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Sarah Chaster Law 108C Torts Outline (Final)

Law 108C: Torts Outline (Final)

Negligence: Introduction3

Mustapha v Culigan (2008, SCC)3

Duty of Care3

History: The Importance of Foreseeability4

Palsgraf v Long Island Railroad (1928, US)4

Donoghue v Stevenson (1932, Eng. HL)4

Expansion4

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

The Modern Approach: Additional Sources for the Duty of Care5

Cooper v Hobart (2001, SCC)6

Childs v Desormeaux (2006, SCC)7

Fullowka v Pinkertons (2010 SCC)8

Standard of Care9

Unreasonable Risk9

Bolton v Stone (1951, Eng. HL)10

Paris v Stepney Borough Council (1951, Eng. HL)10

Stewart v Pettie (1995, SCC)11

Cost of Preventative Measures12

The Learned Hand Formula12

Rentway Canada v Laidlaw Transport (1989, MVR)12

Utility of the Defendants Conduct13

Bittner v. Tait-Gibson Optometrist (1964, Ont. CA)13

Good Samaritan Act13

Unreasonableness & Fault13

Vaughan v Menlove (1837, UK)14

Heisler v Moke (1971, Ont. HC)15

Pope v RGC Management (2002, ABQB)15

Nespolon v Alford (1998, Ont. CA)16

Fiala v Cechmanek (2001, ABCA)17

Evidence of Unreasonableness: Practices & Standards18

Waldick v Malcolm (1991, SCC)19

Brown v Rolls Royce (1960, Eng. HL)19

Warren v Camrose (1989, Alta CA)19

ter Neuzen v Korn (1995, SCC)20

Canada v Saskatchewan Wheat Pool (1983, SCC)21

Gorris v Scott (1874, Exchequer Court)22

Ryan v Victoria (1999, SCC)23

Causation24

The But For Test24

Snell v Farrell (1990, SCC)25

The Adequacy of the But For Test26

Cook v Lewis (1951, SCC)27

Clements v Clements (2012, SCC)27

Divisible and Indivisible Harm29

Bradley v Groves29

Remoteness31

General Rule31

Cameron v Hamiltons Auction Marts (1955, Scotland)32

The Wagon Mound #1 (1961, Privy Council)33

Hughes v Lord Advocate (1963, Eng. HOL)33

Assiniboine School v Hoffer (1971, Man. CA)33

The Thin Skull Rule34

Bishop v Arts & Letters Club (1978, Ont. HC)34

Athey v Leonati (1996, SCC)35

Novus Actus Interviens (Intervening Acts)35

Stansbie v Troman (1948, Eng. KB)35

Bradford v Kenellos (1974, SCC)35

Smith v Inglis (1978, NSCA)36

Subsequent Injuries36

Larsen v Wilson (2007, BCSC)36

Defences37

Special Defendants38

Manufacturers38

Hollis v Dow Corning (1995, SCC)38

Medical Professionals40

Reibl v Hughes (1980, SCC)41

Videto v Kennedy (1981, Ont. CA)41

Martin v Capital Health Authority (2007, ABQB)42

Duval v Seguin (1972, Ont. HC)44

Dobson v Dobson (1999, SCC)44

Paxton v Ramji (2008, ONCA)44

Liebig v Guelph General Hospital (2010, ONCA)46

Government46

Just v BC (1989, SCC)47

Brown v BC (1994, SCC)48

Hill v Hamilton Police Services Board (2007, SCC)48

Fullowka v Pinkertons (2010, SCC)49

BC v Imperial Tobacco (2011, SCC)50

Special Harm50

Psychiatric Harm50

Mustapha v Culligan (2008, SCC)51

Devji v Burnaby (1999, BCCA)51

Pure Economic Loss52

Hedley Byrne v Heller (1964, Eng. HL)53

Queen v Cognos (1993, SCC)53

Hercules Management v Ernst & Young (1997, SCC)54

Haskett v Equifax (2003, Ont. CA)55

Wilhelm v Hickson (2000, SKCA)55

Winnipeg Condo Corp v Bird Construction (1995, SCC)55

Hasegawa v Pepsi (2002, BCCA)56

Design Services v Canada (2008, SCC)56

Negligence: Introduction

Negligence is the biggest area of tort law

Refers to conduct that falls below a normal standard, compared to the standard of the reasonable person

Negligence identifies interests worthy of protection and balances the risk of harm with the utility of conduct

Policy rationales: deterrence, compensation

Elements of a negligence action:

Duty of care: Legally recognized duty of care to avoid harm to the plaintiff

Breach of the standard of care: Conduct must fall below the standard of care, i.e. the defendant acted negligently

Causation: Factual causation, i.e. the plaintiff must establish a causal connection between negligent conduct and his/her loss

Remoteness: Legal causation, i.e. defendants conduct must be the proximate cause of the plaintiffs injuries (damage cannot be too remote in time or place)

Damages: Must cause injury to one of the legally protected interests of the plaintiff

Cases

Mustapha v Culligan (2008, SCC)

Principle: Sets out four requirements for a successful action in negligence.

A plaintiff must demonstrate:

1. That the defendant owed him a duty of care;

2. That the defendants behaviour breached the standard of care;

3. That the plaintiff sustained damage; and

4. The damage was caused (legally and factually) by the defendants breach.

Duty of Care

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

1960s: expansionary period in negligence law. Since 2000s: contracting period.

Often depends on time/context (e.g. during industrialization, courts were reticent to impose duties of care did not want to limit industrialization)

Historically, only specific relationships established a duty of care (bailees, apothecaries). This expanded hugely with the neighbour principle in Donoghue v Stevenson

Decided in 1932, but ideas of reasonable foreseeability/neighbour principle didnt become generally accepted/applied until the 1960s/70s

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

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

History: The Importance of Foreseeability

Cases

Palsgraf v Long Island Railroad (1928, US)

Facts: Man running for train railroad guard pushed him on, man dropped a package containing fireworks, which exploded scales further down the platform fell and injured plaintiff. Plaintiff sues railway company (remember, negligent act is the push, not the dropping of fireworks).

Cardozo: Rights-based view plf can only win if dfs conduct was wrong in relation to her.

Proof of negligence in the air isnt enough

Negligence is a term of relation: depends on whether the risk was reasonable (i.e. reasonable foreseeability), and whether the plaintiff was in the risk zone

The plaintiff wasnt in the risk zone no duty was owed to her

Thus there must be 1) foreseeability of harm, and 2) some kind of antecedent relationship between the parties

Held: Complaint dismissed

Andrews (Dissent): Excessive risk view plf wins if dfs conduct exposed her to unreasonable risk

Takes a broader approach you are liable to anyone who suffers harm as a result of your injuries (up to a point) rather than looking at whether a duty was owed

You owe a duty to everyone rather than duty, remoteness can be used as a limiting device

Where do we draw the line? This is an arbitrary policy decision a rough sense of justice the law simply draws a line at a certain point and refuses to go beyond it

Held: Defendant was negligent, and thus is liable for the proximate consequences, which include the explosion and resulting injury.

Donoghue v Stevenson (1932, Eng. HL)

Facts: Snail in the bottle of ginger beer. Plaintiff sick. NB: Many intermediaries between plaintiff and manufacturer & no contract between them.

Issue: Does the manufacturer owe a duty of care to the ultimate consumer?

Lord Atkin: Defines the duty of care out of the Christian neighbour principle: Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question

Proximity: not just tied to physical proximity, but anyone in close and direct relation

This is a sound, common-sense approach, supported by strong social policy reasons

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

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

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

Expansion

Cases

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

Facts: Kids in juvenile home escaped & damaged yachts. Yachts sue prison guards who said they were immune (Crown entity).

Issue: Did prison guards owe a duty of care (thus vicariously liable) or were they immune?

Held: Court found in favour of government liability.

Principle: Landmark case said the neighbour principle should be viewed as a general principle.

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

The Modern Approach: Additional Sources for the Duty of Care

Anns test: Came from Anns v Merton (1978, Eng. HL)

Adopted in Kamloops v Nielson (1984, SCC), reaffirmed in Cooper

Two stage test determining duty of care, which requires:

1. A finding of proximity sufficient to create a prima facie duty of care

2. Consideration of whether any factors negative that duty of care

Led to a huge expansion in negligence law many new duties recognized

Anns as reformulated in Cooper:

1. (a) Reasonable foreseeability

1. (b) Proximity

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

2. Residual policy concerns.

Burden of proof is on the plaintiff to establish a prima facie duty of care then shifts to defendant to show countervailing policy concerns (Odhavji, Childs)

Odhavji Estate v. Woodhouse (2003 SCC): Affirms the Anns test, formulated as three requirements: 1) reasonable foreseeability, 2) sufficient proximity, and 3) the absence of overriding policy concerns which override a prima facie duty

Nonfeasance v. Misfeasance

Misfeasance (act): A positive act that endangers others or their property

Nonfeasance (omission): Failure to act for the benefit of others, or to protect them/their property from impending danger

Courts are reticent to impose liability for nonfeasance (negligence law does not oblige you to protect someone, or help them from dangers we didnt create)

Osterlind (1928, US): Man visibly intoxicated, rented canoe from df, fell out, hung on calling out for half an hour before he drowned. Held that df had no legal duty to assist him.

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

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

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

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

Commercial hosts:

One recognized area of duty to act is between commercial hosts and their customers/third parties injured by their customers

Trilogy of cases pre-Childs in this regard:

Jordan House v Menow (1974, SCC): Menow kicked out of pub, left alone drunk to walk a mile down the road (pub knew his route home). Commercial host had a duty to ensure he was not exposed to injury because of his intoxication.

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

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

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

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

Common denominator: all defendants had benefited economically

Joint and several liability: Apportionment is important here (if apportioned between commercial host and intoxicated patron, as long as plaintiff is not contributorily negligent then can go after either for 100%)

Cases

Cooper v Hobart (2001, SCC)

Facts: Investor alleges that Registrar of Mortgage Brokers is liable in negligence. Registrar suspended licence but didnt tell investors (investor lost $, pure economic loss).

Issue: Does the Registrar owe a private law duty of care to members of the investing public?

Reasons: Donoghue established the negligence principle: liability only if there is a) reasonably foreseeable harm and b) a close and direct relationship of proximity or neighbourhood

What is proximity? Often based on precedent. Categories not closed.

Imp. of the Anns test: Explicitly recognizes policy considerations in determining proximity

Doesnt really matter at which stage they come up, as long as they are considered

Rearticulates the test:

Stage 1: 1) Was the harm reasonably foreseeable? Plus something more - proximity

2) Are there reasons, notwithstanding any proximity, that tort liability should not be recognized? (Policy questions focused on the specific relationship between plf and df).

If foreseeability/proximity established at stage 1, prima facie duty arises.

Stage 2: Consider residual policy concerns, outside the relationship between plf and df.

At stage 1, reasonable foreseeability of harm must be supplemented by proximity

Proximity characterizes the type of relationship in which a duty arises, often identified through categories (usually try to analogize to an existing category)

Proximity describes the close and direct relationship used in Donoghue

Can look at expectations, representations, reliance, and property and other interests involved

Numerous factors which determine whether it is fair to impose a duty on the df

No unifying characteristic proximity is a broad concept depends on the circumstances of each case

At stage 2, looks at larger, societal concerns (ensures that tort law develops incrementally and carefully). What is the effect on legal system/society of recognizing this duty?

NB: Said at this stage the policy/operational distinction can be made for govt actors

Held: Court looks to the statute to define the relationship between the parties/assess proximity

Novel duty of care analysis (no existing category)

No duty for policy reasons (would create a conflict of interest between public duty of efficient mortgage marketplace, and private duty to individual investors. Public duty trumps.)

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

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

Childs v Desormeaux (2006, SCC)

Facts: Desormeaux leaves party, drunk, hits car and paralyzes Childs. Host walked Desormeaux to his car and asked, Are you okay, brother?

Issue: Do social hosts owe a duty of care to a third party injured by an intoxicated guest?

Reasons: This is a new duty analysis (social hosts different than commercial hosts). 3 differences:

1. Commercial hosts can monitor patrons alcohol consumption & have special knowledge

2. Sale/consumption of alcohol is regulated by legislatures strict rules to control sales, cut people off, kick them out, etc (unlike private parties)

3. Commercial hosts make a profit are in a contractual relationship with patrons

These differences create a special relationship between commercial hosts and patrons social hosts dont fall in the same category

New duty analysis, stage 1:

Foreseeability: Hosts knew Desormeaux had been drunk driving in the past, but no evidence they knew he was drunk this time. Thus, injury not reasonably foreseeable.

Knowledge that he had drunk driven in the past too weak to support an inference

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

Policy concerns: individual autonomy (positive duties to act are not free-standing)

A positive duty of care may exist if there is foreseeability and if other aspects of the relationship between plf/df create a special link or proximity

Three situations where such a duty to act has been recognized:

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

2. Paternalistic relationships of supervision and control, e.g. teacher-student

3. If df exercises a public function or has implied responsibilities to public at large, like a commercial host serving people owes duty not only to patrons but to third party users of the highway (Jordan v Menow, Stewart v Pettie)

To establish proximity w/ a positive duty to act, must fit in one of these categories

Three themes which unite all three situations:

1. Creation/control of a risk to which others have been invited

2. Concern over individual autonomy duty to act only imposed if there is a special relationship to person in danger or a material role in creating risk

3. Reasonable reliance (e.g. if you create risk and invite someone into it, you an reasonably expect that people will rely on you)

Social host doesnt fit into any of these categories where a duty has been recognized

The three themes do not come up here (throwing a party isnt a risk requiring positive action, no special relationship re: autonomy guests remain responsible for their conduct, and no reasonable reliance on a private host to monitor alcohol consumption)

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

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

Injury wasnt foreseeable

Even if it was, this is a case of nonfeasance, and there is no positive duty for the social host to act (unless the host was implicated in the creation/exacerbation of the risk)

Fullowka v Pinkertons (2010 SCC)

Facts: Strike at mine in NWT; ongoing violence; Pinkertons came in as security guards. Warren set a bomb, killed 9 miners, only then did the govt close the mine. Claim against Pinkertons for negligently failing to take safety precautions (thus was a claim based on a failure to act), and govt for failing to maintain safe working conditions.

Issue: Was Pinkertons negligent in failing to take reasonable care to prevent the harm inflicted n the miners by Mr. Warren? Novel duty of care question.

Reasons: Foreseeability yes (not only was it reasonably foreseeable, but Pinkertons actually did foresee the risk of harm).

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

Like Childs, concerned with positive duty to act in the case of a nonfeasance

NB: The 3 categories in Childs re: positive duties to act are non-exhaustive

3 factors from Childs where law has recognized such a duty:

1. Was df materially implicated in creation/control over risk?

2. Concern for autonomy of persons affected by the positive action proposed (can either be the autonomy of those required to be helped, or for those being required to act changes depending on context)

3. Did the plf reasonably rely on the df to avoid/minimize risk?

Plfs reasonably relied on Pinkertons to take care, Pinkertons could reasonably expect this reliance (it was their job to protect the miners!), and Pinkertons did have control over people who came onto property sufficient to support a finding of proximity, leading to a prima facie duty of care

Burden then shifts to dfs to establish residual policy considerations (must be compelling, real potential for negative consequences of imposing duty cant be speculative)

Rejects residual policy concerns (cant be liable for the fault of another but here they were liable for their own negligence in relation to the fault of another, no indeterminate liability, no conflicting duties)

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

Thus, prima facie duty not negated by residual policy concerns

Held: Yes, duty of care did exist, but that duty wasnt breached Pinkertons met the standard.

Standard of Care

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

Unreasonable Risk

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

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

Can be imposed by legislation (rare) or by community standards

Central question: Did the defendant depart from the standard that a reasonable, objective person would expect in the circumstances?

Courts will consider quantum of damage

Courts can look at party (e.g. physician is required to meet the standard of a physician, not a normal layperson)

Courts can also look at customs, trade practices, industry standards, legislation, building codes all can be indicators of reasonableness (court not required to accept them)

Essentially asking, did the defendant take a reasonable risk?

Courts often balance the dangerousness of the activity with its usefulness

Courts will consider:

The probability of harm

The seriousness of the loss/injury

Costs of remedial measures

Purpose/utility of the activity

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

Conduct is negligent if it creates an objectively unreasonable risk of harm

Courts will use the standard of an ordinary, reasonable and prudent person in the same circumstances

Measure of what is reasonable will depend on the facts of each case. Includes:

Likelihood of a known/foreseeable harm

Gravity of that harm

Burden/cost which would have been incurred to prevent injury

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

NB: Should also look to utility of conduct

Bolton v Stone (1951, Eng. HL)

KEY FACTS

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

ISSUE

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

HELD

No

RSNS

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

Not enough that harm is simply possible

People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.

Foreseeability of harm may be enough to ground a duty of care, but foreseeability alone will not determine whether the standard of care has been breached

Rather than foreseeability of harm, the test is whether conduct was unreasonable

Will always be a context-specific inquiry

Policy: Crowded, modern life even the most careful person cannot avoid creating some risks and accepting others. What a careful person must do is not create a risk which is substantial.

RATIO

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

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

Paris v Stepney Borough Council (1951, Eng. HL)

KEY FACTS

Plaintiff only had one good eye, when working a chip of metal flew into his eye and blinded him.

NB: It was not ordinary practice for employers to supply goggles in this scenario

ISSUE

Was employer negligent in not supplying goggles? Is special risk of injury a factor in determining the standard of care an employer must meet in his duty to employee?

HELD

Yes

RSNS

His injury doesnt make the probability of risk occurring higher, but does increase risk of seriousness if injury does occur

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

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

Only one good eye an ordinarily prudent employer would supply goggles

Thus, shifts historical focus from able-bodied people; the standard owed to him was different than the standard owed to an employee with 2 good eyes

Remedial measures: simple and inexpensive precaution

RATIO

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

Stewart v Pettie (1995, SCC)

KEY FACTS

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

ISSUE

Did commercial host meet standard of care, or were they negligent in failing to ensure that Pettie didnt drive?

HELD

No (met standard)

RSNS

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

Duty of care relates to the relationship between the parties; standard of care relates to the conduct required to satisfy that duty. Dont confuse!

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

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

Over-serving itself is not a breach of the standard of care

Courts reluctant to impose liability for failure to act requires some special relationship to impose a positive duty (e.g. Crocker v Sundance)

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

Policy: Tort law enforces reasonable standards and prevents risk-creating behavior. It doesnt require the wisdom of Solomon it just requires that people behave reasonably in the circumstances.

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

He was with two sober people (wasnt reasonably foreseeable that he would drive drunk)

If he had been by himself, they likely would have had to call his wife but she was already there! Clearly no need for them to intervene further, thus the standard wasnt breached

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

RATIO

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

Cost of Preventative Measures

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

Probability of harm

Seriousness of loss/injury

Costs of remedial measures (explored below)

Purpose or utility of activity

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

The Learned Hand Formula

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

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

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

If P x L < B, no liability. If P x L > B, liability.

Economic analysis: if larger cost (L) could have been avoided by smaller cost (B), then the efficient answer is liability

Thus, considers three variables: probability of a given event, gravity of the resulting injury, and the burden of adequate precautions

Criticisms of this formula: Not all losses are quantifiable

Strict economic analysis doesnt take into account values like privacy, freedom, health, which may be impacted when a df behaves unreasonably

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

Rentway Canada v Laidlaw Transport (1989, MVR)

KEY FACTS

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

Allege that tire blew, damaged one of the headlights, and because it was on the same circuit the other light went out as well driver couldnt see, lost control

This would make Pakar (the manufacturer) at least partially liable

Manufacturer maintained they were aware of this possibility, but it was such a low probability of occurring that they took no steps against it

RSNS

Huge cost of truck, versus cost of rewiring circuit (very low)

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

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

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

RATIO

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

Utility of the Defendants Conduct

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

KEY FACTS

Defendant police officer on duty, saw lights on in optometrists office

Believed a burglar was in progress, rushed over, slipped on a ice, injured himself

Ice was caused by cleaning lady emptying water

ISSUE

HELD

RSNS

Trial judge: said a reasonable person would have seen the ice & not slip, plus he was a beat cop it was his duty to monitor his beat/report any danger (but does ice really count here?)

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

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

RATIO

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

Good Samaritan Act

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

This legislation is meant to encourage professionals and laypeople to provide assistance

Legislative reduction in the standard of care if you assist someone and actually make it worse (unless you are employed expressly for that purpose, or do so with a view to gain)

Exception: if you are grossly negligent (VERY rare finding)

NB: if off-duty professional (e.g. doctor) stops to help, they will be protected, BUT grossly negligent will be assessed against what a reasonable person with their training would have done

Unreasonableness & Fault

The Reasonable Person

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

Not based on defendants personal characteristics or particular idiosyncracies

This test addresses the minimum standard of care we must meet in regards to each other. Speaks to our intelligence, competence, and also moral qualities

Knowledge: We are supposed to have knowledge of every day reality (e.g. water makes smooth surfaces slippery). We have knowledge of our own experiences, but we are note expected to have specialized knowledge & must recognize the limits to our knowledge

Rationale: Consistent, predictable minimum standard by which everyone will be judged

Promotes public safety

Plaintiff-favourable (subjective test would favour a defendant)

Judges cant use themselves as measuring sticks (cant place themselves in defendants shoes and ask what they would have done)

Criticisms: Does this sufficiently integrate women, marginalized groups, etc?

Who is normal and who decides what our norms are? (Dominant groups)

Gender bias: historically, pregnant women stayed home, so used to be held that it wasnt reasonably foreseeable to have a pregnant woman out in public

Up until 1970s, defendants could make successful claims that people with disabilities shouldnt be out and about (e.g. London case: post office didnt have to cover manhole to insure blind people didnt fall in)

Vaughan v Menlove (1837, UK)

KEY FACTS

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

Fire starts, spreads to plaintiffs property, burns down his cottage

Jury found him guilty; he appealed the judges charge to the jury based on the reasonable person test (said as long as he acted honestly and to the best of his ability, he cannot be liable)

ISSUE

Should defendants low intelligence factor into the reasonable person in the standard of care analysis?

HELD

No

RSNS

Upheld objective, reasonable person test

To go with this argument would leave no standard at all

To cater the test to each persons individual characteristics/views on what is reasonable would be infinitely various and too hard to apply

Best to stick to the man of ordinary prudence as the standard of conduct

RATIO

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

Children

Common law sometimes departs from a reasonable person standard to adopt a standard consistent with defendants personal characteristics

Might be raised for professionals

Often lowered for children or those with disabilities which prevent them from meeting the reasonable person standard

No fixed age for where no liability can be found but generally under the age of 5.

Parents are not vicariously liable for their childrens torts

However statutes have reversed this in some situations i.e. property damage in BC.

Since 1950s, Canada has used the mixed objective/subjective test for children (Heisler)

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

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

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

Thus, starts with a careful subjective analysis of the childs ability, then an objective analysis

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

Emerged from motor vehicles (must hold kids driving to adult standard if you see a car on the street, you expect it is an adult driving, cant take extra care and adjust your behavior accordingly)

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

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

Heisler v Moke (1971, Ont. HC)

KEY FACTS

Child was already hurt by defendant and then re-injured himself

Child was warned not to jump on the clutch because he would re-injure his leg, but he did so anyway thus df argues he was negligent in his own re-injury

ISSUE

Is defendant liable for the re-injury, or was the child contributorily negligent?

HELD

Yes (df liable)

RSNS

Three possible approaches re: negligence of children:

1. A completely objective standard (a reasonable child of similar age)

2. A completely subjective approach (particulars of that child and what they understood dangers to be)

3. A mixed objective/subjective test what would a child of similar age, intelligence and experience as the defendant do?

Objective part: age. Subjective par: intelligence/experience

Held: This child was alert, intelligent, capable of being found negligent. However, a child of 9 wouldnt be reasonably expected to know that stepping on tractor clutch would exert the same pressure as jumping on it

RATIO

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

Pope v RGC Management (2002, ABQB)

KEY FACTS

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

Pope was instructing him in a junior golf program

ISSUE

Did Nayykens breach the standard of care owed to Pope?

HELD

No

RSNS

Uses mixed objective/subjective test to assess childs negligence

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

Children engaged in adult activities will be held to adult reasonable person standard (e.g. snowmobiles) more lenient standard for children driving, for example, would be unrealistic and inimical to public safety

RATIO

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

Nespolon v Alford (1998, Ont. CA)

KEY FACTS

Very drunk 14 year old Snider driven home by Alford and Berard (both 16)

Stopped at Burger King, cop said Snider too drunk take him home

Two boys didnt know where he lived, Snider asked to be let out in front of a house, drunk and staggering across yard

Boys left & came back twice. Snider staggered onto road and was struck by Nespolon. Died. Nespolon suffered PTSD and now sues the estate

ISSUE

Can the driver recover damages for psychological injury from Sniders estate or from the two teenagers?

HELD

No

RSNS

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

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

Use mixed objective/subjective standard

Boys not negligent: based on their experience/knowledge, they had no reason to suspect Snider was at risk, and wasnt reasonably foreseeable that dropping him off this way would injure a driver

Boys had not been drunk before, didnt know where he lived, dropped him off at a reasonable location

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

Further, no negligence on the part of Snider

DISSENT

Uses mixed objective/subjective standard to say boys were negligent

Reasonable, mature 16 year olds, had seen drinking/drug use, understood the responsibility they had to get Snider home, couldve assisted him further, understood the standard of care that should be reasonably expected of them in getting him home

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

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

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

RATIO

When using the adult activity analysis, look at the specific activity in question, not the overall activity (dropping someone off isnt an adult activity, though driving is).

Mental Illness

If you have a disability, you are expected to adjust your behaviour to accommodate this

Issue of volition: voluntariness of conduct

If you drive & have heart attack & lose control of car, likely not negligent

If you have symptoms of heart attack and then decide to get in car & go to hospital & lose control of car, you may be held liable

Issue of capacity: being able to understand/appreciate consequences of conduct

If no capacity to understand or discharge duty, no liability

Fault-based system: Unfair to hold a df liable who acted without volition or capacity, because they acted without fault

Tension between finding fault but still ensuring compensation for a plaintiff

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

Fiala v Cechmanek (2001, ABCA)

KEY FACTS

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

Broke through sunroof of Cechmaneks car and began strangling her; she involuntarily accelerated, hit Fialas car, injured both occupants

NB: Expert testified that bipolar results in lack of control, especially re: emotions (cant hold a person accountable for their actions)

ISSUE

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

HELD

No

RSNS

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

Competing goals of tort law: fault and compensation

Four arguments to hold mentally ill to the higher, reasonable person standard:

1. Of two innocent parties, the person causing accident should be liable (victim compensation as the primary aim of tort law)

2. Practical difficulties hard to assess mental illness (what if faking it?)

3. Deterrent holding mentally ill to higher standard will ensure caregivers will take adequate precautions (imp. in our deinstitutionalization era)

4. Holding mentally ill to lower standard will erode the objective standard

Judge goes through and rejects each argument:

1. Fault is still an essential element of tort law (holding someone liable without fault creates strict liability only exists in limited circumstances, usually where people choose to act in a certain way for profit, where losses can be distributed over a broad consumer base - clearly doesnt apply to mentally ill)

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

What about children/physically disabled? Not held to higher standard.

Helps prevent negative stereotypes against mentally ill (shouldnt allow lower standard for physical disabilities and not mental illness)

2. Advances in medicine/science = we can create a test. Cant just reject this for practical difficulties

3. Shouldnt use tort law to hold caregivers to a higher standard (if they fail in their duties, they should be held directly liable)

4. Subjective test for mental illness will not erode objective standard will preserve elements of capacity and volition which are essential in our fault-based system

US: hold mentally ill to objective reasonable person standard highly criticized

Canvasses numerous tests was the mental disorder manifestly incapacitating?

Crafts test below. While victim compensation is a worthy goal, this will preserve crucial element of fault (by recognizing need for volition/capacity)

Held: He was afflicted suddenly & without warning, no meaningful control over his actions, was unable to appreciate the duty of care that was owed.

TEST

To be relieved of tort liability due to mental illness (if the defendant is afflicted suddenly and without warning), he must prove, on a BOP, either:

1. He had no capacity to understand or appreciate the duty of care owed at the relevant time, or

1. He was unable to discharge his duty of care as he had no meaningful control over his actions at the time.

Burden of proof on the defendant to prove this.

RATIO

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

Evidence of Unreasonableness: Practices & Standards

Common Practices / Standards

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

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

Courts will consider customs/general practices, but wont always defer to them (used to be conclusive evidence; today, are only considered as a factor in determining what is reasonable and whether the defendant met the standard of care)

Courts will ask:

How long has that practice/standard been followed?

Universality

Status/reputation of profession or trade

Degree of difficulty of the activity in issue (e.g. surgeon doesnt count sponges, leaves one in patients throat negligent, no special skill needed to count)

Evidence of additional precautions that may have been available (e.g. surgeon could have counted sponges, or used strings to ensure all were removed)

Threshold: Must prove that

a) that there is a practice, and

b) that it is reasonable.

Waldick v Malcolm (1991, SCC)

KEY FACTS

Waldick fell at Malcolms farmhouse & was seriously injured. Parking area hadnt been salted or sanded; few people in the rural region did so.

ISSUE

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

HELD

Yes.

RSNS

Court said that: a) df failed to prove this even was a practice (party that is relying on it bears the onus of proof), and

b) this custom wasnt reasonable (just because a big group is guilty of negligent conduct doesnt make it reasonable)

Court emphasized that sand/salt = cheap and easy remedial measures

Accident foreseeable, and costs to prevent it were low

Court also retains power to evaluate customs and not protect those that are shown to be negligent

Thus the proof of a custom that is unreasonable in no way ousts duty of care

RATIO

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

Just because a df follows a local practice doesnt mean their behaviour was reasonable (Waldick)

Just because a df departed from a general custom doesnt mean their behaviour was unreasonable (Rolls Royce)

Brown v Rolls Royce (1960, Eng. HL)

KEY FACTS

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

ISSUE

Does dfs departure from industry standard mean they were negligent?

HELD

No.

RSNS

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

Df took reasonable care (relied on medical advice in not providing barrier cream)

Df was able to show that not providing barrier cream was reasonable thus they did not act unreasonably

NB: No causal link b/w skin condition & failure to provide cream

RATIO

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

Warren v Camrose (1989, Alta CA)

KEY FACTS

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

ISSUE

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

RSNS

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

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

Court accepts this expert testimony. Doesnt bind the court, but is v. strong evidence. Courts only override if it offends logic or common sense.

Trial judge cant substitute his/her view for expert opinion w/out good reason.

RATIO

Expert evidence as to why a custom is reasonable is not absolutely binding on a court, but provides very strong evidence.

Professional Standards

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

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

ter Neuzen v Korn (1995, SCC)

KEY FACTS

Plf sues Dr for contracting HIV through artificial insemination

Procedure in 1985; no common knowledge that HIV could be transmitted in this way

Drs practice was custom across Canada at the time (Drs in Australia were aware of the possibility at the time, but this info wasnt widely available in Canada)

ISSUE

Can a Dr be negligent despite following a standard practice, custom or procedure?

HELD

General rule is no (but there can be exceptions)

RSNS

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

Caution: courts shouldnt over-rely on hindsight must measure against prevailing standards/practices at the time

Dr met standard of other specialists in 1985 so was that standard unreasonable?

General assumption that medical practices are reasonable not up to Court to rule on questions of science or to get involved in controversial questions of assessment of diagnosis or treatment preference (courts/juries dont usually have the expertise)

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

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

RATIO

If a procedure involves difficult/uncertain questions of medical treatment, or complex scientific matters, then it is not open to find a standard medical practice negligent.

BUT exception to the general rule if standard practice fails to adopt obvious and reasonable precautions, apparent to ordinary people, then compliance with custom is NOT a bar to liability.

Practice/Standards Summary

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

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

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

Statutory Standards

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

Statutory standard versus negligence law:

If you violate a statute, you may be fined, but you may not be required to compensate the person actually injured (fine goes to govt)

Strict liability: you may be fined even if no damage (unlike negligence)

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

Issue

Held

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

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

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

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

If the df doesnt follow statutory standards, is that in and of itself an indicator of negligence?

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

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

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

Canada v Saskatchewan Wheat Pool (1983, SCC)

KEY FACTS

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

Canada (Board) had to pay lots of $ to fumigate ship now wants to recover lost $

Wheat Pool had taken all precautions, done their duty but wheat-infested grain contravened the Canada Grain Act, thus strict liability (i.e. doesnt matter how or why wheat is infested; you delivered infested grain, you violated Act, you are subject to a penalty)

Act dictated penalty, so Wheat Pool paid, but Board had incurred almost $100,000 in expenses and wanted compensation for this penalty didnt deal with this

NB: No evidence of negligence, & Board wasnt making a negligence claim

ISSUE

What are the effects of the breach of a statutory duty? Is the statutory violate enough to bring private law claim for damages?

HELD

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

RSNS

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

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

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

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

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

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

If Pool HAD been negligent, then Board could have sued for damages in negligence but there was no negligence here, so the Board couldnt sue simply because they violated the Act in a strict liability sense

Different approaches:

US: Approach #1 = if you breach the statute, this is conclusive evidence of negligence UNLESS there was some valid excuse (Canada rejected this negligence per se approach basically creates strict liability and abdicates courts responsibility to determine what is reasonable it simply says, if you violate the statute, you are negligent)

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

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

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

RATIO

A statutory standard may be evidence of the standard of care, and a statutory breach may be evidence of negligence, but is not determinative. No independent tort of statutory breach.

A statutory breach may be evidence of negligence, and must have caused the damage complained of.

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

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

Cant look for what isnt there (i.e. legislative intent to create a civil cause of action)

Due to industrialization, there was historically special consideration for industrial statutes (i.e. strict liability). This shouldnt extend to other fields

No need for a tort of statutory breach (many statutes increasingly deal with civil responsibility/individual compensation consumer protection acts, rental acts, etc)

Keep our system fault-based (what if you breached a statute but werent actually negligent, and then had to pay lots of $?) Minimum fault could result in heavy liability.

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

For the statutory standard to be relevant to the dfs conduct, it must be:

a) in violation of the statute, and

b) the purpose of the statute must be to protect people like the plaintiff against the type of loss they have suffered.

Gorris v Scott (1874, Exchequer Court)

KEY FACTS

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

There is a storm sheep are swept overboard

Turns out statutory requirements havent been

However, legislation has nothing to do with storm safety and is just about disease

Plaintiff tries to rely on the breach of statute to sue civilly

RSNS

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

RATIO

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

Ryan v Victoria (1999, SCC)

KEY FACTS

Motorcyclist gets tire stuck in railway track and is injured

Track is consistent with statutory regulations, so Railway denies liability on the grounds that it complied with all statutes/regulations re: railway tracks

ISSUE

Does compliance with a statutory duty equate meeting the standard of care?

HELD

No.

RSNS

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

I.e. a statutory breach doesnt automatically give rise to liability (though it may be evidence of negligence); conversely, simply complying with a statute doesnt necessary preclude liability

Lots of overlap, but neither standard abrogates/supercedes the other

But, statutory standards are highly relevant when assessing reasonable conduct

Historically special protection for Railway companies (due to their huge historical importance, the statutory standard was the common law standard) but not so anymore they are subject to negligence, like everyone else

Normal circumstances: compliance w/ a statute = common law standard of care

Exceptional cases: statutory standard is insufficient = additional common law requirement of reasonableness. Factors:

Statutory compliance more relevant in ordinary cases (i.e. cases clearly within intended scope of statute, not unusual circumstances)

Is the statute specific or general? (more detailed = more likely to satisfy)

How much room for discretion?

A very general statute w/ lots of room for discretion = it is less likely that compliance with the statute will satisfy the common law duty of care

Policy: This balances between deference to Parliament (on matters of railway safety, security etc) and protection for those who might be injured due to unreasonable choices made by railways.

Summary: If a statute authorizes specific activities and strictly defines the manner of performance/precautions, then compliance w/ the statute likely satisfies the standard of care. But if the statue is general, permits lots of discretion, or unusual circumstances exist which arent clearly within the scope of the statute, then mere compliance with the statute is unlikely to exhaust the duty of care.

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

Statute didnt actually apply (to high way crossings only not this case)

NB: The presumption is that the common law standard of care applies (burden on them to show that a regulatory standard is meant to govern a particular situation as a reasonable substitute. They failed to do so here).

Even if regulations did apply, they still had lots of discretion (there was a range instead of a uniform standard for the width of flangeways) didnt take all reasonable steps to minimize foreseeable harm

They were aware of risks (had been 3 other accidents)

Railway was thus subject to common law standard of care. Harm was foreseeable. B/c of hazard created & remedial measures available, Railway was obliged to take precautions, which they failed to do, and thus were negligent.

RATIO

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

Causation

General on Causation

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

Factual causation: Is there a factual/causal link between the defendants conduct and the plaintiffs injury?

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

Centres on issue of remoteness & policy considerations

Fault-based tort system = causation is incredibly important

Courts have been incredibly flexible here (no single test) but the main test is but-for

The But For Test

This is the primary test for factual causation

It is a speculative test (i.e. court must hypothesize what wouldve happened if the defendant had not acted)

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

Causation must be proved on a BOP (but, per Snell, not with scientific precision)

Athey v Leonati (1996, SCC): The test for causation is the but for test, which requires the plf to show that the injury would not have occurred but for the negligence of the df

No need to prove that the negligence is the sole cause (may be a myriad of other background events which are necessary preconditions)

As long as df is part of the cause, df is liable, even if his act alone wasnt enough to cause the injury

No basis for reducing liability because of the existence of other preconditions (i.e. no apportionment between tortious causes and non-tortious causes)

Dfs remain liable for all injuries caused or contributed to by their negligence

But there may be apportionment if more than one defendant is liable (joint and several liability)

Common problems:

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

Courts must be careful not to say that correlation equals causation

Courts have expanded the but-for rule slightly to allow inferences to be made, in cases where factual causation is difficult to prove (see below)

Snell v Farrell (1990, SCC)

KEY FACTS

Plf went to defendant Dr for eye surgery (DOC clearly owed)

Possible complication during surgery but Dr continued (negligent act)

Later, optic nerve atrophied & left eye blind; was the atrophy from the complication during surgery, or from a stroke suffered by the plaintiff?

No medical experts were able to say what caused the atrophy or when it occurred

Lower courts applied the material increase of risk test (which basically says, if you materially increase the risk and it happens, you are liable and the burden of proof shifts to the defendant to prove that they didnt cause the harm)

SCC rejects this and upholds traditional but-for test

ISSUE

Should the causation test be changed (shift the burden of proof = less onerous standard) for malpractice suits, b/c Dr is in better position to know whether they caused the harm?

HELD

No. Stays on plaintiff.

RSNS

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

Numerous tortfeasors, man-made diseases, medical malpractice

Burden of proof: Can shift over time. Based on two fairness-based principles:

1. Onus is on the party who asserts a proposition (usually the plaintiff)

2. If subject-matter lies particularly within the knowledge of one party, that party may be required to prove it

McGhee: UK case labourer exposed to clouds of abrasive dust, contracted dermatitis, couldnt establish factual causation on a but-for basis.

New principle emerged to reverse burden of proof: plf need only prove the df created risk of harm and that the injury occurred within the area of risk

Test based on material contribution to risk of harm

Re-interpreted by HOL: says it doesnt create a new principle (BOP stays with plaintiff) but is a robust/pragmatic approach which allows an inference to be drawn that the dfs negligence materially contributed the plfs injury

Rejects shifting BOP (per McGhee) for the df to disprove causation. Why?

Traditional rules sufficient (no evidence that many plaintiffs are being denied compensation due to a failure to prove causation)

Risks overcompensating plaintiffs when df didnt actually cause the loss

Dont want medical malpractice crisis like in 1970s US (insurance up 500%)

Would lead to an increase in groundless claims = defensive medicine

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

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

Experts dont need absolute certainty reasonable certainty is okay (51%)

Application: Inference can be drawn that the injury was caused due to negligently continuing with the operation. No evidence to rebut this inference. Thus, causation should be found. (A common sense inference isnt the same thing as speculation.)

RATIO

Affirms traditional but-for test, but relaxes it slightly. Ultimate BOP is on plaintiff, but in the absence of evidence to the contrary, an inference of causation may be drawn.

(Plf need only bring enough evidence to reasonably allow the court to infer causation; df is then free to bring contrary evidence the more persuasive the evidence, the more difficult it will be for the plf to satisfy the court that the causation inference is reasonable). NB: This is NOT a shift in burden it remains on the plf.

Notes on Snell:

They reject the material risk test (i.e. df created the risk and thus there is causation unless the df adduces evidence otherwise) but isnt this the same as drawing an inference re: causation?

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

Res ipsa loquitor: The thing speaks for itself. Old evidentiary rule allowing court to reverse onus of proof in causation cases (i.e. in medical malpractice, if no other reasonable explanation, then courts could find factual causation). 1997: SCC said, courts CANT use this anymore to find causation.

In summary:

Causation = central to a fault-based system

Standard test is the but-for test

Defendant's negligence need not be the only cause, it must simply be a cause, where there was a substantial connection/contribution to the injury

Remember: the "but-for" test isn't actually asking what the central factor of the injury was it is simply looking for a link between the defendant's conduct and the plaintiff's harm. A defendant's breach of the standard of care must have been the cause of some harm.

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

The Adequacy of the But For Test

Court has adopted a number of ways to get around inadequacies in the but for test:

1. An inference of causation can be drawn, based on very little evidence (Snell)

2. A reverse onus of proof can exist for trespass cases (Cook v Lewis, affirmed in Scalera)

3. The material contribution test as a policy-driven exception to but for (Clements)

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

Material Contribution Test

Main test for causation is but for. MC test is an exception.

Policy-driven test (going beyond fault) that courts apply for fairness reasons

Available when but-for test isnt adequate. Court has crafted this as an alternative (though it has never been applied)

The highly specific test (must be multiple tortfeasors, etc) prevents plfs from simply turning to this test as an alternative when regular but-for causation is hard to prove

Impossible cant simply mean a) hard to prove, or b) scientifically impossible (b/c scientific precision isnt required just a balance of probabilities)

MC test, as articulated in Clements, says must:

a) more than one defendant

b) all have acted negligently, and all can point the finger at each other

c) on a global but-for basis, plf wouldnt have been injured but for all of their negligence together

Cook v Lewis (1951, SCC)

KEY FACTS

Cook was shot by one of two people. Problem of proof impossible to say which one of the mens bullets it was

ISSUE

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

HELD

Yes.

RSNS

Cartwright J (Majority)

General rule is that if cant show which of two people is guilty, then both = innocent

But this is unfair if it is completely certain that one of the two caused the harm

Cant prove on a strict but for test, since it is equally possible for either to be guilty

Dfs cant then escape liability by each pointing the finger at the other

NB: Borrows the reverse onus from trespass law (i.e. plf proves trespass, then onus shfits to df to prove consent)

Ratio: Plf must prove definitely that one of two (or a group) cause the harm. If uncertain as to which, then BOTH are held liable unless one can prove that they didnt do it.

Rand J

Plf cannot prove which of two dfs caused injury, yet both were negligent

Not only have dfs acted negligently, but by acting in concert have made it impossible for plf to recover damages

Ratio: In situations of dual action where the plf has proven that one of two certainly caused the harm, there is a reverse onus on the df to prove that they did not case the harm. Otherwise, both are liable.

NOTE

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

Clements v Clements (2012, SCC)

KEY FACTS

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

Husband was admittedly negligent, but issue was still causation (expert testified that the probable cause of accident was the puncture, i.e. wouldve happened even if husband hadnt been negligent)

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

ISSUE

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

HELD

In very limited circumstances. Most often, but for test will be used. MC test doesnt apply in this case.

RSNS

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

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

Material contribution to risk of injury (MC) test: Replaces factual but-for causation. Only available in exceptional circumstances (if there are multiple wrongdoers who each point the finger at each other, but one one of them in fact did cause the harm & plf cant prove which)

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

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

This is a radical step (eliminating proof of causation) rarely available

Says that instead of the dfs act causing the injury, the act simply contributed to the risk that injury would occur

Many Canadian cases have indicated that the MC test could be applied if required for fairness reasons, but it has never actually been used (SCC has always ended up using robust & common sense appln of the but for test)

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

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

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

Looks to a global but-for test (i.e. negligence of dfs as a group)

Resurfice: Summarizes when MC test may be available:

a) If it is impossible to prove causation on a but for test

Usually occurs when there are multiple tortfeasors, all are at fault & one or more has in fact caused plaintiffs injury

Plf wouldnt have been injured but for their global negligence

Each can point the finger at the other, thus it is impossible for the plf to show who caused the injury on a BOP

Thus, the but for test works globally, but fails when applied to each defendant individually

NB: impossibility doesnt simply mean scientific impossibility, or that causation is simply hard to prove. Depends on the above factors.

b) If it is clear that the defendant breached its duty (i.e. acted negligently) in a way that exposed the plaintiff to an unreasonable risk of injury

MC test in such cases is supported by policy & satisfies goals of negligence law:

Compensation for the injury

Fairness (each df acted wrongfully & each may have actually caused injury, so holding them liable is fair)

Deterrence is furthered (dfs know they cant just point fingers at each other)

Corrective justice

Courts in Canada have never applied MC test to cases w/ a single tortfeasor

The traditional but-for test still applies in most cases w/ multiple tortfeasors MC test ONLY applies if there are multiple tortfeasors, all of whom acted negligently in a way that may have caused the injury, and each can point the finger at the other

Application: MC test not available here. This is a single-defendant case (not multiple), and scientific precision wasnt necessary for but for causation.

Just b/c plaintiff cant prove on a but-for basis doesnt mean you go strait to MC test (this would mean MC test would become the dominant test, and this goes against our basic fault-based system would shift the focus from fault to an enhancement of risk)

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

RATIO

General rule: a robust & pragmatic use of the but for test is usually sufficient.

Exception: a plf may use the MC test to show the dfs conduct materially contributed to the risk of injury, if:

a) plf establishes injury wouldnt have occurred but for the global negligence of two or more tortfeasors, and

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

Divisible and Indivisible Harm

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

Common concerns:

Some losses simply cant be compensated for

Cant overcompensate plaintiff

What if there is one accident, plf is recovering, and then there is another accident involving a different df? How to parse out the loss?

Divisible injuries: Injuries that can be separated out and have their damages assessed independently

Df is only responsible for the injury they caused

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

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

Bradley v Groves

KEY FACTS

Df injured in a car accident; was 80% recovered when she got in a 2nd accident

Trial judge concluded injuries from 2nd accident were indivisible from the 1st and held defendant from the 1st accident to be 100% liable

ISSUE

Does the holding in Athey (that indivisible injuries require joint & several liability b/w tortious causes contributing to the same injury) mean the Long formula is no longer available to determine responsibility among multiple tortfeasors?

HELD

Yes.

Position of the Parties

Dfs args: aggravating a pre-existing injury is not the same as an indivisible injury

Court should apportion damages between dfs per Long formula (assess damages from the day before the second accident, assess global damages from both accidents as of trial date, then subtract the first from the second)

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

Plfs args: No dif. b/w aggravation of an injury and the concept of indivisibility

Absent contributory negligence, any injury found to be indivisible results in joint and several liability for the tortfeasors

Argues the Long approach may apportion liability among tortfeasors, but that Athey has displaced its application in regards to indivisible injuries

RSNS

The authority on indivisibility is Athey dfs are jointly & severally liable

Long formula doesnt apply in cases of indivisible injuries (only to divisible injuries)

Athey: Involved multiple tortious & non-tortious causes

Court rejected apportioning liability for tortious & non-tortious causes

Liability should be apportioned jointly & severally between tortfeasors; their liability isnt diminished by the presence of non-tortious contributing causes

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

Divisible injuries isnt really apportioning, since you are just making the df each liable for the injury they each caused (e.g. I hurt the plfs foot, but you hurt the plfs arm not the same injury so we are just each liable for the harm we caused)

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

Thus, liability to a plf for indivisible injuries is joint & several

Thus, liability for indivisible injuries (whether from a combination of non-tortious and tortious causes, or only tortious causes) is joint & several (and then, per the Negligence Act, the various defendants can try to recover from each other).

Policy: As long as a defendant is part of a cause of injury, even if there are other factors (whether tortious or non-tortious), that defendant is liable, even if his act ALONE wasnt enough to create the injury

Based on fairness and justice

Ensures an injured party receives full compensation

Casts the burden of adjusting responsibility for payment on the wrongdoers

The Long formula cant apply to indivisible injuries (b/c it pre-supposes divisibility when it divides the injury over various points in time)

Concerns: Yes, this may mean a tortfeasor might be liable for more $ in the case of their negligence contributing to an indivisible injury, but this is dealt with by the legislation (which allows them to go after other tortfeasors for $)

Rejects the idea that aggravation and indivisibility are different

If one tort caused an injury, and another tort made that same injury worse, it is still the same injury

Showing multiple causes for the same injury does not excuse a tortfeasor (there are almost ALWAYS multiple causes for one injury)

It is really hard to divide the worsening/aggravation of a single injury

Indivisibility is a finding of fact to be determined at trial

Fault versus harm:

Apportionment is based on your degree of fault, not the percentage of harm caused

Apportionment under the Negligence Act is thus based on your degree of fault, so the Long formula wouldnt apply here (because this formula has to do with the percentage of actual harm caused)

RATIO

At common law, if there is an indivisible injury, defendants are joint and severally liable. Then legislation can kick in (Negligence Act) and let the defendants go after each other for the specific amounts owed (unless the plf was contributorily negligent, in which case joint & several liability doesnt apply)

Divisible and Indivisible Injuries: Summary

Indivisible

Divisible

Definition

Injuries produced by more than one cause that cannot be separated or have liability assessed independently.

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

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

One tort injury made worse by another tort is NOT divisiblethat is an indivisible injury.

Liability

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

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

Apportionment

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

No apportionment is therefore necessary.

Remoteness

General Rule

Remoteness is also called legal causation or proximate cause

It is a way to limit liability

Remoteness test is arguably pro-defendant but also emerged at a time when negligence law was expanding rapidly, plaintiffs could now recover in expanded circumstances, so this was a control mechanism

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

This is what Andrews refer