DUTY OF CARE

Is there an established duty? This is how most cases proceed (Hill) But categories are never closed (Donoghue) Can proceed by analogy alone (as with commercial hosts in

Donaldson) but probably best to move on to AnnsShould courts recognize a new duty of care?

Misfeasance or nonfeasance? CL is reluctant to interfere with autonomy by imposing positive duties (Childs), so this will affect how the test is applied

Apply the Anns Test, refined in Cooper Described as two steps, but helpful to split up step (1) Is there a prima facie duty of care? Onus on the plaintiff (Childs)

i. Was the harm reasonably foreseeable? (Palsgraf)ii. Is there sufficient proximity? o Maybe not necessary for misfeasance cases (Childs)o If nonfeasance, does it fit any of the Childs categories?

1. Invitation to engage in risky behaviour (Horsley, Crocker)2. Dependency (parent-child, teacher-student)3. D is exercising a public function or has the opportunity to

profit: enterprise risk (eg commercial host in Stewart)o If not, is it just to impose a new duty based on parties’

expectations, reliance, representations? (Cooper)o Can become proximate through representations or

undertaking to perform an action (Mainroad)o Not necessarily about proximity to the person: can be about

proximity to the harm (Hashemi-Sabet)o If a person has a duty to rescue and undertakes it negligently,

that creates a duty to a second rescuer (Horsley)o Think of the spectrum of proximity in government cases. From

most-to-least proximate: Hill-Fullowka-Cooperiii. Policy concerns re relationship: these may overlap with step two,

and are not treated as a separate step in Hill If a prima facie duty exists, are there residual policy reasons not to

recognize it? Cannot be speculative: there must be real potential for negative policy consequences (Hill)o Cooper: No proximity, but if there had been a duty it would have

been negatived because it was owed to an indeterminate group and would undermine the regulator’s quasi-judicial role

o Hill: The court rejected arguments about the police having a quasi-judicial role, and of a chilling effect on police work

Government liability Is there relevant statute?

o Crown immunity abolished by BC’s Crown Proceedings Acto Is there statute that exempts government actions?

Is this a True Policy decision?o This goes to step two of Anns-Cooper: residual reason not to

recognize duty: not appropriate to interfere with legislative prerogative (Cooper)

o True Policy: bona fide exercise of discretion, does not include admin direction or expert opinion (Just)

o Decision to have an office open during limited hours is a true policy decision, based on resource allocation, union negotiations (Brown)

o Making True Policy too broad would resurrect Crown immunity (Just)

o Should focus on the positive characteristics of True Policy (economic, social and political factors) rather than whether it was operational (Imperial Tobacco)

o Government can be liable for True Policy decisions if they are

made in bad faith (Imperial Tobacco)o The SCC may rule that certain actions against government should

be handled in admin law, or incorporate admin law principles (Paradis)

STANDARD OF CARE

The nature and scope of the standard of care “[A] person must exercise the standard of care that would be

expected of an ordinary, reasonable & prudent person in the same circumstances” (Ryan)

There is no breach if the harm was not reasonably foreseeable (Bolton)

o This is the basis for the doctrine of remoteness Based on fault, no absolute duty in negligence (Fullowka) “Tort law does not require the wisdom of Solomon” (Stewart) The standard is objective (this is rooted in the idea that a subjective

standard would be impossible to apply: Vaughan v Menlove) Note the words “in the same circumstances,” which can be used to

import some subjective elements into the objective standard. For example, a doctor is held to the standard of a reasonable and prudent doctor (ter Neuzen)

Exceptions to the objective standard Children are generally held to a mixed subjective-objective

standard:1) The threshold test (subjective): Is the child in question capable of

being found negligent? Consider age, intelligence, experience and alertness

2) The modified objective test : Did the child’s behaviour meet the standard of a reasonable and prudent child of that age?

However, children are held to an adult standard when participating in adult activities, including driving, and golf for some reason (Pope)

o In assessing the activity, courts may focus on the specific conduct that caused the harm (dropping someone off, as opposed to driving: Nespolon)

Mentally disabled defendants, where the disability is sudden and unforeseen, will not be liable if they can show one of the following, on a balance of probabilities: (Fiala)

1) They did not have the capacity to appreciate the duty of care; or2) They lacked meaningful control at the time the duty was breachedo Note that these would likely apply differently if the risk were

preventable through treatment or some other meansWhen is the standard breached?

There is no breach if the defendant took reasonable steps. For example:

o Seeing that patrons have a sober driver (Stewart)o Seeking legal advice and relying on it in good faith (Fullowka)

In determining the standard of care, courts will look at the likelihood of harm, the severity of the harm, and the cost of remedial measures (Paris)

o The same factors make up the Learned Hand Formula: breach occurs where the probability of the harm multiplied by the gravity of the harm are greater than the burden of prevention (Carroll Towing)

o If consequences are severe and remediation is cheap, the standard will not be met, even if the risk is low (Paris, Rentway)

o The defendant may be held to a lower standard while attending to a more pressing duty or engaging in socially useful conduct (Bittner)

What is the role of custom? Standard practices or customs can be used as evidence for or against

a breach of duty, but they are not dispositive (Paris) Parties who rely on their own compliance with custom, or on the

other party’s departure from it, bear the burden of showing it exists

(Waldick) A party’s failure to comply with custom may prompt that party to

explain why, but it does not trigger a presumption of a breach of duty (Rolls Royce)

When expert evidence is used to establish the existence or effectiveness of a custom, the court cannot dismiss it arbitrarily (Warren)

Courts defer to standard practice in medicine and other highly technical areas where they cannot arbitrate disputes, so reliance on custom will succeed there unless the risks are obvious to a layperson (ter Neuzen)

[Standard of Care continued…]

What is the role of statutory duties? Breach of a statutory duty can be used as evidence of a breach of

duty of care, but does not independently give rise to tort liability unless specified in the legislation (Sask Wheat Pool); this preserves the principle that liability in negligence is based on fault

Breach of statute can only be used to establish breach of a duty of care if the statute is related to the conduct in question (Gorris)

Compliance with statute can be used as evidence of due care, but that evidence is less compelling if the statue: (Ryan)

o Allows for discretion; oro Does not precisely cover the circumstances in question

CAUSATION

The “But For” Test In general, the plaintiff must show that the harm would not have

occurred but for the negligence of the defendant (Athey) The “but for” test can be applied in a robust and flexible way:

courts may infer causation where it cannot be definitively proven (Snell)

o Courts will be more flexible in inferring causation in areas like medicine where the defendant has greater knowledge

o But the court declined to reverse the onus for causation in medical cases, citing increasing insurance premiums and litigation US

The robust and flexible but for test applies beyond medicine (eg speeding on an overloaded motorcycle: Clements)

When determining whether the breach caused the harm, the court must decide what the standard of care was, so that they can decide whether meeting it would have avoided the harm (Ediger)

o Parties have an incentive to frame the standard differently Where a doctor breaches a duty by failing to diagnose correctly, the

threshold for causation is whether the correct diagnosis would more likely than not have prevented the harm (Wilson)

The Material Contribution Test The material contribution test applies in limited circumstances where

the traditional but for test does not yield a just result (Clements) It applies only to scenarios where there are multiple parties who

negligently contributed to a risk, but it cannot be established which party’s negligence caused the resulting harm (Clements)

o This test establishes legal causation but not factual causationo It applies to situations like that in Cook v Lewis, but the doctrine

did not exist at the time of that caseo The material contribution cannot be applied to cases where there is

only one defendant (Clements)Novus Actus Interveniens

Causation may be voided by an intervening cause, but only in limited cases

If the intervening act is a reasonably foreseeable consequence of D’s conduct, D remains liable (eg theft when door left unlocked: Stansbie)

o This also applies to where D ought to have foreseen (fridge in Smith)

However, D may not be liable if the harm was caused by a third party responding irrationally to D’s conduct (shouting patron in Bradford)

o But not if the response is foreseeable (dissent in Bradford) Where D’s tort caused an injury, and the treatment of that injury

caused another, unrelated injury, D is liable for both if: (eg elliptical in Larsen)

o The re-injury is a foreseeable consequence of the original tort; ando The re-injury is not a result of unreasonable behaviour by P

REMOTENESS

Is the harm reasonably foreseeable? Negligence only imposes liability for reasonably foreseeable harms

(Bolton) In some cases, a chain of causation leads to a harm that is so remote

from the initial conduct that there is no remedy (eg the cow in Cameron)

In Wagon Mound 1, the JCPC firmly rejected the idea that liability should flow from any direct harm (which the Eng CA favoured in Polemis)

However, it is only the type of harm that must be foreseeable; it can be different in degree or detail (eg explosion in Lord Advocate)

“The ambit of foreseeable damage is indeed broad” (Assiniboine) But how far will courts go with a step-by-step approach to

foreseeability?o Snowmobile –> building –> Exposed gas pipe –> fire (Assiniboine)

Note the incentive for parties to frame the harm differently

INDIVISIBLE HARM

Non-Tortious Causes : If the entire harm would not have existed but for the tort, then D is liable for the full extent of the injury, even if non-tortious causes also contributed (eg re-injury at the gym: Athey)

o Denying full recovery because of aggravation by non-tortious causes would violate the principle that negligence is compensatory (Athey)

Divisible Harm : Each tortfeasor is liable for the injury she caused Indivisible Harm : Defendants are jointly and severally liable,

liability is apportioned, and P can recover from either in full; the determination of indivisibility is up to the trial judge (eg two car accidents: Bradley)

THIN AND CRUMBLING SKULL

Thin Skull Rule If the harm is reasonably foreseeable, then D is liable for the full

extent of it, even if it is aggravated by the P’s susceptibility. For example:

o P falls because of a faulty door, which would normally cause minor injuries, but it is very expensive to treat because of haemophilia (Bishop)

When applying the thin skull rule to psychological injuries, there is a two-part test, unclear whether it also applies to physical injuries (Mustapha)

1) Would a person of ordinary fortitude have suffered compensable harm?

2) If so, D is liable for any aggravation of that damage caused by the plaintiff’s susceptibility

o Some cases have interpreted this is meaning that a person of ordinary fortitude would have suffered the same precise harm (Dhillon)

o Courts seem more willing to grant damages where the psychiatric harm resulted from an underlying physical injury

Crumbling Skull Rule If P’s pre-existing condition would have caused some part of the harm

even in the absence of the tort, D is only liable for the difference (Athey)

o Negligence is compensatory: D must only restore P to original position

DEFENSES

Contributory Negligence : P’s own negligence contributed to the harm. Under the Negligence Act, P must pursue other tortfeasors individually

Voluntary Assumption of Risk : P expressly or impliedly waived liability for any risks that are obvious and necessary to a dangerous activity

Illegality ( ex turpi causa ): In Hall, this defense was limited to:o Preventing P from profiting from illegal activity; ando Preventing P from claiming damages for a penalty imposed by law

DUTY TO WARN

Disclosure of material risk Doctors have a duty to disclose to patients any material risks of a

medical procedure (Riebl v Hughes) Very severe risks are material even if they are very unlikely (Riebl) Doctors must disclose risks that would normally not be material if

they know or ought to know the risk is very important to that patient (Videto)

Where the surgery is elective, the duty is more strict (Hankins) Where the surgery is cosmetic, even minimal risks must be disclosed,

and cosmetic risks are likely to be material to the patient (White) Risks must be disclosed in language the patient will understand

(Martin)Disclosure and causation

When determining whether the failure to disclose caused the harm, courts apply a modified objective test: what would the reasonable person have done under the patient’s circumstances? (Riebl)

o Consider pension (Riebl), daughter’s wedding (Martin) Even if the patient would have had the surgery anyway, D is liable for

the full duration of the harm, not just the intervening time (Martin)Products sold to an intermediary

If a product is only used under expert supervision, or the manufacturer is unable to directly warn the consumer, the duty to warn can be discharged by warning a learned intermediary (Dow)

o The manufacturer cannot void causation by arguing that the learned intermediary would not have warned the patient (Dow)

For medical products sold through an intermediary, the test for causation is not the objective test from Riebl, but a subjective test (Dow), which counteracts the vendor’s incentive to market its product positively

VICARIOUS LIABILITY

The classic formulation Salmond Test: Employers are vicariously liable for:

1) Acts authorized by the employer; or2) Improper modes of doing what is authorized

Where there are two innocent parties, vicarious liability deters negligence and gives victim a just remedy (Holt, 1708, quoted in Mohamud)

o This is echoed by McLachlin in BazleyModern formulation

There are some situations where the Salmond Test does not work well

Contractors: apply a flexible test, look at the total relationship (Sagaz)

o Is the contractor in business on their own account?o Look at degree of control, ownership of tools, who hires helpers,

financial risk, responsibility for management, and opportunity for profit

Intentional Torts: Do not fit well into “unauthorized modes” (Bazley)

o Rather than shoehorning into Salmond, confront the question openly

o Is enhancement of the risk sufficiently connected to the wrong? Did employer create the opportunity for abuse? Did the act further the employee’s aims? Did the employer create friction, confrontation, or intimacy? Did the employer give the employee power over the victim? Was the victim vulnerable?

Should focus on whether there is sufficient connection between the job and the tortious conduct (Mohamud)

o Was it all part of the same episode?o Was the employee “off on a frolic”?

JOINT TORTFEASORS

A common design “persons who agree on a common action, in the course of, and

further to which, one of them commits a tort” (The Koursk) Two-part test: (Sea Shepherd)

1) Must act in a way that furthered the commission; and2) Must do so in pursuit of a common design

No need to be directly involved in the tortious conduct (Bains)o When D learned of the tort, did she continue or disassociate?

(Bains)o Did D make the tort her own? (Sea Shepherd)

No liability if contribution is de minimis (Sea Shepherd) This does not apply to legal activities carried out with due care

(Cook)o Or does it? (eg the husband ignorant of wife’s fraud: Osborne)

FALL SEMESTER TORTS

Private Nuisance Two types of interference in nuisance: (Inco)o Physical injury to lando Amenity (interference with use and enjoyment)

Interference must be: (Antrim)1) Substantial; and2) Unreasonable in all the circumstanceso For (1), must interfere with the actual use being made of the

propertyo For (2), consider frequency, duration, severity, and

neighbourhoodo Focus is not on the reasonableness of the behaviour, but on what

the plaintiff is reasonably expected to bearo Despite that, D’s conduct can have an effect: it is more

reasonable for P to bear interference that serves the public interest

Rylands and Fletcher Four elements: (Inco)

1) Non-natural use of land;2) D brought something onto land that would cause mischief if it

escaped;3) It did escape (either once or continuously); and4) P suffered damage

No longer a distinct tort in England, maybe could be covered by negligence?

Assault & Battery Assault: Direct & intentional act that causes a person to reasonably

apprehend immediate harmful or offensive bodily contact (Freitas) Battery: Any intentional, non-consensual touching that is harmful or

offensive to dignity is battery, subject to the defense of consent (Malette)

Medical Battery: Patients who consent to treatment can only claim battery if the treatment was not what was consented to or there was fraud or misrepresentation to secure consent (Riebl)

o Innocent misstatement does not void consent (Kita)o Consent includes normal complements of that treatment

(Hernandez) Battery in Sport: Consent is implied in sport, but can be vitiated by

actions taken with a definite resolve to cause injury (Colby) If offensive conduct occurred, battery is presumed, and the onus

shifts to the defendant to show consent (Scalera)

Mustapha v Cullighan of Canada Ltd (2008) SCC

“A successful action in negligence requires that the plaintiff demonstrate 1) that the defendant owed him a duty of care;2) that the defendant’s behaviour breached the standard of care;3) that the plaintiff sustained damage; and4) that the damage was caused, in fact and in law, by the defendant’s

breach.

DUTY OF CARE

Palsgraf v The Long Island Railroad Company (1928) NY CA

Facts: A man was running for a train carrying a nondescript package. When a railroad employee tried to help by pushing him onto the train, the man dropped the package onto the track. The package contained fireworks, which exploded. The explosion caused some scales to fall at the other side of the platform, injuring the plaintiff.

Issue: Was the guard negligent in pushing the man?

Ratio: No negligence without a duty of care, and no duty of care without foreseeable risk.

Analysis: Cardozo: “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right." There is no action in negligence unless the defendant owes a duty to the plaintiff. The likelihood a duty exists depends on the foreseeability of the risk: “risk imports relation.” The more risk is inherent in the act, the more likely that the defendant will owe a duty to those who are harmed.

Andrews (dissenting): If a defendant commits a negligent act, he should be liable to anyone who is harmed by that act, provided that the act is the proximate cause of the harm. (Remoteness, rather than duty, serves as the limiting principle.)

Conclusion: Appeal allowed, complaint dismissed.

Donoghue v Stevenson (1932) HL

Facts: Woman drank ginger beer with a snail in it, got sick, sued the manufacturer, even though there were intermediaries between them.

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

Ratio: The neighbour principle: one must take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure anyone so closely and directly affected by the act that one ought reasonably to have them in contemplation.

Analysis: Lord Atkin’s argument is based in policy and common sense: in a modern society, a consumer ought to have a remedy for injury caused by a poisoned product, and if there is no reasonable opportunity to inspect the product between manufacture and consumption, then action should lie against the manufacturer.

Lord MacMillan: “The categories of negligence are never closed.” It always requires that there was damage resulting from a breach of a duty of care, but there is room for debate about where such a duty is owed. Here there is a duty because manufacturer could reasonably foresee that his negligence could harm the ultimate consumer.

Conclusion: The appeal is allowed and the action succeeds.

Home Office v. Dorset Yacht Co Ltd (1970) HL

Facts: A group of Borstal trainees (juvenile detainees) escape officer supervision and board two yachts, damaging both. It is conceded that the Home Office would be vicariously liable.

Issue: Do the officers owe a duty of care to the public?

Ratio: The neighbour principle should be applied broadly, including to government bodies.

Analysis: Lord Reid favours applying the neighbour principle unless there is a compelling reason not to. The Home Office makes a policy argument that imposing liability on public servants will discourage them from exercising proper discretion, but Reid rejects that, saying that it may be the case in the US, but “my experience leads me to believe that Her Majesty’s servants are made of sterner stuff.”

Conclusion: Appeal dismissed, action allowed to proceed.

Note: Anns v Merton London Borough Council (1978) HL

Lord Wilberforce established a two-stage test for establishing a duty of care:1) Is there sufficient proximity that the defendant ought to have reasonably

contemplated the risk of harm? (If so, there is a prima facie duty of care)2) Are there factors which negative or limit the scope of the duty, the class of

person to whom it is owed, or the damages to which is gives rise?This test was adopted by the SCC in Kamloops (City) v Nielsen (1984).

The House of Lords overruled Anns in Caparo Industries v Dickman (1990), holding that no general principle could be used to determine whether a duty of care was owed. But when the SCC revisited duty of care in Cooper v. Hobart (2001), they opted instead to reformulate the Anns test.

Cooper v Hobart (2001) SCC

Facts: Hobart was the Registrar of Mortgage brokers. Cooper had lost money investing with a registered broker who had misappropriated funds. Cooper sued, alleging that Hobart had breached a duty of care by failing to properly oversee the broker.

Issue: What is the test for recognizing a new duty of care?

Ratio: The test for recognizing a new duty of care has four steps (but the court describes it as having two stages, consistent with the previous Anns test):1) A) i. Was the harm a reasonably foreseeable consequence of the defendant’s

conduct?ii. Is there a relationship of sufficient proximity between plaintiff and defendant?B) Are there reasons not to recognize tort liability within this relationship?[If these requirements are met, there is a prima facie duty of care.]2) Are there residual policy considerations that negative the prima facie duty of care?

Analysis: Proximity will usually be established through reference to categories of relationships recognized in previous case law, but new categories can be created. The policy goal here is to balance certainty and flexibility. Factors to consider include parties’ expectations, representations, reliance, and the interests involved.

The second steps back from the parties’ relationship and considers how recognizing a duty of care would affect society. Would the duty apply too broadly? Is there an existing remedy?

Here, the court finds that there is insufficient proximity. They also note that if there had been a prima facie duty, it would have been negatived by the concern that recognizing a duty of care to investors would have undermined the Registrar’s quasi-judicial role.

Conclusion: Appeal dismissed, no duty exists.

Misfeasance v. Nonfeasance: At common law, it has traditionally been the case that negligence focused on misfeasance rather than nonfeasance. In this model, individuals are responsible for their own actions. Omissions to act may breach moral duties, but not legal ones. Over time this distinction has eroded. It is still worth noting whether a case involves misfeasance or nonfeasance, but there is no longer a bright line.

Horsley (Next friend of) v McLaren (1971) SCC

Facts: McLaren was a boat owner and driver. Matthews fell overboard. McLaren tried to back up rather than using the accepted rescue method of turning around first. Seeing the rescue going poorly, Horsley dove in. Both men drowned. Horsley’s family sued MacLaren.

Issue: Did McLaren have a duty of care to Horsley?

Ratio: 1) A boat operator has a duty of care to the passengers; and2) A first rescuer can have a duty to the second, but only if the fault of the first rescuer induced the second rescue.

Analysis: Laskin (dissenting): A defendant does not need to create the original peril to be liable. That principle can extend to a first rescuer, but only if the first rescue was performed negligently, thereby inducing the second. However, Laskin would have decided the issue of duty of care on other grounds, namely that a boat operator has a duty to the passengers.

Richie, for the majority, accepts Laskin’s analysis, but holds that the first rescue did not induce Horsley to attempt the second.

Conclusion: Horsley’s appeal is dismissed, no damages awarded.

Jordan House Ltd. v. Menow (1974) SCC

Facts: M, a frequent patron at the JH tavern, was ejected after hours of drinking. The staff and owner knew he tended to act reckless after drinking excessively, and that he would have to walk home drunk along a major highway. M was hit by a car and sued JH.

Issue: Do commercial hosts have a duty of care toward intoxicated patrons?

Ratio: JH did owe M a duty of care, but there is no blanket duty on commercial hosts.

Analysis: The court did not impose a general duty, but found that one existed here because of a combination of factors, including the invitor-invitee relationship, the staff’s knowledge of M’s tendencies and place of residence, and their breach of statute in over-serving him.

Conclusion: JH’s appeal dismissed, damages awarded.

Childs v. Desormeaux (2006) SCC

Facts: D attended a friend’s BYOB party. He drove drunk, causing an accident that paralyzed C. The hosts knew that D had driven drunk in the past, but the trial judge also found that they did not know he was intoxicated, and they did not serve him the alcohol.

Issue: Did the hosts have a duty of care to third parties injured by an intoxicated guest?

Ratio: Hosting a party where alcohol is served does not, on its own, create a duty of care to third parties injured by intoxicated guests.

Analysis: The court holds that there was no reasonable foreseeability. The hosts did not know of D’s intoxication and could not infer foreseeability from past behaviour.

The court also elaborates on the requirement of proximity. They suggest that proximity is not necessarily required in misfeasance cases, but that it is required for nonfeasance. The reasoning for this is the common law’s hesitation to interfere with individual autonomy.

The court sets out three situations in which courts had imposed a positive duty to act:

1) Where D invites parties to engage in an inherently risky act (Horsley, Crocker)

2) “Paternalistic” relationships (eg: teacher-student, parent-child)3) D exercises a public function or operates a business, where duties arise

from the public role or the opportunity for profit (this includes the duty of commercial hosts to motorists: Stewart v. Pettie)

The court holds that this case does not fall into any of those categories.

The court clarifies that when applying the Anns test, the plaintiff bears the burden of establishing a prima facie duty of care (step 1) and the defendant bears the burden of showing any policy consideration that should negative that duty (step 2).

Conclusion: Appeal dismissed, no duty of care exists.

Fullowka v. Pinkerton’s of Canada Ltd. (2010) SCC (Duty of Care analysis)

Facts: During a violent and protracted strike, a former employee snuck into a mine and set a bomb, killing nine replacement workers. The family of the deceased sued Pinkerton’s, which had been hired to provide security. Pinkerton’s had been aware of past bombings, bomb threats, and death threats against replacement workers.

Issue: Did Pinkerton’s have a duty of care to the replacement workers?

Analysis: The court holds that the risk was not only foreseeable, but was foreseen: Pinkerton’s was aware of past violence and ongoing threats. There was also proximity: the replacement workers had reasonably relied on Pinkerton’s to guard against violence.

The court holds that policy considerations that negative a prima facie duty must not be speculative. They must be based on a real potential for negative consequences. The court does not find any compelling policy considerations.

Conclusion: The court held that there was a duty of care, but Pinkerton’s was not liable because they had met their standard of care.

Note: Goodwin v. Mainroad North Island Contracting (2007) BCCA – Mainroad told the RCMP they would fix a patch of black ice. When they realized they were not responsible for that road, they left it and did not alert the RCMP. Goodwin was injured in a crash. The court applied Cooper and recognized a duty of care. The harm was foreseeable and there was proximity under the third category in Childs: Mainroad was a commercial entity profiting from road maintenance. Also, Mainroad brought themselves into proximity by offering to fix it, which prevented it from being fixed by others.

Note: Donaldson v. John Doe (2009) – A patron blinded the plaintiff by hitting him with a beer stein outside of a bar. The court expanded the duty of care owed by commercial hosts to anyone who could foreseeably be injured. The court resolved the case without a Cooper analysis because the duty was analogous to an existing one.

Note: Paton Estate v. Ontario Lottery and Gaming Corporation (2016) ONCA – Gambler defrauded P to support her addiction. P sued the casinos. Trial court

dismissed the action on the basis that there was no duty of care. The ONCA reversed the dismissal, saying a duty may exist. The court found foreseeability, and proximity fit under the third category of Childs: the casino profited from the gambling. However, the creation of an indeterminate class of victims was a residual policy concern. The case was sent for retrial.

Note: Hashemi-Sabet Estate c. Mazzulla (2016) ONCA – A man drowned in a lake while visiting D’s cabin, his estate sued. The court held that there was no duty of care. The friend had not created the risk and had no authority over the deceased, so there was not sufficient proximity to create a positive duty to act.

STANDARD OF CARE

Note: Ryan v. Victoria (City) (1999) SCC

Standard of care: What one would expect of an ordinary, reasonable and prudent person in the same circumstances.

Factors to consider: Likelihood of a known or foreseeable harm Gravity of the harm Burden or cost of prevention Indicators including custom, standard practice, statutory or regulatory

standards

Bolton & Others v Stone (1951) HL

Facts: During a cricket match, a ball hit P on an adjoining highway. Balls had been hit onto the highway six times in 30 years, with no previous injuries.

Issue: Was the failure to take protective measures a breach of the duty?

Ratio: The standard is based on what a reasonable, ordinary person would foresee.

Analysis: All four lords acknowledge that there was a duty of care, but the standard was not breached because the risk of injury was too low to be reasonably foreseen. Balls had seldom escaped, and the highway was not busy.

Conclusion: D’s appeal allowed, no negligence.

Paris v. Stepney Borough Council (1951) HL

Facts: While working in D’s garage, a shard of metal flew into P’s only good eye, blinding him. Providing goggles for similar workers was not standard practice. Metal shards were a known risk of the task in question.

Issue: Was D’s failure to provide goggles a breach of the standard of care?

Ratio: Industry standards are a factor, but are not determinative.

The determine standard of care, one must look at the likelihood of injury, but also: The severity of the potential harm; and The cost of taking preventative measures

Analysis: The court notes that where it is standard practice to take a precaution, the reasonable and prudent person will do so. However, where it is industry standard not to take the precaution, there will still be a breach if it would be a folly not to.

Conclusion: P’s appeal allowed, negligence found.

Stewart v. Pettie (1995) SCC

Facts: Two couples went to a dinner theatre. The men drank, the women did not. They left together. After a discussion in the parking lot, they decided Stuart Pettie would drive. They crashed, leaving Gillian Stewart quadriplegic.

Issue: Did the theatre company breach the duty of care owed by commercial hosts?

Ratio: Commercial hosts owe a duty to third parties as well as patrons. However, the standard is met if the host has reason to believe the patron has a safe ride home.

Analysis: This is the first SCC case to establish a duty owed by a commercial host to a third party (Jordan House and Crocker involved patrons). The court notes that it is not relevant that Steward was in the same car; the duty would also apply to a stranger on the road.

On the standard of care, the court holds that overserving someone is not, on its own, a breach, since that does not create a reasonably foreseeable injury. Also, there is no breach in failing to ensure the men did not drive, since they were accompanied by two sober adults.

The court notes in obiter that if an establishment cannot avoid liability by structuring things so that they cannot monitor intoxication level (eg: where there is only bar service).

“Tort law does not require the wisdom of Solomon.” (para 50)

Conclusion: Appeal allowed, no breach of duty.

Note: The Learned Hand Formula – In Carroll Towing (1947), Justice Learned Hand wrote that risk was unreasonable where B < PL, where B is the burden of prevention, P is the probability of harm, and L is the gravity of injury. This risk-utility analysis was cited by Richard Posner as the foundation of the economic approach to law.

Note: Rentway Canada Ltd v. Laidlaw Transport (1989) ONCA – A semi owned by L crashed into a semi owned by R. This caused a large explosion and killed both drivers. L claimed that it was not liable because the crash was caused by a design defect by the manufacturer, Paccar. Paccar knew that there was a risk of a tread separation knocking out the headlights, but did nothing because they judged the probability to be low. The court applied a risk-utility analysis, holding that the severity of harm clearly outweighed the relatively small cost of remediation, even though the probability may have been low.

Bittner v. Tait-Gibson Optometrist (1964) ONCA

Facts: B, on duty as a police officer, saw lights on in the optometrist shop at night. Suspecting a break-in, he approached to investigate and slipped on a patch of ice, injuring his back. The ice was caused by water dumped by the shop’s employee. He successfully sued the shop, but the trial judge found him contributorily negligent.

Issue: Did B’s failure to see the ice and be cautious amount to contributory negligence?

Ratio: The utility of one’s conduct can affect the standard of care: a person may be held to a lower standard in the exercise of one duty if they are meeting another, more pressing duty.

Analysis: B had a duty as a police officer to note dangers on his beat, but in this case, he had a supervening duty to investigate potential crimes. His failure to do the first is reasonable given that the latter was more pressing at the time.

Conclusion: Appeal allowed, no contributory negligence.

Note: Good Samaritan Act (BC) – S. 1 states that someone who gives emergency medical help to an injured, ill, or unconscious person will not be liable for their act or omission except in cases of gross negligence. S. 2 provides exceptions where the person giving aid is employed for that purpose or has “a view to gain.”

Fullowka v. Pinkerton’s of Canada Ltd. (2010) SCC (Standard of Care Analysis)

Facts: Mine bombing (see above). At trial, the NWT government was held to be liable for failing to close the mine before the incident, even though the gov’t obtained legal advice stating that it did not have statutory authority to do so.

Issue: 1) Did Pinkerton’s meet its standard of care?2) Did the NWT government meet its standard of care.

Ratio: 1) Yes: there is no absolute duty in negligence, only duty of reasonable care2) Yes: The gov’t met its standard of care by acting in reliance on legal advice

Analysis: The court held that Pinkerton’s was restricted in its ability to prevent harm because the mine had reduced the number of guards, against Pinkerton’s objections. Given those constraints, it had met its standard.

As for the government, they had met their standard by relying in good faith on legal advice, regardless of whether that advice was accurate.

Conclusion: Neither Pinkerton’s and the NWT gov’t were held liable.

Vaughan v Menlove (1837) Eng. Common Pleas – D built a hayrick. He ignored repeated warnings about the risk of fire. A fire eventually started and burned down two cottages belonging to P. On appeal, it was submitted that holding D to a reasonable person standard was an error, since “he ought not to be responsible for the misfortune of not possessing the highest order of intelligence.” The court rejected this, upholding the objective standard. The court reasoned that applying a subjective standard would make the law impossible to apply.

CHILDREN & PEOPLE WITH DISABILITIES

There are some exceptions to the general standard of the reasonable and prudent person. A higher standard is sometimes applied to people with superior knowledge, such as professionals. A lower standard may be applied for children of people with disabilities.

Note: Heisler et al v. Moke et al (1971) ON HC – When determining whether a child is liable in negligence, there is a two-step test with subjective and objective components:

1) Is the child capable of being found negligent in the circumstances in question? This step is subjective, and considers age, intelligence, experience, and alertness.

2) What can be reasonably expected of a child of that age? This part of the test is objective, and measures reasonableness in relation to the child’s age.

Pope v RGC Management Inc (2002) ABQB

Facts: P was injured after being assigned to accompany a 12-year-old boy in a round of golf.

Issue: What standard of care applies to the 12-year-old boy?

Ratio: The usual standard of care for children is the same as in Heisler, above. However, when a child is participating in an adult activity, they are subject to the same objective test that would apply to adults.

Analysis: Applying an adult standard to children engaged in adult activities is grounded in the protection of the public from the dangers of those activities, as well as the idea that a child should take on adult responsibilities when participating in adult activities.

This adult activity exception is explained by reference to driving cars and snowmobiles, but here the court is applying it to golf, for some reason.

Conclusion: (The case was decided on other grounds, no liability imposed.)

Nespolon v. Alford et al (1998) ONCA (leave denied)

Facts: S got drunk at a party. Later, his friends unloaded him into the car of an acquaintance, A, in a Burger King parking lot. A and his friend B were told by a police officer that S would be arrested if they left him there. After they took him, S said that he did not want to go home. They left S, at his request, outside the home of someone he knew. They came back to check on him twice, by second time S had stumbled into the road and was killed by a truck driven by N. N sued A and B, and S’ estate, for post-traumatic stress. Trial court held that all three were liable.

Issue: Were A & B engaged in an adult activity, subject to an adult standard of care?

Ratio: When determining whether young people are engaged in an adult activity, the court must look at the specific act that is alleged to have caused the harm. In this case, the activity in question was dropping S off, not driving.

Analysis: The majority held that A&B had met their standard of care by dropping S off in a reasonable location. The court noted that they did not know where S lived, and he did not want to go home. The court also noted their age and lack of experience with alcohol. As for S, the court held that he owed no duty due to a lack of foreseeability. Throughout the decision, the majority seems to focus on the foreseeability of the particular harm (the mental suffering of N) rather than the general prospect of harm to people on the road.

The dissent would have found liability for A&B and for S.

Conclusion: Appeal allowed, no liability for A&B or for S’ estate.

Fiala v. Chechmanek (2001) ABCA

Facts: M had a severe manic episode due to previously undiagnosed bipolar disorder. He jumped onto a car, breaking through the sunroof and choking the driver, C. C unintentionally accelerated into an intersection and hit another car, injuring F and her daughter. At trial, M was not held liable, partly due to expert medical evidence suggesting that his condition would have severely impaired his self-control under the circumstances.

Issue: What is the standard of care for mentally ill defendants?

Ratio: To be relieved of tort liability due to sudden and unforeseen mental disability, a defendant must show one of the following on a balance of probabilities:

1) The defendant had no capacity to understand or appreciate the duty of care; or

2) The defendant lacked meaningful control at the time the duty was breached.

Analysis: The court held that M lacked meaningful control of his actions. Note that the test above only applies if the harm could not have been foreseen. Would likely be different if M’s condition had been diagnosed and he could have taken preventative measures.

The court discussed the debate about whether mentally ill defendants should be subject to an objective or subjective standard. Proponents of an objective standard argue that:

Tort law is primarily about compensation; Mental disability is difficult to assess and to distinguish from temperament

Exceptions to the objective standard erode its force (see Vaughan v. Menlove)

The court rejects these arguments, saying that: The objective standard survived exceptions for children and the physically

disabled; Negligence is primarily about fault, not compensation; and Difficulties in determining the appropriate standard can be addressed in fact-

finding

Conclusion: F’s appeal dismissed, no liability.

ADHERENCE TO CUSTOM

Waldick v. Malcolm (1991) SCC

Facts: W was seriously injured when he fell in an icy parking area of M’s lot. M claimed that few in that rural area sanded or salted parking areas. W sued.

Issue: Did M’s adherence to local custom absolve him of tort liability?

Ratio: A party who relies on custom their compliance with custom, or on the other party’s departure from it, bears the burden of showing that the custom exists. Where a custom is established, it is not determinative.

Analysis: The court emphasizes that adherence to a negligent practice is not immune to liability simply because it is customary.

Conclusion: Appeal dismissed, M found liable.

Brown v. Rolls Royce (1960) HL

Facts: B contracted dermatitis from contact with oil due to his work for RR. B claimed that RR should be presumed liable because it was custom to provide barrier cream as a protective measure. In choosing not to provide the cream, RR relied on the advice of their medical officer. It was not shown that the cream would have prevented B’s dermatitis.

Issue: Does non-observance of a custom create a presumption of breach of duty?

Ratio: Non-observance of custom does not shift the onus onto the defendant.

Analysis: Custom is a factor, but the plaintiff must still establish the lack of due care in the totality of the circumstances. Non-observance does not trigger a presumption of a breach.

Conclusion: B’s appeal dismissed, no negligence.

Warren v. Camrose (City) (1989) ABCA

Facts: W was injured diving into C’s pool. The trial judge held C liable, even though expert witnesses for both parties said that the preventative measures the judge would have required were outdated, likely ineffective, and contrary to current practice.

Issue: Did the trial judge err in substituting his views for those of expert witnesses?

Ratio: Expert opinion does not bind the court, but it cannot be dismissed arbitrarily.

Analysis: The court held that the trial judge had erred in ignoring the views of the expert witnesses. (The test for overriding that evidence is in Ruch, which is not assigned.)

Conclusion: Appeal allowed, no negligence.

ter Neuzen v. Korn (1995) SCC

Facts: TN was infected with HIV after undergoing an artificial insemination (“AI”) procedure carried out by K in January 1985. A medical journal had warned of HIV the risk of HIV transmission through AI in 1983. The first documented case was reported in July 1985, and published in a medical journal in September 1985. None of the obstetric literature warned of the risk during the relevant time frame. There was no test yet for HIV in semen. Transmission through AI was seen to be unlikely. Upon reading the September article, K discontinued AI procedures and notified patients. His AI practice was found to be in keeping with Canadian standards at the time.

Issue: What is the standard of care for doctors?

Ratio: A doctor is held to the standard of a reasonable and prudent doctor, and a specialist to the standard of a reasonable and prudent practitioner in her field. This is assessed at the point in time that the conduct occurred.

Analysis: The court held that the jury erred in holding K liable. Courts will show more deference to standard practice in medicine because they are not able to arbitrate scientific disputes. Observance of standard practice will succeed as a defense unless the risks are so obvious that a layperson can judge the practice to be negligent. Only then is it open to a jury to find negligence where standard practice was followed.

Conclusion: TN’s appeal dismissed, no negligence.

STATUTORY STANDARDS

Canada v. Saskatchewan Wheat Pool (1983) SCC

Facts: SWP shipped wheat to Canadian Grain Commission. Upon delivery, discovered larva infestation, CGC had to spend $100k to fumigate the wheat. CGC made no claim in negligence, but tried to recover damages over breach of statute.

Issue: Does a breach of statute give rise to tort liability?

Ratio: Breach of statute can help establish the breach of a standard of care in negligence, but it does not independently give rise to liability unless specified in the statute.

Analysis: The court rejects CGC’s claim that statutory breach independently gives rise to liability. Breach of statute can be considered in a negligence claim, but the other components of negligence are required. This preserves the principle that liability should be based on fault. Compensation in the absence of fault should be left to legislatures.

Conclusion: CGC’s appeal dismissed, no liability.

Gorris v. Scott (1874) Eng. Exchequer

Facts: Ship owner D was contracted to ship sheep, which went overboard. This would have been prevented if the ship owner had built cages that were compliant with the Contagious Diseases (Animal) Act.

Issue: Is D liable for the breach of statute?

Ratio: Breach of statute only gives rise to liability where the purpose of the statute is related to the eventual harm.

Analysis: Breaching a statute designed to prevent disease does not give rise to liability for the sheep going overboard, which is unrelated to the purposes of the act.

Conclusion: Dismissed, no liability.

Ryan v. City of Victoria (1999) SCC

Facts: Motorcyclist was injured after tire got stuck in railroad flangeway on Store St. The flangeways complied with all applicable statutes and regulations.

Issue: Can the railway be guilty in negligence notwithstanding its compliance with statute?

Ratio: Compliance with statute can be used as evidence that a standard of care has been met, but it is not dispositive. Statutory compliance is more likely to be insufficient if that statute is general, allows for discretion, or does not cover the circumstances in question.

Analysis: The flangeways were built in keeping with standards for “highway crossings,” but these tracks ran parallel to the road. Also, the railway had discretion as to width, so they could have reduced the risk while still complying.

Conclusion: Appeal allowed, railways found liable.

CAUSATION

Note: Athey v. Leonatti (1996) SCC – “The general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that they injury would not have occurred but for the negligence of the defendant.” The negligence does not need to be the sole cause. There is no basis for reducing liability because other preconditions existed.

Snell v. Farrell (1990) SCC

Facts: F performed a cataract surgery on S. S later suffered loss of vision due to optical nerve atrophy. It was uncertain whether the surgery had caused the damage.

Issue: Should the “but for” test apply, and who bears the burden of showing causation?

Ratio: The “but for” test can be applied flexibly by inferring causation where it cannot be definitively proven. However, the burden the show causation remains on the plaintiff.

Analysis: The court considered whether to adopt an alternate approach where the burden would be shifted to the defendant to show a lack of causation. The court rejected this approach, citing policy concerns: it had caused an increase in insurance premiums in the US, and it would risk creating an increase in expensive litigation and “defensive medicine.”

However, courts can apply the causation rule flexibly, especially in cases where the defendant has greater knowledge. For example, where a plaintiff presents some medical evidence, a court may infer causation, even if there is no proof. In Clements, below, the court calls this a “robust and common sense application” of the but for rule

Conclusion: Appeal dismissed, liability for negligence upheld.

Cook v Lewis (1951) SCC

Facts: Two members of a hunting party simultaneously shot in the direction of a third. The third person was shot, but could not establish which of the others was responsible.

Issue: Can the defendants be liable without proof of causation?

Ratio: Where two or more parties breach the standard of care, but it cannot be established whose conduct caused the harm, the onus switches to the defendants to negate causation.

Clements v Clements (2012) SCC

Facts: D was driving a motorcycle, with P (his wife) on the back. The bike was overloaded. The tire was punctured by a nail, which caused a crash while D was speeding to pass another vehicle. P suffered a brain injury. It is agreed that D was negligent, but D’s expert witness suggested the injury would have happened anyway.

Issue: Does the “but for” test apply, or can material contribution establish causation?

Ratio: Generally, the “but for” test applies. It can be applied in a robust and flexible way, and does not require scientific proof.

In exceptional circumstances, where more than one party contributed to a risk and it cannot be shown which one caused the harm, courts may apply a material contribution test.

Analysis: The material contribution test does not determine factual causation; it determines legal causation where the “but for” test does not provide a just result, in keeping with the underlying principles of corrective justice.

The legal burden to show causation is always on the plaintiff, but where causation is merely inferred, that inference can be rebutted by the defendant.

In this case, there is a single defendant, so the material contribution test does not apply. Instead, the court should apply a robust and flexible “but for” test.

Conclusion: New trial ordered.

Ediger v Johnston (2013) SCC

Facts: D was the doctor who delivered P. D tried to use forceps, but failed and had to perform a C-section. The procedure was delayed because no surgical team was on hand. Meanwhile, blood flow to P was slowed, causing severe brain damage.

Issue: Did the doctor’s actions meet the “but for” test for causation?

Ratio: To determine whether the breach caused the harm, one must consider what the standard of care was, and whether meeting it would have avoided the harm.

Analysis: D tried to interpret the standard of care such that meeting it would not have avoided the harm. This interpretation was rejected by the court.

Conclusion: Trial decision restored, D is liable.

Note: Fowlow v South Lake Regional Health Centre (2014) ONCA – D performed a bypass graft, which failed four days later, causing the patient’s death. D had failed to read the manufacturer’s instructions, which recommended against using their product for this type of surgery. However, the court still found that causation was not established, since the plaintiffs did not lead any evidence that the breach caused the harm.

Note: Wilson v Beck (2013) ONCA – Where the breach of the standard of care is a failure by a doctor to diagnose a patient’s condition, the threshold for causation to be established is that the correct diagnosis would have “more likely than not” prevented the harm.

Note: Hansen v Sulyma (2013) BCCA – D was driving at night and ran out of gas. While pulled over, a drunk driver crashed into D’s car, injuring D’s passenger, P. The trial court found D liable, saying he “contributed to” the harm. The BCCA upheld the ruling, saying that despite using the phrase “contributed to,” the trial judge had in fact applied the correct test (robust but for), and not the material contribution test.

INDIVISIBLE HARM

Athey v Leonati (1996) SCC

Facts: P was injured in two collisions. Later, he suffered a herniated disc while stretching.

Issue: Can responsibility for an injury be divided between tortious and non-tortious causes?

Ratio: There is no apportionment of damage between tortious and non-tortious causes. The defendant is fully liable for the harm, even where non-tortious causes also contributed.

Where there are multiple tortious causes, the court must determine whether it is: Divisible harm : For example, one defendant injured the p’s arm and the other

injured p’s leg. Each is liable for the harm caused by her conduct. Indivisible Harm : For example, two defendants contribute to a single harm.

They are jointly and severally liable, and p may recover fully from any one of them.

Analysis: The court holds that liability can be apportioned between tortfeasors, but to assign liability to non-tortious causes is contrary to the principles of tort law. If the harm would not have occurred but for the tortious conduct, then the defendant is liable for any aggravation of the harm by non-tortious causes. This allows the plaintiff to recover in full.

Bradley v Groves (2010) BCCA

Facts: P was in two car accidents, two years apart. She was injured in the first accident, and claimed that the second aggravated the existing injury.

Issue: Are defendants jointly and severally liable for indivisible injuries?

Ratio: Defendants are jointly and severally liable for indivisible injuries, and the plaintiff can claim the full amount from any one of them, absent contributory negligence.

Analysis: Defendants can indemnify each other for contributions. It is up to the trial judge to decide whether an injury is divisible.

Conclusion: Appeal dismissed, joint liability upheld.

Cameron v Hamilton’s Auction Marts Ltd (1955) Scotland Sheriff Court

Facts: D’s cow escaped, climbed a set of stairs, and crashed through the floor, turning on a water tap that destroyed the plaintiff’s dairy.

Issue: Is the harm too remote to impose liability?

Ratio: Liability only flows from harm that is “natural and reasonable,” meaning foreseeable.

Analysis: “One cannot help sympathising with the pursuer in her loss, but I feel forced to the conclusion that a gate-crashing, stair-climbing, floor-bursting, tap-turning cow is something sui generis, for whose depredations the law affords no remedy unless there was foreknowledge of some such propensities.”

Conclusion: Appeal dismissed, no liability.

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Company Ltd (The Wagon Mound No 1) (1961) Privy Council

Facts: D’s employees carelessly spilled a large quantity of oil into a harbour while refilling a ship, the Wagon Mound. P was a shipbuilding company that owned a nearby wharf. The next day, molten metal from their welding caused a piece of debris beneath the wharf to catch fire, which ignited the oil and damaged the wharf. The trial court held that p could not have been reasonably expected to know that the oil was flammable.

Issue: What is the test for whether d is liable for a given harm resulting from her conduct?

Ratio: The defendant is only responsible for harm that is reasonably foreseeable.

Analysis: This overturned an English CA case called Polemis, which held that defendants would be liable for any direct harm, even if it the harm was not foreseeable

Hughes v Lord Advocate (1963) HL

Facts: Post Office employees were working on a sewer. They took a tea break, leaving a manhole open underneath a canvas tent, with a ladder and some lamps nearby. A child dropped a lamp in the whole, and was severely burned in the resulting explosion.

Issue: Was the harm reasonably foreseeable?

Ratio: When assessing foreseeability, it is that type of harm that matters, not the degree.

Analysis: The Lords held that it was foreseeable that leaving the worksite as it was could cause injuries, including burns. Although the explosion itself was not foreseeable, it merely added to the severity of the foreseeable harm, so the defendant was still liable.

Assiniboine School Division No 3 v Hoffer (1971) Man CA

Facts: A father had rigged a snowmobile so that his 14-year-old son could start it without being on it. He told the son to put the kickstand up so that the machine would not take off on its own. On the occasion in question the son started it without the kickstand. It took off and hit a gas pipe near the wall of a neighbouring school, causing gas to leak into the school’s boiler room. The gas was ignited by the boiler, causing extensive fire damage.

Issue: Was the harm reasonably foreseeable?

Ratio: Foreseeability is interpreted broadly: if the damage is of a foreseeable kind, its manner and extend do not need to be foreseeable.

Analysis: “It is enough to fix liability if one could foresee in a general way the sort of thing that happened...” “The ambit of foreseeable damage is indeed broad.”

Also, the gas company was held liable to failing to take precautions in installing the pipe.

Conclusion: Appeal dismissed, liability upheld.

THIN SKULL AND CRUMBLING SKULL

The Thin Skull Rule: If the harm passes the remoteness test (i.e. the type of harm is reasonably foreseeable), the defendant is also liable for additional unforeseen consequences arising from the plaintiff’s susceptibility.

Bishop v Arts & Letters Club of Toronto et al (1978) Ont HC

Facts: P broke his hip falling down a set of stairs outside the Club. The fall was caused by a failed spring mechanism in the club’s door. Because of his haemophilia, the injury was unusually severe and difficult to treat.

Issue: Is d responsible for the full extent of harm, which was aggravated by p’s condition?

Ratio: The tortfeasor must accept his victim as he finds him. The plaintiff is entitled to compensation based on his own special requirements.

Note: Mustapha v Culligan of Canada Ltd (2008) – The court held that the thin skull rules applied in the same way to psychological injury as to physical injury. However, it also stated that there is only liability if harm would have been suffered by a person of ordinary fortitude. This seems to limit its applicability to psychological injury.

The court may be suggesting a two-step analysis:1. Would a person of ordinary fortitude have suffered a compensable harm?2. If so, the defendant is liable for any aggravation of that damage caused by

the plaintiff’s proverbial thin skull

That approach has been followed in some cases (Frazer (2010) ONCA, Hans (2016) BCSC), but in other cases courts have not been clear whether some compensable injury is sufficient, or whether a person of ordinary fortitude would have suffered the precise harm suffered by the plaintiff (Dhillon (2014) BCCA, Bulwer (2016) BCSC). In these cases, courts seem to be more willing to apply the thin skull rule where psychiatric harm resulted from an underlying physical injury.

Note: Athey v Leonati (1996) SCC – The thin skull rule states that the tortfeasor is liable for damages that were aggravated by a pre-existing condition. However, the crumbling skull rule states that the tortfeasor is not liable for harm that the pre-existing condition would have caused anyway, in the absence of the tortious conduct. This is based on the principle that the compensation only needs to return the plaintiff to her original position.

NOVUS ACTUS INTERVENIENS (INTERVENING ACT)

Stansbie v Troman (1948) Eng CA

Facts: A contractor failed to properly lock the door of a house he was working on. While he was away, a thief entered and stole property.

Issue: Is the role of the thief an intervening act that absolves the contractor of liability?

Ratio: The defendant remains liable if the intervening act is a reasonably foreseeable consequence of the defendant’s conduct.

Analysis: The court held that the contractor breached the duty to leave the house in a secure state. The reason for that duty is to guard against the very thing that occurred.

Conclusion: Appeal dismissed, liability upheld.

Bradford v Kanellos (c.o.b. Astor Delicatessen & Steak House (1974) SCC

Facts: The Bradfords were eating at D’s restaurant when the grill caught fire. The automatic fire extinguisher was triggered, and the fire was extinguished. However, the extinguisher made a hissing sound, which caused another patron to shout that there was a gas leak and it would explode. Mrs. Bradford was injured in the ensuing panic.

Issue: Was the shouting guest a novus actus interveniens, absolving the restaurant?

Ratio: The defendant is not liable for damages caused by a third party who responds irrationally to the defendant’s conduct.

Analysis: Martland, for the majority, emphasizes that the defendants took precautions by installing an effective fire extinguisher system, and that it was the proper operation of that system that led to the “hysterical conduct” of the shouting customer.

Spence (+1), dissenting, argued that the panic caused by the shouting customer was a foreseeable consequence of fire, which was itself a foreseeable consequence of failing to clean the grill. He also argues that a foreseeable intervening cause does not absolve the defendant, regardless of whether the intervening cause it itself negligent.

Conclusion: Appeal dismissed, no liability.

Smith v Inglis (1978) NSCA

Facts: P was injured by an electric shock due to two defects: the ground prong on his oven had been removed, and a coil in his refrigerator’s thermostat had caused a short. This case concerned the liability of the fridge manufacturer.

Issue: Was the removal of the ground prong a novus actus interveniens?

Ratio: If the defendant foresaw or ought to have foreseen the risk of the intervening act, she is not resolved of liability when it occurs.

Analysis: The court held that the refrigerator manufacturer knew or ought to known that it was common to cut off grounding prongs, or plug them into non-functional adapters, so respondent should have foreseen the risk, and cannot treat is as a novus actus interveniens.

Larsen v Wilson (2007) BCSC

Facts: P was injured in a car accident. To recover from the accident, she attended physiotherapy, where she was directed to use an elliptical machine. While using the machine, she suffered a knee injury that was unrelated to the previous injuries.

Issue: Does liability extend to subsequent unrelated injuries that that would not have occurred but for the defendant’s conduct?

Ratio: The defendant is liable for subsequent, medically unrelated injuries if: They are a foreseeable consequence of the tortious conduct; and They do not result from the plaintiff’s own unreasonable behaviour

Analysis: The court held that an injury caused by physiotherapy or medical treatment is a reasonably foreseeable consequence, and that p did not contribute through carelessness.

Conclusion: D is liable for the subsequent injury.

DEFENSES TO NEGLIGENCE ACTIONS

Even if the plaintiff can establish duty, breach, causation, and a lack of remoteness (proximity?), the defendant can still raise certain recognized defenses, including:

Contributory Negligence: P’s own negligence is partly responsible for the harm. Under the BC Negligence Act, P will be included in the apportionment of liability, and must pursue the other tortfeasors individually.

Voluntary Assumption of Risk: P agrees, expressly or impliedly, to waive liability arising from a dangerous activity. The risk must be obvious, and necessary to the activity.

Illegality (ex turpi causa non oritur actio): P may not recover for losses suffered while engaging in illegal or immoral conduct. In Hall v Hebert (1991) SCC, the court limited this defense. It is now only applicable:

To prevent a person from profiting from illegal conduct; or Where a person seeks damages to compensate for a criminal penalty.

Illegality and Voluntary Assumption of Risk are full defenses. Courts are generally reluctant to accept them. However, courts are more willing to find contributory negligence.

British Columbia v Zastowny (2008) SCC

Facts: While in prison for breaking and entering, P was sexually assaulted by a prison official. When he sued, he also claimed for lost wages during his incarceration.

Issue: Does the ex turpi doctrine preclude an award for wages lost while incarcerated?

Ratio: Claims for lost wages due to incarceration are precluded by the ex turpi doctrine except in exceptional circumstances, such as wrongful conviction.

Analysis: This rule is based on the principle that the law should be unified. The inconsistency of rewarding someone in a tort action for a “lawful injury” imposed by criminal law would undermine the integrity of the justice system.

Conclusion: Appeal allowed, wages lost for incarceration excluded from damages.

DUTY TO WARN

Riebl v Hughes (1980) SCC

Facts: D operated on an occlusion in P’s artery. The surgery was competently performed, but P nevertheless had a stroke during or immediately afterward. P was a year and a half from earning a full pension, and alleged that he would have delayed the surgery if he had been adequately warned of the risks.

Issue: When determining whether a failure to disclose a material risk caused the harm, is the test be subjective or objective?

Ratio: The test for assessing whether a failure to disclose caused the harm is a modified objective test. It asks what a reasonable person would do in the patient’s circumstances.

Analysis: The court held that a subjective test would not work because the patient’s subjective assessment will be skewed by hindsight. However, it would be unfair to

use an objective test without considering the patient’s circumstances (such as P’s pension). However, the objective test will not consider the unreasonable concerns of the patient.

Here, the court finds that the reasonable person would not have consented to surgery if D had made full disclosure. They note the pension, coupled with the fact that the risk of inaction was distant, not immediate.

Conclusion: Appeal allowed, D is liable.

Videto et al v Kennedy (1981) ONCA

Facts: P got a sterilization surgery. She wanted to hide it from her Catholic parents, so she got a surgery that would leave minimal scarring. However, she did not mention her concerns about scarring to the surgeon. Her bowel was pierced in the procedure, which almost killed her and required additional surgery, leaving a visible scar. An expert witness said that risk of a pierced bowel was around 2 or 3 per 1000, and that it was not standard practice at that time to disclose risks with that level of incidence.

Issue: Had the surgeon breached his duty to disclose material risks?

Ratio: The surgeon has a duty to disclose risks that would not normally be material if he knows or ought to know that they are particularly relevant to the patient.

Analysis: Here, the size of the scar was very important to P. However, she did not tell D that or otherwise give any indication that the size of the scar was more important to her that it would have been to an ordinary patient. Absent P’s special concerns, the risk of the larger scar would not be material, so there was no duty to disclose it. Also, the prevailing practices of disclosure in the medical profession are relevant, but not dispositive.

The court also notes that a risk of grave consequences like death or paralysis will often be material even if it is unlikely. However, the fact that the patient nearly died did not weigh heavily here because P’s focus was clearly on the scar, not on her near-death experience.

Conclusion: Appeal allowed, no liability.

Note: Hankins v Papillon (1980) QCSC – The doctor’s duty to disclose is higher where the surgery is elective: “the doctor has a duty to be especially careful to disclose…”

Note: White v Turner (1981) ONHC (affirmed at ONCA) – P underwent a breast reduction surgery for primarily cosmetic reasons. The court held that for elective operations, even minimal risks must be disclosed. Also, where the surgery is cosmetic, risks of cosmetic consequences (scarring, for example) are more likely to be material.

Martin v Capital Health Authority (2007) ABQB

Facts: P had a benign brain tumour. D operated on it. The surgery was performed competently, but nevertheless caused a stroke. P was left paralyzed and had difficulty speaking. The only issue was whether all material risks had been disclosed.

P had made clear that it was important to him to have the first dance at his daughter’s upcoming wedding. D told P that the surgery was not urgent, and that he should take his time to decide, or to seek a second opinion. When discussing risk, D mentioned the risk of hearing loss, and claims to have mentioned bleeding in the area of the surgery.

Issue: Two main questions:1) Did D discharge his duty to disclose material risks?

2) If P would have had the surgery anyway (but later), does the inevitability of the surgery void causation?

Ratio: 1) Doctors must disclose material risk in language that the patient will understand.2) To establish causation, P only needs to show that full disclosure would have

prevented them from consenting to the procedure at that time. Whether P would have consented to the surgery in the future is irrelevant, and the patient is entitled for full recovery.

Analysis: The court found that D had mentioned the risk of bleeding, but that was insufficient, since P did not know that bleeding in the brain meant having a stroke. To discharge his duty, D had to disclose the risk in terms a layperson could understand.

D argued that the failure to disclose did not cause the harm, since P would have consented to the surgery anyway. The court rejected this, drawing an analogy to Riebl.

Conclusion: D is liable. (Note that this was overturned on appeal, but on different grounds.)

Hollis v Dow Corning Corp (1995) SCC

Facts: P got breast implants. One of them ruptured after the surgery, which required remedial surgery and caused lasting pain. Dow, the manufacturer, knew of risks related to the implants but did not immediately disclose them to the medical community.

Issue: Two main issues:1) How does the duty to warn apply in cases where the product is sold to an

intermediary?2) What is the test for causation in cases involving medical products?

Ratio: 1) If a product is only intended to be used under the supervision of experts, or the

nature of the product does not allow the manufacturer to directly warn the consumer of its risks, the manufacturer can discharge the duty to warn through a learned intermediary

2) For medical products, the test for whether a failure to warn caused the harm is the subjective test from Buchan, not the modified objective test from Riebl.

Analysis: An example of the learned intermediary is a doctor: the breast implants are only available through doctors, so the manufacturer cannot warn the consumer directly. In this case, the manufacturer has a duty to fully inform the doctor. Dow failed this duty by not immediately disclosing its knowledge of the risks of rupture to the medical community. Moreover, Dow cannot escape liability by arguing (even plausibly) that there was no causation because the doctor, if fully informed, still would not have warned the patient.

Dow also contends that the failure to warn was not the cause of the harm because P would have consented anyway. The court holds that on that issue, this case is more closely analogous to product liability than to doctor-patient cases. The court therefore adopts a subjective test, citing a case called Buchan. This is justified on policy grounds: manufacturers have a perverse incentive to withhold warning and emphasize benefits, so it is desirable to counteract that by holding them to a stricter standard.

Conclusion: D is liable for breaching the duty to warn.

GOVERNMENT LIABILITY

Note: Barratt v District of North Vancouver (1980) SCC (Cited in Just) – The court draws a distinction between policy decisions, for which the municipality cannot be liable, and the implementation of that policy, for which they could be.

Just v British Columbia (1989) SCC

Facts: P was driving to Whistler when a boulder fell onto his car, killing his daughter and injuring him.

Issue: Which types of government decisions are immune to tort liability?

Ratio: Government is not liable for the reasonable exercise of bona fide discretion (also known as true policy decisions.)

Analysis: The court notes that Crown immunity is abolished in BC, and to make the policy exemption to wide would, in effect, resurrect it. The court adds that true policy decisions can be made at a low level in the hierarchy. It is the nature of the decisions that matters. If they a matter of administrative direction or expert opinion, they are not true policy.

The lighthouse example: if the gov’t decided to cease lighthouse inspections so that finds could be redirected elsewhere, that would be a true policy decision. However, if a scheme were implemented, they could be liable for its negligent design and implementation. (Examples of true policy decisions are often about resource allocation.)

Here, the court holds that the decisions in question are not true policy decisions, but administrative ones. There was a scheme in place, but it failed to prevent the harm. The case is sent to retrial to find the appropriate facts.

Conclusion: Retrial ordered.

Note: Brown v BC (1994) SCC – P was injured then he hit an icy patch of highway. Others had crashed in the same spot that morning, but a sand truck had not arrived yet because the Highways Department office was on summer hours. The court held that this was a true policy decision based on resource constraints, personnel, and union negotiations.

Note: BC v Imperial Tobacco (2011) SCC – The court reframes the definition of “core policy” decisions, with a focus on their positive characteristic (“economic, social and political factors”) rather than the quality of being “non-operational.”

Note: Hill v Hamilton-Wentworth Regional Police Services Board (2007) SCC – A wrongfully-convicted person sued the police. The court held that the police owe a duty of care to suspects that they investigate. This was not a previously-recognized duty, so the court applied the Anns/Cooper test.

Note: Fullowka (2010) SCC – [Mine bombing case.] The court held that mining regulators owe a duty of care to miners. While it seems analogous to Cooper, the court distinguishes on the grounds that miners are a much smaller, more defined group (as opposed to the public at large in Cooper), the regulators had more direct dealings with the miners.

Note: Paradis Honey Ltd v Canada (AG) (2015) FCA – Maybe cases against public bodies should be dealt with through administrative law rather than negligence.