Winter 2011 - Torts Framework2 -MO

8/18/2019 Winter 2011 - Torts Framework2 -MO

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GENERAL• Negligence: conduct which falls below the standard accepted in the community

• Purpose of tort law: compensation, appeasement, justice, deterrence [Evaniuk v. 79846 Manitoba Ltd ]

• Plaintiff bears the burden of proof on the balance of probabilities

o Must prove

Did the Defendant owe the Plaintiff a duty of care

!hat is the standard of care

• !as there a breach

Damage: what harm did the Plaintiff sustain

"ausation: did the Defendant#s negligence cause the Plaintiff#s damage $emoteness: is the Plaintiff#s damage to remote

"onsider defences

HARMWas there harm?

• %arm could be:

o personal injury &with conse'uential economic loss ( wages, etc)*

o property damage

o economic loss

Who?

• !ho was harmed• !ho did the harming

DUTY OF CARE

Is there a duty of care owed by the Defendant to the Plaintiff? (Yes or No?)

• Neighbour Principle: to whom do + owe a duty [Donoghue v. Stevenson]

o persons who are so closely and directly affected by my act that + ought reasonably to have them in

contemplation as being so affected when + am directing my mind to the acts or omissions in 'uestion

• Test for duty

o [Cooper v. Hobart derived fro !nns v. Merton London "orough Coun#i$ and Donoghue v. Stevenson]

+s this a novel duty +f yes:

• +s the relationship sufficiently proimate and reasonably foreseeable

o No duty of care is owed to an unforeseeable plaintiff [Ha% &"ourhi$$' v (oung ]

• -re there any reasons to negative the duty Policy considerations

• -re there any eternal policy considerations &beyond this Plaintiff.Defendant rltnshp*

o !hat would the effect of recogni/ing a new duty in this sutation have on other

legal oblicationso +ndeterminacy issues

o Note: special analysis for economic losses00

MISFEASANCE V. NONFEASANCE

• misfeasance: failure to perform an act when a duty eisted, causing harm [Donoghue v. Stevenson]

• nonfeasance: lawful acts performed wrongly, causing harm [Hors$e% v. Ma#Laren]

RESCUE

• No duty at law to rescue a Plaintiff at ris1 if Defendant didn#t contribute to ris1 [Hors$e% v. Ma#Laren]

CREATION OF RISK

• )ordan House v. Meno* : over service of alcohol then ejecting Plaintiff without ta1ing care for his safety

&statutory duty*o "ontrast with Chi$ds v. Desoreau+ : social host, didn#t serve, not aware of Defendant#s intoication)

• ,ke v. -eide ransport/ not warning of bent sign post &judgment was in DISSENT*

• 0e$enko v. 1ibe$ "ros.&medical underta1ing*: assuming a duty but not following through

STATUTORY DUTY OR STANDARD

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• +s there a statutory duty or standard [1orris v S#ott ] [Eergen#% !id !#t ]

SPECIAL RELATIONSHIPS CONTROL

• -re the parties in a relationship of control.supervision $eliance 3conomic benefit

o 4eacher.pupil5 employer.employee5 carrier .passenger5 prison.inmate5 hospital.patient

- duty to assist may be imposed in these cases

• - relationship of care and control will bring about an affirmative duty of care [Hors$e% v. Ma#Laren]

IN GENERAL! " CONDITIONS THAT #RING A#OUT AN AFFIRA!I"# D$!Y %F &AR E

2) $elationships of 3conomic 6enefit &)ordan House*

7) $elationships of "ontrol.8upervision &Parents.teachers, or even boat captains: Hors$e% *)

9) "reation of Dangerous 8ituations &,ke'

) $eliance $elationships &0e$enko'

;) -ffirmative duties arising through 8tatute &,23ourke v S#ha#t'

GOVERNMENT LIA#ILITY

• ov#t position based on a* an administrative decision5 b* an epert or professional opinion5 c* technical

standard of care [)ust v. ".C.]

• >ov#t has no duty if a* liability is eempted by statute5 b* there#s a valid policy reason &i)e) budgetary* [)ust v. ".C.]

• ?udges and justices are statutorily immune from liability [Sirros oe*s]

OCCUPIER$S LIA#ILITY

• %istorically, =@ applied only to static condition of property, not activities occurring on the property

% &'te(or)es of e*tr'*ts

o 4respasser &there without permission*

8tandard of care: Anot to wilfully injure the trespasserB or act in rec1less disregard for their safety

Morphed into: Ayou must treat trespassers with humanityB

o @icensee &permission of occupier5 not visiting for business ( i)e) a friend*

8tandard: to prevent harm by concealed dangers

o +nvitee &lawful visitor5 stands to gain economic benefit ( i)e) a customer coming into a store *

8tandard: just avoid unusual danger

o "ontractual 3ntrant &contracted and paid for right to enter ( i)e) a mailman, plumber*

4o ma1e that person as reasonably safe as possible

o +f a P is injured on the occupier#s land, occupier liable unless a defence to negligence can be raised)

[-a$di#k ] =@- not meant to displace defence of voluntary assumption of ris1 [-a$di#k ]

O&&u+)er$s L)',)-)ty A&t

o -n occupier of premises owes a duty to eery )s)tor on the occupier#s premises to ta1e such care as

in '-- t/e &)r&u0st'*&es of the case is reasonable to see that the visitor will be reasonably safe inus)*( t/e +re0)ses for t/e +ur+oses for which the visitor is invited or permitted by the occupier to be

there and is permitted by law to be there) 11Duty of care is assumed, 8=" provided by statute

8tatutory breach C automatic f inding of liability, unli1e regular old negligence law

-lso prescribes a positive 8="you must ta1e action to ensure the safety of your premises

o Definitions ( you can be an occupier w.o being an owner or possessor5 you just need responsibility and

control over the premiseso s)E ( -ct applies to activities on the premises

o s)E)2 ( some people will be considered pria fa#ie trespassers unless they meet the standards of this

sectiono s)F ( e'uivalent to s)&2* of =ntario -ct5 defence of voluntary assumption of ris1

o s)G ( liability under the -ct can be modified ( reasonable steps to give notice re'uired

o s)27 ( no duty of care to trespassers unless occupier creates unusual ris1

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o s)29 ( child not defined

o s)2 ( liability for personal property separate from liability for bodily harm &under =ntario -ct they#re

covered together*o s)2;&2* ( specifically includes Contributor% eg$igen#e !#t

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ECONOMIC LOSS

Was the dama'e to the P economic rather than ersonal? FATAL ACCIDENTS ACT

!hen the death of a person has been caused by a wrongful act, negligent or default that would, if death had not

ensued, have entitled the injured party to maintain an action and recover damages, the pure economic loss thatis recovered can go to the benefit of the survivor as defined under the act)

P$R# #&%N%I& *%++ • occurs only when the harm is PH$3@< economic it#s not tied to damage to person.property

•

Ior all ecept Arelational loss,B recovery is possible upon establishment of categoryspecific duty of care &seechart*

• $ecovery for contractual relational economic loss is presumptively ecluded &presumption against recovery*,

subject to categorical eceptionso New categories for recovery under P3@ can be found using !nns test [Marte$$ ]

• Negotiations: No recovery of P3@ when parties are negotiating in their own interests too much regulation

re'uired [Marte$$ ]

• Policy reasons to limit recovery: possibility of indeterminate liability5 the difference between social loss and

transfer of wealth5 and the relevance of eisting and potential contractual allocation of loss)

NEGLIGENT MISREPRESENTATION

• 8pecial proimity analysis under the -nns test [Hed$e% "%rne ueen v Cognos]

o +s P foreseeable

o !as the statement inaccurate, false, or misleadingo !as the statement made negligently &consider the contet: boardroom vs) coc1tail party*

o +s there reasonable reliance on the statement under the circumstances +s there Aspecial epertiseB

[Her#u$es Manageent ] 4est for reasonable reliance

• +f representations are intended for one thing, but are used for something else, no

reasonable reliance)

• $easonable foreseeability of reliance &proimity* determined by !nns)

o Did the statement cause harm

o Devlin: if the facts lend themselves to characteri/e the conversation as a1in to a J, that will be sufficient

• Did D ma1e a statement w.o a contract or 1nowing what the info would be used for +f yes, then no duty of

care [Hed$e% "%rne]

•

NM is not restricted to professionals that speciali/e in giving advice [e$son Luber ]

NEGLIGENT PERFORMANCE OF SERVICES

• 4est [Hofstrand ars]: !as there reliance !as D aware of P#s reliance !as there an assumption of ris1 by D

+f no to any, no liability on the D

o Note: "ontractual privity is helpful

Policy factors in play ( indeterminacy

• @awyers carrying out an activity for the benefit of the third party owe a duty of care to third party [3oss]

DEFECTIVE PRODUCTS OR #UILDINGS

• 4est: product should be actually dangerous and that danger should be hidden &to negative the presumption of

caveat emptor* [-innipeg Condo]

• $eal Property: D will be liable for cost of repairing defects due to negligence in construction [-innipeg Condo]

o 4est: 2* foreseeable that failure to ta1e care will create defects5 7* defects pose real and substantialdanger5 9* can anything negate the damage &waiver, #aveat eptor * 6=P on P [-innipeg Condo]

• "hattels: D won#t be liable for cost of repair and ordinary lost profits [3ivto* Marine : crane]

• 4he conflict between these cases may be resolved by distinguishing between real property [-innipeg Condo]

and chattels [3ivto* Marine]

INDEPENDENT LIA#ILITY OF STATUTORY PU#LIC AUTHORITIES

• - statutory public authority is given discretion to inspect a building construction

o +t either fails altogether to inspect or inspects in a manner which the court finds unreasonable

o -s a result, a latent defect goes undiscovered

o !hen the defect is discovered, the owner sues the authority to recover the cost of remedying the defect


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RELATIONAL ECONOMIC LOSS

• conse'uent on physical damage to a third party

• @a Iorest#s 3clusionary rule: there shall be no liability for relational losses ecept in rare cases where public

policy supports recovery [dissent in orsk adopted in "o* ;a$$e% affired in Marte$


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STANDARD OF CARE2

What is the standard of care?

Test for st'*d'rd of &'re 3o,4e&t)e5: what would a reasonable person do [;aughn v. Men$ove ( haystac1]

["$%th v. "iringha 5 fire hydrant] societal standard, not case by caseo Test for deter0)*)*( 6/'t )s re'so*',-e ["o$ton v. Stone]

Magnitude of ris1

>ravity of conse'uences

•

$is1 of occurrence low, but gravity of damage high ["o$ton v. Stone] ["$%th v. "iringha] Difficulty of remedial measures

• Kery epensive: ["o$ton v. Stone]

• +mpossible &best possible steps ta1en*: ["$%the v. "iringha]

3nd to be achieved &utility of conduct*

o $is1 of greater harm is relevant5 a 1nown ris1 of greater harm increases the 8=" in relation to that

plaintiff.person [=aris v Stepne% "orough Coun#i$ ]

CUSTOM [-a$di#k v. Ma$#o$ ( icy sidewal1]

• Did the Defendant create an unreasonable ris1 by relying on custom

• Did the Plaintiff rely on custom that the Defendant breached

STATUTORY STANDARDS• 4here is no tort of statutory breach00

• Does the statute create a standard of care

• Does breach of a statute create negligence per se &industrial safety statutes* or is it ere eviden#e of

negligence [3. v. Sask. -heat =oo$ ]o 8"" has said ere eviden#e, but you could argue more & pria fa#ie evidence, or negligence per se*

• !hat is the intention of the statute [1orris v. S#ott : sheep]

• "ompliance with statutes may not protect Defendants from liability [3%an v. ;i#toria &Cit%']

o "ompliance may be enough with more specific statutes

o more general statutes may re'uire a higher standard of care

EMERGENCY

• -lters the standard of care: negligence is not sufficient5 must be gross negligence [Eergen#% Medi#a$ !id !#t ]

CASES LO7ERING THE STANDARD OF CARE

• "hildren

o Test for C/)-dre*$s St'*d'rd of C're [Heis$er v. Moke]

"onsider the age, intelligence, eperience of the child

-s1, what would a reasonable child of that particular age, intelligence, and eperience be

epected to do and foresee in those circumstanceso Parents: may be held liable for their children, but not vicariously liable [3%an v. Hi#kson]

some jurisdictions have Parental $esponsibility -cts which hold parents liable unless they can

prove no fault &=ntario*o 3ceptions: when operating a car, boat, airplane, children will be held to an adult standard [De$$*o v.

=earson] [M#Er$ean v. Sare$ ] children engaged in adult activities are subject to the adult 8=" &3%an v Hi#kson> M#E$$istru v

Et#hes*

• Mental incapacity &Note: no 8"" ruling on this issue*

o Test for Me*t'- I*&'+'&)ty not re'uired to meet the standard if: [ia$a v. Che#hanuk ]

+f a person had no capacity to understand or appreciate the duty owed, =$

they were unable to discharge that duty because they had no meaningful control over their

actionso Distinguishing case: if driving a motor vehicle, held to the same standard as other drivers [-enden v. rika

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CASES RAISING THE STANDARD OF CARE

• Professionals usually subject to higher 8=" &Cha$$and v "e$$ -i$son v S*anson> SCC ?9@6 *

• Doctors:

o Test for Do&tor$s St'*d'rd of C're [Cha$$and v. "e$$ ]

8urgeon possesses the s1ill, 1nowledge and judgment of the average doctor

-verage based on the special group to which he belongs ( i)e) $ural v) urban)

+f the decision resulted from eercising average standard, no liability for an error in judgment)

o 8ame standard for new doctors) [Mi$es v. )udges]

o +nterns held to the standard of a reasonably competent intern &junior doctor*) [ !$dana v. Mar#h]

o @ac1 of resources not a Defence) [De ;os v. 3obertson]

o Duty to D)s&-ose &Modified objective test* [3eib$ v. Hughes ( surgery.stro1e] [ !rndt v. Sith]

must disclose inherent and special ris1s ( what would a reasonable person in Plaintiff#s position

have wanted to 1now

• Dissent in !rndt : suggests strict subjective test is preferred &what would Ms) -rndt have

wanted to 1now, not a reasonable person in her position*)o Doctors may fail on the standard of care, but that breach may result in no causation) [Ciar$arie$$o v.

S#ha#ter ] [Ha$k%ard v. Mathe* ] ( see "ausation for tests)o -side: #ATTERY ( $estricted by 3eib$ : now battery only for a* no consent5 b* fraud5 c* treatment going

beyond consent5 consent may be withdrawn at any time [Ciar$arie$$o]

• @awyers: ["renner v. 1regor% ]

o Iundamentals of professional negligence apply to all professionals

o !hat would an average lawyer do

Was there a breach of the standard of care?

CAUSATION

Did the breach or ne'li'ence cause the dama'e? What in fact caused the dama'e?

• 8#ut For9 Test 6ut for the Defendant#s breach of the standard of care, would the Plaintiff have suffered the

damage [ !the% v. Leonati ( "anadian application of Sith v Lee#h "rain]

• Principles of causation [ !the% v. Leonati ( herniated disc]

o Multiple concurrent tortious causes C apportionment

o Divisible injuries ( Defendants responsible for injury&s* they cause)

o Iuture events considered if not mere speculation)

o +ntervening events ( if damage would have been otherwise caused, damages adjusted)

o 4hins1ull ( Defendants ta1e the Plaintiff as they find them)

• =nce causation for damage established, as1 did the damage lead to the loss alleged by the Plaintiff

["$a#k*ater v. =$int ]

PROFESSIONAL NEGLIGENCE CASES

• Med)&'- 3duty of d)s&-osure5: did the doctor#s failure to disclose all information cause the damage

o Su,4e&t)e:o,4e&t)e test: !hat would a reasonable person in the Plaintiff#s circumstances want to

1now before consenting to the medical procedure [3eib$ v. Hughes] $is1s of surgery

$is1s of no surgery

!hat are the Plaintiff#s circumstances that a reasonable person would consider

• =bjective: age, income, marital status

• 8pecial considerations: reasonable beliefs, fears, desires and epectations

>iven the ris1s, would the patient have gone ahead with the procedure

o +f disclosure is not reasonably li1ely to change behaviour of P, then it will be deemed not to have caused

the harm [ !rndt v Sith]

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aterial &ontribution, &an the Plaintiff ro-e on a balance of robabilities that the Defendant.sne'li'ence caused their dama'e?

• =nly use M" after Abut forB test [-a$ker Estate v (ork in#h Hospita$ ]

• 8tart with A6ut IorB 4est [ !the% v. Leonati ]

o materially increasing ris1 of injury may be considered an injury in and of itself &loss of chance to avoid

injury* [Laferiere v. La*son]o -pplication: what would a particular person in a causal chain have done had the Defendant not acted

negligently [-a$ker Estate v. (ork in#h Hospita$ ]

• 3volved in Sne$$ v. arre$$ : if the Plaintiff can#t prove causation but can show that the Defendant materially

contributed to creating the damage, then the court may infer causation)o @egal burden stays with Plaintiff, evidentiary burden shifts to Defendant)

• 3ception [3esurfi#e v. Hanke]

o Material contribution may be applied if:

impossible to prove causation through butfor &despite negligent behavior by Defendant*, OR

Defendant clearly breached duty, eposing Plaintiff to injury

Note: Plaintiff carries burden of proof of causation) &auffann*

o -pplication: which of two tortious sources caused the injury [Cook v. Le*is]

o =ther jurisdictions have confirmed this eception: H)J) [air#hi$d v. 1$enhaven unera$ ]

o "ourt loathe to etend the eception: if Plaintiff negligently contributes to damage, eception won#t

apply [Lange v. "ennett ]o Refut't)o* of e;&e+t)o*:

Defendant may be able to push bac1 butfor and M)") test [Laferiere v. La*son]

balance of probabilities was that Defendant#s negligence didn#t cause damage• Note: M)") is not a way for Plaintiff to get around butfor test [air#hi$d v. 1$enhaven unera$ ]

REMOTENESS < FORESEEA#ILITY

Was the dama'e too remote? Was the harm foreseeable to the Defendant? /0u'hes1 Wa'on ound 2and 34

• !as the damage r e'so*',-y f oresee',-e to the average person [he -agon Mound A?]

o +f yes liability5 +f no no liability

• Retre't fro0 7'(o* Mou*d =>

o T/)* S?u--: !ere there secondary injuries that flowed from the original injury [Sith v. Lee#h "rain]

Cru0,-)*( S?u-- Ru-e [ !the% v. Leonati ]

>oes to remedy, rather than causation• 4he Plaintiff would have suffered the damage anyway due to preeisting susceptibility

o !as the particular type or 1ind of damage foreseeable [Hughes v he Lord !dvo#ate]

applies even if accident itself is unforeseeable

Not necessary to foresee the circumstances that will bring about the injury5 general

foreseeability of type or 1ind of injury is sufficient [Cote] Mental injury is covered [Ma$#o v. "roadhurst Mar#onato et a$. v. rank$in ]

+s the suicide caused by a depression that stemmed from injuries caused by the Defendant

• @iability if the suicide isn#t based on a deliberate decision [Corr S*ai &6)")*5 Hauk &=nt)

8pecific conse'uences aren#t re'uired5 only that some foreseeable damage was possible

[ !the% 5 "anadian adaptation of Sith]o Poss),)-)ty of d'0'(e ru-e &rather than probability of damage* [-agon Mound AB ]

+s the ris1 foreseeable but remote -nd is the ability to prevent the ris1 easy and not costly +fyes, then no defence against liability

o Psy&/)'tr)& D'0'(e Ru-e: +s the injury to a person of normal fortitude reasonably foreseeable

[Mustapha v. Cu$$igan] A=rdinary fortitudeB undefined

Mental distress not compensable5 recogni/able psychiatric injury re'uired [Du*%n v. aprie$ian]

Psych injury flowing from physical injury approved by 8""

INTERVENING FORCES

• !as there a new intervening act that interrupted the foreseeability of the injury [Harris v. C ]

o +f the injury is foreseeable despite the intervening acts, no immunity to the Defendant [Harris v. C ]

RESCUE

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• +njured rescuers may claim against the person who caused the injury via negligence [Hors$e% ]

o Dissent: +f Defendant is negligent and that induces the rescuer#s action, the duty of care of the

Defendant will flow to the rescuer [Hors$e% ]

D#F#N+

&an the liability of the Defendant be limited?

CONTRI#UTORY NEGLIGENCE

• 8tart with Contributor% eg$igen#e !#t

o

"ommon law has been updated to reflect the statutory schemes of the provinces ["o* ;a$$e% ]o "ould the Plaintiff have avoided the accident by acting reasonably ["utterfie$d v. orrester ]

o @ast clear chance rule: Did the Plaintiff epose himself to the ris1 of injury +f yes, the Plaintiff is

contributorily negligent) [Davies v. Mann] Note: A@ast clear chanceB has been nullified in some jurisdictions by statute

o Defendant must establish contributory negligence as a standalone defence

T/e Se't #e-t Defe*&e: Plaintiff could contribute to his own negligence by not wearing a seat belt

o !ould the Plaintiff have been injured even if he hadn#t acted negligently +f yes, then no contributory

negligence on the part of the Plaintiff [Labee v. =eters]o 8ome jurisdictions cap damages based on contributory negligence caused by not wearing a seatbelt

[o*$er Chase]o C/)-dre* +f a child Plaintiff is injured in an accident not caused by the Defendant, but the Defendant

hasn#t ensured that the child is wearing a seat belt, liability will fall on the Defendant [1a$aske v.

,2Donne$$ ] Plaintiff will need to show that not wearing a seat belt has a causal connection to damage

VOLUNTARY ASSUMPTION OF RISK

K- is a complete defence, courts don#t li1e it because it is a complete defense

+njury during the regular course of employment doesn#t bar a Plaintiff from claiming damages on the basis of K-

[Hab$e% v. Shep$e% ]

+f Plaintiff waives legal rights without 1nowing or accepting that they#re doing so, no K- [Cro#ker v. Sundan#e]

o Jnowledge of ris1 is not sufficient5 there must be an agreement to waive rights [Lagasse]

o K- can#t be invo1ed unless legal liability is epressly contemplated by the parties [)oe v. =aradis]


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INTENTIONAL TORTS• "ategories of intentional tort aren#t closed

• No defence of remoteness is available in intentional tort

• Iundamental principle: a person#s body is inviolate [Co$$ins v -i$#o#k ]

Was there an intentional act that caused harm?

ASSAULT

+ntentional creation of the apprehension of imminent harmful or offensive conduct) [Main$and Sa*i$$s]

Need not -"4H-@@< be able to carry out threat5 enough that plaintiff 63@+3K3D that you were)

• Test: if the reasonable person believed that violence was intended and danger was imminent, assault has

occurred ["ru#e]

#ATTERY

• 4est for +ntention: did the D intend the harmful or offensive act focuses on the act itself and not the

conse'uences of the act [-i$son v =ring$e]

• +ntentional unwanted touching of another person [Co$e v urner ] or something so closely connected to the

person [Morganenerally, these will be tried in battery [orberg ]

• @imitation period for seual wrongdoing cases starts when the harm is discovered or it ought to reasonably have

been discovered [M.&.' v. M.&H.']

• 8eual harassment is an intentional tort [Laoie v e$$% ]

INTENTIONAL INFLICTION OF MENTAL SUFFERING

Test Did D act with the intention to inflict mental suffering [-i$kinson 3ahetu$$a]

o $ahemtulla test &6""- ( Mc@achlin*:

"onduct has to be flagrant and outrageous

%as to be plainly calculated to produce some effect of the 1ind which was produced [-i$kinson]

Must produce a visible or probable illness [rae v Sith]

• +f P is hypersensitive: you ta1e your victim as you find them (not on the basis of the reasonable person [C$ark ]

o you must 1now or be able to foresee the victim#s special vulnerabilities if you are to be held liable [C$ark ]

• No limitation for remoteness ["ie$itski v ,badiak rumour]

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Is there a defence to the intentional tort?

CONSENT

• Did the P indicate consent Did P neglect to communicate that they don#t consent No liability on D [,2"rien]

o 7 1inds of consent: actual &implicit.eplicit* and constructed

• Mutual fights: consent so long as parties adhere to unwritten rules of the fight [-ade v. Martin]

S+orts

o some violations of rules in sporting contet will be within the scope of consent5 some won#t) [ !gar ]

3ample of no consent: Deliberate retaliation following a hoc1ey hit

o M6: starting point, all touching in a contact sport is a battery

Defence: if the touching occurs within the rules of the game, it#s not a battery, then it#s only a

battery if there#s intent to injureo 6": negligence analysis

!hat would a reasonable person do in those circumstances

• 4he che'ue may have been reasonable according to the rules, but how it occurred was no

o 6" would find liability, M6 would not

o -rgue both in -6 &if the M6 approach fails, then in the alternative, the 6" approach*

• !hen there is an imbalance of power and the dominant person eploits said power, there is no consent [orberg ]

o Doctor.patient relationship5 teacher.student

o 4o show the eploitation of power community standards test: does the transaction seen as a whole

sufficiently diverge from community standards [orberg ]

• Med)&'- Co*te;t

o +f an unconscious patient has made arrangements for care.consent in an emergency situation, andpractitioner 1nows of those arrangements, practitioner is bound [Ma$ette]

3mergency privilege occurs when [Marsha$$ v Currie ( removed testicle during hernia op]:

• Patient is unconscious

• 4ime is of the essence5 -ND

• Probability that patient would consent if he.she could

• ApossibilityB of future ha/ard not sufficient for AemergencyB privilege [Murra% ]

• M)*ors '*d Co*se*t: Parents acting in child#s best interests may control choice for an infant [3e/ Da*son]

SELF DEFENCE

• 8elfdefence must be reasonable and proportional [Cro#k#roft ]

• Def must believe force was necessary5 being threatened is a good indication [Ma#Dona$d ]

• Jilling in selfdefence is permissible if it#s proportionate [3. v. Sith]• Provocation short of assault or threats doesn#t justify an assault that#s justified on the basis of selfdefence [Evans

• Defences of a third person are valid on the same principles as selfdefence [1abrie$$ ]

DEFENCE OF PROPERTY

• -n owner must as1 an intruder to depart before a forceful epulsion is permitted) [1reen Ma#Dona$d ]

• "reating a ris1 to a trespasser impermissible [,##upier2s Liabi$it% !#t "ird v. Ho$brook ]

• "ourts will focus on behavior of the entrant after entry, not how they enter defence must be based on

behavior postentry) [Ma#Dona$d ]

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STRICT LIA#ILITY

• 4est for strict liability:

o %as D brought something on to their land that escapes and causes damage to P D liable [3%$ands]

no defence of due diligence

o +s D using property in an ordinary way +f yes, no liability for accidents.wrongful acts of 9rd parties [3i#kar

=rdinary use is determined by time, place and circumstances, not ecluding purpose [1ertsen v.

Muni#ipa$it% of Metropo$itan oronto]o escape nonnatural use of land [3ead ]

3scape: escape from a place which the defendant has occupation of, or control over, to a place

which is outside his occupation or control [3ead ] Nonnatural users: 2* Hse that involves a higher than normal ris1 of injury5 7* Hse that#s out of

the ordinary, unusual) [3ead ]

• !ater being used commercially is a Aspecial useB [-ei2s -estern -ear


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VICARIOUS LIA#ILITY

• a species of strict liability5 ma1ing someone liable for tort damage caused by another

• -n employee.employer relationship can attract vicarious liability

o independent contractors don#t share the same relationship, so employers won#t be vicariously liable) [Saga

o 4est: what is the degree of control the employer has over the tortgeasor [Saga ]

Iactors to determine if the actor is an independent contractor [Saga ]

• control5 does the wor1er provide their own e'uipment5 do they employ their own

helpers5 what#s the degree of financial ris1 ta1en by the wor1er5 what#s the degree ofresponsibility for investment and management held by the wor1er5 can the wor1er profitfrom their opportunity

o Ioster families treated as independent contractors [.L.". v. ".C.]

Dissent: foster care is an enterprise that materially increases ris1

• Policy considerations for K@ [Saga ]

o $emedy for P

o enterprise liability

3nterprise liability: does the employer#s enterprise create a ris1 +s the ris1 significantly

increased by assigning duties to an employee +f yes, employer may be K@ for employeesacting in their employment ["as$e% ]

• No special eemptions for nonprofit organi/ations) ["as$e% ]

• +f tortious activities of employee don#t stem naturally from employment and employer

has acted responsibly, no liability on employer [)a#obi ]o tortfeasor liability undiminished

o deterrence of future harmS'-0o*d Test to deter0)*e )&'r)ous -)',)-)ty

o 3mployers are vicariously liable for

3mployee acts authori/ed by the employer5 =$

Hnauthori/ed acts so connected with authori/ed acts that they may be regarded as modes

&albeit improper* of doing an authori/ed acto "hec1 for precedent

o +f no precedent, determine whether vicarious liability should be imposed in light of the broader policy

rationales

whether ris1 creates or eacerbates the wrong

!hether the wrongful act is suff)&)e*t-y re-'ted to conduct authori/ed by the employer)

!hen considering sufficiency of connection, can loo1 at subsidiary factors)

•

Nondelegable duties:o 3mployers duty to safety of wor1ers [-i$sons C$%de Coa$ Co. v. Eng$ish]

o >overnment duty to maintain highways [Le*is &1uardian ad $ite of' v. "ritish Co$ubia]

o +ntrinsically dangerous wor1 cannot be shifted to independent contractors [S#arar Constru#tions v.

1eddes Contra#ting ]

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DEFAMATION

• 4his a strict liability offence

o 4here#s no need to prove that the statement was false, actual loss of esteem

o ?ust show that the people who heard the statement held the P in lower esteem, or prove that they 1new

the statement was false

0as there been a defamatory statement? (urhy - *aarsh)• "an be oral words as well as written words

o

4here used to be a distinction between libel and slander ( the approach now is to treat them all asdefamatory statements 4he difference is reflected in damages

• 8lander &oral*: will be of less weight

• @ibel &written*: will be of more weight because it can spread anywhere

o Doesn#t just have to be word, can be photographs, drawings, movies, etc) (

type of media doesn#t matter

CONTE@T IS CRITICAL

• 4he statement will depend on the community of the person and the contet it was said in

o - positive statement, through contet, could become defamatory

i)e) A4om ?ones ma1es a lot of moneyB and he was an amateur athlete could be defamatory

o 8tatements made in anger hold less weight)

0as the defamatory statement been directed at the P? (urhy - *aarsh)• 4est: would a reasonable person ac'uainted with the P believe that the words referred to the P

o 4he P must be an identifiable person or specific group

0as the defamatory statement been ublici5ed to more than one other erson? (urhy - *aarsh)• +f no, then just a conversation

What about esteem? • 3steem of the P doesn#t actually have to be effected it#s enough that a AreasonableB or Aright thin1ing personB

!=H@D hold you in lower esteem

TESTS 3O#ECTIVE5• %istorical test: would the statement have the effect of lowering esteem or respect for the person in the minds of

persons who are rightthin1ing members of society ["otiuk v oronto ree =ress]

• -lternative test &emerged more recently preferred*: would the statement have the effect of lowering esteem or

respect for the person in the minds of ordinary or reasonable members of the public [Murph% v LaMarsh]o 4his opens protection to Ps up a little wider

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Does the D ha-e a defence? TEST FOR PRIVILEGE

• Media can#t invo1e absolute or 'ualified privilege

• -bsolute privilege: complete defence5 no liability whatsoever

o -pplies to

parliamentarians &i)e) statements made in the %="*

8tatements made in a courtroom ( includes the judge, witnesses, counsel, etc)

8tatements made between the client and the client#s lawyer, ecept in the case of terrorists

8enior police members

"ommunication between spouses

o It$s )* t/e +u,-)& )*terest to +r))-e(e t/ese +eo+-e )* t/ese &o*te;ts

• Qualified privilege: etends to publication fairly made by a person in the discharge of some public or private

duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concernedprovided there is no malice

o +erso* 0ust /'e '* )*terest or duty to &o*ey t/e 0'ter)'- to ' +erso* 6/o /'d ' re&)+ro&'-

)*terest or duty to re&e)e )t 3o,4e&t)e test5 People in associations &i)e) community association*

"reditors &i)e) creditors of a debtor claiming ban1ruptcy*

Members of a trade or profession &i)e) members of the bar association*

o Must ,e so0e &o0+e--)*( +o-)&y re'so* to '--o6 t/'t st'te0e*t to ,e 0'de

o Re&e)ers 0ust ,e ' -)0)ted (rou+

o C-ose-y /e-d &o00o* )*terest

TEST FOR DISSEMINATOR DEFENCE• Defamation re'uires 1nowledge or suspicion that material contained defamatory statements or suspicion of

material &this is if you#ve heard it 9rd or th hand*o 4his defence has sprung out of necessity for journalists ( they can#t fact chec1 everything

TEST FOR FAIR COMMENT 3APPLIES MAINLY TO MEDIA5 3WI& RADI% *!D " +IP+%N 5

• "omment must be made in the matter of the public interest

• 4he comment must be made on 1nown and provable fact

• 4he comment must be recogni/able as a comment or opinion&inferences of fact o1*)

• "ould a reasonable person honestly epress that opinion on the proven facts &objective test*

TEST FOR RESPONSI#LE COMMUNICATION OF A MATTER OF PU#LIC INTEREST 36RAN! " !%R+!AR &%RP 5

• the matter must be one of public interest)

• D must show that he acted responsibly and showed diligence in attempting to verify the allegedly defamatory

comments, having regard to the totality of the circumstances)o +n determining whether the D acted responsibly, consider

8eriousness of the allegation

Public importance of the matter

Hrgency of the matter

8tatus and reliability of the source

!hether the P#s side of the story was sought and accurately reported

!hether inclusion of the defamatory statement was justifiable

!hether the defamatory statement#s public interest lay in the fact that it was made rather than

its truth

• Note: jury determines whether the defamatory statement had to be made and if it was made responsibly by D

o +rresponsible false statements will not pass the test, but responsible factually wrong statements will

pass the testDEFENCE OF ACCIDENTAL PU#LICATION Publication must be deliberateTEST FOR USTIFICATION 3THE TRUTH5

• 8ubstantial truth test: every single word in the statement doesn#t have to be true to plead the truth defence, just

so long as it#s substantially trueCONSENTNOT DEFENCES

• no intention to defame

• too1 reasonable care to find the truth

• didn#t 1now what these words meant or that didn#t intend for the words to refer to the P

&an the P be awarded dama'es?(0ill - &hurch of +cientolo'y of !oronto)• 4est for awarding aggravated damages: when the defamatory statement is particularly high handed and

oppressive, to increase the humiliation and.or aniety of the P &malice was intended*

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• 4est for awarding punitive damages: is the conduct of the D so outrageous that the punitive damages were

rationally re'uired to deter the D from doing this againo Punitive damages are not compensatory: they are intended to punish

Documents

Winter 2011 - Torts Framework2 -MO