Torts Sutherland F05

7/29/2019 Torts Sutherland F05

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Torts Summary

Fall 2005

Table of contents:

1. INTRODUCTION

A. Compensation SystemsA PROBLEM OF INJURY AND LOSS

COMPENSATION SOURCES, Cooper-Stephenson & Saunders

B. The Structure of an Action in Negligence

THE ELEMENTS OF NEGLIGENCE, Cooper-Stephenson

DUNSMOREv.DESHIELD

2. NEGLIGENCE: DUTY OF CARE

A. The Neighbour Principle

DONOGHUEv. STEVENSON

B. Supervision and Prevention

ARNOLD v. TENOHOME OFFICEv. DORSET YACHT(C.A.)

HOME OFFICEv.DORSET YACHT(H.L.)

C. Government Liability and Statutes

JUSTv.BRITISH COLUMBIA

JANE DOEv. TORONTO (H.C.J.)

JANE DOE v. TORONTO (Gen. Div.)

D. Failure to Act

OMISSIONS, Atiyah

LIABILITY FOR OMISSIONS, Cooper-StephensonHORSLEYv.MACLAREN

OKEv. WEIDE TRANSPORT LTD.ZELENKO v. GIMBEL BROS.CROCKER v. SUNDANCE NORTHWEST RESORTS

E. Pre-Natal Injury

DOBSONv.DOBSON

F. Social Host Liability

CHILDS v. DESMOREAUX

3. NEGLIGENCE: BREACH OF DUTY

A. The Reasonable Person Standard

VAUGHNv.MENLOVE

BLYTHv.BIRMINGHAM W.W. CO.DOBSONv.DOBSON

WARES TAXI LTD. v. GILLIHAM

B. The Impugned Conduct

WARES TAXI LTD. v. GILLIHAM

C. Unreasonable Risk

U.S. v. CARROLL TOWING CO.

BOLTONv. STONE


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PRIESTMANv. COLANGELO

CROCKER v. SUNDANCE NORTHWEST RESORTS

D. The Mentally Disabled

FIALA v. CECHMANEK

E. The Young

HEISLER v.MOKEF. Professional NegligenceCHALLAND v.BELL

BRENNER v. GREGORY

G. Custom

WALDICKv.MALCOLM

TER NEUZENv.KORN

H. Negligence and Statutory Provisions

R IN THE RIGHT OF CANADA v. SASK WHEAT POOL

GORRISv. SCOTT

RYANv. VICTORIA (CITY)

4. NEGLIGENCE: FACTUAL CAUSATION

A. Cause-In-Fact

KAUFFMANv. T.T.C.

B. General Onus of Proof

SNELL v.FARRELL

C. Two Negligent Defendants But Only One Cause

COOKv.LEWIS

D. Market Share and Simple Probability

SINDELL v.ABBOT LABORATORIES

E. Multiple Cause

ATHEY v. LEONATI

THE NEGLIGENCE ACT

5. NEGLIGENCE: REMOTENESS AND PROXIMATE CAUSE

A. Directness Test

IN RE POLEMIS

B. Foreseeability of Plaintiff

PALSGRAFv.LONG ISLAND RY. CO.

HAY, (or BOURHILL) v. YOUNGHORSLEYv.MCLAREN

C. Foreseeability of Damage

THE WAGON MOUND (NO. 1)SMITHv.LEECH BRAIN

HUGHESv.LORD ADVOCATE

THE WAGON MOUND (NO. 2)INTERVENING CAUSE, Cooper-Stephenson & Saunder

WIELAND v. CYRIL LORD CARPETS LTD

MERCER v. GRAY

D. Nervous Shock


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MARSHALL v. LIONEL ENTERPRISES

RHODES v. CNR

ALCOCK v. CHIEF CONTABLE OF SO. YORKSIRE

6. NEGLIGENCE: DEFENCES

A. ApportionmentBUTTERFIELD v.FORRESTER

DAVIESv.MANN

THE CONTRIBUTORY NEGLIGENCE ACTWICKBERG v. PATTERSON

GALASKE v. ODONNELL

B. Complete Defences

1) Voluntary Assumption of Risk

HAMBELY v. SHEPLEY

DUBE v. LABAR

CROCKER v. SUNDANCE NORTHWEST RESOURTS

2) IllegalityHALL v. HERBERT

7. INTENTIONAL INFLICTION OF HARM

A. Intentional Infliction of Mental Suffering

WILKINSONv.DOWNTON

CLARKv. CANADA

B. Battery and Assault

BETTEL v. YIM

BRUCEv.DYERNORBERG v. WYNRIB

8. TORT LAW AND DISCRIMINATION

BHADAURIA

JANE DOE V. TORONTO

1. INTRODUCTION

Torts v. Criminal1. Different parties involved (no government)

2. Different onus of proof (balance of probabilities v. beyond reasonable doubt)

3. nature of what your trying to prove is diffent (intent v. negligence)4. purpose different punishment v. compensation

5. remedies monetary vs. jail

A. Compensation Systems

A PROBLEM OF INJURY AND LOSS

COMPENSATION SOURCES, Cooper-Stephenson & Saunders

Alternative sources of assistance:1. Employment insurance

2. Canada Pension Plan - some compensation


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3. Workers Comp. - developed in part to avoid tort action for injuries incurred on

the job.

4.Veterans Pensions and allowances5. Criminal Injuries Compensation - govt funded comp.

6. No-fault Auto insurance -

7. Welfare - base-line assistance8. Insured health services - healthcare etc.

9. Sick Pay - privately funded

10. Occupational disability pensions - professional groups etc.11. Private accident insurance - life insurance etc.

12. Public or private benevolence - Ronald MacDonald House, Friends, Family

13. Reparation under the criminal code.

Benefit of opting for civil action for damages?

- greater compensation - all other sources generally limit the amount

you can receive.

Drawbacks?- cost; lawyer required

- time- payment mechanism - lump sum and therefore involves a lot of guess work.

- medical implications of injury may not be known

-settling out-of-court typically involves less money.

Underpinnings of Tort Law (its goods):

1. Compensation - the central accomplishment/aim of tort law - all of the above

serves to compromise this. - requires loss spreading

2. Deterrence -obviously conflicts with loss spreading but nonetheless, word-of-mouth serves to deter

-no empirical evidence that it works that way.

- there are people that arent capable of meeting the standards andtherefore will not be detered by it.

3. Tort law as an educator - tort law reflects values of society

Studies of heavily regulated industries reveal that tort liability does affect practices4. Gives citizens a voice without violence etc.

- also good psychologically - explains many low-reward torts.

- pretty expensive therapy.

- what is the psychological effect if you lose

Only a case in tort law --if there is somebody to blame.

Important to know alternatives in order to decide if youre going to pursue a court case.

B. The Structure of an Action in Negligence

THE ELEMENTS OF NEGLIGENCE, Cooper-Stephenson

The BIG FIVE: (each have to be established, more or less in order)

1. Duty of Care:

is there a duty of care?:


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- whether the class of persons to which the defendant belongs owe a duty

of care to the class of persons to which the plaintiff belongs?

- done at a level of generality - ie. Dr. and PatientTwo Part Test:

1. General Proximity: should the defendant have the plaintiff in mind hen

they are acting.2. Social Policy: is there a reason why - in spite of G.P. - the harm should

be excused???

This is basically the Anns Test brought to Canada officially in Kamloops.

2. Breach of Duty.

Given Duty of care: did the defendant fall below the standard of care that a

reasonable person would have provided.

Three Part test for breach of duty:1. Who is the reasonable person to whom the defendant is to be

compared? ( some times helpful to look at the class of persons

defined in duty of care - ie. Reasonable Drs)

2. What is the impugned conduct?-what did the defendant do that is alleged to be negligent.

3. Balancing test what would the reasonable person have done.foreseeability of harm to plaintiff + extent of that harm VS. burden of precautions which

would have prevented that harm + the social utility of the defendants conduct (rescue

workers speeding to another accident strike a person idea) = liability.

3. Damage -

Whether the plaintiff suffered legally recognizable damage.

A. Pure economic loss - damaged property

B. Pure Emotional distressWhether the plainitff suffered legally recognizable damage within a timeframe

that is actionable.

limitations of action acts - central question of when that period begins torun typically the moment damages are discoverable

4. Factual Causation - given duty, breach, damage

- Whether as a matter of scientific fact the defendants breech can be said to havecaused the harm of the plaintiff.

- but-for test: were it not for the defendants conduct would the plaintiff have

suffered the harm.

- problems arise in instances of multiple defendants:multiple sufficient cause the typical answer

5. Remoteness/proximate cause

Whether the harm caused to the plaintiff was sufficiently closely linked to thedefendants conduct to give rise for recovery.

Although it could be a cause, the proximity should affect:

a. Proximity of plaintiff - how close to the accident was the plaintiffb. Proximity of damage - the relation of the damages to the accident

c. Intervening cause - did something happen inbetween defendants breech and the

damage that broke the chain of causation

d. Post-injury events - something/somebody exacerbating the plaintiffs damage


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after the fact; ie. Medical care

FOLLOWED BY FOUR MORE (what is the importance of these)

6. Complete Defenses:whether circumstances exist that give rise to excuses which completely excuses

the payment of damages.

Only a couple left:1. Voluntary assumption of risk - volenti non fit injuria

2. Illegality - ex turpi causa non oritur action

3. Statutory defences: immunities given to public officials.Used to be that contributory negligence was a complete defence

7. Apportionment

should the damages be apportioned in relation to fault. Ie. Contributory

negligence and how damages should be proportioned by way of contributionbetween joint defendants.

established the same way as negligence with the exception of duty - which

is assumed

8. Measure of damages: (the aftermath)What sum of money will provide compensation - Ie. Put plaintiff in position they

would have been in1. Pecuniary Loss - tangible loss; aproximate income loss etc.

2. Non-pecuniary loss - non-tangible; pain and suffering, Etc.

- courts try to provide sum that will give solace for pain and suffering etc.3. Aggravated Damages - money to soothe feelings of humiliation,

indidgnation, fear of repletion etc. (most likely in intentional torts)

4. Exemplary of punitive damages - what is appropriate to punish the

Defendant (quite rare)

9. Vicarious Liability

whether another person is vicariously liable for the conduct of the defendant

- employer and employeeDUNSMOREv.DESHIELD

Facts:Plaintiff purchased eyeglasses from Deshield, optometrist. Lenses weresupposed to be Hardex and thus stronger than regular lens glass.Plaintiff was injured when glasses broke during touch football game.Issues

Did defendants owe a duty of care to ensure Plaintiff receivedHardex lenses?

Decision

Judgment for plaintiff against defendants jointly and severally;claim of defendant Deshield for indemnity against defendantImperial allowed

Reasons for Decision

Plaintiff was not engaged in a game of violence and was not

guilty of contributory negligence

Each defendant had duty to Dunsmore to ensure he received

Hardex lenses


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Imperial had duty to Deshield to supply Hardex lenses

Deshield had no duty to Imperial to test lenses

Ratio Decidendi

In case in which co-defendants, a supplier and a retailer, contractto provide product to a plaintiff, they have a duty to ensure the

correct product is provided. The supplier co-defendant isultimately responsible for ensuring the correct product issupplied.

2. NEGLIGENCE: DUTY OF CARE

theres no negligence in the air - a you can not be held for negligence unless you owe aduty to somebody.

A. The Neighbour Principle

DONOGHUEv. STEVENSON(1932)Procedural HistoryHeard in the House of Lords on appeal from The Second Division court.

Trial Court had found in favour of the appellant Donoghue, and theSecond Division dismissed the action on appeal.Facts of CaseThe appellant consumed a bottle of ginger beer manufactured by therespondent and claimed afterward to have contracted a serious illnessfrom a snail later discovered in the bottle. The bottle was opaque anddid not afford the appellant the ability to inspect its contents beforedrinking.Issues / QuestionsIs a manufacturer who sells a product to a distributor in circumstanceswhich prevent the distributor or the ultimate purchaser from

discovering by inspection any defect under any legal duty to theultimate purchaser to take reasonable care that the article is free fromdefect likely to cause injury to health?DecisionFound in favour of the appellant.Reasons for DecisionIt was accepted from the lower courts writings that the manufacturerwas in fact responsible for the snail in the bottle and that the snail wasthe cause of the appellants illness. The only remaining issue was theestablishment of duty of care. It was held that the manufacturer oweda duty of care to the appellant in that he should have reasonably

foresaw that his failure to ensure the product was free of contaminantscould have resulted in illness or injury to the consumer, and was boundto do so.Ratio DecidendiOne must take reasonable care to avoid acts or omissions which onecan reasonably foresee would be likely to injure his / her neighbour.Neighbours are defined as persons who are so closely and directlyaffected by ones act that (s)he ought reasonably to have them in


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contemplation as being affected when one directs his / her mind to theacts or omissions in question.CommentsLandmark case; neighbour principle became the hallmark test fornegligence in tort law. This was extended in Home Office v. Dorset

Yachtto apply to public authorities as well.

Beginning of modern negligence comes fromDonoghue:

Two part Duty of Care test resulted. (specifically the first part)- several relationships here. Plaintiff and friend who bought the beer. Plaintiff

and proprietor of caf. Plaintiff and manufacturer.

o No specific contract between plaintiff and manufacturer.

Prior to Donoghue, there was more of a list as to those who have duties. (Lord Atkinslist pg. 2-2)

Lord Atkin claimed there was an underlying principle.

-duty to your neighbour:

Pg. 2-3 duty to thy neighbour.The rule that you are to love your neighbour becomes in law, you

must not injure your neighbour; and the lawyers question, who is

my neighbour? Receives a restricted reply. You must takereasonable care to avoid acts oromissions which you can

reasonably foresee would be likely to injure your neighbour. Who,

then, in law is my neighbour? The anser seems to be personswho are so closely and directly affected by my act that I ought

reasonably to have them in contemplation when I am directing my

mind to the acts or omissions which are called in question.Thus Lord Atkin established step 1 foreseeability and general proximity.

Lord Macmillan:The window of negligence is never closed.

The dissenting Lord Buckmaster:- if one step, why not fifty reveals the fear of extending this idea.

Step 2: social policy.- arose fromAnns v. Merton London Borough Council- three parts

o scope of the duty

o class of persons to who it is owed

o damages to which a breach of it may give rise.

Social policy considerations only brought in through nature of relationship betweenplaintiff and defendant.Read Cooper v. Hobart LRW par. 33

Anns test brought in to Canada inKamloops v. Nielsen

- what is the relationship between the two parties.

o If its happened before its easier

If not have to discover if there is general proximity.


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Identify class of persons/type of relationship and argue

that it is somehow analogous.

Policy: para. 37 ofcooper would recognition of the liability open floodgates.Examples:

1. Administrative factors.

2. Nature of the activity that is alleged to be negligent. Is this a sphere ofactivity better left free of oversight by tort law. (eg. Omissions as

opposed to acts)

3. Identity of the defendant. Is this a class of actor who should be free ofoversight by tort law? Eg. Government actors.

4. nature of the damages. Is this a type of damage which ought not to be

compensable through tort law? Eg. Pure emotional distress and pure

economic loss (loss of profits).

B. Supervision and Prevention

ARNOLD v. TENO (1978)Procedural History

The truck driver and owner appealed to the Supreme Court respectingliability and quantum of damages; the owner and driver of the carappealed only respecting their quantum of damages; the motherappealed the granting of contribution against her.Facts of CaseThe infant plaintiff bought ice-cream from the defendants ice-creamtruck parked at the curb, and in crossing the street to return home wasstruck by a passing car. The driver of the truck was untrained and wasusing a manual provided by the truck owner which did not apply inseveral respects to the truck in question. The infant plaintiff was notaccompanied by a parent at the time of the accident. However, Mrs.

Teno warned her daughter to watch for cars before giving her themoney.Issues / QuestionsWhere one party operates a business which by design attracts smallchildren in a public area, does the party owe a duty of care to thesechildren to ensure their safety in the course of transacting its businesswith them?Was the mother negligent in her actions as compared to a reasonablestandard of care for her neighbourhood.DecisionThe appeal of the driver and owner of the truck respecting liability was

dismissed. The appeal as to the quantum of damages for all fourdefendants was allowed and the portion of damages assigned to themwas reduced. The mothers appeal with respect to contribution wasallowed and the defendants claim against her dismissed. Held thatthe mother was entitled to costs.Reasons for DecisionFindings of the lower court with respect to the negligence of the cardriver and owner were upheld. The Appeal Courts finding with respect


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to the mother was overturned as it was found that she had actedwithin a parents normal standard of care in this situation as herchildren had been properly instructed in road safety with respect tovisiting ice-cream trucks and had visited them without incident in thepast; moreover it was held that she was entitled to rely on the vendor

to exercise some care toward the children which it attracted.

Citing the neighbour principle from Donoghue v. Stevenson, the Courtreaffirmed the Trial Court finding that ice-cream truck driver and ownerowed a duty of care to customers too young to be held responsible fortheir actions and that they were in breach of such duty; it alsoreaffirmed the Appeal Court finding that the children induced into thestreet by the defendants. . . became the neighbours of thedefendants, and as it was reasonably foreseeable that harm mightbefall the children in crossing the street to the truck, the defendantsshould taken steps to ensure the safety of their children customers.

The mother exercised a standard of care deemed reasonable in light of neighbours

including: telling the children to watch for cars, had watch the kids do this before.

Ratio DecidendiWhere one party operates a business in a public area which by designattracts small children, a relationship is formed which dictates that theparty owes a duty of care to these children to ensure their safety in thecourse of transacting its business with them; furthermore, parents mayexpect the party to assume a duty to take reasonable care of thesechildren.

The mother has a liability which must be considered in relation to the acceptedstandard of care by parents generally in the community.

Obiter:-It is probably the case that not finding teno negligent was at least partly a result of the

financial needs of the family/Dianne Teno.

-Custom is persuasive but NOT sufficient/absolute evidence.-Arguments put forward by Arnold:

- it wasnt economically profitable to put a second person in the car.

- Argued that there should be no duty because of their omissions.

o Court said that this was in the exception of the no liability onomissions law.

HOME OFFICEv. DORSET YACHT(C.A.)

Procedural HistoryHeard in Court of Appeal, Civil Division (U.K.) on appeal by thedefendants (Home Office) from Trial Court preliminary judgment; casehad not been tried prior to appeal.Facts of Case


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Seven borstal boys in the custody of officers of the Home Officeescaped from custody in the night, boarded a privately owned yacht,and did significant damage to the vessel. The plaintiffs insurancecompany paid for repairs and brought an action against Home Officefor recovery of damages.

Issues / QuestionsIs the Home Office liable for damage done by prisoners who escapefrom custody or done by them whilst on parole?DecisionHeld that the Home office did owe a duty of care to those in theneighbourhood which was capable of giving rise to a liability indamages; appeal dismissed.Reasons for DecisionDENNING, M.R.: As this was a preliminary finding of law, facts were notin dispute. Argued that recent case law involving prisoners harmingother prisoners provides a basis for the Home Offices duty to others

beside the Crown. The damage was not too remote as it couldreasonably be foreseen as a consequence of leaving the boys free toescape at will. Held that neighbours of the borstal institutions areentitled to expect that reasonable care will be taken to protect themand that maintaining the neighbours confidence in the law supercedesthe importance for Home Office agents to be able to operate withoutfear of liability. Held that Home Office agents would be considerednegligent if they did not take such care and supervision as areasonable person operating such a system would take.-Inch by inch approach; gradually extends hypotheticals to eventualsituation.

EDMUND DAVIES L.J. (concurring): Cited exceptions to the generalprinciple that no one man is under no duty of controlling another manto prevent his doing damage to a third, wherein the man may beresponsible where the third person could not have acted but for thefault or breach of duty of the first man. These include relationshipssuch as parent and child, master and servant, principal and agent, andjoint tortfeasors. Held that those responsible for prisoners should beresponsible for their actions upon escape just as they are responsiblefor their actions while in custody. Carmarthenshire County Council v. Lewis ruled that duty between teacher and pupil but also between teacher and users of nearby

highway to keep students away.Just saying that they have a duty NOT that they are necessarily liable.Ratio DecidendiThe Home Office liable for damage done by prisoners who escape fromcustody or done by them whilst on parole where the damages could bereasonably foreseen as a consequence of the Home Offices breach ofduty toward the neighbourhood by failing to maintain propersupervision of the prisoners.


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HOMEOFFICEv.DORSET YACHT(H.L.)

Viscount Dilhorne:

If foreseeability test is applied to determine to whom the duty is owed, I am at a loss toperceive any logical ground for excluding liability to persons who suffer injury or loss no

matter how far they or their property may be from the place of escape, if the loss or injury

was of a character reasonably foreseeable as the consequence of failure to take propercare to prevent the escape.

C. Government Liability and Statutes

Two conflicting problems.

1. governments should have liability like the rest of us

2. governments being special should have some special status.

courts should not decide for governments how to spend their

money.

Potential for liability is nearly endless.

General rule: liability for policy but not operation

JUSTv.BRITISH COLUMBIAFacts:Appellant and his daughter were driving to Whistler on Sea-to-sky. Aheavy snowfall forced them to wait in traffic; a boulder fell down theslope and landed on the car, killing the daughter and severely injuringthe plaintiff. Appellant brought action against the respondent fornegligently failing to maintain the highway properly.Issues / QuestionsDoes the Crown owe a duty of care to ensure the safety of those usingthe public highways?To what extent if any is the Crown liable to citizens for damages

caused by its decisions?DecisionFound that the province did owe a duty of care; appellant was entitledto a finding of fact; new trial was ordered.Reasons for DecisionCORY J.: Applied two part test developed from Donoghue v.Stevenson / Hedley Byrne / Dorset Yacht:

1. Is there sufficient proximity and foreseeability?- Proximity was established by province inviting touriststo go to Whistler. Thus creating a duty of care.

2. Whether or not there were limiting social policy

considerations?a. Is there statutory immunity?

- An examination of the Crown Proceeding Actand theHighway Actnot only did not absolve the province ofresponsibility, but in fact established a positive duty byholding the province liable for the maintenance ofhighways to the same extent that municipalities areliable for roadways, and making the Crown subject to


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all those liabilities to which it would be liable if it were aperson.

b. Is there common law immunity?- The court cited an Australian case (Sutherland ShireCouncil v. Heyman) which distinguishes between policy

decisions, which arent actionable, and operationaldecisions, which are. Court found that the specifics ofthe inspection system, which may have beenresponsible for the accident, were a matter ofoperational rather than policy decision.-The court cited an Australian case (Sutherland ShireCouncil v. Heyman) which distinguishes between policydecisions, which arent actionable, and operationaldecisions, which are. Court found that the specifics ofthe inspection system, which may have beenresponsible for the accident, were a matter of

operational rather than policy decision.- Policy Realm: nature of decision

- Based on finance - level of authority ofdecision maker - Operational Realm: howpolicy is carried out.

- action/inaction which is merely the product ofadministrative direction.

Ratio DecidendiA public authority is under no duty of care in relation to decisionswhich involve or are dictated by financial, economic social or politicalfactors or constraints. . . But it may be otherwise when the courts are

called upon to apply a standard of care to action or inaction that ismerely the product of administrative direction, expert or professionalopinion, technical standards or general standards of reasonableness.CommentsOne stated exception to ration: policy is actionable when it does notconstitute a bona fide exercise of discretion.SOPINKA dissenting: inspections were a matter of policy and thusprotected; in any case, no evidence of a lack of reasonable care so itllprobably be dismissed in a finding of fact.Hedley v. Byrneapplies neighbour principle to cases involvingnegligent statements causing economic losses. Same trilogy (with

Donoghue v. Stevenson and Dorset Yacht) applied inAnns v. Merton.Policy can be open for tort law (according to Just) if not made in bona fide exercise

of discussion: a decision will be deemed not to have been made in the bona fide exercise

of discretion if it is made in bad faith or if it is so irrational as to constitute an improper

exercise of government discretion. (2-36)-Roncarelli v. Duplessis stands as example of bad faith decision making by

governments.


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misfeasance in a public office or abuse of power isa tortious liability; Discretion necessarily implies goodfaith in discharging public duty

NOTES (Casebook 472)Hedley v. Byrneapplies neighbour principle to cases involving

negligent statements causing economic losses. Same trilogy (withDonoghue v. Stevenson and Dorset Yacht) applied inAnns v. Merton.The Anns Test of government liability:

1. Sufficient proximity.2. Policy considerations.

- The two-partJusttestSee 2-41

Kamloops v. Nielson, [1984]

Claimant can still recover if it can be shown that a policy decision

was made in bad faith or that it was so irrational that it was not aproper exercise of discretion. A government agency may be held

liable if it fails to follow properly the policy it has adopted (Lindenp.472).

Policy vs. operation= probably a distinction of degree

Government can be held liable if it fails to even consider enforcing

its by-laws (if it considers it and as a matter of policy elects not to,its not actionable): inaction for no reason or inaction for animproper reason cannot be a policy decision taken in the bona fideexercise of discretion. Failure to consider=failure to act withreasonable care

Imports theAnns Test

JANE DOEv. TORONTO (H.C.J.)

Facts of CaseVictim was raped at knife point by a serial rapist who was known to beoperating in the area by police, who made no effort to alert thecommunity. Police claimed that they had refrained from issuingwarranty to avoid a hysterical reaction from neighbourhood womenwhich might cause the rapist to flee. This case is a motion bydefendants to strike out the statement of claim and dismissthe action as disclosing no reasonable cause of action.Issues / QuestionsAre the police liable for negligence and breach of plaintiffsconstitutional rights under the Charter for failing to allocate adequateresources to the investigation, failing to capture the offender andfailing to adopt appropriate investigative techniques and to protect theplaintiff from foreseeable harm to her as a potential victim?DecisionPolice board and chief may be sued in respect to their own torts; chiefalso liable under s.24 for torts of his constables


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NOTE: Rejects policy defence that police would be hampered bycontinually fighting law suits because these will only be opened in rarespecial circumstances.CommentsPurpose of case was to determine if there were grounds to find a duty

of care under which the police could be found liable for negligence.Their guilt would be determined in a future proceeding once theremotion to quash the statement of claim was dismissed in this case.A number of precedents are consulted in discussingAir India:

Anns v. Merton London Borough Council2 part test: (1) Is there a

sufficient relationship of proximity or neighbourhood such that, Inthe reasonable contemplation of the former, carelessness on hispart may be likely to cause damage to the latter, in which case aprima facie duty arises. (2) if there is, whether there are anyconsiderations which outgh to negative, or to reduce or limit thescope of the duty or class of person to whom it is owed (Direct

from original judgment) Home Office v. Dorset Yachtgovernment must be free to exercise

discretion, but there must come a stage when the discretion isexercised so carelessly or unreasonably that there has been no realexercise of the discretion which Parliament has conferred. Theperson purporting to exercise his discretion has acted in abuse orexcess of his power, which Parliament cannot have meant to grantimmunity for (Direct from original judgment)

Kamloops v. Nielsenwhere a government official is acting in

execution of a policy or discretionary decision, i.e., in theoperational area, a common law duty of care may arise more

readily (paraphrase byAir Indiajudge) Hill v. Chief Constable of West Yorkshirethere may be no duty of

care to members of the general public. . . however, third does notexclude a duty of care to a more limited class of individuals(paraphrase byAir Indiajudge)

Outside ofAir India:

Johnson v. Adamsonpolice chief held personally liable for allowing

racist attitudes to permeate police force, knowing that it wouldplace black people in danger

Hill v. Chief Constable of West Yorkshirepolice owed a generalduty at common law to public at large, but no common law dutytoward individual members of the public

o Constable may be liable in tort to a person who is injured as

a direct result of his acts or omissions, but fails in secondpart of test with respect to Hill in particular

o Distinguishes from Hill because plaintiff wasnt one of a vast

group at risk with no special distinctive relation to the


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offender; reasonable forseeability that someone like Hill mightbe in danger but its too broad to bring it down to her

Beutler v. Bueutlergeneral duty to warn; proximity is easy

because its the people in the area (gas leak explosion)JANE DOE v. TORONTO (Gen. Div.) (1998)

Issues / QuestionsDid the police owe a duty of care to the plaintiff to notify her as amember of the public of the potential threat posed by the rapist? If so,was the breach of this duty a violation of her Charter rights?DecisionHeld that the police did owe a duty of care, which they had breached,and in doing so had violated the plaintiffs rights under s.15(1) and s.7of the Charter. This violation was not exempt under s.1.Reasons for Decision

1. Is there sufficient proximity and foreseeability?S.57 of the Police Actestablishes a duty of preserving the peace

preventing robberies and other crimes which indicates a duty of careto protect the community members from violent assaults. The courtheld that it was reasonable for the police to foresee that the rapistmight be able to harm other women in the area if they were notwarned to exercise greater caution, and that it was foreseeable thatsomeone belonging to the plaintiffs class of person (i.e. single womenin the area) might be assaulted should the police fail to notify thepublic.

2. whether or not there were limiting social policyconsiderations?JustTest:

a. Is there statutory immunity?-there is none because of s. 57 of the Police Act. However, there is

nothing in the act that would get thereb. Is there common law immunity?

-Policy Realm: nature of decision/decision maker-Operational Realm: how policy is carried out.- Was the decision one of operational or policy level?

o It was a decision made by the officers not by

somebody higher up.

o Court ruled it was an operational decision.

Some question of whether this was right if this was a policy decision, it was one made

in bad faith. Not entirely certain on what basis high court of justice made its decision.Ratio DecidendiThe police owe duty of care to the public to alert its members ofpotential threats to their safety. Failure to do so on the basis ofdiscrimination is a violation of Charter rights.Comments

3rd party liability issue


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Applied under s.24 for compensation strictly related to the Charterviolations, but none was given

SCC has recognized that theres no body of jurisprudence . . . in

respect of the principles which might govern the award ofdamages under s.24

D. Failure to Act

OMISSIONS, Atiyah

P.S. Atiyah, Atiyahs Accidents, Compensation and the Law (2-59)

Attempts to draw logical line between affirmative (misfeasance)and negative (nonfeasance) conduct

Distinction depends on whether youre considering failure to act as

an isolated failure or part of a larger activity

Difference=difference between tort and contract liability: notgenerally bound to act unless theres an agreement to do so,whereas negligence relates to a DOC not to act in a way that causesdamage

Attempts to reach a policy for distinguishing; sets three possible

considerations, then rebuffs each:1. Imposition of affirmative duties is more burdensome than

negative duties, taking more time, effort, money and risk

Existence of burden shouldnt excuse nonfeasance

Extent of burden should be measured against the valueof the end achieved by acting (i.e. inconvenience /expense vs. preservation of life)

However, tort already judges burden of precaution against the

foreseeability of harm - no truly severe burden is ever applied (alreadythe case in torts)

2. Difficulty in identifying person liable for nonfeasance;misfeasant person knows hes done something wrong,whereas nonfeasant thinks hes blameless for doing nothing;who do you blame for it?

This is also a problem with misfeasance, where oftenthe most convenient person is blamed

Question isnt if someone else was more responsible,its if the defendant was responsible

3. Misfeasance is related to causation; nonfeasant doesnt cause

anything directly language of causation in this context simply provides a

way of expressing a judgment about the proper limits ofliability for negligent failure to act

Bottom line: theres probably no satisfactory reason to or way of

distinguishing

LIABILITY FOR OMISSIONS, Cooper-Stephenson


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Old starting point for tort law that said it involves a more seriousrestraint on individual liberty to require a person to act than it is toplace limits on his freedom to act is mistaken because it assumesno-one has any entitlement to anything from anyone; modern viewsrecognize that the strength of [individualistic] sentiments is

steadily being sapped by an increasing sense of heightened socialobligation and other collectivist tendencies in our midst.

gradual acceptance of communitarian political duties to act in a

variety of circumstances has lead to a broadening of categories foromissions liability:1) Where the failure to act was an integral part of a larger pattern

of active conduct2) Where the defendant participated in the creation of a risk or

hazard3) Where the defendant undertook to do something and thereby

induced reliance

4) Where there was failure to perform a contractual promise5) Where the defendant was in a position of supervision and control6) Where the affirmative duty was imposed by statute

2-69:It is still in the modern law of negligence that, there is no duty to come to therescue of a person who finds himself in peril from a source completely unrelated to the

defendant, even where little risk or effort would be involved in assisting: thus a person on

a dock can with legal impunity ignore the call for help of a drowning person

Note: Omissions can be found in nearly every case (Dunsmore, Donoghue, Arnold) in

exams do not go fishing for them. The rule is that there is no duty where there is purely

omissions except for the exceptions (which now pretty much rule).

HORSLEYv.MACLAREN(The Ogopogo)

Ratio DecidendiHeld that a cornerstone of common law is the principle that there isno duty to take positive action in aid of another no matter how helplessor perilous his position is.Comment. . . it appears presently the law that one can, with immunity, smoke acigarette on the beach while ones neighbour drowns. . .

OKEv. WEIDE TRANSPORT LTD.

Facts:Somebody fell ill in dpt. Store was taken to infirmary and left there until they

eventually died.

Omission: Undertaking in reliance: (gratuitous undertaking and reliance)

- Gimbel bros. did not have a duty to deceased but once undertook it had a

duty to finish it

o They prevented others from helping her.

Ratio Decidendi


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A party who would not otherwise owe a duty of care to a second partyassumes a duty of care when (s)he undertakes to assist the secondparty and in doing so lessens the possibility of the second partyreceiving assistance from someone else, thus inducing reliance on thefirst party by the second.

ZELENKO v. GIMBEL BROS.

Facts:

Somebody fell ill in dpt. Store was taken to infirmary and left there until they

eventually died.

Omission: Undertaking in reliance: (gratuitous undertaking and reliance)- Gimbel bros. did not have a duty to deceased but once undertook it had a

duty to finish it

o They prevented others from helping her.

Ratio DecidendiA party who would not otherwise owe a duty of care to a second party

assumes a duty of care when (s)he undertakes to assist the secondparty and in doing so lessens the possibility of the second partyreceiving assistance from someone else, thus inducing reliance on thefirst party by the second.

CROCKER v. SUNDANCE NORTHWEST RESORTS(1988)

FactsCrocker entered a tubing contest at a ski resort. He didnt notice thatthe entry form contained a waiver of liability. He became intoxicatedthe night of the event; resort staff continued to serve him alcohol afterhe passed the point of visible intoxication, despite knowing that he was

a contestant. Crocker was warned of the danger and recommendednot to compete intoxicated by resort staff; he declined this advice,competed, and was severely injured. Crocker sued the resort fornegligence.Issues / QuestionsDoes the organizer of a potentially hazardous sporting event owe apositive duty to prevent visibly intoxicated contestants to compete?DecisionFound for the plaintiff.Reasons for DecisionThe court determined by citing numerous cases that there is a

common law principle that one is under a duty not to place anotherperson in a position where it is foreseeable that that person couldsuffer injury.Special relationship established because:

1. relationship of economic benefit to the defendant.2. Participation in creation of the risk3. Affirmative duty:

Meno v. Hnsberger bar found liable for drunk who died outside of their


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bar

i. court draws comparison b/c held that it was a special

relationship between bar and patron.

Now for dealing with omission you have to look for a special relationship.

Ratio DecidendiAn organizer of a potentially hazardous sporting event held for profitdoes owe a positive duty of care to its visibly intoxicated contestantsto prevent them from competing.

E. Pre-Natal Injury

DOBSON (litigation guardian of) v.DOBSONFacts: Pregnant woman was negligent in causing car accident which induced the

delivery of her baby by c-section. The child was born with CB. Child is the plaintiff

through the grandfather. Purpose of case is to access insurance of mother. (Mother wants

to lose and is being defended by Insurance)

Issues / QuestionsShould a mother be liable in tort for damages to her child arising froma prenatal negligent act which allegedly injured the foetus in herwomb?DecisionAppeal allowed without costs.Reasons for Decision

1. General proximity?

- actually not answered by the courts because they knew it wouldnt get past the

second and, in light of that, did not want to open up the fetus can of worms.- However, in other cases it has been held that third parties do owe a duty of

care to fetuss. (Montreal Tramways under civil code) (Ontario case reasonably foreseeable) Note: its not mother suing its child suing third party.

2. Social policy reasons: Held that there are social policy reasons

- Two main ideas:

o 1. liberty: if we held that there is a duty, every action of an expecting

mother would be subject to dispute. (Sleeping, eating etc.)

Para 28 regulating diet, abstain from smoking, sex, etc.

No rational limit to when tortuous claims

o 2. Equality: Constitutional character of these values.

Charter does not apply to private law. Ie. Can not sue judges

for decisions in which they exercise their law making powernonetheless common law decisions about duty have to be made

in sync with Charter values

While it was recognized that third parties may be held liable in tort forprenatal injuries inflicted by negligence which become actionable uponthe birth of the child and thus his / her becoming a legally recognizedperson, and that in this case the mother owed a duty of care under the


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first condition of the Kamloops test in that she was close in physicalproximity and that it was foreseeable that her actions could causeharm to her unborn child, it was held that the unique relationship ofmother and unborn child provided reasons under the social policycomponent of the test which preclude tort liability of the mother.

These included unacceptable abridgement of her Charter rights toequal treatment (s.15(1)).Ratio DecidendiA mother should not be liable in tort for damages to her child arisingfrom a prenatal negligent act which allegedly injured the foetus in herwomb because to do so would impose unique and unacceptably greatinfringement on her fundamental rights under the Charter.CommentsMcCLACHLIN, concurring: added that imposition of tort liability wouldinfringe on pregnant womens liberty and equality under the Charterand that the Appeal court notion that she could be held liable under a

general duty of care to anyone on the road was bizarre because itwould probably require that some unrelated third party were alsoharmed.

F. Social Host Liability

CHILDS v. DESMOREAUX

offers a summary of duty of care.

Facts:

Zimmerman and Courrier hosted a new years party at which Desormeaux was a guest.

The party was BYOB. Desormeaux had two previous D.U.I. convictions and drove to theparty. Sometime later, Desormeaux left the party with two other guests and drove home.

He hit a car in which Childs was a passenger leading to her serious injury. His bloodalcohol was somewhere around .18.

Joint and several liability applies here (and in most cases of multiple defendants).

Had been decided 75-25 at trial level. Because Desormeaux was broke, Zimmerman and

Courrier were the only ones who were going to have to pay. Theoretically defendantscan go after co-defendant if forced to pay whole sum.

Issue: Is social host liability a novel duty of care and is there a duty owed by social

hosts to users of the road. Should tort liability not be extended to social hosts because of

policy reasons.

Ruling:

Ratio:1. Anns test of tort liability:

a. Is there sufficient proximity?


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question was foreseeable and that there are no case-specific factors that would negate or

limit the imposition of liability, the court will proceed to the second stage of the Anns

test. At this second stage of the Anns test, the court will consider whether there are otherresidual policy considerations outside the relationship of the parties that might affect the

imposition of a duty of care.

Page 296 summary of anns test. Para 24

Once the trier of fact concluedes that the nature of the relationship was such that the

defendant ought to have had regard for th interests of the plaintiff, htat the injury inquestion was foreseeable and that there are no case-specific factors that would negate or

limit the imposition of liability (THIS IS THE COOPER AND HOBART EXTENSION),

the court will proceed to the second stage of the Anns test.

3. NEGLIGENCE: BREACH OF DUTY

Three phases of analysis:

1. Determine the standard of care to be applied

- who is the reasonable person against whom to measure defendantsconduct

2. what is the impugned conduct? Precise conduct that is alleged to give rise to abreach of the standard of care

3. Unreasonable risk standard. Did the defendant in engaging in the impugned

conduct take an unreasonable risk.

Have to satisfy 1 and 2 to get 3.

A. The Reasonable Person Standard

Against whom to measure the defendants conduct? The man on the platinum omnibus.

Subjectivized to some extent by the idea that we look at people in the situation given.

- we dont hold children to the reasonable person standard: we hold them tostandard of child of similar age, intelligence and situation

Oliver Wendell Holmes: quoted in VaughnThe law takes no account of the infinite varieties of temperament,intellect, and education which make the internal character of a givenact so different in different men. . . . when men live in society, acertain average of conduct, a sacrifice of individual particularitiesgoing beyond a certain point, is necessary to the general welfare. . . .he who is intelligent and prudent does not act at his peril, in theory oflaw. On the contrary, it is only when he fails to exercise the foresight

of which he is capable, or exercises it with evil intent, that he isanswerable for the consequences.

VAUGHNv.MENLOVE(1837)

Facts: Defendant constructed a hay-rick which spontatneoulsy combusted and burnt downplaintiffs house. Over period of five weeks the defendant was warned of his peril. He said

he would chance it.


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Issue: Did the defendant breach a duty to his neighbours in constructing the hay-rick as

he did?Did the defendant act bonafide to best of own judgement OR whether he should

be compared to reasonable person standard.Ruling: yes. Should be compared to reasonable person.

there is a rule of law which says you must so enjoy your own property as not to injure

that of another though the defendant did not himself light the fire, yet mediatley, he isas much the cause of it as if he had himself put a candle to the rick.

Ratio: instead, therefore, of saying that the liability for negligence should be co-

extensive with the judgement of each individual, which would be as variable as the lengthof the foot of each individual, we ought rather to adhere to the rule which reauires in all

cass a regard to caution such as a man of ordinary prudence would observe. That was in

substance the criterion presented to the jury in this case, and therefore the present rule

must be discharged.

the formulation of the idea of a reasonable man.

Court did not take into account the mans questionable intelligence.

Plaintiff shouldnt have to bare the loss simply because of the fact that the defendant

was an idiot.

BLYTHv.BIRMINGHAM W.W. CO. (1856)FactsWater main built and maintained by defendant, froze and flooded house causing damage.

It was an unusually cold frost and there was nothing unusual about the water main etc.Watermain specified with ALL statutory regulations.

Issues / QuestionsWhere a party installs a product to the best known standards of thetime, and the product fails and causes damage nonetheless, is theparty guilty of negligence?

Ruling: defendant was not liable.I am of opinion that there was no evidence to be left to the jury. The case turns upon thequestion, whether the facts proved shew that the defendants were guilty of negligence.

Negligence is the omission to do something which a reasonable man, guided upon those

consideration which ordinarily regulate the conduct of human affairs, would do, or doingsomething which a prudent and reasonable man would not do.

Ratio

Defendant not required to go above the reasonable standard for water-works companies.A party installing a product which causes harm is liable for negligenceonly if they failed to perform the installation standards according towhat a reasonable person would consider prudent, according to

average circumstances and conditions.-Reasonable person standard is culturally specific depth depends upon frost of thatarea reasonable person from another area might not be liable for that.

DOBSONv.DOBSON

Difficulties of Articulating a Judicial Standard of Conduct forPregnant Women

Argues against a standard of conduct for pregnant women


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o Cites Stallman:

What standard would womens acts / omissions whilepregnant would the State apply?

What objective standard would guide juries in tortcases?

How would they stop prejudicial / stereotypical ideasabout women be kept out of equation?

o inconsistent with the general principles of tort law and

unworkable in practiceReasonable Pregnant Woman Standard

spectre of judicial scrutiny and potential liability imposed for

lifestyle choices

problem of holding all women to a single standard would be that not

all pregnant women share the same socioeconomic circumstancesLifestyle Choices Peculiar to Parenthood

impossible to set immunity with respect to activities specific to

parenthood because so many activities important to parenthoodoverlap with regular life (e.g. driving); would lead to inconsistentapplication of the law

Cant have a general duty of care as a test for maternal tort

liability because negligence cannot exist in the abstract. Theremust be a specific duty owed to a foreseeable plaintiff, which isbreached, in order for negligence to arise

B. The Impugned Conduct

Impugned conduct is all about facts

WARES TAXI LTD. v. GILLIHAMexample of impugned conduct evidencing breach.

Facts: Young child riding in taxi opened door and fell out.Issue: Was there a breach of duty on behalf of the taxi driver?

Ruling: Yes there was a breach. They were taking an unreasonable risk.

as this.

Majority:Estey J. Compares to other taxi companies; comments on the age of the students and

the arrangement of the students.

- looks at safety devices.Impugned conduct is failing to do one of these things.

-See how this affects unreasonable risk standard depending on the one you affect theburden goes up or down.- installing a simple lock vs. having another driver.

You look at unreasonable risk through standard of care and impugned conduct.

- this gets at difference between taxi driver and parents.

- helps explain the difference.Ratio: Reasonable person would take extra steps to protect children from incidences such

Obiter:


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Dissent parents knew of the situation. Unfair to place duty on taxi for something

which parents helped create.

Rand J. - compares to reasonable parent. Says that it wasnt that unusual for parents to

pile kids in a car and go for a ride.

Rand and Estey are essentially looking at different people as reasonable standard of care.

- Rand: who is more concerned about the child than the parents?

o Therefore if they acquiesced it was valid.

C. Unreasonable Risk

U.S. v. CARROLL TOWING CO.

Facts: focus on deckhand and harbourmasters fixing of boat to pier.

Liability of the owners for the damage caused by the barge at the fault of thebargee.

They decide that burden of precaution requires at least checking in every 21

hours.Probability of harm was high b/c of crowded harbour.

Three factors to consider:

1. Prob of harm2. Gravity of harm

3. Burden of precautions:

If BP is less than the prob of harm and Gravity of harm then you have breach.

Canadian Courts have embraced algebraic formula with some differences.Object cost substituted instead of Burdern of precaution.

Mathematical formula ( B


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How does reasonable person respond to risk issue. The continuum:

Fantastic Posssibilities___________________________reasonable probability

Court thought this was (mildly) closer to fantastic possibilities.Which end of the continuum risk is on affects whether there is a duty.

Gravity of harm:

Not just the likelihood of being struck but the seriousness of the consequences.Reasonable person would take a very small risk seriously ifit was a very grave harm.

- paris v. stepney borough council(probability and gravity)

Burden of Precaution:-if cricket cannot be played on a ground without creating a substantial risk, then

it should not be played there at all.

Ratio DecidendiTest to be applied should be whether the risk of damage to anotherperson is so small that a reasonable person would have thought it rightto take steps to prevent the danger. He or she should take intoaccount the likelihood of harm being caused and the seriousness of the

consequences should harm be caused, but not the difficulty or expenseof remedial measures.

Feminist critic Prof. Leslie Bender criticizes reasoning in cases like thisfor dehumanizing people by abstracting their suffering into cost-benefit and risk-utility assessments. She states that Tort law shouldbegin with a premise of responsibility rather than rights, ofinterconnectedness rather than separation, and priority of safetyrather than profit or efficiency.

PRIESTMANv. COLANGELO

Facts: Appellant, Priestman was a police officer engaged in a high speed chase with oneSmythson. After attempts at stopping him, Priestman fired at the back tire of Smythsons

car accidentally striking him and leaving him unconscious. Smythsons car ran over two

people who died before it came to a complete stop. Three injured people. Driver of thecar and two pedestrians (Colangelo being one).

At time of this case Supreme court focusing on families of two pedestrians vs. the

policeman. Driver had lost by this point.Issue: did Smythson owe a duty to third party bystanders and did he breach it?

- conflict of duty to apprehend fleeing conflict vs. duty to innocent bystanders.

Ruling: not liable.

Both sides apply the same test. Emphasize different facts and arriving at different

conclusions.Majority: Locke J.: also points out the balancing act.

- views letting go of Smythson as more significant than Cartwright does.- Also weighs the burden of precaution more heavily than Cartwright.

I do not think that these officers having three times attempted to stop the fleeing car by

endeavouring to place their car in front of it were under any obligation to again risktheir lives by attempting this. No other reasonable or practical means of halting the car

has been suggested than to slacken its speed by blowing out one of the tires.


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- Locke takes the position that he has to be stopped.

Dissenting: Cartwright J. - not focusing on the actual chain of events just the final act.

Focus only on firing the gun.- probability of harm Cartwright has no issue, it was going to be harmful

- In addition assumes the gravity of such an act to be high

Other side of the equation: what was the social utility of the impugned act?- Cartwright: not a very significant crime.

- The officer should, I think, consider the gravity of the offence of which the

fugitive is believed to be guilty and the likelihood of danger to other citizens ifhe remains at liberty;

o Cartwright does not see allowing him to proceed as dangerous.

Obiter: adds the social utility of the impugned conduct to the unreasonable risk formula

as an additional factor to weigh against theprobability and gravity of harm.

- social utility mostly only considered in relation to society in general.

Important to note how the perception of the situation determines justices opinions of

burden.

CROCKER v. SUNDANCE NORTHWEST RESORTS

Facts: Drunk tubing accident. Had warned against but nonetheless did not prevent

crocker from competing.Issue: Burden to prevent from competing.

Ruling: They failed. Did not live up to their duty.

Burden of precaution is very minimal.

- Not a great deal of discussion about probability or gravity of harm.Court citedJordan House: it is relevant to relate the probability andgravity of injury to the burden that would be imposed upon theprospective defendant in taking avoiding measures. Held that there

were a number of precautions available to the resort which would haveimposed little burden but which the resort nevertheless failed to take.In doing so it breached its duty to the plaintiff.Ratio DecidendiWhere the party likely to be injured by a defendants failure to meet astandard of care is irresponsible and intoxicated, the defendant isobliged to take all reasonable steps to prevent harm from coming tothe party.

Return to Wares Taxi:

Consider probability, impugne conduct, gravity of harm, burden of precaution and

social utility.Probability of harm:

- frequency of children falling out of cars.-natural curiosity of children

- their age.

- majority thought it was somewhat probable.Burden of precautions:

- diff. judges had different opinions about availability of devices.


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- Lowest burden: hiring another person to sit in the car.

Gravity of harm:

- age of children?- Socio-economic status?

Exceptions

D. The Mentally DisabledFIALA v. CECHMANEK

Facts: Robert MacDonald had a manic stage while running where he thought he was

God. Eventually jumped on to a car, kicked through sunroof and strangled a woman(defendant) who unwillfully accelerated car through intersection and into defendant.

Plaintiff bringing action against driver of the car and against Robert MacDonald.

Prior to this in Alberta: you only apply the reasonable person standard without

considering mental state.In Ontario buckley - somebody who is suffering from mental illness sufficiently

extreme that they do not comprehend or can not discharge a duty of car are not

held to be liable.

Clear that Alberta court felt need to revisit previous decision (Wenden v. Trikha).- claim different facts this is a cover-up for wanting to over-turn past decision.

why apply the ordinary reasonable person standard:- compensation for the victim focus.

- Elsewhere in negligence law we dont make these distinctions this is just

being consistent.- Concern over establishing mental illnesses

- Concerns for determining standard.

Why we would not want to hold

- would be creating a situation that is analogous to strict liability.

o No moral fault involved

- no foreseeability.- Can not deter Robert MacDonald type situations

- Have the option of just holding the caregiver liable not in this case butwhatever.

- Concern for the stigma of mental illness.

- We make exceptions in several other places

Depending on your emphasis of fault and compensation you end up on other sides.The Buckley Test page 3-40

In order to be relieved of tort liability when a defendant is afflicted suddenly and

without warning with a mental illness, that defendant must show either of the followingon a balance of probabilities.

1. as a result of his or her mental illness, the defendant had no capacity to

understand or appreciate the duty of care owed at the relevant time, or;2. as a result of mental illness, the defendant was unable to discharge his

duty of care as he had no meaningful control over his action at the time

the relevant conduct fell below the objective standard of care.Robert Macdonald fell within the above test.

- The weight of the evidence was sufficient to show that he did not understand

The duty of care owed at the relevant time.


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To understand this case have to understand the former precedent case in Alberta.

WENDEN V. TRIKHAFacts: Defendant was, at the time of the accident, being treated in the lock ward of a

psych hospital.

- same illness and similar episodic circumstances (god making him do it)unclear how Wenden was suppose to avoid it.

- if Wenden didnt meet the test a fair number of people will not.

Battle is now over expert testimony.Plenty of question now over issues like alzheimers.

E. The Young

HEISLER v.MOKE1. if a child can be found negligent WRT his age, his intelligence, his experience, his

general knowledge and alertness.

2. WAS a child negligent wrt children of like age, experience and maturity.

- all depends upon the facts. Not intelligence but intelligence wrt the impugnedact or situation.

Delwo v. Pearson engaged in an adult activity

- Driving trailbikes, boat, snowmobiles.

o Reasoning that you cant tell who is driving and therefore other drivers

can not establish duty on other drivers

- problem what is an adult activity?

o Motorized vehicles?

o Licensing standars?

o Can it be a purposively defined activity?

- Problem who is a childo Courts have not been clear.

o The 16-18 area is where the problems arises.

F. Professional Negligence

- holding out theory: if you hold yourself out to be somebody who hasexpertise, you will be held to those expertise.

Balance between protecting patients and protecting professional autonomy ie. not

interfering in professional regulation (statutes)- difference between errors and negligent errors.

o The reasonable professional makes one and not the other.

CHALLAND v.BELLFacts: Farmer fell in barn broke his arm. Went to local doctor who cleaned and set the

arm. Challand complained of pressure of cast.Two days later took him to Edmonton arm was amputated b/c of gangrenous infection.

3-47:Doctors, surgeons, and dentists owe to their patients a duty in tort as well as incontract. It is expected of such a professional man that he should show a fair, reasonable

and competent degree of skill; it is not required that he should use the highest degree of


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skill, for there may be persons who have higher education and greater advantages than

he has, nor will he be held to have guaranteed a cure.

Three step test:1. surgeon undertakes that he possesses the skill, knowledge and judgment of the

average.

2. in judging that average, regard must be had to the special group to which hebelongs

3. if the decision was the result of exercising that avg. standard, there is no

liability for an error in judgment.This causes serious problems for innovation ie. who will back them up

Inexperience is not taken into account a beginner is not held to a beginners standard.

Reference to the locality of the practice rural/urban, specialist/generalist very much in

question but typically held that urban have higher standard.- resources is considered.

o Not expected to use resources you dont have BUT do have

responsibility to use cities etc.

BRENNER v. GREGORYFacts: plaintiff bought lots. His lawyer Gregory, was hired to search title etc. Held that a

building on property was encroaching on nearby road. No survey was ordered by the

lawyer. Vendor told plaintiff that house encroached on the road; said it would needsurvey. Plaintiff then sued lawyer.

Issue: reasonably competent solicitor

Ruling: Have to follow general practice:

- what was the general custom?

o In this case, typically dont needto have survey

But known risks

- plaintiff had communicated this to the lawyer.

Held: no breach on the part of the lawyer.A lot less deference given to general practices b/c judges know what the general

practices is

Lawyers can be held to be negligent, but not if conformed to standard practiceJudges have immunity

- relitigating cases would be a problem

o would destroy any closure in the system

- judicial independence.

G. Custom

WALDICKv.MALCOLM

Facts: Malcom slipped and fell on Waldwicks unsanded front step. Sanding was not thecustom of the area.

Theory: Custom is an example of a reasonable standard.

Problems with this theory:

- customs could be negligent- time period.

- Evidence: how do you determine custom?


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Courts have taken custom into account however, to take judicial notice you need expert

witness.

Who is the expert witness of salting.Example of farmers parking: leads towards business or profession a tweak on custom

- requirement for custom

This would likely change the ruling inArnold v. TenoEfffect: Iacobucci custom will help but will not absolve people.

- meeting or deviating custom will help one side or the other but will not decide

the case.Problem is that adherence to custom will stop development.

TER NEUZENv.KORN

Facts: women was infected with HIV at an AI clinic. There was no knowledge that youcould get HIV from such a test.

Professional standard: a subsection of custom with a very different interpretation.

Reasonable person: reasonable OBGYN in 1985

Ruling: important we dont judge reasonableness in hindsight.Given the state of knowledge at the time what would the prudent and diligent OBGYN

have done?- probably not to screen.

This doctor therefore, did not breach.

IN cases of standard professional practice - customISdeterminative.

- unlike regular custom.

- THIS IS VERY IMPORTANT.

Are there any circumstances where judge/jury could look past this?

- If custom is obviously negligent.

- Fraught with obvious risks- Para 41:

The test:

Para 51:- if established that it is a practice, and was adhered to .

- standard practice that fails to adopt practices readily apparent to common

person.

Test:Who is the reasonable person

What is the impugned conduct

o will not get to unreasonable risk formula if it is held to be a

professional practice.- Was it unreasonable.

H. Negligence and Statutory Provisions

English position:

Tort of statutory breach distinct from negligence. Just proove:

1. breach of statute


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2. damage was caused by the breach.

Able to recoup.

-English courts had to develop which statutes could be applied to this.- distinguished between broader duties and duties to the individual.

- looked at intention of the legislature (to give rise to these things or not)

American Position: statutory breach is within torts but not specified.

Question of breach of statute was subsumed within negligence.

Majority View: Statutory breach constitutes negligence per se.- basically strict liability

- once the statute is determined to be applicable which is to say, once

it is interpreted as designed to protect the class of persons in which

the plaintiff is included, against the risk of the type of harm which hadin fact occurred as a result of its violation is conclusive on the issue of

negligence, and that the court must so direct the jury this usually is

expressed by saying that the unexcused violation is negligence per

se, or in itself.Minority view: statutory breach is evidence of negligence.

- different courts, jurisdictions interpreted this differently.

o Prima facie evidence of negligence only have to show statute

and negligence. Defendant would have to show was NOT

o Merely relevant evidence of negligence

Canadians had vacillated between all of the above.

- primarily the MinorityPrima Facie view from the US.

Statutory breach are evidences which strengthen an argument that common law duty ofcare has been breached.

- its presence or absence is not definitive either way.

When will it be evidence.1. Have to prove statute was in fact breached.

2. Breach has to be the cause of the damage.

- speeding driver is only in statutory breach if speed caused the damage.3. accident must be of the type that the statute seeks to prevent.

4. Plaintiff must belong to the class of persons that the statute seeks to protect

R IN THE RIGHT OF CANADA v. SASK WHEAT POOL

Facts of CaseWheat Pool provided grain to Canada according to the terms of theCanada Grain Act, and in doing so delivered a quantity of infected

wheat which had to be fumigated at cost to the government, whichbrought action against the Pool to recover the losses.Issues / QuestionsDoes breach of statutory obligation give rise to tort liability?DecisionAppeal dismissed.Reasons for Decision


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Held that breach of statutory obligation does provide evidence ofnegligence (as opposed to establishingprima facie negligencerequiring no other inquiry, or the proposition that breach is a nominatetort in its own right), but that in this case the defendant exercisedreasonable care in fulfilling its statutory obligations to Canada.

Five points: 1. civil consequences of breach of statute shouldbe subsumed in the law of negligence

2. notion of a nominate tort of statutory breachgiving a right to recovery merely on proof ofbreach and damages should be rejected, asshould the view that unexcused breachconstitutes negligence per se giving rise toabsolute liability (shot at English and the US)

3. Proof of statutory breach, causative ofdamages, may be evidence of negligence. (see

the four points above)4. Statutory formulation of the duty may afford a

specific and useful standard of reasonableconduct.

5. In the case at bar negligence is neither pleadednor proven. The action must fail.

Ratio DecidendiBreach of statute, where it has an effect upon civil liability, should beconsidered in the context of the general law of negligence. . . To berelevant at all, the statutory breach must have caused the damage ofwhich the plaintiff complains. Should this be so, the violation of the

statute should be evidence of negligence on the part of thedefendant.Proof of statutory breach, causative of damages, may be evidence ofnegligence. The statutory formulation of the duty may afford aspecific, and useful, standard of reasonable conduct.

GORRISv. SCOTT

Facts: Plaintiff contracted to ship his sheeps from germany to England. Sheep were not

penned in the way they were suppose to. Sheep were washed over board.Issue: Was there a breach of statute. Does the statutory breach have to resultin harm caused in the manner the statute intended to preventin order

to found an action in tort?Ruling: the statute was not intended to prevent sheep from washing overboard. Statutoryintent was to prevent spread of contagious diseases. People who were being protected

was the industry as a whole not the owners of sheep on ships.

Rule: accident was not of the type that the statute was seeking to prevent. Althoguhplaintiff was member of class of persons statute was trying to protect.Ratio . . . when the damage is of such a nature as was notcontemplated at the all by the statute, and as to which it was not


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intended to confer any benefit on the plaintiffs they cannot maintainan action founded on the neglect.

RYANv. VICTORIA (CITY)

Facts: appellant was riding motorcycle in downtown Victoria and was injured when front

wheel of tire got caught in motorcycle tracks.Issue: Should there be an exception of negligence for the railway because of their

Importance.

Ruling:(31) The roots of the special rule reach back to the turn of the century, when railways

occupied a position of unparalleled economic and social importance in the development

of Canada.15 years prior: court had questioned the validity of keeping up the exception that as long

as railways had satisfied requirement they could not be held liable.

Ryan overturned this and made railways open to the ordinary rules for the first

time.

Now:A railway, like any other company or individual, is subjectto generally applicable principles of negligence. . . Breach of stat. duty only evidence of negligence not proof (wheat pool)

The weight to be accorded to statutory compliance in the overall assessment of

reasonableness depends on the nature of the statute and the circumstances of thecase. It should be deteremined whether the legislative standars are necessarily

applicable to the facts of the case. Statutory compliance will have more relevance

in ordinary cases i.e.,, cases clearly within the intended scope of the statute

than in cases involving special or unusual circumstances It is a well-established principle that an action will lie against any party, public or private,

for doing that which the legislature has authorized if it be done negligently

Held that a longstanding immunity from liability beyond strictcompliance with statutory requirements should no longer be granted tothe railways. The Railway Actspecifically states that compliance withstatutes doesnt vitiate the possibility of liability for negligent conduct.Further held that the railway exercised discretion in not takingreasonable care with respect to the safety of the flangeways beyondthat required by statutes with which it had complied.

Ratio: The standard of care required of the railways was that of a prudent and reasonableperson in the circumstances, having regard to all relevant factors including applicable

statutes and regulations. It is undisputed that the railways complied with certain safetystandards prescribed in regulations and Board orders. The question is whether such

compliance satisfied the requirements of objective reasonableness in this case and

absolved the railways of liability for the appellants injury.

4. NEGLIGENCE: FACTUAL CAUSATION

A. Cause-In-Fact

Cause in fact: Factual causation scientific inquiry into cause and effect.


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Proximate cause: a policy determination of extent of damages defendant should bare.

Factual causation: absoloutley required that plaintiff prove causal link between wrongfulact and damage.

- Breach only has to be a cause not necessarily the cause on a balance of

probabilities.- 51% likelihood that breach was a cause of the damage.

The but-for test: If the accident would not have occurred but for the defendants

breach, you have causation.

KAUFFMANv. T.T.C.

Facts: appellant was on escalator when people in front of her fell back causing serious

injury. Jury found defendant negligent for (1) installing an escalator with moving handrail of particular type (to slippery) and (2) in failing to supply supervision.

Issue: Did the impugned conduct of the defendant cause the accident? Impugned conduct

is argued to be the negligently installing said hand rails? The but-for test.

Ruling: Total absence of evidence that anybody even tried to grab at hand rail or that itwould have made a difference.

It is a fundamental principle that the causal relation between the allegednegligence and the injury must be made out by the evidence and not left to the

conjecture of the jury.

Very easy for the court to say that but-for the alleged negligent conduct the accidentwould have happened anyway.

Analysis: The famous but-for test: Would the damage have occurred but for the

defendants negligence.

- if the answer is no defendants conduct is a factual cause of thedamage.

It is a fundamental principle that the causal relation between thealleged negligence and the injury must be made out by the evidenceand not left to the conjecture of the jury.Obiter:

changes in scientific knowledge will change the ruling.Prichard v. Liggett &

Myers Tobacco science could not prove cigarettes cause cancer.

If plaintiff can not establish the but-for test, that is not necessarily the end.

B. General Onus of Proof

SNELL v.FARRELLFacts:

Ophthamologis performed surgery on respondent to remove cataract from eye. During

surgery noticed bleeding. No other signs of retrotubular haemorrhage. Proceeded withsurgery. Nine months later it became obvious that optic nerve had atrophied leading to

loss of sight in respondents right eye. This was possibly caused by retrobulbar

haemorrhage. No expert witnesses could identify cause of atrophy. Found liable at trial,

reversed on appeal. Plaintiff could not establish on basis of but-for test that this wasthe cause.


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- defendants are then held liable to level of market share (percentage of market

share = percentage of liability) note: this is exactly correct b/c may only be

60% of companies left after some exculpate themselves thus percentagewithin that percentage is what you are liable for.

- have to have majority of those entitled to sue and majority of market share.

Test has since been applied to such class actions as breast implants, vaccines etc.

- did not succeed for Tobacco b/c cigarettes were not a generic product (this is

determined by sharing of info between companies, group advertising)- has not been adopted or rejected by Canadian courts has been around since

70s courts clearly dont like it.

Arguments for:

Defendants: in better position to avoid the harm and also to bare the loss.Problems: defendants here are paying even when they may not have caused the loss.

- this is counter to all tort rules

- floodgate concerns

- special rules will be crafted which should be made by legislaturesSINDELL v.ABBOT LABORATORIES

Facts: dds daughters

Issue: Many years after the fact, how do you prove that itwas the source of your

problems and thatyour mother took it. DDS was manufactured by many drug makers and

theres no reason to think that allof them were dangerous?Breach: failing to do proper testing AND failure to warn women.

Ruling:

Plaintiff has established breach on basis of lack of proper test.

Because no company had majority of market, it can not be proven on balance ofprobabilities that drug maker A was guilty.

Test of snell: doesnt apply

Test of cook v. lewis: doesnt really apply- not the same type of fault as cooke orsummer

Judge took an opinion from a law review article.

1. product in question caused plaintiff damage.

2. product in question had to be produced from identical formula by all defendants.

3. manufacturer that caused the damage can not be identified through no fault of the

plaintiff.4. Plaintiff has to sue enough manufacturers to make up substantial share of the

market.

- here it was 75% but could be lesscreates a reverse onus. And will be held liable in proportion to market share.Applies Summers as holding that between the innocent plaintiff andthe negligent defendants, the latter should bear the cost of theinjury.Ratio Decidendi


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o Limitation period for claiming contribution commences from

time of settlement, not from time of cause of damage

5. NEGLIGENCE: REMOTENESS AND PROXIMATE CAUSE

Foreseeability is a cornerstone of tort law part of duty, part of breach reappears in

remoteness.Test has shifted several times factual cause, proximate, possible.

Remoteness: Defendant will not be held liable unless judged a proximate harm or unless

the harm caused by the defendant is not too remote a consequence of the defendants act.- keep extent of liability in line with fault.

A. Directness Test

IN RE POLEMISIn course of moving benzene out of ship a plank dropped which sparked and exploded the

ship (because of fumes of petrol products)

Foreseeability: dropping of a plank will lead to damage this was foreseeable.Court: it was unforeseeable that dropping the plank as was done, would cause the

problems it did.Directness cause: defendant responsible for all damage directly caused by their act.

Remoteness was not much of an element at all:

s the fall of the board was due to the negligence of the charterers servants, the

charterers were liable for all the direct consequences of the negligent act, even thoughthose consequences could not reasonably have been anticipated; and they were therefore

liable for the loss of the ship by fire.

Remoteness test: narrows the amount of liability that can be established.

Defendants are responsible only for the probable consequences of their acts.

Two parts:1. Foreseeability of the plaintiff:2. Foreseeability of the damage.

B. Foreseeability of Plaintiff

-InAnns youre only talking about foreseeability between categories of people.

-Class of person of defendant owing a duty of care to class of person to

whom plaintiff belongs.- now we are looking at thisplaintiff in these circumstances.

PALSGRAFv.LONG ISLAND RY. CO.

Fireworksscalewoman

Defendant is railroad employees.Directness test explained. (5-4)assume, without deciding, that negligence, not at large

or in the abstract, but in relation to the plaintiff, would entail liability for any and all

consecquences, however novel or extraordinary.Have to look elsewhere.

- begin with no negligence in the air

Defendants do owe duty but not to plaintiff:- they owe duty to the passenger they are trying to get on to the train.


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- Thus there was a duty, there was a breach and there was cause but none of it

transfers to plaintiff.

Any negligence we might find of the RW workers to the men getting on the train it doesnot transfer to plaintiff.

Cardozo:Plaintiff has to show that she was in the danger zone.

- range of apprehension

How do you determine danger zone/range of apprehension.- It has to be somewhat likely that that she could be harmed.

o Didnt know there was fireworks this might have made zone bigger.

Dissent:

Andrews disagrees with Cardozo puts forward a wider range of duty (one moreconsistent with what would become donoghue)

Driving down broadway is dangerous whether or not people are there.

5-7, proximate definition: arbitrarily decides not to trace law beyond certain pointbecause of policy.

What we do mean by the word proximate is, that because of convenience, of

public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of

events beyond a certain point. This is logic.There must at least be something without which the event would not have happened.

Reasons for DecisionHe

Documents

Torts Sutherland F05