff to drive coach to its destination En route, coach broke down due to hidden defects Plaintiff was seriously injured - sued defendant manufacturer Chain of causation: Defendant manufacturer - postmaster/Atkinson - Coach driver /Plaintiff

Privity between: Defendant & Postmaster Postmaster & Atkinson Atkinson & Plaintiff

At the time of Winterbottom, nothing connecting the defendant and the plaintiff - no concept! The only thing connecting two parties was privity of K

No privity between P and D so no legal connection Issue: did the defendant owe the plaintiff a duty of care?

Court: NO No precedent for this No privity of K between P and D

o 3rd party interests to a K are not important Granting plaintiff relief will open the floodgates Anyone injured by the upsetting of a coach could sue the manufacturer

Baron Rolfe: Duty flows ONLY from K P's K was with Atkinson, and D's w Postmaster No duty between P and D Only basis for a duty to exist is the Kual link Damnum absque injuria: loss without a violation of legal rights Hard cases make bad law

Fleming: courts consider many factors in the duty of care analysiso History, ideas of moral and justice, administrative convenience, social normso It was a time of precedent

Winterbottom based on fear of 'impeding industrial development' But should no longer be a concern with the advent of insurance Insurance has led to widening of scope of duty - industries can obtain insurance against losses

 Donoghue v Stevenson Facts: Friend purchases bottle of ginger beer for plaintiff. Bottle was opaque so P couldn't detect contents.

Bottle had decomposed remains of a snail - P claims she got gastro-enteritis from consuming beer Issue: Did the defendant manufacturer owe the plaintiff a duty of care?

14

Trial: NO DUTY (trial decision affirmed by Court of Sessions; P appealed to HL) HL: Yes, on a 3-2 split Dissent (Buckmaster J): Winterbottom is the law

o Absent a Kual relationship between P and D, there is no duty 2 exceptions:

(1) Inherently dangerous articles such as firearms Anyone injured by firearms falls under that exception

(2) Articles that are dangerous by reason of hidden defects known to the manufacturer

o Floodgates issue - then D will eventually owe duty to all person who consume the product regardless of Kual privity

Note: Donoghue didn't have privity! Majority opinion (Lord Atkin) [Ogbogu recommends reading the case in full]

Duty of care has been determined based on precedent of established classificationso Contract, Bailment, Transfer of custody of chattels

This approach results in denial of claims that don't fit established categories Approach is inconsistent with the CL methods of adjudication

o If there is no law, then maybe create new law. But if there is precedent then apply it. Rather than relating the specific facts of a case to established categories, we should relate them to a

general principle - a principle that relates to most factso [Ogbogu thinks Atkin is right - if all you're doing is comparing facts then you won't get

the right result]o Neighbour Principle

You must take reasonable care to avoid acts of omissions which you can reasonably foresee would be likely to injure your neighbour

To whom? "Persons so closely and directly affected by my act that I ought reasonably to have

them in contemplation as being so affected" No limit really to who your neighbour can be so long as your imagination can get

there In Donoghue, customers beyond the manufacturer fall within the scope of

neighbours Application of these principles:

o D intended the product to reach the consumer in the form it left the factory - no real possibility of other inspection

o No Kual relationship but a direct relationship exists D intended the product to be consumed D can foresee that negligence on his part will cause injury to P's legally protected

interests What about Winterbottom? No duty alleged in Winterbottom other than that arising out of K - doesn't

apply or govern here (reading down) [Winterbottom is not destroyed - the principle is expanded to include more facts that

Winterbottom would not be able to touch. Existing precedent doesn't apply] Concurring judgment (MacMillan J)

Claim in tort is not precluded by the absence of Kual privity - Winterbottom doesn't applyo Not a problem in contract here!

P in Winterbottom sought to impose Kual liability on D Agrees with the application of the Neighbour Principle

To sum up, two main/intersecting ideas flow from the Neighbour Principle (1) Close and direct relationship (proximity) (2) Contemplation of foreseeability (foreseeability)

Emphasis not just on foreseeability of harm, but also on foreseeability of harm to a person who is a proximate relationship with D

Lord Atkin:

15

D owes P a duty to take reasonable care to avoid acts that will result in an injury to the plaintiff's life and propertyo (Injury to the plaintiff's legal rights)o Defendant only in breach of DOC where they injure the plaintiff's legal rights (misfeasance)o Remember difference between misfeasance and nonfeasance!o This principle creates problems - people's legal rights evolve over time

Query: Which of the two intersecting ideas is the essential component (or trigger) for the duty of care

inquiry? Is it proximity that triggers the duty of care analysis or is it foreseeability of harm? Can we ignore one or find that a duty exists simply on one element?

3 interpretations/approaches (1) Classic/current English position

o You need both (2) NZ (formerly CDN) position

o Foreseeability alone is sufficient First, ask if risk of harm is reasonable foreseeable

If yes, then ask if there are policy reasons to limit The scope of the duty; Class of persons to whom it is owed; or Quantum of damages

As a judge is there anything I can do to not allow liability to the defendant in the case that the plaintiff ought not to get relief?

o Anns formula (Anns v Merton Borough Council (1978, AC)) [bad]o Kamloops v Nielsen (1984, SCC)

(3) Foreseeability + Proximity - Policy Limitations (CDN/AUS)o Cooper v Hobart (2001 SCC)

Is there precedent? This makes things easier if there is! Then you don't need to do the analysis.

Stage 1: Prima facie duty of care (a) Foreseeability - if yes, move on to (b) (b): proximity/internal policy

(i) analogous categories - if no, move on to (ii) (ii) proximity + internal policy

Stage 2: External policy This is a legal artefact

  Misfeasance vs Nonfeasance

 Deyong v Shenburn (1946, CA)

P, actor, had his clothes stolen from dressing room during a rehearsal Argued producer owed him a duty of care to safeguard property, because it was foreseeable that the

producer's negligence would lead to theft of clothes Held: NO Duty

o Did D interfere with P's legal rights? o No legal right against the world to have clothes looked after. There may be harm to a protected

interest (clothing, but no legal right entitling P to claim protection of that interest from D) No proximity? Reliance on guarantee by D would have produced different result

o Modern employment statues may impose an obligation of safekeeping Because no guarantee, no legal right to have your clothes looked after [Will not test this concept unless he states that a legal right exists]

 

16

Palsgraf v Long Island RR Co (NYCA, 1928) Ratio: Negligence is not actionable unless it involves the invasion of a legally protected

interest, the violation of a right Package dropped by a passenger when d's employee pushed him onto train Package contained fireworks, which detonated Shock from explosion knocked over scales at the other end of the platform; one fell and injured P Issue: did the defendant owe her a duty of care? Majority (Cardozo CJ) - no duty of care [right on the result but explanation isn't great]

o "The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away"

o Persons are not protected from all kinds of harm, but from harm which interferes with a legal right

o "What plaintiff must show is a wrong to herself, ie a violation of her own right Not just a wrong to someone else, or wrongful conduct because it's "unsocial"

o No duty of care if Mrs. P is not within the ambit of risk created by D's employeeo Duty can't be derived from risk posed to another

[OGBOGU DISAGREES]o If no hazard as apparent to the eye or ordinary vigilance

Negligence requires close and direct relationship between the doer and sufferer Legal rights though.... Palsgraff had a legal right not to have her bodily integrity

interfered with Risk to P must be seen to be in guard's contemplation when he created it.

AND risk to P must be seen to be in guard's contemplation when he created it. Dissent (Andrews J) [Better]: Negligence is an act or omission which unreasonably affects the right

of others, including those not within the ambit of the risko Since employee's act is a negligent breach of duty owed to the holder of the package, he is

liable for the outcome where there is injury to anothero To confine breach to the person owed the duty is too narrowo D not absolved from liability just because he didn't injure the 'closets and most direct person',

but rather, a more remote persono Proximity isn't just the closest person but those within some foreseeable ambito The question is how remote the person iso BUT, the broader scope of liability has limits

Factual cause Proximate cause

Arbitrary line drawn on the bases of convenience, public policy, and practical politicso [?] Andrews J thinks Palsgraf is close and proximate - Ogbogu disagrees

Main difference between both opinions? Majority: No duty if no proximity, not reasonably foreseeable, and no violation of a right - inquiry

stops here! Dissent: There can be a duty without proximity, provided that there is a factual and proximate

cause Classic private law reasoning vs classic policy reasoning This case was wrongly decided - control devices would have worked but Cardozo took it

down the wrong patho Neither was right, but Andrews was more right than Cardozo

Only bring up misfeasance if it's very clear that that is the issue  Home Office v Dorset Yacht Co Ltd

Focus on whether there are reasons to exclude the duty of care (policy analysis) Several "borstal" boys escaped while guards were sleeping

o Damaged a yacht Issue: were guards/HO liable for tortious acts of competent adults? HO also argued duty not recognized OR should not be recognized for policy reasons

17

Majority applied Donoghue to reach conclusion that D owed the owners of yacht a duty of care Outcome/damage is foreseeable and not public policy reasons to deny liability Lord Reid: Donoghue is a milestone and Atkin's speech a 'statement of principle'

o Principle isn't a statutory definitiono It will require qualification in new circumstanceso Ought to apply unless there is some justification or valid explanation for its exclusion

 Anns v Merton Borough Council [Still referenced re: duty of care analysis]

Focus on whether there are policy reasons that negative or limit a prima facie duty of care Ps were tenants in a block of flats which developed structural defects Because foundations were too shallow D responsible for inspecting block of flats during construction Issue: Did D owe Ps a duty of care?

o HELD: YESo Wilberforce: Duty of care analysis based on 2-part testo (1) is there a prima facie duty of care?

Ask - is it within the reasonable contemplation of D that his carelessness will likely cause damage to P? Foreseeability!

o (2) Ask: are there any conditions which ought to negative, reduce or limit: (a) the scope of the duty (b) the class of person to whom it is owed (c ) quantum of damages

Policy, not legal considerations! No policy reasons to prevent duty in Anns

 Caparo Industries v Dickman

3-part test: foreseeability, proximity and whether it is fair, just and reasonable to impose a duty of care

Overruled the previous 2-part testo Min difference is retreat to foreseeability and proximityo Far, just and reasonable standard arguable same as second part of Anns testo Anns applied in Canada until Cooper

Cooper v Hobart 1997 - D suspended a registered mortgage broker's license

o Froze its assets because broker allegedly used investor's funds for unauthorized purposeso Named P was one of over 3000 investors who lost substantial investments due to broker's

misconduct Sued D claiming he breached SOC correlative to a duty of care owed to investors Ps alleged that D became aware of broker's offences in mid-1996 Should have acted earlier to suspend license and to notify investors that broker was under

investigation If he had done so, their losses would have been avoided or mitigated This is a situation of pure economic loss

o Remember there are only 2/5 kinds of PEL that can be recovered. This situation is one of them o If institution is negligent and that leads to economic loss, then you're entitled to recovery

Ps applied to have action certified as class action (number of plaintiffs who have a common complaint, so courts will allow them to combine their cases as a matter of efficiency)o Had to show that action discloses a cause of actiono Component: there must be a duty of care owed by D to investors

Trial court: pleadings disclosed as a cause of actiono CA reversed!

18

o Issue before the SCC: did D owe P a duty of care as an investor to protect him from economic loss?

o NO DUTY OF CARE Duty unrecognized, and this is not a proper case to recognize a new duty

o "We attempt to clarify the distinctive policy considerations which impact each stage of the Anns analysis"

 Cooper v Hobart Explained There are two stages of the Anns Test

Stage 1: Prima facie duty of care Stage 2: Policy inquiry

Stage 1: Two questions arise (1) Foreseeability: Was the harm foreseeable?

o Was the harm that occurred the reasonably foreseeable consequence of the defendant's act?o If no, analysis ends (no duty of care)o If yes, go to question (2)

(2) Proximity analysiso Focused on the factors that arise from the relationship between the plaintiff and defendants

Have to shift gaze to the plaintiff and defendant and ask if there's something that connects the two parties; that necessitates the finding that the defendant's actions would effect plaintiff?

Viewed as a legal and a policy mattero Includes a broad application of policy considerations (policy internal to proximity analysis)

What policy reasons/factors tell us something about the relationship between the two people that allow us to decide whether or not they are proximate?

o Analysis is two-pronged (1) Are there any analogous categories of cases where proximity has previously been

identified? Is there precedent? Examples: Physical harm to P or P's property, nervous shock, negligent

misstatement, duty to warn of risk of danger, relational economic loss, gov't liability for economic losses and physical damage arising from failure to inspect property

If there is an analogous category, prima facie case is established . Go to stage 2 of Ann's test

(2) Full proximity analysis Factors that allow us to evaluate the closeness of the relationship between P and D And to determine whether it is just and fair to impose a duty of care on D having

regard to that relationship No single unifying characteristic: diverse and fact-specific We look at expectations, representations, reliance, property, and other interests

involved. Good indicator of what you can do

When dealing with public authority, as in Cooper, proximity must be grounded in statute.

Goal of the Prong 2 analysis: To establish new categories The categories are not closed and new categories of negligence may be

introduced If new category is found, prima facie case is established: Go to Stage 2 of

Ann's test If no new category, inquiry ends - no prima facie case.

Stage 2 of Anns test: "External" Policy Inquiry Ask: are there policy reasons to limit the duty of care?

o This policy analysis is not concerned with proximityo Rather, concerned with effect of recognizing duty on other legal obligations, legal system,

and/or society more generally Summary:

19

Stage 1: Prima facie duty of care analysiso (1) Foreseeability analysis. No: stop; Yes: go to 2o (2) Proximity analysis: (2 prongs)

Prong 1: Analogous categories? Yes, go to State 2; No, go to Prong 2

Prong 2: New category? No, stop; Yes, go to stage 2

Stage 2: External policy analysis 

Problems with Cooper Scope of internal policy

Insufficient proximity between registrar and investorso "Such a duty would come at the expense of other important interest, of efficiency and public

confidence in the system as a wholeo Sounds like State 2 analysis

Confusing on issue of policy Analogous categories

How analogous do the categories have to be? When dealing with public authority, as in Cooper, Proximity must be grounded in statute

Rare to find express statement of proximity Question is whether statue, which is designed to protect the public, can be read as creating a right in

the plaintiff as an individual Deciphering legislative intent

  Practice case: Ogbogu loses his fingers because he got cold

Ski Shop: Analogous scenario? Physical harmo Relianceo Representation

Coach: Representation Practice Case 2

P works on a large farm Employer operates under a harvesting license issued by the provincial government Through their union, employees expressed concerns to Minister regarding closure of sections of farm

during harvesting season Minister responded by enacting policy requiring a clause in every harvesting licence preventing

closure of farm during harvesting season. Two years later, harvesting licence renegotiated. Ministry staff involved in renegotiation inadvertently

deleted the clause in the new license. P's section of the farm closed during the next harvesting season and she is laid off. Sues the

government for negligence (CL for negligence of employees) Harvesting licence issued under stat authority, which provides 3 conditions for license

o Creating or maintaining employment opportunitieso Managing or utilizing farm produceo Furthering agricultural development

Minister has discretion to relax or disregard conditions Q: apply Cooper v Hobart to determine if plaintiff is owed a DOC

o Is this foreseeable? Yeso Proximity analysis - is it grounded in statute?

Note: they're claiming pure economic loss Promise was made to employees - when mistake was made that affected the

employeesJames v British Columbia

Facts are just like Practice Case #2 Notice that courts tend to disagree on proximity analyses

20

Observe: If you're the defendant - ask the plaintiff to show that the duty of care is owed! Sawmill permanently shut because Minister and staff inadvertently removed from tree farm license

clause that would have prevented mill closure Plaintiff claimed analogous category: PEL (2 sub categories)

o (1) The independent liability of statutory pubic authoritieso (2) negligent performance of a service

Trial judge: (1) is inapplicable. Duty imposed by statute is to public as a whole, not to workers in forestry industryo Case is indistinguishable from Cooper - in Cooper, we didn't agree that this form of economic

loss applies How about category (2)?

o This is where you have a service provider who has a K between client or customer and service provider is to provide reasonable skill and care

There's a 3rd party beneficiary here too, who stands to gain income from the K - no privity of K

But 3rd party ben stands to gain or lose (Hedley Byrne v Heller)

Example: o I enter into K with a solicitor to draft my will, in which I make a gift to my daughtero Solicitor negligently prepares or fails to prepare will o My daughter fails to inherit - her loss is purely economico No privity between daughter and solicitoro Can recover under this sub category

 

Result: o Duty establishedo Cause of action disclosedo Class action certified

BCCA: Prima facie DOC: Foreseeability and proximity are both okayo On Category (1): TJ wrong: case is indeed distinguishable from Coopero Minister has discretion - registrar in Cooper did noto Legislation required Minister to balance competing interest in implementing conditionso Negligence was operational in nature: not arising from policy but from implementation of the

policyo "It can safely be said that the more 'operational' a power or duty may be, the easier it is to

superimpose upon it a common law duty of care" (Anns)o On category B: Analogy works!

"The employees can be said to have relied upon the Minister to exercise reasonable care to retain Clause 7 in the licence unless and until he reached a decision on policy grounds to remove it"

Even if analogous categories did not exist, we would still find that this meets full proximity analysis based on 'expectations, representations, reliance...

Other notes21

o If minister had discretion to withdraw the clause at any time, how could the plaintiff have reasonably relied on it?

o Cooper may be confusing, but what effect has it had on the cases? o Retreat and surrender - defendants win in the vast majority of cases where courts are called

upon to recognize a new duty of care - major shift from pre-Cooper Case in point: Childs v Desormeaux

Childs v Desormeaux Dwight Courrier and Julie Zimmerman hosts a BYOB party. Guests drink alcohol. Inebriated Desormeaux drives away, causes accident, injures P Only alcohol served by hosts was 'three-quarters of a bottle of champagne in small glasses at

midnight" Hosts know Desormeaux was a heavy drinker - had 12 beers, left party with BAC of 235mg per

100mg Issue: does a social host owe a duty of care to a person injured by a guest who has consumed

alcohol at his or her party? o SCC: o Is there an analogous category? o Canadian law doesn't provide a clear answer on whether duty is owed by social hostso Duty recognized for commercial alcohol providers, but not the same thing

Three main differences in the proximity relationshipo (1) Commercial hosts are better able to monitor consumption

Easy and expected by host, patrons, public They have to ensure payment Regulators require training in monitoring

o (2) Sale and consumption of alcohol strictly regulatedo (3) Duty is necessary to suppress "perverse" incentive that CAPs have to encourage over

consumption for profito BOTTOM LINE: Not an analogous category

New duty then? NOo Injury to Ms. Childs was not reasonable foreseeable to the facts

[Ogbogu disagrees: should be RF especially given his history] TJ didn't find that hosts knew or ought to have known D was too drunk to drive [Ogbogu disagrees: this point is stupid]

Thinks proximity, not foreseeability, is the issue here. Should they have reasonably foreseen injury to road users based on D's past history?

History of alcohol consumption and impaired driving does not make impaired driving and consequent risks to motorist foreseeable

D didn't display signs of intoxication when escorted to vehicle Nonfeasance, not misfeasance - wrong alleged is a failure to act or nonfeasance in

circumstances where there was no positive duty to act

22

Remoteness Remoteness/Cause in law/Legal causation/Proximate cause Duty of care inquiry: is the defendant obligated to take reasonable care not to injure the plaintiff? Remoteness inquiry: Assuming a duty of care owed, and that duty was breached:

Was the resulting injury (or the mechanism by which it occurred) a natural or sufficiently direct consequence of the negligent act?

The line here is drawn on law, not fact Assuming:

That the plaintiff is someone foreseeably affected by the defendant's negligence That the plaintiff's relationship with the defendant is sufficiently close and direct, Is the specific injury or result suffered by the plaintiff foreseeable?

General thoughts: Courts have resorted to all sorts of tests to resolve remoteness problems Because no single concept appears sufficient to resolve myriad of difficult factual situations Decisions based on a blend of common sense, pragmatism, and judicial policy regarding issues. What's important is to recognize all the doctrines that apply, and where to apply them Thin skull rule - remoteness problem

Duty/remoteness overlap

Ask if it's foreseeable for the defendant's actions to lead to harm Focus on the injury sustained by the plaintiff Is it foreseeable that these events would occur?

o Think Palsgraff Foreseeability is what binds duty of care and remoteness! Duty of care just looks at harm more

broadly than remoteness Duty = foreseeability of harm, not foreseeability of the actual harm arising from the facts

Harm in an abstract sense Remoteness = foreseeability of specific harm suffered by the plaintiff

Harm in an actual sense Not a freak event - don’t' want to award damages against the defendant because the plaintiff suffered

from some freakish event. To satisfy remoteness, must the plaintiff show that the type of damage suffered is a foreseeable

consequence of the negligent act? Or is it enough to show that some kind of injury was foreseeable, and that as a result, D should be

liable for any injury that results.

Re Polemis [NO LONGER GOOD LAW]

D chartered ship from P for use in transporting petrol Due to rough storm some petrol leaked and filled ship hold with petrol vapour

23

Stevedores employed by D dropped a plank into the hold This caused a spark, which caused a fire, which destroyed the ship Arbitrator: Stevedores acted negligently But D contended the damage to the ship was too remote That is, that this kind of damage was not foreseeable CA: As long as some kind of injury was a foreseeable result of the negligent act, D is liable for any

kind of injury that results o The fact that the damage caused is different than expected is immaterialo Rule: If a reasonable person can foresee that an act would cause damage, and the damage

caused is directly traceable to the negligent act, it does not matter that is not the exact kind of damage expected.

Scrutton LJ: "Once the act is negligent, the fact that its exact operation was not foreseen is immaterialo The fact that the knocking down of the planks produced an unexpected result does not relieve

the D from liabilityo Foreseeability of actual extent of the damage suffered by P is not requiredo Rather, just foreseeability of some damageo If the damage is a direct consequence of (or traceable to) the negligent act, P can recover.

BAD LAW: remember the injury that occurred must be foreseeable In sum [BAD]:

If the injury suffered is directly traceable to the negligent act, recovery is possible It does not matter that sepcific injury was unlikely to occur So long as some harm is foreseeable, any harm directly traceable ...... Recalls Ann

 Wagon Mound, No. 1 [CITE THIS FOR REMOTENESS]

P, wharf owners, are carrying on welding operation D, an oil-burning vessel, leaks oil due to ship-owners' negligence Through discussions, everyone agrees oil CAN'T be lit on fire on water surface So, P (manager) keeps welding Some molten metal, wood and cotton cause a fire which destroys dock and several ships P And D agree this damage was NOT foreseeable (TJ Agreed) However, P suffered some other foreseeable damage Such as congealment of spilled oil on slipways Issue before PC: Was this type of damage remote and what is the proper test for remoteness? Directness (Re Polemis) or RF? Do we ask whether the fouling and congealment was:

o (a) directly traceable to the oil leakage; ORo (b) a reasonably foreseeable consequence of the oil leakage?

HELD: Foreseeability is the test for remotenesso Re Polemis overturned

VISCOUNT SIMONDS: o The essential factor in determining liability is whether the damage is of such kind as the

reasonable man should have foreseeno Damages suffered by P must be reasonably foreseeableo Under Re Polemis, the negligent actor is held liable for "all consequences, however

unforeseeable" as long as direct (traceable to) negligent act Will lead to palpable injustice against the defendant

Consider the following case: Ben and Jerry suffer some unforeseeable losses as a result of the Haagen-Dazs' negligence Ben also suffers some further foreseeable loss

o Should Ben recover for ALL losses then? Or just the foreseeable loss?

24

It does not seem consonant with justice or morality that, for an act of negligence, which results in some foreseeable damage, the actor should be liable for all consequences, however unforeseeable, so long as the can be said to be direct 

Mustapha v Culligan [READ THE WHOLE CASE]

P saw a dead fly in an unopened bottle of Culligan water Neither he nor his family members consumed the water Although all members of his family had consumed D's water for the last 15 years Mustapha became obsessed with what he had seen and with potential implications of past

consumption for his family's health He was diagnosed with major depressive disorder, with associated phobia and anxiety He freaked out majorly Trial decision: Reaction "objectively bizarre"

o But clearly foreseeable that supply of water with dead flies would cause P to suffer some degree of nervous shock

o Awarded $80k in general damages, about $25k in past and future special damages and $237,600 in past and future economic loss

Culligan appealed to ONCAo CA - Issue: whether defendant may be liable for damages for psychiatric harm where the harm,

by any objective measurement, consists of an exaggerated reaction by an obsessive person of particular sensibilities to a relatively minor or trivial incident.

o CA/SCC: NO Culligan DID owe Mustapha a duty of care And the standard of care was indeed breached BUT, were the plaintiff's damages too remote to warrant recovery?

Per WM #1: Was the actual harm reasonably foreseeable? No person of ordinary fortitude would have foreseeably suffered this kind of injury

from seeing flies in an unopened bottle of watero But what if plaintiff had been diagnosed with and was being tx for severe OCD prior to the

incident? OR: your negligence results in a weight that won't furt a fly being dropped on me Turns out I am an acute hemophiliac (rare bleeding disorder that can damage organs and

tissues) and I suffer massive and severe internal injuries? Even less foreseeable Should not matter - too remote if we follow Mustapha Consider the following: The defendant is liable where plaintiff is unusually or

uniquely prone to an unusual or unpredictable degree of injury as a result of the defendant's negligent act

If defendant's negligence injures P with unique or unusual predisposition to unforeseeable harm, then the defendant is liable 

Thin skull: Plaintiff with a proved vulnerability to an otherwise remote harm Ordinarily wouldn't affect anyone Disposition must be proved

 Smith v Leech, Brain and Co

Workers at D's plant must dip stuff into a molten metal bath from behind a small corrugated shield D's employee is splashed on the lip, resulting in a bad burn Burn becomes malignant, and he dies of cancer later Deceased employee was suffering from 'pre-malignant changes' prior to the incident due to the

nature of his job - burn was a promoting agent Family sued We have a physiological vulnerability or predisposition to injury (cancer, not burn)

25

But cancer (and death) not really foreseeable as no defendant would have been aware of vulnerability or predisposition to cancer.

Is this specific type of injury (cancer/death) foreseeable? o Is it foreseeable that a small splash would case a burn that would in turn cause a lethal cancer

(and death)? HELD: WM #1 doesn't not apply to this type of fact pattern

Did not address thin skull rule cases No proved predisposition to the harm suffered in WM1

TSR: A tortfeasor takes his victim as he finds themo It is not answer to negligence to say that the plaintiff:

Would have suffered less injury (degree) or no injury at all (type) If the plaintiff did not have a thin skull ie vulnerability or predisposition that led to the

degree or type of injury suffered Nagging problem: the cancer and death are clearly not foreseeable - whether

viewed as specific types of injury or degrees of injury arising from burn.  Thin Skull Rule

[A] tortfeasor takes his victim as he finds him/her It is no answer to negligence to say that the plaintiff:

o Would have suffered less injury (degree) or no injury at all;o If the plaintiff did not have a 'thin skull' ie a vulnerability or predisposition that LED to the degree

or type of injury sufferedo Nagging problem: the cancer and death are clearly not foreseeable - whether viewed as

specific types of degrees of injury arising rom burn Lord Parker CJ:

Burn was foreseeable Burn triggered cancer and eventual death The test is not whether these defendants could reasonably have foreseen that a burn would cause

cancer and that Smith would die The question is whether these defendants could reasonably foresee the type of injury which he

suffered, namely the burn What, in the particular case, if the amount of damages which he suffers as a result of that burn,

depends on the characteristics and constitution of that victim Burn was foreseeable and that's all that matters The extent of the injury caused by the burn is irrelevant Particularly so where the plaintiff's vulnerability or predisposition led to that degree of injury The rule is then: if the threshold injury is foreseeable, injuries that flow from it are irrelevant but only

as applies to thin skull plaintiffs Mustapha:

Once a plaintiff has established the foreseeability of a mental injury would occur in a person of ordinary fortitude - the defendant must take the plaintiff as it finds him for the purposes of damageso Not a general rule

If initial injury to the plaintiff is foreseeable, the defendant is liable for linked injuries that only arose because the plaintiff has a thin skull, regardless of foreseeability

Questions: Is the TSR too harsh on defendants?

o The ultimate consequence suffered by Smith (death) is disproportionate to threshold injury (burn)

What do you make of reduction of damages in Smith because the deceased might have developed cancer without the burn? o Crumbling skull rule: plaintiff had some signs of cancer - already a degree of cancer - if you

leave him alone he'll still get cancer but the burn exacerbated it Ought to then reduce damages since some of the harm already present Where plaintiff has an exacerbated rule then that plaintiff is still liable but damages

reduced to account for preexisting damage26

Genetic predisposition: thin skull rule Harm (cancer) must be present for CSR to apply

Should the thin skull rule apply to cases where a plaintiff with depression prior to negligent act commits suicide because unable to accept the threshold injury caused by negligent act?

OGBOGU WILL TEST TSR/CSR AND DIFFERENCE Harm is already present, and defendant's negligence makes it worse. LESS damages and so favours

the defendant.  

Cotic v Gray P, a man with history of mental problems, committed suicide after surviving car crash His mental condition deteriorated after the crash because of guilt feelings over the death of the negligent

driver and of his son Wife of P brought suit ONCA: TSR applies - P can recover

Note: as a general rule, suicide by a normal and healthy individual would be an unforeseeable intervening act distinct from negligent act

In Cotic, suicide is a result of predisposition to depression and flows from the threshold injury.  

Wright Estate v Davidson As a general rule, a victim who suffers aggravated damage because of a physical or mental

precondition will always recover, and his extended injuries will never be too remote, because the possibility of a predisposition to injury is foreseeable as a class of harmo The extent of injury need not be foreseen, only the type of injury.

 Mechanics of the Accident How the accident happened can be relevant to remoteness analysis If injury suffered is foreseeable, does it matter that the manner in which it occurred is unforeseeable?

Characterization NB as advocacy tool Morris, p 194

All cases, for purposes of remoteness, fall within 3 categorieso (1) Typical, ordinary case

Mr. Builder drops brick on Mr. Pedestrian, causing head injury Obviously foreseeable

o (2) Extraordinary case - freakish facts D left truck on highway at night without flares Car crashed into truck and caught fire Plaintiff rescues car occupants Hands gun on mat to husband to retrieve mat to pillow wife's head Husband, dazed and confused, shoots plaintiff Obviously unforeseeable

o (3) Everything in between - not ordinary or freakish - this is where mechanics really matter Result of remoteness analysis depends on description/characterization of facts A more general description of the facts is likely to yield conclusion that incident was

foreseeable Ex: Car A hits Car B - a spark from the collision ignited a gaswell on the side of the

road. o Conversely, a more detailed description will likely yield finding that incident was unforeseeable

Car A hit Car B at a speed of 30 km/hr Car A had a rare chrome bumper - most bumpers made of plastic materials Car B has a plastic bumper. But small bracket holding one taillight is made of combustible

metal Bracket flew off upon collision, past both cars, across 8ft wide trench and 15ft platform,

into 18in wide entrance to deep gaswell Ignites explosion in gaswell TWO lessons

27

Advocacy skills as mush as knowledge of doctrine will help win cases The role of a good judge is to settle on a reasonable description of facts.

Fair and just to both P and D Respectful of idea that liability is imposed for unreasonable risks, not every risk

Hughes v Lord Advocate Postal employees are working on cables located underground They open a manhole and are working below Hole is covered by a tarp tent surrounded with red paraffin warning lamps Employees take a tea break and leave manhole unattended Two kids prepare to descend into manhole, taking lamps with them One lamp knocked or dropped into manhole, went boom Plaintiff/appellant falls into manhole and suffers serious burns Mechanics of the accident

Lamp fell and broke in manhole Paraffin escaped, vaporized Detonated by naked light of lamp

Sessions: Mech of explosion, which caused the burning, was unforeseeable, so accident or injury was unforeseeable. D not liable.

HL reversed - defendant is liable Lord Reid: True, explosion/mechanics of accident not foreseeable - experts agreed Not clear if injuries were directly caused by explosion of by fire in manhole But injuries were caused mainly by burns, which were foreseeable Because it is foreseeable that if boys entered a dark tent, they would take the lamp with them And if lamp fell and broke, boys would be burned and injury may be serious Accident was caused by a known/foreseeable source of danger, but caused in a away which could not

have been foreseen - Mechanics of the accident Mech not important so long as the injury is foreseeable!!

Unforeseeable mechanics (explosion) likely made the injury more serious But the risk of burning injury from a known source of danger - the lamp - was foreseeable It should not matter to recovery that damage was made more serious by unforeseeable events

Lord Guest It is foreseeable that if you leave dangerous lamps in circumstances children would find alluring,

burning might occur It is not necessary that the precise details leading up to the accident should have been reasonable

foreseeable It is sufficient if the accident which occurred is of a type which should have been foreseeable by a

reasonably careful person The focus on mechanics of the explosion is misleading and based on fallacious reasoning Issue is whether igniting of paraffin and consequent burns was a foreseeable consequence in the

circumstances Immaterial that burning was caused by explosion from vaporized paraffin Could have been caused by contact between liquid paraffin and naked flame But who cares? Both are burning accidents and would lead to burning injuries. What matters is that burning was caused by a potentially dangerous paraffin lamp Left in circumstances that one can foresee that children would find alluring And if they play with the lamp, it is foreseeable that paraffin might spill and ignite And burning will occur

Would the HL have reached the same result if the injury suffered was loss of hearing from explosion/ Did the defendants breach the standard of care?

Fairly deserted street - no nearby houses Tent over manhole, warning lamps, sides closed Removed ladder from manhole, never bothered by children before.

Bottomline: It is sufficient to focus on the foreseeability of the source of harm suffered/type of harm

suffered

28

If foreseeable, no need to examine the actual mechanics of the accident or precise course of events that led to the accident.

 Cf Daughty v Turner Manufacturing Asbestos cover falls into molten metal cauldron Nobody know immersion of cover posed danger, so nobody stepped away Only foreseeable risk was splashing, which did not occur Cover disintegrated upon immersion, causing explosion (not a foreseeable risk) Explosion ejected liquid from cauldron and injured P P argued even though the risk was unforeseeable, he should recover because

Actual injury sustained (burning) was of the same kind as injury that would be sustained from splashing

If burning is foreseeable from the splash caused by lid slipping or being knocked over, then actual mechanics by which his injury occurred (explosion) should not bar recoveryo Held: NO

Reasoning Hughes dealt with foreseeable risk of dangerous allurement to children, which might cause them

burning P in Hughes was injured by foreseeable risk (potentially dangerous alluring situation) and suffered

foreseeable injury Accident and injury in Hughes was foreseeable, and did occur, even though it was made more

severe by unforeseeable events Here, the only foreseeable risk is splashing from inadvertent slipping or knocking into molten liquid.

Take home point: Characterization of facts and damage in relation to risk is extremely important in remoteness analysis Keeton, p 190: degree of specificity vs degree of generality can have a significant impact Case in point: Jolley v Sutton London Borough Council (2000, HL)

 Jolley v Sutton London Borough Council (2000, HL) Dilapidated boat was left abandoned for at least 2 years beside a block of flats on land owned by

defendant council Council aware of preserve of boat, but plans to remove it not implemented

P and his friend, aged 14 and 13, started to repair boat Used a car jack and some wood to prop it up - boat fell off prop while boys were working on it and crushed

P Sustained serious spinal injuries, rendered paraplegic WB: For Plaintiff

General characterization Presence of boat would attract children Boat posed two types of foreseeable risk

o (1) young children falling througho (2) older children propping it up

CA reversed Although reasonably foreseeable that children would play on boat and be injured, not foreseeable

that they would prop up the boat and be injuredo Narrow, more specific characterization

Ogbogu likes this decisiono Asks: is the damage suffered foreseeable? Best characterization of the issue

HL, for plaintiff Two rival descriptions of risk, but trial judge's characterization is better

o Does not say why Perhaps because if D had met standard of care, both specific and general risk would have

evaporated Cases show that in remoteness analysis, reasonable people can disagree In exam, argument and clarity of reasoning is important

29

Analysis and conclusion should be well supported Apply the law as clearly as possible Don't use mechanics if you don't need to - if it's clear that it's not a foreseeable accident,

don’t need to do a characterization EXAM may not have a clear yes/no answer

 Novus Actus Interveniens - Breaking the Chain What if following D's negligent act, but before P suffers actual damage, something or someone triggers or

worsens the P's damage? Novus actus interveniens - new act intervenes - new intervening act A new act which intervenes between defendant's negligence and plaintiff's injury

Complete defence Test is reasonable foreseeability!

If intervening act is within the scope of foreseeable risk created by original defendant's negligence, that defendant is still liable

Hint: the more capable the intervening act is, the more likely it is to be deemed unforeseeable 

Bradford v Kanellos (SCC, 1973) Gas grill in D's restaurant caught fire Extinguishers activated, producing hissing sound A patron heard hissing sound and yelled "GAS!" Panic ensures. P pushed or fell from her seat and was injured D argued that there may have been negligence with respect to cleanliness of grill But actions of hysterical third party were novus actus Trial: held for P

Third party's actions were foreseeable Natural consequence of an emergency

CA reversed Third party's actions were novus actus - broke chain of causation D could not have foreseen intervening acts

SCC (Martland J) agreed Injuries not caused by D's negligent act, but by hysterical patron Not reasonably foreseeable, especially since hysterics resulted from proper functioning of fire

equipment, not the fire Laskin J dissented

If was reasonably foreseeable that the stampede could happen if visible gas grill caught fire and extinguisher went into operation

Even if patron acted negligently (and not clear that he did), injury to P still foreseeable Reaction to hissing sound and gas grill on fire was natural/probably/ordinary consequence of original

negligent act Bottom line:

Reasonable foreseeability is everywhereo Characterization matters in remoteness/NAI analysis

30

Causation Standard of Care: Principles we rely on to characterize the actions of the defendant as negligence Duty of Care: How we assess defendant's legal responsibility for foreseeable risk posed to a class of

persons Remoteness: How we assess the foreseeability of specific kinds of injury Causation: Factual causation, or "cause in fact"

Purely factual question of whether, the unreasonable risk created by D, as a matter of fact, caused the injury suffered by P

What connects the defendant's conduct to the plaintiff's injury Must show that defendant's conduct caused injury to plaintiff

  Two main rules to causation:

(1) But foro First and general rule o Defendant is 100% to blame for what happened to plaintiffo "But for" their actions then the damage wouldn't have occurredo If that rule doesn't exist, be careful to put blame on defendanto SCC: Don't need scientific precision for this to apply

Prove on BOP that defendant is to blame. That there's only one person/thing responsible

(2) Material contributiono The only exception to the "but for" ruleo Multiple defendants, all human beings, who are 100% to blame (no science needed) - then

you blame all of themo Plaintiff has 2 choices

Go against one of them - then defendant can sue the others for indemnity Sue all parties to blame - then they split

o Ex: 2 defendants and 1 non-human cause, then the rule will not apply Must be all human 

Note: Law students tend to seek causation. If you can't apply the BFR or MCR then there is no causation - that's it.

Terminology Do not confuse factual causation of cause in fact with remoteness/proximate cause/cause in law/legal

cause Factual causation deals with the simple question of what, in fact, occurred

o Pure factual inquiry into whether D's act caused P's injury The proximate cause/remoteness/case in law/legal cause inquiry is based on judgment/law, rather

than fact Assuming D's act factually caused P's injury, should D be legally liable for that injury?

o We dealt with question under 'remoteness' Bottom line:

Cause in fact is a straightforward concept Requires that we simply link defendant's conduct with the plaintiff's injury Question: Did the defendant's conduct cause the plaintiff's injury?

Not that simple! (1) Courts have struggle with what legal test to use in determining cause in fact (2) Evidence often unclear on what happened

o Especially where there are several possible causes, including D's negligence 

Proof of causation How do we determine cause in fact from the evidence? The "but for" test

31

"But for" the defendant's negligence, would the plaintiff have suffered the injury? o If no, defendant is liable

P would not have suffered the injury without D's negligenceo If yes, defendant is NOT liable

Then there would be some other cause P would have suffered the injury regardless of D's negligence

o "But for" test works well in vast majority of cases Example:

D fails to stop at a red light at intersection. P is crossing intersection. D's vehicle hits P - P suffers back injury.

But for D's negligence in failing to stop at a red light, would P have suffered the back injury? o Most likely not, so D's negligence caused P's back injury

Issues In some situations, the but for test leads to the perverse result that there is no causation When, as a matter of common sense and or justice, it is quite clear that the act in question

contributed to the injury These situations have forced the counts to invent other tests for causation where necessary There are two main situations where this problem arises:

o (1) Pre-emptive causationo (2) Duplicative causation

Pre-Emptive Causation Theoretical problem - no case law Ex: P is just about to drink a cup of tea that X, third party, laced with poison. D fires gun negligently

and kills P But for D's negligence, would P have died? Yes - P would have died anyway through the fault of X - poisoned tea D merely pre-empted death by poison

Duplicative causation D and X each independently start fires P's house is destroyed by the fire Not clear from evidence which fire triggered the destruction of P's house. Each fire, on its own, is

sufficient to destroy P's house. The "but for" test would result in no liability for D or X. But for D's negligence, damage to P's house would have occurred anyway, because of X's negligence But for X's negligence, damage to P's house would have also occurred, because of D's negligence

 Barnett v Chelsea and Kensington Hospital Mgmt Comm Night watchman (P's spouse) and two co-workers drank tea around 5am. They became sick and went to

hospital when the day workers arrived. Nurse informed doc on call that patients were vomiting. Doc told them to go home and did not admit or treat them. P's spouse died.

Ruling and analysis Defendant D owed a duty of care and breached the standard of care But did the D's negligence cause the plaintiff's spouse's death? Evidence was that even if the P's spouse was admitted and treated properly, he would have died

anyway. Because it was not possible for him to have taken antidote on time

o Due to elapsed time spend waiting for day workers to arriveo And regular procedures followed in such cases

Neild J - evidence is significant - even if D had responded properly, there would not have been enough time to save P's spouse. But for D's negligence, P's spouse would still have died, so NO LIABILITY.

Note: Doc's failure to admit/treat would have been cause in fact IF, AND ONLY IF, the P's spouse would not have died without that failure.

To figure out the "but for" test, ask:o (1) What happened? P's spouse died. o (2) What would have happened if the negligence is taken out of the picture?

32

P's spouse would have been admitted and treated, but still would have died. o Thus, since injury would have still occurred regardless of D's negligence, no causation and no

liability 

Duplicative causation: Where more than one party independently but concurrently cause the plaintiff's damage

Resulting in non liable under the "but for" test 

Lambton v Mellish Nuisance case, but reasoning relevant (negligence wasn't well developed then) Two companies catering to visitors in common area by providing games, rides, organ music, etc This generated a lot of noise, which was found to be "maddening" and a nuisance D argued that noise can only be factual cause of nuisance if, and only if, the nuisance would not have

occurred but for their activities. That is, not liable because without the noise generated by them, P would have still suffered the nuisance

owing to other company's activities. Chitty J: If there are two or more tortfeasors, each aware of what the other is doing and each contributing to

the damage, each is liable in full 

Corey v Havener P was riding his horse-drawn carriage Two defendants came up from behind on two loud and smoky motor tricycles which backfires as they

passed him P was injured as a result of the horse being startled Jury found both defendants contributed to P's injury But is the outcome defensible on the "but for" test?

They would both escape under the BFR Court treated the two tortfeasors as one Where each defendant contributed to the plaintiff's injury Consider indemnity here Each being liable in full to the plaintiff Bottom line: notwithstanding the but for test, two or more tortfeasors who jointly or concurrently cause or

contribute to the plaintiff's injury are each fully liable for damages.  Natural cause + Tortious Cause

What if one of the causes is a natural cause? A negligently pollutes river. River is also polluted by non-negligent circumstances, ie natural disaster.

Is A liable? A would argue that pollution would have occurred without her negligence.  

Kingston v Chicago & NW Rwy [Suspect] Damage to P's property by united fire - from D's locomotive and unknown origin

If, in situations of duplicative causation, one of the causes is a natural cause Then there is no causation and the tortfeasor will not be liable But the defendant must demonstrate that the other cause was a natural cause

o What happens if the other cause is of unknown origin? Doctrine doesn't apply

Duplicative causation = causes occur contemporaneously or concurrently Wrap up: Where the defendant's negligence caused or materially (and concurrently contributed to the

plaintiff's injury, defendant is fully liable. Except where the defendant can demonstrate that the other contributing and concurrent cause was a

natural cause. What happens if the causes are not concurrent, but sequential?

Two unrelated, sequential events cause damage to P Which defendant is liable? Independent intervening cause

33

 But for D's negligence, would injury occur? (1) NO - D 100% to blame for injury(2) 2 or more Ds, 100% to blame for injury (Duplicative causation)(3) D and unknown cause D to blame (Suspect rule)

  What happens if the causes are not concurrent, but sequential?

Two unrelated, sequential events cause damage to P Which defendant is liable? Independent intervening cause

 Sunrise Co v The Lake Winnipeg P's boat was grounded two consecutive times in unrelated accidents First grounding resulted from D's negligence After this accident, on way to anchorage area, boat was grounded again Either through owner's negligence or force of nature - not clear Each incident alone would have necessitated detention in dry dock for repairs Repairs for both incidents in dry dock was completed in 27 days Repairs for first incident alone would have taken 27 days Repairs for second incident alone would have taken 14 days

Who is responsible for the loss of earnings resulting from the detention for 27 days? L'Heureux-Dubé:

When you have two unrelated incidents which are sequential and which cause property damage, and the first incident was sufficient to cause all of the loss, then the nature of the second incident or cause (tortious or non-tortious) is irrelevant

"No causal link between the second incident and the loss of profit suffered by the plaintiff" In such situation, the party who caused the first accident, D, bears full responsibility for the loss Regardless of whether or not the second accident was caused by the owner, a third party, or by no one Ask: What is the loss/injury here? McLachlin (dissenting): Restitutio in integrum

Ogbogu: too focused on fairness, not causationo This rule can be safely ignored o Do not argue the dissent on an exam

The purpose of damages is to restore P to position he would have been in but for D's tortious conduct

Where a second intervening incident necessitates repairs at the same time as repairs resulting from the first incident

A court can conclude that because the second incident would have put the ship out of commission anyway

The person who caused the first incident is not responsible for the entire loss Events which subsequently and independently diminish the loss caused by the first tortfeasor must

be reflected in damage awardso We have to recognize the causal contribution of the second intervening causeo This approach produces fairer resultso It is more generally applicableo "It avoids intricate arguments about factors such as the order of accidents, their impact on the

use of the ship, and causation" o The only question is how best to accomplish this

Two approaches:o (1) Full diminishment where second incident is a non-tortious cause

Discount completely the loss occasioned by non-tortious cause D (who caused the first incident) is responsible for only the difference In the present case, P would recover for 13 days (27 less 14-day diminution for second

incident) o (2) Pro rata apportionment

34

Two causes of the detention and loss of earnings D is solely responsible for 13 days of grounding D and subsequent cause responsible for 14 days Divide equally - 7 days each D responsible for 20 days

  Causation is not a question of fairness, but of fact A finding has to be made on causation before the question of damages Bottom line: First cause, full cause, full responsibility for loss What happens when the loss is a personal injury rather than property damage? Applying the "but for" rule to the facts of Sunrise Co

Why? Two accidents in the case are not concurrent "But for" is the traditional rule (NO, so D is liable) But for the defendant's negligence (first accident), would the plaintiff have suffered damage (loss of

earnings for 27 days) But for the second accident, would the plaintiff have suffered damage (loss of earnings for 27 days)

o YES, because of D's negligenceo So, second incident is NOT a cause

 Baker v Willoughby P sustained injury to leg and ankle due to D's negligence Sued for lost income Before trial, P shot in attempted robbery and sustained injury to already injured leg Leg had to be amputated D argued he was not liable for lost income after the date of robbery HL: NO. D's negligence and robbery were concurrent causes of the loss of income flowing from

independent intervening event (robbery) Injury of the leg still remained after the robbery

D is responsible for the value of the losses after the date of robbery caused by him Cf...  

Jobling v Associated Dairy P suffered back injury due to D's negligence - could only engage in 'light work' Before trial, suffers from a spinal disease unrelated to initial accident (independent intervening event),

which resulted in total incapacity to work No signs or symptoms of disease at the time of accident Issue: Is D responsible for lost earnings for partial incapacity for the rest of P's working life OR only up until

the time that disease resulted in total incapacity? Lord Keith: If independent intervening event is non-tortious, D remains liable

Ogbogu: grossly unfairo Might end up cutting off the defendant if you apply the "but for" ruleo Don't forget about the BFRo Exam: BFR is the rule he wants to see

However, D's liability for damages should be reduced to account for loss of income flowing from non-tortious independent intervening event.

This approach accords with the principle that tort law compensation should return P to the original position prior to or absent D's negligence

P would have suffered the disease anyway By making D pay for the ongoing losses less losses linked to non-tortious intervening cause, P is returned

to original position Making D responsible fully for ongoing losses without reduction will make P's position better than the

original position If the intervening event is tortious, as in Baker, D is also liable for ongoing losses less contribution of

second tortfeasor35

D cannot say second tortfeasor is solely responsible for loss flowing from independent intervening event Because it is unfair to impose full liability for independent intervening event on second tortfeasor without

recognizing P was already injured to some extent by D (first tortfeasor) Both tortfeasors are jointly liable for total loss after or flowing from independent intervening event If D alone is sued by P, he is responsible for position of total loss after or flowing from independent

intervening event That portion cannot be reduced or eliminated by the fact that a second tort (independent intervening event)

occurred.  

Apportionment of loss among causes - Athey v Leonati P suffered back injuries in two successive MVAs Soon after he experienced disc herniation during a mild stretching exercise Herniation caused by combination of injuries from two MVAs and pre-existing condition

Cause #1 - MVAs - Tortious Cause #2 - Pre-existing condition - Non-tortious

Trial Judge: Herniation caused by combination of MVAs (25%) and pre-existing condition (75%)

Sidenote: why is pre-existing condition relevant in this case? Why not just apply the TSR and hold responsible for the whole thing? NB: because TRS is a remoteness rule and not a rule of causation

In the remoteness doctrine, we disregard pre-existing conditions in determining whether the P's injury is too remote

That is, the fact that P has a pre-existing condition that exacerbated or triggered her injury and which may not be foreseeable is irrelevant in det whether that injury is remote or not

Here we are asking whether the pre-existing condition, as a factual matter, actually caused the injury And if it did, should the courts apportion some of the losses to the pre-existing condition? Or conversely, should damages for the tortious case (MVAs) be reduced to account for causality

linked to pre-existing condition? SCC (Major J): NO

We will not apportion losses between tortious and non-tortious contributing causes If D's negligence is cause of injury, presence of non-tortious contributing causes will not reduce D's

liability Because this will result in P not receiving full compensation This case should be distinguished from other situations where apportionment is possible:

o (1) multiple tortious causes: Each D is liable in full and can seek contribution and indemnity from one another

o (2) Divisible injuries: separate and distinct injuries not true apportionment - each D liable on but for rule

o (3) Independent Intervening Events: non-tortious event is sequential to or occurs after tortious event

Failing to apportion or account for IIEs in reducing D's damages will make P's position better than the original one (Baker, Jobling)

Disc herniation in present case is not independent intervening event It is the product of tortious and non-tortious events The pre-existing condition is not a sequential or independent intervening event either

o (4) "Crumbling Skull" rule: Respondent's strongest submission Applies where a pre-existing condition is inherent in the plaintiff's original position That is, P's original position includes the pre-existing condition which would have

detrimentally affected P anyway Any compensation that does not discount the future (foreseeable) measurable risk and

effects of the pre-existing condition will put P in a position better than the original position Therefore, D's liability ought to be reduced to account for the measurable risk of the pre-

existing condition. Different from the TSR

36

D is not arguing that the injury (disc herniation) was made worse or triggered by a pre-existing condition

And that as such the injury or the extent of it unforeseeable or too remote Rather, that the pre-existing condition is part of the plaintiff's 'original position' and a

factual cause And therefore, while D is responsible for the injuries, his liability should be reduced

to account for the 'other factual cause' so as not to make P better off than the original position

SCC: Good argument, but does not apply here because trial court didn't find that there was a measurable risk that the injury would have occurred without MVAs

o (5) Loss of Chance Conclusion

Where D's negligence caused or materially contributed to the plaintiff's injury, the defendant is fully liable

Defendant can't escape liability by pointing to another contributory or intervening cause (tortious or non-tortious), unless it is a natural cause

However, damages owed by D can be reduced where: o The injury to P would have resulted from a pre-existing condition which existed before the

defendant's negligence (CSR)o A non-tortious independent intervening event occurs after the defendant's negligence, which

affects or worsens P's original position. Courts will not apportion losses between causes

 Factual Uncertainty What happens in cases where the courts are unable to make a finding of fact about what actually caused

the accident Not a question of which cause to blame, but who or what in fact caused the accident Evidence is inconclusive Even scientists cannot provide answers Or the events are such that we don't know exactly what happened

 Cook v Lewis Defendants, Cook and Akenhead, were hunting in a hunter-infested area of Quisnam Lake Turns out it was Lewis Seriously injured, lost an eye Jury was unable to return a verdict because impossible to tell which D hit the plaintiff But for test is not applicable Should the court impose liability on both, one, or none of them? On BOP, was each D's negligence a 'cause in fact'? Court: both Defendants are liable, but slightly different reasons Cartwright J, Majority

If all A can prove is that he was injured by EITHER B or C, but is unable to establish who among B or C caused the injury, then the action, absent special circumstances, must fail

Special circumstanceso Here, P can demonstrate special circumstanceso P argued that Ds were in a 'joint enterprise' (recognized exception)o Merely sharing the spoils of a hunt does not make a person liable for the fault of anothero Ds liable because they are in a better position to tender evidence as to who really is the guilty

partyo If they cannot or will not exculpate themselves because each was blameworthy, they will both

be liable Reversed the burden of proof

This way, P not left without a remedy Ogbogu: Terrible rule of law - we rarely reverse the burden of proof

o Defendants should not be required to prove their own innocence in this case37

o Bad law - later overturned Rand J, concurring

Ds breached the SOC in shooting negligently In doing so, they wrongly and foreseeably interfered with the plaintiff's ability to prove cause-in-fact

and obtain a remedy The latter wrong - foreseeably impairing P's ability to prove factual causation, shifts the onus of

proof or legal burden D must then disprove cause-in-fact and is liable if unable or impossible to do so

Locke J, dissenting [GOOD] P could not prove who shot him - end of story

What is the difference between the two majority judgments? Cartwright: Evidentiary rationale

o Ds are more likely than P to know what happened, so burden shifts to them Rand J - Rights rationale

o Right to bodily integrity gives rise to a right to remedyo Right to bodily integrity includes within it the means to vindicate the righto If you interfere with the means of vindication (by making it impossible to prove causation), then

you have interfered with the right itself Bottom line:

In special circumstances involving factual uncertainty, courts would shift the burden of proving factual causationo Facts similar to Cook v Lewiso Perhaps where the rights or evidentiary rationales apply? o But can we really modify conventional causation rules in this manner (ie simple to ease the P's

burden of proof) o Remember on exam: just apply the law.

 Sindell v Abbott Laboratories P develops cancer and pre-cancerous lesion from drug (DES) ingested by mom during pregnancy to

prevent miscarriage Drug manufactured by over 200 companies - impossible to say which one made he dose ingested by mom Ds were six manufacturers with 90% of the market share They moved to strike claim on the basis that P can't prove causation Court held for plaintiff

Weird! No way to find them liable - here we have 200 people! Causation by market share, which makes NO SENSE

Reasons: Where P knows the type of drug but not the manufacturer, special considerations arise The main bar to recovery is an old Common Law rule that says that for the burden of proof to be shifted to

Ds, all potential Ds must be before the court This rule would require 194 additional defendants with a market share of 10%

o For tort law and product liability to make any sense, we need to eliminate this rule Rule: if P sued enough manufacturers such that their combined market share is a substantial

percentage, burden shifts to Ds to disprove causation Tendency to shift to support the plaintiff In this case, there is really no way - the six manufacturers shouldn't even be in court! Simply

causation on the bases that they have big shares If Ds cannot disprove causation (by showing who made the DES in question), causation will be assumed

to be proportion of their market share This case makes no sense Dissent

P's reasoning: None of these manufacturers injured me, but each of them almost certainly injured someone

Approach taken by majority to resolving this problem is not tort law It resembles the 'deep pockets' theory of liability But wealth cannot be equated with causation

38

We cannot have one rule for the rich and another for the poor Market share is, in fact, not a stable thing More like deep pockets where it should be causation

 In Canada and other Commonwealth courts: 

McGhee v National Coal Board P is covered in coal dust and sweat (non-negligently) at work No showers provided at work, so has to ride bike home to wash off Developed dermatitis Alleged negligence was employer's failure to provide adequate shower facilities Plaintiff: could not be determined on medical evidence if the delay in washing off dust contributed to the

disease All that could be said was that the exposure created risk of dermatitis P could not prove dust was the specific cause Unclear if he would not have developed dermatitis if showers were provided at work Court: Causation is proved

o Again, has gone against the 'but for' rule Lords Reid and Simon: Inference of causation

Where the D materially contributed to or increased the risk of the injury occurring, we can conclude that the D contributed in fact to the injury

So P just has to prove that D increased the risk of injury This rule would have very broad implications

Lord Wilberforce: Reverse the burden of proof Burden shifts to the tortfeasor who created a risk that led to the expected injury to show some other

cause Or face liability

Which option is better? The approach taken by Wilberforce makes causation a redundant in cases of factual uncertainty If there is factual uncertainty, P does not have to prove causation at all Wilberforce's approach held sway in the Commonwealth until Wilsher v Essex Area Health Authority

 Wilsher v Essex Area Health Authority In Wilsher, HL affirmed McGhee but followed Lord Reid's inference of causation principle Inference of causation can be drawn where D materially contributed to or increased risk of the injury

suffered In Wilsher, inference not made Med mal case involving a preterm baby born with O2 deficiency

Catheter was twice inserted into a vein, rather than an artery, and baby was given excess oxygen Baby developed incurable retinal condition and eventually became blind Could have been caused by the excess O2, or 5 other conditions associated with preterm birth Evidence inconclusive Degree of uncertainty did not permit drawing an inference of causation

 Fairchild v Glenhaven Funeral Services Some Lords affirmed McGhee per Lord Reid Others developed "new" principle Bottom Line in Fairchild:

Where the cause of the injury/disease is scientifically uncertain: o P need not prove that the defendant's tortious conduct caused her injury

Essentially a restatement of McGhee, per Reido Rather, P only has to prove that the defendant materially contributed to the risk of the injury

suffered by her 

39

Factual Uncertainty Cook: "But for" applies, except in special circumstances (undefined)

Two approaches: you shift the burden to D if an evidentiary or rights rationale exists Sindell: reverse onus is sometimes applied to eliminate need to prove causation McGhee, per Reid: if D materially contributed to risk of injury that occurred, draw an inference of

causation McGhee, per Wilberforce: if D materially contributed, then reverse the burden of proof Fairchild: P simply has to prove that D materially contributed to risk of injury that occurred

  ALL THESE CASES SUCK

 Canadian Approach

Snell v Farrell Resurfice Corp v Hanke Clements v Clements

 Snell v Farrell P was undergoing cataract surgery Developed retrobublar bleeding Surgeon noticed outward signs of bleeding, but continued with the operation 9 months later, when blood in vitreous chamber cleared, surgeon was able to see that optic nerve had

atrophied - resulted in loss of sight Experts testified at trial that when such bleeding occurs, operation should be stopped

Breach of SOC But that there are many causes for the atrophied condition, including P's comorbidities High blood pressure and diabetes are potential non-negligent causes None of the experts could say what caused the atrophy - complete uncertainty

She had high BP and also diabetes TJ applied Wilberforce in McGhee to rule in favour of P P has shown that D's negligence created a material risk of a type of injury which then occurred, so burden

of disproof shifts to D SCC:

Issue: what is the correct standard of proof of causation where we have factual uncertainty between a negligent and non-negligent cause? o Answer: The traditional "BUT FOR" test, although based upon common sense inferences

from the evidence Sopinka J:

o Basic rule of evidence is that onus is on the party who asserts a proposition to prove ito However, where the subject matter lies particularly within the knowledge of one party, that party

may be required to prove ito However, those circumstances don't exist in factual uncertainty cases - no reverse onus of

proofo The traditional test actually applies in these types of cases

Good, but then they confuse ito If you don't apply it too rigidlyo Causation doesn't require scientific certainty, just a common sense approacho A common sense approach allows courts the room to make common sense inferenceso Which obviates the need for reverse onus

P's evidence may be limited, but if it is consistent with our intuitions, then there is a prima facie inference of causationo D will need to present evidence to rebut the inference of causationo Failure to do so will result in having the adverse inferences drawn against him

Inference can be drawn even where scientific proof has not been adducedo Consistent with balance of probabilities

40

Bottom Line:o Inference of causation: finder of fact can take a robust and common sense view of the facts

Can still find causation this way Applying rule to Snell, finder of fact drew a common sense inference By concluding that it was more likely that the injury was a result of the negligence It does not matter that medical evidence did not go far enough as to support inference It is possible to draw inference while giving due regard to available medical evidence Especially since the med evidence did not contradict the inference TJ reached the right result, but applied the wrong test In essence, standard of proof is not certainty, but balance of probabilities

This case is also wrong 

Resurfice Corp v Hanke [NEVER BRING THIS UP] P is Hanke - injured when water hose was placed into gasoline tank rather than adjacent water tank of

Zamboni Mixture of water and gasoline led to the release of vaporized gasoline into the air in the arena Gas ignited by overhead heater, causing explosion and fire P severely burned P received WCB no-fault benefits Alberta WCB commenced subrogation action against manufacturer of ice-resurfacing machine, alleging

design defects - D should not have put water tank next to the gas tank Similarity of appearance caused confusion, which was the cause-in-fact of the accident Trial judge ruled cause was P's dreadful mistake of operating machine after having observed hose in gas

tank CA reversed SCC restored trial judgment based on finding of fact that the design defects did not confuse P and so did

not cause his injuries End of story!

McLachlin, in obiter, continues re treatment of causal uncertainty Basic test is the but for test, even for multi-cause injuries Never been displaced - remains the fundamental test

In special circumstances, a material contribution test is used instead [special exception] Where it is impossible for the P to prove causation using the but for test; and

o (Problem: if it's impossible to prove causation using the BFT, then no causation!) The D breached a duty of care owed to P, thereby exposing P to unreasonable risk of injury, and P

suffered from that injury (looks a lot like McGhee)

Applying but for test to deny liability would offend basic notions of fairness and justice So while in Snell, the court opted for the inference of causation

McLachlin brought in material contribution as a way to estimate causation No need for an inference - causation is estimated if D materially contributed to risk But is proving a contribution to risk the same as proving cause of actual harm or contribution to actual

harm? McLachlin's obiter means that P does nto have to prove causation in cases of factual uncertainty But merely that D contributed materially to a risk of the injury that occurred

This is, in fact, something P has to prove under standard of care - D failed to take reasonable care and created a risk of injury which materialized

McLachlin destroyed causation in factual uncertainty...  

Clements v Clements Ms. Clements was riding pillion on a motorcycle driven by Mr. Clements Motorcycle 100lbs overload (negligent act) Nail punctured rear tire

41

When D accelerated to pass another vehicle, nail fell out, tire deflated rapidly, and motorcycle began to wobble

Mr. Clements was able to slow down, but not enough to regain control Or to permit him and Ms. Clements to get off without significant injury

Crashed, Ms. C thrown off Ms. C sustained severe traumatic brain injuries; sues, through litigation guardian

For insurance purposes Mr. Clements didn't dispute he was negligent driving an overloaded bike too fast Issue was whether his negligence caused Ms. C's injury, or tire puncture and deflation

Factual uncertainty TJ: invoked material contribution test as in Resurfice

Impossible for P to prove causation on BFT, D materially contributed to P's injury CA reversed on the basis that the 'but for' test not satisfied - material contribution didn't apply

Here we have a tort cause, and a non-tortious cause We don't recognize this as being

SCC, per McLachlin Basic rule is the BFT - scientific proof or precision not required - TJ can take robust and pragmatic

view of the facts As an exception, P may succeed by showing D's conduct materially contributed to the risk of P's injury But there is a need to flesh out the 'impossibility' criterion for the latter rule Material contribution rule applies, where:

o P has established that her injury would not have occurred "but for" the negligence of two or more tortfeasors

o Each possibility in fact responsible for the injury, ando P is unable to show, through no fault of hers, that any of them is the "but for" cause

Basically, material contribution thing only applies in Cook v Lewis type situations Hold D liable for material contribution without evidentiary or rights rationale McLachlin ordered a new trial because TJ committed two errors:

Required scientific proof of "but for" causation Followed her obiter in Resurfice by applying material contribution to risk test in a case that did not

involve the fact pattern she just invented 

On an Exam Begin with or use the BFT (Barnett, Clements)

Unless case involves joint tortfeasors or multiple causes contributing to P's harm If joint multiple tortfeasors, use material contribution test (Corey)

Can sue just one D, and they'll seek indemnity, or you can sue them all and apportion If one cause is negligent and the other is natural cause, no causation (Kingston) If first cause is negligent and responsible for full loss, second subsequent cause (whether tortious or

not) is irrelevant (Sunrise Co) First cause, full cause

If the first cause remains concurrent cause together with a second tortious intervening cause, first D remains liable for losses linked to her negligence (Baker; Jobling)

If first cause is negligent and second intervening cause is innocent, latter can be taken into account in damages against first D, ie apportionment (Jobling)

If one cause is negligent and the other is non-tortious, negligent D is fully liable (Athey) No apportionment Bad rule: inconsistent with Kingston and the BFR

o Take away: do not apportion losses between causeso Thinks Athey should have been decided on the BFR

If there is factual uncertainty, and one of the possible causes is negligent, draw an inference that the alleged negligence caused the actual harm by taking a robust and pragmatic view of all the facts (Snell, Clements, McGhee (Reid))

If multiple possible causes, all negligent, asses multiple contribution to risk of injury

42

 Loss of Chance [not on exam, doesn't apply in Canada] Knee injury - full recovery, 40%

60% chance you'll never recover, regardless of negligence Negligence hurts knee Can sue for the 40% chance of recovery

Typically in negligence, seek to restore to 100% state Where D claims I have a 40% chance of recovery - not enough to satisfy the but for rule

But for D's negligence you might not have recovered (?) kind of weird rule  

Defenses to Negligence Claims  

What actions of the plaintiff might disqualify or limit her recovery?

  Three defenses

(1) Contributory Negligence (2) Voluntary Assumption of Risk (3) Illegality

 Contributory Negligence

Plaintiff's failure to take reasonable care for her own safety Which contributes to the accident or her loss/damage [very important - if you skip it, you have not

done the full analysis] Partial defense D remains liable Absolves D of liability to the extent of P's contribution

Contributory Negligence Act, RSA 2000 C-27 Just codifies the common law Apportionment of liability - s 1 When by fault of 2 or more persons damage or loss is caused to one or more of them, the liability to

make good the damage or loss is in proportion to the degree in which each person was at fault But if, having regard to all the circumstances of the case, it is not possible to establish different

degrees of fault, the liability shall be apportioned equally 

Voluntary Assumption of Risk Plaintiff is taken to have consented to the risk of harm generated by the defendant's negligence Volenti non fit injuria

Full defense Illegality

Ex turpi causa non oritur actio Out of a base cause, no action can arise

43

Plaintiff engaged in illegal conduct in the course of suffering damage should not be permitted to recover You break into someone's house, then fall down a flight of stairs in state of disrepair

Complete defense 

Contributory Negligence  

Butterfield v Forrester (KB 1809) D obstructed highway with a pole while making repairs to his home P left the public house at duck, on his horse

Which he was riding 'violently' (not intoxicated...?) Struck the obstruction, was thrown from his horse and was seriously injured Witness said he would have seen the obstruction if riding the horse slower TJ instructed jury that if P could have avoided the obstruction by taking reasonable care, they should find

for D Was this instruction correct?

Bayley J: Yes. P was riding too fast and hey would not have been hurt if he employed ordinary car Lord Ellenborough: P should not be able to take advantage of another's fault if he fails to use ordinary

care Complete defence approach no longer the case Liability is apportioned

 Davis v Mann (Exch 1842) D driving at a smartish pace - negligently ran over and killed P's donkey Argued that P was also negligent tor tying the donkey facing highway with forefeet 'fettered' Court held not CN because D could have avoided injuring the donkey if he had exercised proper care Parke B: "Although the ass may have been wrongfully there, still the defendant was bound to take actions

to prevent mischief" No negligence on the part of the D - P should have avoided the accident to begin with

Donkey did not cause injury - D's negligent driving did To be contibutorily negligent, P's negligence must be causative of the injury Last clear chance rule

This Act applies if damage is caused or contributed to by the act or omission of a person, whether or not another person had the opportunity of avoiding the consequences of that act or omission and failed to do so

You didn't take the one last clear chance to avoid injury, so no liabilityo This rule has been done away with by the contributory negligence acto Last clear chance rule is no longer valid

Section 3.1 (or around there) Think about it - still negligent right?

CN is negligent conduct by plaintiff, which contributes not merely to the accident, but to the damage 

Froome v Butcher (ECA 1975) P driving at speed limit, but not wearing seatbelt Head on collision with D, who was passing illegally P suffered injuries to his ribs, and a broken finger

Finger injury could not have been prevented by wearing seatbelt Not about what caused the accident, but what caused the damage P testified he did not wear seatbelt because he thought he was better served by being thrown from car

Not necessary if you're driving in good conditions below the speed limit TJ awarded £450 and would have reduced award by 10% if required to do so

Should damages be reduced for failing to wear seatbelt? YES P argued that D caused the accident, not his failure to wear seatbelt

o NO Question is not what caused the accident, but what caused the damage Both the accident and failure to wear seatbelt caused the damage

44

Not a criminal offence to fail to wear seatbelt No criminal liability does not amount to immunity to civil liability Personal autonomy?

o If I honestly believe it is safer to not wear a seatbelt, why should the law interfere? Standard of care is not subjective, but objective

Forgetfulness? Sorry. Too bad. Also negligenceo Wearing a seatbelt is the sensible thing to do

What share of liability should fall to the plaintiff? If failure to wear a seatbelt made no difference, no contribution, no reduction of damages If failure made all the difference, then 25% reduction If failure made considerable difference, then 15% reduction

 Lewis Klar How about a parent who fails to ensure young child is wearing belt or properly buckled in? In Canadian seat belt cases, courts all over Failure to wear seatbelt generally unreasonable But sometimes, accept flimsy excuses that run counter to Froome Should a legislative requirement to wear seatbelts be determinative in such cases?

No - think to statutory breach - should not be determinative How about a parent who fails to ensure young child is wearing belt or properly buckled in?

Sue mom and the guy who caused injury 

Voluntary Assumption of Risk Arises where P is taken to have consented to risk of harm generated by D's negligence

Used to be a very broad defence Merely exposing oneself to a known risk of another's negligence was enough

Now, more restricted and difficult to establish SCC: D must prove an agreement, whether express or by implication, whereby P has consented to

accept both the physical and legal risk of the injury from D's negligence Physical risk: actual physical harm that would occur Legal risk: waive right to sue/bring an action

If there's a risk and P accepted that risk Drunk friend, get into car asking for a ride - that's volenti

Also CN though (partial defence) 

Dube v Labar (SCC 1986) P and D, friends, were on all day binge drinking Driving back from Whitehorse, they stop to pick up hitchhikers (P driving) Car stalls After brief exchange, P and D switch places

Car flips, P is injured D argued volenti, inter alia Jury accepted defence, Yukon CA upheld

SCC upheld jury verdict, but restricted the scope of the defence D must show that P, knowing of the virtual/certain risk of harm (knowledge of physical risk) Bargained away her legal right to se for injuries incurred as a result of D's negligence (knowledge of

legal risk) Acceptance of risk may be express or implied from the conduct of the parties But requires understanding on part of both parties that D assumed no responsibility of P, and P

agreed to this P must have an understanding!

Must highlight or point out the clause waiving legal right Volenti likely inapplicable in vast majority of drunk driving or willing passenger cases

Lack of awareness CN still an option!

45

 Crocker v Sundance Northwest Resorts Ltd (SCC 1988) Grossly intoxicated P participated in inner tube race down a mogul rain on a ski hill

Seriously injured Ignored advice from D to withdraw from race D argued volenti Court: given P's level of intoxication, he could not have appreciated and accepted physical or legal

risk of injury No volenti, but 25% contributory negligence

 Waivers and Volenti Frequently used in commercial, sporting and recreational events Validity usually determined by applying the law of contract Not enforceable unless reasonable notice was given to P of its terms Issue: irrespective of a waiver's significance in contract law, does it lend support to a volenti defence? In Crocker, SCC refused to enforce waiver

Because P did not read it and thought it was just part of form to enter race So it was void

Cf Dyck v Manitoba Snowmobiling Assoc. Inc (SCC 1985) P snowmobiler, crashed his machine at a race sponsored by D Signed waiver gave rise to a volenti defence How do we reconcile these cases?

o P in Dyck had read the waiver and had better understanding of its terms? o But did he have a clear understanding of what the waiver really meant?

Arguable he didn't have an understanding of what the waiver meanto Bottom line: For a waiver to apply, there must be reasonable notice and clear

understanding (and acceptance) of its terms Make sure to give people the opportunity to read the waiver, draw attention to important provisions

Good way to do it in two forms - waiver and forms saying "I have read and understand the waiver, and will sign the waiver"

 Labelling Is the warning on a product label sufficient to allow a manufacturer to say that user voluntarily accepted

the physical and legal risks of product  

Lambert v Lastoplex (SCC 1971) Manufacturers have a duty to warn consumers of dangers inherent in use of their products Applicable standard of care is to take reasonable steps to provide warnings that allow product to be used

safely Nature and extent of warning required depends mainly upon the nature and degree of danger posed by

product P, engineer, using a special fast-drying lacquer to seal the floors of the basement

Fact that engineer, D contends, is NB because of work standards Furnace, in adjacent room, had a pilot light

o Fire - P tried to exit but explosion caused burns and property damage Lacquer came with a warning label that substance should be kept away from open flames and high heat -

very general warning Competing product had much more specific warning

Risk of explosion/fire from pilot lights and light switches High danger, need a specific warning!

TJ: for P, no volenti or CN CA: for D, volenti SCC: For P, full recovery

Judgment principally fully focused on duty to warn

46

o Have to provide enough warning commensurate with the product Duty requires explicit disclosure from manufacturer Because of failure to warn, D can't argue volenti That is, D had to prove that P appreciated/understood the (legal and physical) risk of leaving pilot on,

and willingly took that risk Without proper warning, knowledge of that risk can't be established

o Irrelevant of if he's engineer or not No proper warning or failure to warn, no volenti No CN either, even though P had some special knowledge, at least in general terms of inherent

dangerso Fact that he was an engineer, without more, is not enough to make him contributory negligent

 Illegality Ex turpi causa non oritur actio Out of a base cause, no action can arise Plaintiff engaged in illegal conduct in the course of suffering damage should not be permitted to recover

You break into someone's house, then fall down a flight of stairs in state of disrepair Complete defense Also restricted considerably over time

 Hall v Hebert (SCC, 1993) P and D, young gentlemen, spent the evening drinking lots, including in a field, into the early hours of the

morning They then take a drive in a 'souped up muscle car' down the road that was so bumpy that the keys fell out

of the ignition D turned the car around and suggested that they do a 'rolling start' - P asked if he could drive, D agrees P tries to jump start vehicle, but gives it too much gas Car goes off the road into a gravel pit, landing upside down P sustains significant head injuries; sues D alleging various acts of negligence D argues ex turpi - accident happened in the course of committing illegal act Trial judge - ex turpi does not apply

Only crime jointly (?) committed was drinking in a public place, and that was not causative of damage

What matters is what P was doing at the time of damage P was operating vehicle under the influence of alcohol

CA (five justices, unanimous judgment) Ex turpi applies

SCC reversed and restricted doctrine Cory J [treat as minority judgment]

Focuses on second arm of Anns test - question best dealt with as part of public policy inquiry Basically tried moving this to duty of care analysis

o ehhh Public policy does not bar the plaintiff's recovery Permitting his recovery would not shock the conscience of right-thinking members of society fully

apprised of facts!o The doctrine of ex turpi causa should be eliminated from application to tort cases

Illegality should be just another factor examined under the second branch of Annso Ask: as a matter of public policy, should the illegality of the P's conduct disentitle him or her

from recovery?o Case at bar - noo Does the illegality then mean that D owes no duty of care?o Will this shock the conscience of the public? Is liability excused?

McLachlin J [follow this one] Traditionally, basis of illegality rule is to prevent a person from profiting from his/her wrong (ex:

murderer collecting on life insurance)47

If this is the basis of the rule, then it should have little impact on tort law, because tort law is compensatoryo The only damages we should disallow are those that would lead to a windfall or profit

Has to make the plaintiff better than they were at the beginning P should be able to recover if not

o Few classic exceptions (1) claim for damages for lost earnings based on illegal profession or activity (2) Bar to recovery where a claim for exemplary damages might otherwise be granted - no

windfall damageso Exemplary damages - damages against the defendant for egregious conduct to make an

example/punish the D No role for ex turpi besides these exceptions Claim in tort law is generally not a claim to a profit Rather, for compensation, aims to restore P to original position Traditional rationale - to prevent persons from profiting from wrong - does not apply to tort law -

except for the exceptions above Profit as a term is too ambiguous

o Better explanation is that doctrine would apply where allowing recovery would introduce inconsistency in tort law

o Law must aspire to be unified, coherent, with all parts in harmonyo This need to internal coherence demands a bar to recovery for that which is illegalo That is, for that which violates another part of the lawo This is why tort law allows a defence of illegality - to protect the legal system from incoherenceo Ex: P caught committing burglary due to negligence of fellow criminal cannot successfully

recover cost of imposed fineo Because this allows criminal P to off-load punishment that society has deemed he should

receiveo What type of analysis will best achieve the purpose of protecting the legal system from

incoherence? Cory J: matter of public policy determined in the duty inquiry per Anns

McLachlin disagrees, for 3 main reasonso (1) Duty is about relationship between P and D, and is predicated on foreseeability, not morality

of P's conduct Illegality is best viewed as a defence rather than a matter of duty of care Although P has established a cause of action in negligence, D's responsibility for the

wrong is suspended Best to allow the defendant to assert and prove the defense of illegality Better have a good reason for allowing a criminal to recover - need harmony between the

different types of law Because of concerns for the integrity of the legal system

o (2) Dealing with illegality at duty stage creates new problems Burden of proof - if illegality goes to duty, then P will have to disprove illegality Duty is all or nothing, which means all of P's claims would be wiped out If defence, properly understood, it can be applied to certain heads of damage, such as

profits from illegality While not affecting compensatory damages If you're trying to profit from illegality or get a windfall, strike down ONLY compensatory damages, disallow the others

o (3) Under contract, D has to prove illegality Would be ironic to impose burden on D for a breach of contract part of a case, while

imposing the burden on P in tort portion of case Not good to be inconsistent between contract law and tort law In present case, P is seeking only compensatory damages Not seeking to profit from wrong, so no possibility of incoherence in the law Trial judgment upheld

48

Ex turpi does not generally apply to tort law, save where P is seeking to profit from illegal activity How about the following:

Burglar who falls down stairs in state of negligent disrepair Murderer, fleeing from police, slips on icy sidewalk Murderer who sues manufacturer of murder weapon for defect that injured him in the course of

committing offence Limitations Act

More in Civ Pro P must bring action within specified time limits Generally, two years from the time P knew or ought to have known of claim - whichever expires first Or 10 years from when claim arose Time stops for P under disability - functional disability, dependent adult, minor not under actual custody Fraudulent concealment may stop the clock 

Damages: Pecuniary Loss Negligence requires proof of actual damage Unlike some torts, which are actionable without proof of damage One of the elements to prove in establishing negligence Arises mainly in personal injury cases Liability will be admitted in vast majority of cases - only question is what is the claim worth? Point of tort law is to compensate plaintiff - restore him or her to pre-accident position (status quo) Law allows for punitive and aggravated damages Aggravated damages are compensatory EX: For humiliation, embarrassment or distress caused by nature and gravity of D's wrongdoing Punitive or exemplary damages are awarded where D's conduct is so outrageous, vicious, malicious, or

despicable Such that is warrants a severe reprimand

EX: Intentional injury Viewed as exception to compensatory norm Restoration to status quo impossible in personal injury cases Best the law can do is to provide, to the extent possible, monetary compensation as substitute for status

quo Also damages for some thing such as pain or loss of enjoyment of life Courts giving you money as an approximation with the intent of returning you to the status quo as

best as possible How do courts determine that amount? Focus mainly on personal injury

  Damages for wrongful death

Spouse or children of deceased victim sue for support No CL cause of action Provinces have adopted fatal accidents legislation

o Confers on surviving spouses and children (sometimes parents) the right to sue for losses arising from wrongful death of relative

Damage to property Chattels

If altered or no longer available, measure of damages is the value But what is value? Destroyed chattel: purchase price or depreciated value? Because tort law seeks to return P to status quo or pre-accident position, value may reflect measure

of depreciation Value is therefore market value at time of accident Damaged chattel - measure of damages is diminution in value

49

Pre-accident value minus post-accident valueo Depreciation accounted for o Ask: what's the pre-accident value? And what's its value now?

If cost of repair is less than diminution, courts will often award cost of repair May award cost of repair in some cases where higher than diminution Subject to mitigation principles

Mitigation P must take all reasonable steps to mitigate her loss P can recover for costs incurred in taking such reasonable steps P CANNOT recover for losses successfully mitigated D has option of proving P failed to act reasonably to mitigate loss Failure to mitigate may result in reduction of damages Need reasonable opportunity to mitigate!

o D must show that this opportunity was presentJaniak v Ipolito

P suffered serious back injury due to D's negligence P was informed that if he had corrective surgery, there was a 70-75% chance of full recovery He would return to work thereby mitigating future income loss 10% chance of a "poor result" including 1% chance of quadriplegia and 0.1% chance of death P refused surgery SCC: refusal amounted to a failure to reasonably mitigate Balance of risk versus consequences of refusing surgery meant P should have had surgery Absent psychological condition which precludes rational decision-making Fear of surgery does not justify unreasonable failure to have an operation Damages reduced

 Personal Injury

 Andrews v Grand & Toy Alberta Ltd 21 year old man suffered injury, rendered quadriplegic from motor accident Lost bowel, bladder, sexual functions Had to reposition in bed every two hours; restricted respiratory functions; needed constant care Liability not an issue P contributorily negligent, and damages apportioned at trial (75% to D, 25% to P) TJ awarded about $1mill; reduced by CA to ~$500k

Issue: 75% and 25% of what? Lower courts disagreed on legal principles applicable to assessment of damages Prior to Andrews, courts had a tendency to make global awards (and still do) No consistent breakdown of or no breakdown at all of heads or categories of damage No explanation or itemization of how amounts are arrived at Often a lump sum grabbed out of thin air Created possibility of undercompensation or overcompensation No guarantee that similar cases would be treated similarly - a hallmark of our justice system Dickson CJC:

It is NB that P is not a vegetable or piece of cordwood but a human of above average intelligence with an unimpaired mind who wants to live as other people do

Specifically, he wants home care, not institutional living Divide damages up into heads of damage!

(1) Special damages ($77,344) - receiptable expenses Compensate P for damages that can be specified, ie calculable because they were actually incurred

prior to trial Includes pre-trial losses such as past income loss, past care costs, and other out of pocket expenses Generally not controversial because they have already been incurred No need to speculate - P proves by providing receipts

(2) General Damages50

Compensation for future losses and other damages (past pain and suffering) that can't be precisely quantified at the time of trial

Some quantification or value is ascribed to them for purposes of providing P with a damage award General damages therefore includes pecuniary damages (losses calculable in monetary terms) Future losses --> future care, lost earning capacity (future income) As well as non-pecuniary damages (losses that can't be calculated in monetary terms) Ne receipts for these kinds of damages Even though we don't know the exact value, courts will have to estimate Generally 3 kinds

o (1) Pain and sufferingo (2) Permanent Disability/Disfiguremento (3) Loss of expectation of life

General Damages - Pecuniary - Future Careo Encompasses various costs associated with treatment or care that are yet to be incurredo Nursing, personal attendant services, user fees, home or auto modification, etco Anything arising from treating the injury or associated with ongoing disabilityo Probably the most important head of damage for plaintiffs

Courts typically most generous on this one Ex: Future costs of home care - $4135/mo (Generous by 1978 standards)

Only alternative is institutional care, assessed at $1000/mo TJ awarded home care; CA awarded institutional care; SCC awarded home care Why?

(1) point of damages is to put P in pre-accident position, which is living in a home and not an institution

(2) Therapeutically the best option for P (3) Cost mostly taken care of by liability insurance anyways

Methodology for awarding costs of future care: (1) set the amount (2) account for variety of factors that impact on ultimate amount to be awarded

o Life expectancy: 50 --> 45 (5-year reduced life span for quadriplegics) So if 50 years is the normal life expectancy, we knock off 5 years

o Not on the hook forever Contingencies of life

o Adjust amount to account for future events that might increase or decrease cost of future care

o Positive or negative adjustment Typical contingencies associated with cost of future care:

o P might require periods of hospitalization (cheaper than home care) If admitted, cheaper than having him at home - so need to discount from award

o Might benefit from social services (thereby saving on costs) Need to discount this too

o Might have to pay for special equipment (thereby spending more) Ie something new, like new kind of wheelchair Upward adjustment

o So you adjust upward or downward with future cost of care considered TJ discounted award by 20% for 'contingencies and hazards of life' Conventional approach at the time, based on assumption that negative contingencies will outweigh positive CA further discounted xx%, seemingly to reflect P's reduced 'duration of life'

BAD SCC: "duration of life" already accounted for under life expectancy

Consistency is gooooood 20% discount is speculative but acceptable because any other number would be just as speculative

Side notes51

Andrews did need hospitalization alter Today, courts tend to deal with contingencies on a case by case basis Often conclude it is zero - negative and positive likely to cancel each other out Or that discount should be much less than 20% Capitalization or discount rate (adjustment for inflation and rate of return on investment)

o Inflation - adjust upwardso Court assumes that because damage award is intended to last for 45 years, it will be prudently

invested by P o Question is what rate of return should be assumed by the court?

Take present rate of return on long-term investments Subtract inflation rate

Viewed flexibly: 10% less 3.5% --> 7% Capitalization discount on 45-year award is significant

o 7% per year over 45 yearso Award would have been $2million without this discounto Also, Dr. Deutsch's prognostications regarding inflation rate turned out to be wrong

Went up over 20%; P undercompensated Some provinces have legislated the capitalization/discount rate

Rea and Bale excerpts critical of capitalization/discount rate Aff'd by Dickon J in Lewis v Tood & McClure Q of fact: TJ has a great deal of discretion

"Gross-up" for tax on the interest earned on the lump sum Count for the impact of taxation on the income generated from lump sum awards for cost of future

care Discount for return of investment, then add tax Dickson J viewed tax burden as difficult to predict, and disallowed the accounting However, now accepted as a proper head of damage Typically increases by 30-40%

  General damages - Pecuniary - Loss of earning capacity

AKA Future income loss; prospective loss of earnings We gaze more deeply into the crystal ball But for the accident, what sort of career would Mr. Andrews have had? Not the same as past income loss - no extrapolation from PL Not the same as present earnings - head looks at loss of earning capacity

Lost capacity is a capital asset What is that capacity/asset worth? Conceivably worth more than present earnings Court adopted valuation based on the current line of work No consideration of possibility of educational advancement Rather, SCC focused on his current work and mid-range salary in assessing earning capacity Methodology:

FIRST: Estimate P's future earnings, then deduct from it the amount that P is still capable of earning (= 0 since P not capable of earning anymore)o $0 because he's quadriplegic - so the number that comes up is what he'll have to get for future

earningso Trial award: he was earning $830/mo as apprentice for CNo Maximum for that line of work was $1750 o CA/SCC: $1200

Conservative but reasonable estimate Gross income Why not give him $1750? Why not assume he'll cap out? OGBOGU thinks unfair award - would have awarded $1750

SECOND: determine length of time over which the P would have earned incomeo Andrews could have retired at 55 with a full pension

52

o Why not use 65? Why use expected working life span (55) rather than reduced post-accident life expectancy (45)?

o Lost capital asset is capacity prior to accident, not post-accidento What is the P's working life expectancy over the period between 23 and 55?

30.81 years THIRD: Apply contingencies

o Income level is set ($1200) and the time level is set (30.81)o Deduct contingencies such as 'unemployment, illness, accidents, and business depression'o SCC sticks with conventional 20%o Today, courts will look at positives as well - promotion, salary increases, possibility of earned

income beyond retirement, age, etc. FOURTH: apply capitalization for return on investment (same as in cost of future care)

 RECAP: TORT LAW DAMAGES FOR PERSONAL INJURY

(1) Special damages Past/pre-trial income loss Past/pre-trial care costs Other out-of-pocket expenses

(2) General damages Pecuniary

o Future care costs: Annual cost * life expectancy ± [contingencies of life] - [Capitalization (rate of return on LTI

- inflation) + Gross upo Lost earning capacity

[(Lost future earnings - Residual earning capacity x remaining working life ± contingencies of life - [Capitalization (rate of return on LRI - inflation)]

Non-pecuniaryo Pain and sufferingo Permanent disability or disfiguremento Loss of life expectancyo Loss of "golden" years

  Courts have also recognized two additional heads of pecuniary damage: (1) Loss of capacity to carry out homemaking services

P, prior to injury was a stay-at-home spouse, or single Calculated on the basis of the cost of replacement homemaking services

(2) Diminished ability to establish a permanent relationship with another person P is catastrophically injured or disfigured or has suffered a head injury or some other type of injury Which reduces the likelihood of being able to establish a permanent relationship with another person Because two persons can live together more cost-effectively than separate And P has lost to some degree the opportunity to realize those savings

  Please see textbook for Andrews damages calculation

The SCC didn't give him a gross-up 

Non-Pecuniary Losses Not easy to determine the "quantum" (appropriate amount) of damages You don't have anywhere to start from - have to do an estimate No objective market value for NPL Courts ascribe a value anyways Money does not provide true restitution If nothing of market value has been lost, then question is what artificial value to ascribe to loss

53

Area characterized by judicial concern for overcompensation In Andrews, Dickson CJ notes wildly extravagant awards in the US

Struggled with what numbers exactly to put to them Not down to do what is done in the US

o US awards aren't that extravagant - oddball jury awards are actually infrequento Often reduced on appeal

Mainly punitive damages, which are tightly controlled by Canadian courts and rarely exceed $100,000

Liebeck v McDonald's Restaurants Lady in NM ordered 49c cup of coffee from McDonald's drive thru

o Spilled coffee on her lap; gets scalded; sueso Jury awarded her $160000 (20% contrib)o PLUS $2.7 million in punitive damages

Overall award was reduced to $640000 by TJo Overall parties appealedo Case eventually settled out of court for undisclosed amounto [hot coffee documentary on netflix]

Actual facts: o She suffered 3rd degree burns covering 16% of her bodyo Remained in hospital for 8 days and underwent skin graftingo Followed by two years of txo Evidence that McDonald's required franchises to serve coffee at 82-88˚C (180-190F)

Which would cause 3rd degree burns in 2-7 seconds Competitors served coffee at substantially lower temperatures

o Their QCM testified that goods hotter than 140F were a burn hazard, and coffee would burn the mouth and throat

o Witnesses testified that McD didn't plan to reduce temp of coffeeo Documents showed a number of complains between 1982-1992o Including prior complains of burns

So - overall award is at least understandable and even reasonableo Example of good advocacy on P's part - to up the punitive damages o Facts provide informed judgment - avoid snap/unfounded judgment

Dickson CJ probably overstates US situation Dickson's approach in Andrews - place CAP on non-pecuniary awards

Uninformed? Non-pec awards have a functional basis - $ to provide solace for P's non-pec damages

Andrews is a mentally alert but catastrophically injured young man That is as bad as it gets (well, we don't know that) Says this is worse than being a vegetable - he is aware of circumstances As such, he needs solace for his injuries But the award can't be limitless or over-compensatory

Got the cap - $100,000 [OGBOGU THINKS UNFAIR] Lindal v Lindal

CAP should be adjusted for inflation Jan 2017: $368,946 - current cap

o www.mckellar.com/statistics Court will award less for lesser damages

Is a cap on non-pecuniary damages a good application of judicial discretion? Matter for legislature? Is the cap justified? Lee v Dawson - BCCA hinted that CAP was a bad idea Indicated it might limit CAP to catastrophic injures in the future In AB, non-pec damages have been limited by statute in certain circumstances

Minor Injury Regulation, Reg 123/2004

54

o Minor injuries (sprain, strain, whiplash, etc)o Capped at $4000, adjusted for inflation from 2007o Currently $5020 (Jan 1 - Dec 31, 2017)

Constitutionality of minor injury cap challenged in: Morrow v Zhang

P was diagnosed with grade 2 whiplash following MVA, would have received non-pecs in excess of cap

TJ ruled that minor injuries distinction was based on a personal characteristic Amounted to discrimination of grounds of physical disability in violation of s 15 of the Charter ABCA reversed

RE: Non-pec awards Juries (rare in AB, more common in BC, ON) tend to award less than judges for relatively minor

injuries (ie whiplash) But award more, sometimes above the cap, in cases of catastrophic injury Courts of Appeal reduce award to CAP on appeal

Collateral Benefits What happens where accident victims receive benefits from third party sources? EI, ECB, private disability insurers (sick pay; group insurance plans) That is, benefits that are 'collateral' to the damage award Should courts deduct the amount of the benefit received from the damage award? [Will likely be on EXAM]

Two scenarios: Scenario A:

o X paid into a disability insurance plan that reimburses 80% of regular income in the event of injury that prevents her from working

o If injured by Y and unable to work, should a court deduct that amount from income losses? Scenario B:

o What if X's plan was paid for by her employer? If X is allowed to recover as if no collateral benefits existed, then we have a problem of DOUBLE

recovery If collateral benefit is deducted and D pays only NET LOSS, then D has the windfall benefit of X's

foresight or employer's generosity Allow X full recovery, but require her to pay back collateral benefit to insurer All three approaches have been used by courts

General Rule P is entitled to full compensation, but no more. No double recovery. No windfall

o Use this rule on the exam Private insurance exception

o If P paid out of pocket for the collateral benefit, then the value of benefit should not be deductedo P is entitled to full recovery of damages from D + full value of collateral benefits funded out of

pocket Does the exception extend to employer-paid insurance?

P notionally paid for it as it is part of an agreed compensation packageRatych v Bloomer

Police officer injured in MVA due to D's negligence Continued to receive full salary while off work for several months pursuant to terms of collective

agreement Also, did not lose any accumulated 'sick credits' Should employment benefits be taken into account in assessing damages for loss of earnings?

o SCC: deduct employment benefits to avoid double recovery Basically, let D go Measure of damages should be 'actual loss' Private insurance exception does not apply absent evidence that employee contributed

to the fund from which benefits were paid No evidence, no exception

55

Cf: Cunningham v Wheeler P received disability benefits from employer under terms of the collective agreement

o Basically accepted a lower wage to get the benefitso As benefit goes up, wage goes down

No deduction from his pay for the disability benefits TJ accepted evidence that collateral benefits was an important aspect of collective agreement

negotiations If benefits increased, hourly wage goes down and vice versa Held: 4-3 - no deduction as benefits fall within private insurance exception

o If you can show that you offered something up then this works Because some type of consideration was given up by employee in return for the collateral benefit

o The bargaining trade-offs between wages and benefits constituted such consideration Other kinds of consideration:

o Direct contribution by employeeo P gives up some money (eg, EI) in return for benefito Benefit is part of employee's work package/wages - employee worked for it

Trial courts decline to deduct if there is the slightest evidence of some consideration or contribution from employee

Section 570(3)(4): Awards must be reduced by aggregate of (inter alia): Certain no-fault benefits received under a vehicle insurance K Alberta Health Care Insurance benefits Prescribed income continuation or replacement benefits Disability pension benefits Worker's compensation benefits NB: Net of tax, contributions and premiums paid by the employee Regardless of private insurance exception, in AB you will have damages reduced to account for what

you're getting from this list of benefitso But you get back your premiums and the tax you paid in relation to those premiums

Lump sum or periodic payments? Bottom line is lump sum Issue: should damage awards be paid by D as a lump sum or periodically, as it is incurred? At CL: damage awards must be single lump sum Advantages of periodic payments: adjustable to contingencies; removes guesswork; avoids

overcompensationo Period payments in some provinces but lump sum is the general rule (avoids the disadvantages

of periodic payment) Disadvantages: administrative costs: lack of finality or certainty

SCC rejected periodic payments and ruled in favour of lump sums A matter for the legislature, not the courts CL perspective: lump sum ON, MB, and BC have enacted legislation providing for periodic payment alternative

o What do you think of a publicly-funded no-fault scheme for damages resulting from negligence?o Perhaps this scheme is better?

Young plaintiffs Andrews formula particularly difficult to apply to young plaintiffs Especially as relates to lost earning capacity Young plaintiffs typically don't show aptitudes that allow us to assess that head of damage Arnold v Teno: P was 4 YO rendered quadriplegic when struck by D's car on way to purchase ice

cream TJ relied on educational level and vocational circumstances of parents/older siblings P's mother was a teacher; court awarded $10,000 per year

o ONCA agreedo SCC: NO

56

Spence J: We can't assume she will follow her mom's leado Or that she will be a washout or public chargeo Reduced award to halfway between trial award and poverty line - $7500o Plus 20% deduction for contingencies of life

Is this fair? (No) 

57

Occupier's Liability Liability of an occupier of land to persons who enter onto the land

Someone in control of lando Need not be an owner or lessoro Could be a tenant

Someone with authority to grant or refuse entry Largely governed by statute Cases typically involve personal injury suffered by plaintiff while using defendant occupier's property Why create a special area of tort law to deal with such cases? Is negligence law not enough?

Occupier - Proximate relationship - Visitoro Duty of care - negligent act - causation - no remoteness - damageo OL easier to prove than negligence

CL developed as a discrete area of tort law Prior to when general tort of negligence was recognized Grandfathered! Ps invariably bring claims in both areas - if one fails, the other might succeed Statutory cause of action may be limited ('using' language in AB and BC statute) OL under the CL (in SK and NB)

Four graduated standards of care (cf two under AB statute)o Matters whether visitor is a trespasser, licensee, invitee, or contractual entrant

Trespass vs Kual entrant (less to more onerous care) Trespasser

Originally, no duty owed by occupier to make premises Safe However, occupier to refrain from intentionally or recklessly injuring trespasser In 1970s, HL introduced duty of humanity standard to be applied on a case-by-case basis

o Duty of Humanity determined by looking at: Gravity and probability of injury Character of the intrusion Nature of the premises Foreseeability of the trespasser

Licensee: Visitor who has express or implied permission to be on land Express: social guest Implied: Mail carrier Occupier has a duty to prevent injury to licensee from hidden dangers that the occupier has actual

knowledge of All you'd have to show is that D was aware of hidden dangers and did nothing to prevent that

injury Invitee: someone with permission and in whose visit the occupier has an economic interest - ie, store

customer Occupier's duty has duty to take reasonable care to prevent injuries caused by foreseeable or

unusual dangers Contractual entrant: person who enters land under the terms of a contractual agreement

Ticket holder to Oiler's game Absent contractual terms to the contrary, and reasonable notice of those terms:

o Occupier has duty to make premises as safe as can be made with reasonable skill and careo Statutory reform has simplified standard by creating broad overarching duty of care that applies

to all or almost all entrants D must make premises safe unless there's something on the ticket excluding liability

 Occupiers' Liability Act BRING THE ACT INTO THE EXAM Note: definitions of occupier and premises

Two categories of entrants: trespassers (ss12-13) and visitors (everyone else) (ss 5-11)58

Occupier: Person who is in physical possession of premises, or, who has responsibility for, or control over, condition of premises, activities conducted on the premises and persons allowed to entero There can be more than one occupier (co-owners, owner + tenant)

Premises: Extended definition - goes beyond the usual suspectso Excludes aircraft, motor vehicles and non-specified vehicles and portable equipment

Visitors: ie non-trespasserso Entrant as of right - person permitted by law to enter without occupier's permission o Contractual entranto Any other lawful entrant (guest, licensee)o Trespasser in retreat: Person whose presence becomes unlawful after entry and who then

takes reasonable steps to exit Section 5 - common duty of care

Occupiers owe visitors a common duty of care to take reasonable care to see that the visitor will be reasonably safe in using the premiseso Practical effect is to impose common law duty of negligence on occupierso Provided visitor is using premiseso Other effect is increasing CL duty owed to licensees and decreasing corresponding duty owed

to Kual entrants Trespassers

(in BC: no distinction between trespassers and visitors - general duty owed to all) AB statute distinguishes between visitors and trespassers How trespassers are treated ends on whether they are regular/ordinary trespassers or children

o NO duty of care owed to ordinary trespasser, unless injury or death to trespasser results from occupier's intentional or reckless conduct

Child trespassers If the occupier knows or has reason to know:

o (1) that the child trespasser is on the occupier's premises, ando (2) that the condition of or activities on the premises pose a danger of death or serious bodily

harm to the child Then occupier owes duty to take reasonable steps to see that the child will be reasonably safe from

danger Factors to consider in determining if duty has been discharged:

o (1) Age of the childo (2) Child's ability to appreciate the dangero (3) Burden of removing the danger/protecting child versus risk posed by the danger to the child

Cullen v Rice P, 16-yo high school student, went to a restaurant for dinner Restaurant had a well-known rule - teenagers must leave promptly after finishing meal No hanging around, punks P, who was aware of rule, refused to leave when asked to do so In a bid to evict P, employee pushed him towards/into restaurant door, made of glass Glass door failed to open, shattered, and cut P Issue: what duty was owed to P under OLA

o Depends on if he is a visitor, regular trespasser or child trespassero Visitor: common duty of care (s 5)o Regular trespasser: no duty unless injury results from wilful or reckless conduct (s 12)

Child trespasser: common DOC - but depends on age of child; ability to appreciate the danger; burden vs risk (s 13)

Held: NOT a child trespassero Regular trespasser, but P's injury not the result of wilful or reckless conduct by Do Wilfulness of pushing directed at eviction, not injury

Which legal regime is better for ordinary trespassers? CL: duty of humanity - individual circumstances of case

59

Section 7: Volenti [legal and physical risk?]o General duty owed by occupier does not apply to risks willingly accepted by visitor

Section 9: Warningo A warning, without more, does not absolve occupier of duty to visitor, unless enough to enable

visitor to be reasonably safeRoasting v Blood Band

P ventured into a construction site (bleachers in a grandstand) Bleachers were off-limits because of absence of guard railings P had been specifically warned not to go there Ignored warning, went to bleachers, fell off and was seriously injured Issue: did the occupier satisfy statutory duty under s 5 of the Act? Romaine J:

o Do the premises present reasonably foreseeable risk to persons exercising ordinary care and diligence?

o YES - unprotected bleacherso Did the occupier take reasonable steps to ensure that users of the premises were reasonably

safe? o Occupier (D) argued that warning amounted to reasonable step

Held: Warning was sufficiento Reasonable steps need not be physical barrier

Section 8: variation of duty of care Liability to visitor may be extended, restricted, modified or excluded by express agreement or notice Only if reasonable steps are taken to bring the extension to the visitor's attention

 

  Government liability  

Used to be immune from tort action Petition of right procedure required permission from Crown to sue Crown [pt] [t] Federal and provincial governments have adopted legislation permitting legal proceeding against the

Crown Proceedings Against the Crown Act

Consistent with other provinces Section 5

Crown can be sued in tort as if it were an ordinary person, for: o (1) Torts committed by its officers, agents

Directly or via VLo (2) Breach of duties owed to servants and agents as their employero (3) Breach of duties linked to ownership or possessory interests in propertyo (4) For actions taken under statute, regulation or bylaw

Municipalities did not have immunity at CL Typical actions

Misfeasance in a public office Negligence

(all you really need to know - hey yes you can sue the Cr) Misfeasance in a Public Office

New emerging tort - most actions against public authorities based on negligence Deals with claims of intentional misconduct by Cr through its agents Intentional, not negligent conduct Tough to find situations where Cr intentionally hurts someone

Three requirements (1) Actor must be a public official

60

o Defined widelyo Uni-Jet Industrial Pipe Ltd v Cana (AG)

RCMP officer divulged information to media regarding details of searches prior to execution of search warrant

(2) Activity in issue must relate to an exercise of a statutory authority or powero IE: statutory expropriation schemeso What if the alleged misfeasance relates to a failure to perform a statutory duty? o Is such failure an activity relating to the exercise of a statutory authority or power?

Odhavji Estate v Woodhouse Police officers failed to cooperate with an investigation into a fatal shooting involving the

officers ONCA drew distinction between failing to perform a statutory duty and improper exercise

or abuse of power SCC: NO

No basis for the distinction (3) Wrongdoing must be intentional

o (A) Public official knowingly acts beyond his power or jurisdiction (ultra vires)o (B) Public official acts within power/jurisdiction, but for improper purpose

Roncarelli v Duplessis See slides Admin law too

o Where D is an elected official, BCCA has cautioned against imputing bad faith Have to find evidence of wrongdoing!!

First national Properties Ltd v Highlands (District) Developer sued Mayor for frustrating efforts to develop land Mayor wanted land preserved as park [nothing inherently wrong here] Mayor surreptitiously disclosed information obtained by virtue of his position to third party

purchaser (NCC) Developer's planning and zoning application delayed and denied

Because NCC had purchased some tracts of land TJ: found against Mayor for abuse of public office BCCA reversed on grounds that mayor acted IV and his advocacy for land preservation

was well known Mayor acted without malice or motive to gain private advantage (ie not bad faith) No confidential information disclosed by Mayor to NCC Preservation of land a proper municipal purpose

What if government official doesn't know or care if they have exceeded their authority? Then, that 's enough to prove intention - to act for an improper purpose

Court doesn’t care if you didn't know Three Revers District Council v Bank of Englad (HL, 2000) Alberta v Nilsson (2003)

 Government Negligence Most government activities are judged according to the ordinary principles of negligence law Same analysis as with private bodies Slight difference: public official causing MVA in the course of their duties

Or, gives out negligent advice on which others rely Public officials owe duties of care like everyone else, and must conform to the legal standards of care

What applies to us applies to them Issues arise where governmental conduct relates to political activity, policy-making, budgeting

Separation of powers - accepted principle that executive to make decisions without having the courts scrutinize them at all times

If those things are subject to judicial review, then governments wouldn't be able to act

61

Courts reluctant to impose negligence law on these kinds of activities unless statute requires them to do soo Pronouncements generally made with respect to legal matters or implication

Ie where charter breacho Why?

(1) Democratic concern: government officials should be exclusively accountable to those who elected them - no second guessing by courts

IE if gov makes a budget that doesn't offend the law then they won't interfere Hinders democracy

(2) Pragmatic concerns: Courts lack access to expertise and resources to get involved in such activities

(3) Floodgates concerns: Litigation might proliferate if such decisions are reviewableo EX: if government makes a law requiring vaccination

You can challenge that law on the basis that it offends Charter rights That's the end of it though if the courts find to the contrary Re: efficacy - not up to the courts - they don't have the expertise for that evaluation

Cooper v Hobart (2001, SCC) Stage 2: "External" Policy

o This is contrary to what's above! This kind of analysis is the same kind that courts don't like to do / outside purview!

o Don't use CvH in exam Questions around the competency and legitimacy of courts second-guessing political and policy decisions Policy-operational distinction

Way to determine what matters are reviewable or not Bottom line: if court characterizes it as a true policy decision by the government, then no evaluation If operational, then it can be reviewed by the courts Amounts to operational decision/action

No liability to government if it's pure policy Court's cannot review it!

Liability if operational Policy decisions: questions about whether and how to implement a government program (discretionary)

Not reviewable Operational decisions: questions around actual operation or delivery of the program once it is implemented

Reviewable

Kamloops v Nielson (SCC 1984) Brought Anns test into Canada Municipality failed to enforce bylaws and prevent completion of a house with defective foundations

o Inspected twice, two 'stop work' orders, not built according to approved planso Failed to actual halt the completion of the house

Builder, to the building inspector's knowledge, completed the building Owner city alderman and builder's father) moved in Sold house to P, who discovered defects and sued the city ...but what's the harm here? Pure economic loss - no actual harm

o All that was lost was the cost of fixing the defective buildingo One class that's allowed in Canada (1 out of the 2 of 5 that you can get relief for)

Majority of SCC imposed liability on Kamloops on grounds that the matter was largely operational Why? (Wilson J)

o Municipalities have statutory authority to enact bylaws to regulate construction of buildings, and to ensure enforcement via inspection

o Deciding whether or not to act on that authority by enacting bylaws and setting up an inspection system is policy matter

The way the bylaw is actually implemented is operation Ie decided to act/not act upon the

62

Once said bylaws are enacted and inspection system set up, manner in which it is operated is operational matter

o Policy-operational distinction not the last word on the matter Gov can still my liable for failing to consider whether or not stat power should be

exercised City might still be liable in the absence of bylaws and an inspection system For failing to consider whether it should have instituted bylaws and system In making policy decision, decision-maker must act in good faith

IE: no improper purpose or unreasonable decisions If there's evidence of this to disadvantage someone specifically in bad faith

then this is reviewable by the courts Bad faith/improper purpose = reviewable

Pre-policy is reviewable by the courts Policy is not

Policy decisions are not justiciable in tort law - cannot expose government to liability Difficult precedent to apply (Policy vs operation will not be on exam)

Just v British Columbia (SCC 1989) Winter, Highway 99 - major commuter road from Whistler to Vancouver Traffic at standstill Large boulder which had come loose from steep wooded slopes above crashed down on P's car Killed P's daughter and severely injured P Earlier rock falls - plus freezing and thawing and heavy snow buildup on trees All creating a high risk of rock falls There is a system set up by the Dept of Highways fro inspection and remedial work Rock work engineer carried out visual inspection for risk of rock instability

o Reported findings and recommendations to District Highways Managero Who submitted requests for provincial rock scaling crew to be sent it

Issue: is the decision to adopt a visual inspection system a policy decision? McLachlin J (BCSC)

o Says policy decision, not reviewable by courto Government, as a matter of policy, adopted a system of visual inspectionso Unless it can be shown that Mr. Oliver conducted visual inspection negligently, then no liabilityo CA affirmedo SCC reversed (Cory J)

Allegation of negligence here fell within the operation aspects of governmental ____ That is, the initial decision about WHETHER (NOT HOW) something will or will not be

done Policy decisions usually made at high levels of authority And involve considerations such as budgetary allocations or other political matters Beyond this, everything else (manner and quality) is operational Changes the meaning of operational

Decisions about how to implement are under 'operational' Manner and quality includes resource allocation and other discretionary matters

o Sopinka J dissenting Extent and manner of inspection program is policy Ogbogu thinks Sopinka is right

Cf Brown v BC P driving from Gold River to Campbell River 30 mins out, skids off icy patch on highway and over embankment Suffers catastrophic injuries Three other accidents occurred on same stretch of highway that morning BC Dept of Highways had instituted program for snow and ice maintenance on highway

o Two work schedules - winter and summer63

Accident occurred in November - fell in 'summer' Highways Department crew still on summer maintenance schedule

o Was the department's decision to maintain summer schedule a policy or operational one? Cory J: POLICY Decision to maintain a summer schedule, with all that is entailed in terms of reduced service, was

one of policyo Inconsistent with earlier decision in Just

Involved classic policy considerations of financial resources, personnel and significant negotiations with gov unions

Can only be impeached if an improper or irrational exercise of discretion or made in bad faith But, is it really a threshold decision as per Just?

o Not matter of whether something should or should not be done about snow/iceo But more one of how to go about it

Bottom line: threshold decisions - definitely policy: Never call it operationalo Manner and quality of system established by threshold decision: Definitely maybe

Swinamer v AG Nova Scotia Deals with pre-policy, same year as brown 1994 P injured when tree along highway, which had Dutch Elm disease, fell on P's truck Province had initiated a preliminary program of identifying and flagging trees with the disease Wanted to make decision on policy once it had established the scope of the problem - such as

immediate removal, gradual removal, etc. PRE-POLICY Accident occurred during pre-policy period - is this reviewable? Two interpretations

o (1) decision to determine the scope of the problem before making a policy decision was in and of itself a policy decision

Cory J, etco (2) No private law duty on public authority until it makes a policy decision

Because it's pre-policy, no private law duty [McLachlin and LaForest] Ogbogu thinks this is right

o Pre-policy not reviewable unless it fails to make a decision with respect to whether or not they should carry out their actions

No pre-policy liability unless government should have at least adopted some policy in the interim Exception does not apply here as province was acting reasonably in the first trying to inform itself

about the scope of the problem before deciding POLICY: NOT REVIEWABLE PRE-POLICY: NOT REVIEWABLE - unless government should have at least adopted some policy in the

interim OPERATIONAL: REVIEWABLE

 

NERVOUS SHOCK (PSYCHIATRIC HARM) Courts are suspicious of claims based on psychiatric harm, especially if a secondary victim Just another type of negligence claim - do usual negligence analysis - varies with remoteness and

proximity Testable on exam, re if DOC is owed Secondary persons - didn't suffer direct physical or psychiatric harm Psych harm affecting 2˚ victim NB - have to spot this Cases where alleged damage can't be tested or assessed by way of visual inspection Psych injury can be damaging too Largely some suspicion Not objectively verifiable - issues take us to subjective recesses of aspects of science that are less intuitive Typically pose remoteness problems regarding whether specific kind of damages was foreseeable

64

Victorian Railway Commissioners Coultas was in a horse-drawn carriage with husband Approached a level railway crossing, railway employee negligently lifted barrier to allow them cross,

which led them into path of an oncoming train They cross, but Mrs Coultas faints Medical evidence shows she suffered severe nervous shock from fright of being in the path of the

oncoming train Found for P, PC overturned

o Reason: all nervous shock is too remote Since Coultas... Expansion/contraction - FLUX Liability if P is also physically injured (kinda expansion?) If you have physical injury and psychiatric harm Liability if P is in a zone of danger (expansion) Liability for reasonably foreseeable shock (contraction) Liability for reasonably foreseeable shock suffered by proximate P (contraction) Why suspicious?

(1) Little agreement on what nervous shock is: o Dependent on physical injury? o Mental reaction to physical stimuli? o Purely psychological reaction?

(2) Lack of scientific consensus on how the mind interacts with the bodyo Law reflected prevailing scientific opinion

(3) Divergent opinion in the Commonwealth on how to apply DOC to NS claimso Proximity between D and P?

McLoughlin v O'Brien P learned her husband and three children were in a car accident She visits them at hospital where she is told one of the children passed away She sued the negligent driver for nervous shock [she is the secondary victim here!]

o Say: There is a secondary victim on the facts Tell him if they recover or not

Lower courts: injury was not foreseeable CA agreed HOL reversed

o Majority applied Anns - foreseeability + no policy reasons for negating duty Anns does not require proximity - only foreseeability!

o Injury was RFo Direct injury to P or directly witnessing accident not necessaryo Enough that victim is P's spouse or child, and P witnessed, by sight or hearing, the immediate

aftermath of the accident 

Alcock v Chief Constable of the South Yorkshire Police [CITE THIS] Hillsborough Disaster of 1989 Facts

Soccer game at Hillsborough stadium in Sheffield, South Yorkshire High steel fencing placed between spectators and pitch due to hooliganism concerns Fans arrived early and there was buildup of fans outside turnstiles at one end of the stadium Bottleneck, about 5,000 fans involved Police decided to open outer exit gate that didn't have turnstiles Thousands spilled into stadium - crush - about 95 dead, 400+ injured Another died 4 years later 16 plaintiffs bring action claiming damages for nervous shock alleged to have been caused by seeing

or hearing news of the disaster

65

o All of them are secondary victims! Police admitted negligence and liability to those injured or killed, but argued that no DOC was owed to

NS claimants 2 plaintiffs were actually there; 14 was on TV

o TJ: found for 10/16 Pso CA: none could recovero HL: affirmed CA - no DOC owed

Issues: Are the Ps sufficiently close to the victims?

o Can a brother recover? Brother in law?o (Just because someone is your brother doesn't determine the matter) o Relational proximity is important

Does viewing a simultaneous broadcast of the incident qualifying as witnessing by sight or hearing? o Is shock caused by viewing a broadcast enough? o Visual or aural proximity

Does it matter that P did not witness 'immediate' aftermath? o Locational/temporal proximity

Lord Ackner: Claims under this category have very specific features - absence of those features disqualifies the

claim As with every negligence claim, the risk of psychiatric illness resulting from shocking event must be

reasonably foreseeableo (Anns)

To limit volume of potential claims from shocking events, only 'proximate' plaintiffs can recover Plaintiff's that are 'proximate' to primary victim and to the accident or its immediate aftermath

o We impose this to limit the volume of potential claimso In nervous shock cases, you have to show proximity!! (EVEN ON EXAM)

Nature of claim - the following must be present in the facts or else the claim won't succeed Pre-negligence analysis for nervous shock cases (1) Shocking event must result in recognized psychiatric harm - grief isn't enough (2) Only psychiatric harm induced by shock can be the basis for recover

o Psychiatric harm caused in other ways, such as from caring for disabled relative is not enough (3) Shock and resulting psychiatric illness must arise from seeing or hearing the shocking event

o Not enough to merely be informed of, or to read or hear about ito Ie reading about it in the paper is not enough

(4) Shock must be sudden appreciation by sight or sound of horrifying event, which violently agitates the mindo Slow accretion of grief not enough

Duty of Care analysis: Caparo - reasonable foreseeability + proximity + no policy reasons negating duty At the time the cases was decided, Caparo was still law so proximity fell under DOC

Foreseeability - not really an issue in Alcock Is it RF that the psychiatric injury suffered by the Ps would affect the persons of ordinary fortitude?

Proximity Analysis Control mechanism - only proximate plaintiffs can recover Three elements of the proximity analysis - all required

o Relational Proximity: Is P within a class of persons whose claims should be recognized? Relationship to 1˚ victim?

o Locational/Temporal Proximity: Is the shock suffered by P close both in time and space to the accident or its immediate aftermath?

o Visual/Aural Proximity: Did P actually see or hear the shocking accident or its immediate aftermath?

Primary vs Secondary victims

66

Ps are not "primary victims" - ie they were not directly affected by the incident resulting from D's negligence

They are secondary victims - affected by virtue of a relationship with a primary victim Distinction taken into account in proximity analysis

Relational Proximity Is P's relationship to the primary victim sufficiently close such that it is reasonably foreseeable that P

would suffer nervous shock if primary victim is injured? o P must prove they are sufficiently close to the primary victimo Rebuttable presumption

D can challenge ito Decided on case-by-case basis

Closeness not assumed by actual relationshipo Factual matter that must be proven!

Locational/Temporal Proximity Shock must occur close in time and space to the accident or its immediate aftermath Shock from subsequent identification qualified, but not too long after

o McLoughlin - 1 hour after - fineo Alcock - 8 hours after - NO

Visual/Aural proximity P must actually see or hear incident or immediate aftermath Could be in person or through simultaneous broadcast If TV, suffering of primary victim must be portrayed (generalized portrayal isn't enough)

Why nobody in Alcock succeeded Relational: Not established at trial that there was close relationship between primary and secondary

victims Locational/Temporal: Only Harrison and Alcock, present, but didn't find out about the fate of relatives

until much later Visual/Aural: Harrison heard on the phone hours later/Alcock found out in morgue 8 hours later

o All others watched on TV P's couldn't prove all three elements of proximity

In the UK, Alcock is still good law 

Reception in Canada  

Rhodes v CNR P's son killed in train crash in AB; CNR admitted negligence P hears of death from third party days later in Vancouver - didn't see body

Held: no locational/temporal/visual/aural proximity But what if P saw newspaper photos of accident immediately after the crash?

o Might meet some proximities  

Vanek v Great Atl. And Pac. Co 11 year old Eva consumes contaminated juice at school, is fine Parents are not; develop stress related complications Held: DOC analysis based on foreseeability and recognizable psychiatric harm (Anns/Kamloops) P did not witness actual event Not extremely distressing Complete normalcy in immediate aftermath

  Why Ogbogu likes Alcock

It's very clear re: what it wants Can be clearly applied Is it an NS case? Does it meet the 4 criteria?

Then,

67

Is a DOC owed? Proceed with proximity 

Cf Mustapha CA/SCC: NO

Culligan owed Mustapha a DOC SOC was breached, but P's injury was too remote to warrant recovery No person of ordinary fortitude would have foreseeably suffered this kind of injury from seeing flied in

an unopened bottle of water Differences between Mustapha and other cases

Primary vs Secondary victimo How do we handle the duty of care (foreseeability/proximity/policy) analysis for primary victims?o Does P have to prove specific injury (NS) or simply personal injury of whatever kind?

Is it enough to say you suffered some harm, or psychiatric harm? Majority in Page v Smith

It should not matter that the physical illness suffered by the P operated through the medium of the mind or nervous system without physical injury

If you can show some kind of injury, it's good enougho You've shown damage

If you're Mustapha and you have physical injury to show as well, psych may be too far, but let's say he gets sick - that's closer

Donoghueo Saw the snail - if the NS claim didn't succeed then she can fall back on her having gotten sick

from the beer If both, discuss Alcock and also standard analysis If nervous shock, don't forget about the physical injury

o You can address both

68