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2011/2012 CAN – Law 140 Torts – Professor Goold – of 26

INTRODUCTION TO TORTSDefining Torts

1) areas of law recognized as torts2) private wrongs other then contracts3) in terms of aims and objectives

Theory: Torts concerned with breach of obligations & restoration to previous state.

- Idea of overcompensation exaggerated by media and depends on other social nets (ex US)

- Scope of liability expands or contracts depending on legal, social, econ or philosophical circm

Theory: Importance of definition: lets know which law to go to, affect each other so defined limits are important (ex concent that neg swallowing K).

Torts v Criminal1) Compensation v Punishment (also restitution and

retributive princ and sense of moral wrongdoing)2) Functional difference: Private v Public: Individual

v Community3) Standard of proof: on the balance of probabilities

v beyond a reasonable doubtTheory: Procedural differences: T empowers victim but money matters, protections in crim for DTheory: can pursue both with same facts, should we? Crim instrumentalises victim and functions on a created relationship between state and D.

Torts v Contract1) Source of primary obligations: circumstances v

by parties themselves (1ary: how ought to act, 2ary how act if 1ary broken)

2) Privity: contract are voluntary so only parties which choose to be involved are

3) Purpose of Compensation: backwards looking v forwards looking

4) Misfeasance v nonfeasance: T focus on Mis; K may find liab for Non

Theory: boundaries blur when think about implied terms (in K law) and duties of care (in negligent T law)

- In both cases wrong arises out of obligation imposed by law regardless of relationship so this makes thinking of difference in terms of ‘idea of prior agreement’ tricky

- ‘Death of a Contract’

Note: This is a highly condensed CAN for exam reference. I recommend you first read it in conjunction with your notes. Authority for the proposition is indicated by [#] where # is a reference to the numbered case. Enjoy! - Sarah McCalla


FOUNDATIONS AND OBJECTIVES OF TORT LAWDescriptive Account

- What does/ Coleman’s analytical theory- Does torts do what it claims to do? (analytical)- If max Comp (comp insurance scheme, calculations

required by fairness are hard to do) then min deterrence

1. Compensation – T should restore P- Corrective Justice: indiv has duty to repair wrongful

losses that conduct causes. Return P to state b4.Jules Coleman – 1st order duties: not to injure; 2nd order duties: repair

- Flaws: a) only some cases in certain circumstancesb) costly for p to start processc) tort law is inefficient mechanism (PS Atiyah argues comprehensive insurance better like QU)d) reward on basis of luck (lucky enough that someone was in the wrong for your harm, torts does not deal well with accidents)e) why have elements of torts if focus is damages

2. Punishment – damages as a sanction to reflect society’s disapproval. ?s as to whether best left to crim. (not punitive damages!)

3. Deterrence – promotes social goals- Specific Det – change behave of D- General Det – change behave of class of poten Ds,- Market Det – change behave of producers to

prevent harms and internalize costs to the cheapest cost-avoider. Tort law plays a role in determining who should bear internalized costs (ex manufacturers or drivers).

- Flaws: a) D must be aware and cost must be highb) Not proven effective in crim contextc) Long time delay in court systemd) Assumes D is one paying damages (vicarious

liability)e) Assumes good rational decisions are being madef) Instrumentalising people to make a pointg) General: need to assume effective communi

4. Education – change behave of society at largeT as ombudsman focusing attn. of society on private wrong that would otherwise not be detected (Linden)

Normative Account- What should do- Should torts be about 1,2 or 3? (normative)1. Distributive Justice – critique of corrective

Status Quo is not fair. Law should distribute wealth equally and be less sympathetic to claims of those who have. Current: distb may distribute equitably but method is illegal v may inequitable but distribute legally.

2. Retributive Justice – impose liability on the blameworthy to penalize their moral fault.

- But prob in T is that D may not be the one paying (unlike Crim.)

- Also, mostly T do not look to motive/blame3. Economic Theory – T should only be involved when it

leads to rational econ behave and efficient allocation , of resources

4. Feminist/Classist Critiques- Analytical and normative approaches- T is good at protecting economic interests but not

psychological – this is gendered and indir favours men- Ts assume prop ownership and require resources to

bring a case to court – protects class system5. Better to have Public Negligence

- No luck, better justice in mass actions, accidents are a social problem

Basis for Imposing Liability- As move down, gets less fair and punishments less

extreme1. Absolute Liability – liable since engaged in act, no

defenses. (ex immigration)2. Strict Liability – liable since engaged in act, some

defenses: act of god, lack of voluntary control. (ex dynamite or speeding)

3. Negligence – failure to take reasonable care to prevent foreseeable harm (ex recklessness)

4. Intention – P usually proves, if direct may shift to D5. No Liability – even if intentional or careless (ex

pregnant mother not responsible for harm to child)- Some conflicting principles: ex duress can be defence

but not duress of circumstance


PRINCIPLES OF LIABILITY- Volition and Intent required for intentional Torts

Intent-Defn: Desire to bring about consequences of act, rather

then desire to do act itself (Subjective)-does not have a moral element-example: shooting can in forest and hit another person in

steadoo Constructive Intent/Imputed

-includes unintended consequences that are certain or substantially certain to result

-example: place bomb in building, intent to injure boss expanded to include other ppls injuries

Theory – troubling because hold people liab for things they did not literally intend (forced objective thought on what is normally subjective). Assumes a baseline intellectual capacity. Interpretation is required. Looks more like strict liability.

Opposite issue of Moral luck, where intended to commit but did not – should D be held Iiab?

Issue of impossible crimes, where intended to commit and did so, but method chosen could not kill (ex thought pills were poison but they were not)

Justify with need to protect public at large from people who do not think through consequences of their actions.

oo Transferred Intent

-intend to commit T against one party but unintentionally commit against third party instead

-also applies when intends to commit one tort but ends up committing another

-example: swing to hit one person and hit another insteadTheory – justified since D’s conduct is culpable and P is

innocent. Should respond to wrongful intention and harm caused even if D does not achieve aim

Volition-Voluntary – D exercised control over act SMITH V STONE (1647) – VOLITION NOT ENOUGH TO ESTABLISH

LIABILITY

- Stone chased onto Smith’s land involuntarily, no intent to be there, Court found in favour of Stone.

SCOTT V SHEPHERD [1774] {ENGLISH} – SQUIB SHOWS LACK OF VOLITION FOR MIDDLE THROWERS, CAUSALITY

Capacity- D cannot be held liab if did not understand nature and

quality of act (children and mentally disabled) – this is a crim test

- Can be held liab if did not realize that act was wrong or unlawful

Mistake, Motive and Accidento Motive

Defn: Reason for action – not usually an element of Ts (IINS)

-May be an element of defence or in assessing punitive damages

-Duress not defence – idea that harms should not be passed along

GILBERT V. STONE (1648) – THREATS OF HARM DO NOT ACT AS DEFENSE TO THEFT AND TRESPASS

- Defence not allowed as there was not way for Gilbert to act against parties who threatened Stone

MISKA V SIVEC (1959) – PROVOCATION TEST – DID P’S ACTION CAUSE D TO LOSE SELF-CONTROL?- factor that may reduce damages, Sivec chased and shot Miska – Ruling: bad blood doesn’t count as provocation, needs to be right before shooting

o Mistakeo Defn: Intend Conc of acts but those concs have different

factual or legal significance-Not recognized as defence HODGKINSON V MARTIN (1929) – MISTAKE OF LAW IS NOT

DEFENCE

- nominal damages given as D thought that they could remove P from premises using reasonable force (mistake of law)

RANSON V KITNER (1889) – MISTAKE OF FACT IS NOT DEFENCE

- thought dog was wolf so shot him, responsible for cost of replacing

o AccidentDefn: harm caused unintentionally and without negligence,

-no Intent so no tortEpstein’s Theory of Strict Tort Liability-if impose SL, would lead to efficiency gains (enough to

outweigh fairness loss?)-Simmons believes it is too broad as would catch accidents

and mistakes-Where SL has harsh punishments, people tend to disagree


on grounds of process

ASSAULTElements:

HOLCOMBE V WHITAKER (1975) {ALA SC) – ELEMENTS OF ASSAULT

- Man threatened wife, words are not enough but may give meaning to act, banging on door was key for directness

1. Direct and Intentional Act P proves direct and D has to disprove intentional

- Reverse onus arises from direct causal link between conduct and violation of P’s right to personal autonomy

- Once held that D has intent and capacity, they can beheld liable even if joke

R V IRELAND (1997) {ENGLISH CASE} – SILENCE IS DIRECT INTENTIONAL ACT AND PSYCHIATRIC INJURY IS HARM

- heavy breathing phone calls, could not tell where he was, not yet directly accepted in Canada

2. Caused P to apprehend immediate harmful or offensive bodily contact

- Does not need to be afraid Use ‘but for’ causation Capable of being carried out at once

Other Stuff:- Apprehension must be reasonable- Threats of future harm not sufficient- Conditional threats do not give raise:

POLICE V GREAVES (1964) {NZCA}– CONDITIONAL THREATS ARE NOT ASSAULT

- man threatened police to leave property or else he would knife them

BATTERYElements:

BETTEL V YIM (1978) {ON} – ELEMENTS OF BATTERY

- Shop owner shook P, did not mean to hit but ruling was that once intentional physical contact commenced, responsibility is for all ensuing harms

1. Direct Practical question: traps and poisoning not battery Onus on P to prove

2. Intentional Intend to bring about physical contact, not harm Onus on D to disprove

3. Physical Interference with the person of another Anything with the person (clothing…xrays?) MALETTE V SHULMAN (1990) – PURPOSE OF BATTERY TO

PROTECT BODILY INTEGRITY NOT PHYSICAL HARM

- doctor gave blood transfusion without permission, no physical harm or awareness at time necessary

4. That is Harmful or offensive To right of bodily integrity

Other Stuff:- Concerned with protecting indiv dignity- actionable per se – no proof of damage required- Need not be aware of event at time (ex if asleep,

Malette)- Onus of proving intent never on P


SEXUAL BATTERY & THE ROLE OF CONSENT- Not a tort, currently dealt with under Battery

Elements: NON-MARINE UNDERWRITERS, LLOYD’S OF LONDON V

SCALERA [2000] – ABSENCE OF CONSENT IS PRESUMED IN SEXUAL BATTERY CASES

- D bears onus of proving consent, as it is their fault that resulted in violation of bodily security. Torts aim to protect bodily integrity so it is wrong to have to prove lack of consent. Violation is implication of intent.- McLachlin rejects formal equality of P and Ds in T; instead she recognized power imbalance and gendered roles as being important considerations

Constructive Consent:- Objective: would it have been reasonable for D to think

that P was consenting to battery based on her conduct? P’s demeanor and surrounding circumstances will be considered.

- Seen as a victory by feminists as it also rejects that subjective belief can be used as a defence

- Problems:a) Does D need to give evidence of attempts to

ascertain consent?b) P’s perception and experience is irrelevant

provided D can prove reasonable basis for consent

c) Could lead to situations were courts blame victims for failing to resist or inducing Ds – shift of focus onto victim rather then accused (Adjin-Tettey)

d) Based on ideas about ‘normal’ and ‘reasonable’ – these are discriminatory (Adjin-Tettey)

e) Could find someone liable who honestly did not believe they were committing a wrong – big stigma here

Sue in Tort? (as compared to crim)Advantages

- P chooses case, facts, expert evidence and can end it (not instrumentalized)

- Therapeutic benefits for P and promote healing- Standard of Proof: lower in civil

Disadvantages- Cost, delay and stress may make it worse (how much

burden on society via legal aid funds?)- If action is defended, may be secondary victimization

(possibility of successful defence of constructive consent)

- Civil lit is expensive and P may not receive damages- myths and stereotype about women’s sexual behavior

–systematic stereotypes underlie institutions (Adjin-Tettey)

New Tort?- Under battery, victim must prove unwanted contact

but does not need to prove intent- New would mirror Crim law which has limits on

implied consent (response to Scalera) EWANCHUK (1999) – CRIM CASE: MISTAKEN BELIEF IN

CONSENT CAN ONLY OPERATE TO NEGATE THE MENS REA REQUIRED FOR SEXUAL ASSAULT WHERE THE ACCUSED CAN SHOW THAT THEY BELIEVED THE COMPLAINANT COMMUNICATED CONSENT TO THE SEXUAL CONTACT IN QUESTION.

- For:- makes important crime public (Feldthusen)- if belief in wrongfulness of crime is enough to

occasionally convict innocent in crim why isn’t it for T

- Against:- consistent with corrective justice model at heart

of Torts (indiv against indiv) (Feldthusen)


FALSE IMPRISONMENTElements:

BIRD V JONES [1845] – ELEMENTS OF FALSE IMPRISONMENT

- P stopped by police, could have gone any other direction, must be compete imprisonment

1. Direct Intentional Imprisonment of another person P prove direct imprisonment. D has burden of

disproving intent or negligence

a) Actionable w/o Proof of Damage It is a violation of personal liberty

b) Restriction must be compete Only expected escapes are reasonable escapes,

unclear just how much harm is expectedOther Stuff:- Does not need to be physical space

Barriers, threats of force, psychological restraint- Do not need to know it occurred in English Law,

Canadian likely to take same approach Remedy likely avail for kidnapped infants and

Alzheimer adults- Can be liab if order someone to restrain (indirect FI)

Turns on relationship between parties (authority) ROBERTS V BUSTER’S AUTO TOWING SERVICE LTD (1976) –

INDIRECT FALSE IMPRISONMENT

- Employee (E) directed police to arrest P. Police had little or no discretion, so E liab for FI. If info had been given to JP, then no FI for E since JP exercises own discretion. E may be liab for Malicious Prosecution

- Whether imprisonment was lawful is treated as defence – so must be raised by D

False Arrest- Where restraint placed in name of legal authority

CAMPBELL V SS KRESGE [1976] – FALSE ARREST, PSYCHOLOGICAL IMPRISONMENT

- Off duty police ask suspected shoplifter to come with him in order to avoid a scene- if go freely then no FA

Consensual Arrest- Consent to restraint under certain conditions

HARD V WEARDALE STEEL, COAL AND COKE CO LTD – ENTER A PLACE WITH LIMITED EXITS AND YOU HAVE CONSENTED TO EXIT UNDER CONDITIONS OF ENTRY

- Mine refused to let worker use cage to exit until end of shift

MALICIOUS PROSECUTIONElements:

MIAZGA V KVELLO ESTATE (2009) – ELEMENTS OF MALICIOUS PROSECUTION

- Prosecutor had subjective doubts about validity of children’s sexual assault claims against their parents, but court ruled he was right to continue based on the objective reasons

1. D initiated Crim proceedings against P Must be driving force (not just providing evid) Not appli to Tort as punishments in Crim more

serious and so this warrants MP tort Also liable for continuation

2. The crim proceedings terminated in P’s favour Conviction =guilt and innocence is foundation

3. No reasonable or probable cause for the proceedings Used to need subjective belief in guilt and

objective basis for belief, this caused problems Now objective only (Miazga – professional not

personal belief)4. Malice on the part of the D

Spite, ill will or improper purpose Finding lack of probable cause is not malice, could

be honest mistake or misapplication of prof judgment (Miazga)

PROULZ V QUEBEC [2001] INFERRED MALICE

- From lack of reasonable or probable cause and evidence prosecutor’s hiring of former police officer who was being sued by D for defamation.

NELLES V ONTARIO (1989) – NO MORE IMMUNITY FOR PROSECUTORS, IF DELIBERATE AND MALICIOUS THEN WILL BE HELD ACCOUNTABLE

- Very public charge and pretrial for death to 4 babies then charges were dropped. Hard to prove malice and that there was no reasonable or probable cause.

5. P sustained Damages Different from other torts in that it is not

actionable per se (need to show loss of reputation, liberty…)

Interests at Play:- Freedom of individuals from groundless criminal

prosecutions that may result in harm- Public Interest in effective and uninhibited

prosecution of wrongdoing - Imposing liab on mistakes would inhibit helpful citizens

- Balance favours Pub interest with this tort offer relief


INTENTIONAL INFLICTION OF NERVOUS SHOCKElements:

WILKINSON V DOWNTON [1897] – ELEMENTS OF INTENTIONAL INFLICTION OF NERVOUS SHOCK

- Message that wife should go collect broken husband from pub resulted in wife needing medical attention

1. Outrageous or extreme conduct Question of fact, reference to standard of

reasonable people Court more likely to find if P was vulnerable and D

was aware of this

CLARK V R – CONDUCT IN IINS CAN BE A COURSE OF CONDUCT NOT JUST ISOLATED INCIDENTS

- series of sexual harassment incidents against female police officer by male colleagues

2. Intent (or constructive intent) to cause Must have intent to cause impact on psyco Intent can be inferred based on seriousness of

conduct (constructive intent ok)

3. Nervous Shock Not actionable Per Se Anguish, worry and emotional distress are

insufficient

RADOVSKIS V TOMM (1957) – EMOTIONAL DISTRESS IS NOT SUFFICIENT FOR IINS- Mother had no evidence of illness due to sexual assault on daughter, pre-existing bad nerves

SAMMS V ECCLES (1961) – AGGRAVATED CONDUCT ALLOWS COURT ACTION

- Series of sexual propositions

RAHEMTULLA V. VANFED CRIDIT UNION (1984)– CAN HAVE IINS IF THERE ARE SYMPTOMS OF DEPRESSION AND BEHAVIOR WAS OUTRAGEOUS

-Fired after false accusation of theft, suffered from depression and could not find work

DISCRIMINATION- Not a Tort- Covered by s15 of Charter- If covered by Statute, courts have been taking

position that it is not normally covered in Torts BHADAURIA V. BOARD OF GOVERNORS OF SENECA COLLEGE

OF APPLIED ARTS AND TECHNOLOGY (1979) – DISCRIMINATION IS COVERED UNDER STATUTE ALREADY

- Teacher applied and did not receive interviews.- CofA (Justice Wilson) thought there should be a tort action as commissions often do not have the resources. Common law right to non-discrim.- “The mere fact that the claim is novel will not of itself operate as a bar to the remedy.”- Already recognize respect for fundamental human rights in statute so why not in tort? Statutes reflect development in common law?- SCC appealed to floodgate argument (but could frame it!)

Freestanding tort of discrimination:- Statute could help courts balance equality with other

legal interests (ex freedom of contract)- Empowers individuals and frees up govt commissions Rights Discussion:- If rights are fundamental, makes sense law and tort

recognizes them- If see rights as created by law, then tort not

necessary, ‘right’ becomes an argument to use at commission

- Non-derogable rights – perhaps torts only protects these, but who decides which are which (white man who has never experienced discrim)


Difficulties:

- Assessing Damages in absence of physical harm: Evidential worries

- Concern with false and numerous actions: flood gate- Concern that socially acceptable conduct may cause

harm for sensitive individuals : Extreme pre-existing vulnerability

Innominate Intentional Tort Idea: - all unjustified, intentionally inflicted bodily injuries, would not fall within usual nominate torts, so would give courts recourse without disturbing other tort principles

STALKING- Not a Tort- S 264(1) Crim Code defines it: person intentionally or

recklessly harasses another in a manner that leads them to fear for their safety

- Idea is that you can sue under other remedies- Counter idea for an independent tort:

Piecemeal approach does not address real nature of wrong – the indiv acts may appear insignificant

Labeling question – if not assault don’t call it such. Law looks out of touch and people lose confidence.

Symbolic reassertion of rights Compensation question – position of celebs Timing – if T faster then Crim could get injunction

faster then restraining order

HARASSMENT- Not a Tort- Distinction between Stalking and Harassment

Action causing fear for safety is stalking, action causing distress/annoyance/disturbance/upset is harassment

- Not really covered by traditional torts (maybe IINS) Courts only willing to consider when P is clear target

and suffers severe mental distress This leads to confusion: CHAPMAN V 3 M CANADA – NO TORT IF CLAIM COVERED

UNDER A COLLECTIVE AGREEMENT

- Wrongful dismissal based on discriminationStatutory Protection of Privacy- protected by charter, prov and fed leg

HOLLINSWORTH V BCTV – STATUTE PROTECTS BCTV- Awkward TV clips released, BCTV told consent had been given


INTENTIONAL INTERFERENCE WITH LANDElements:

ENTICK V CARRINGTON (1765) –EVERY INVASION IS TRESPASS REGARDLESS OF DAMAGE, ONUS ON D TO PROVE DEFENCE

1. Direct Indirect may be actionable in negligence Evidential requirement to simplify cause of action

and provide solutions to everyday problems Get rid of: Unique problems cause artificial

distinction, would simplify Keep: Fairer, indirect should not be punished, action

through negligence2. Intentional or Negligent

Burden of proof on D once P prove direct interference

No intent of harm necessary Constructive intent applies TURNER V THORNE (1960) ON HC - MISTAKE IS NOT

DEFENCE

- delivery to unlocked garage where used to deliver is trespass

3. Physical Intrusion Smog, fumes, smoke, noise or odour are not Actionable per se – no damage necessary

Onto land in Possession of another.

Defenses1. Consent (Licence)- Express or Implied- Gratuitous licences revocable at will, Contractual

licences revocable upon misconduct- To indiv or group or world2. Necessity- Emergency and T necessary to prevent harm to: Public,

Trespasser, possessor of land or a third party- Prompted by imminent peril and necessary in the light

of the advantage to be gained and the absence of other available options.

- D must show danger must significantly outweigh the damage or loss caused to P

3. Legal Authority- Statutory authority given to gov agents

Land:- Surface area and everything attached to it and below to

a reasonably useable depthReason for Tort- Civil remedy to help protect possessor of land from

violent intrusion or eviction and protect peaceful enjoyment

- Power to control entry is essential in order to use land in whatever way possessor wants

- Without power to control entry – would have to keep fit for others to use

Three Basic Forms:- Enter land in possession of another without permission- Place object on P’s property (doctrine of continuing

trespass – allows successive actions)- Possessor revokes a visitor’s permission or licence to be

on property

Actionable by Person in legal possession- Not: Owner of leased property or person with only a

licence to be on property (ex hotel guest)- Exception: doctrine of trespass by relation: P can sue it

they were not in possession at time of interference, provided that no one else was and they subsequently take possession HARRISSON V. CARSWELL (1976) – POSSESSORY INTEREST IN

COMMON AREAS HELD BY OWNER OF MALL

- private owner has absolute right to deny entry to anyone and revoke licence of entry - Malls are private

Trespass v Nuisance1. T is actionable per se where nuisance requires

proof of loss2. T protects possession, N protects quality of

possession3. N concerned with effect of D’s conduct on P’s use

and enjoyment of land not with the nature of conduct: indirect intrusions (snow blowing, trees growing (but natural uses that do not pose foreseeable risk usually are not actionable), pollution) may be actionable under nuisance but are not under trespass

KERR V REVELSTOKE BLD MATERIALS LTD – 1976 – ABSC – DISTINCTION BETWEEN TRESPASS AND NUISANCE

- physical invasion of sawdust and ash from new mill across street = trespass; noise affected enjoyment of land and business = nuisance


INTENTIONAL INTERFERENCE WITH CHATTELS- Defences same as Trespass to Land

A. TRESPASS TO CHATTELSElements: (1) Directly and intentionally interferes with chattel in (2) possession of P.- Usually: damage, unauthorized movement- Aim: Protect from damage to items in physical control –

avoid wrongful taking, avoids self-help by taking it back FOULDES V WILLOUGHBY (1841) – AUTHORITY ON TRESPASS

TO CHATTELS

- movement of chattel without intent to make further use of it was not serious enough for conversion so is trespass to chattels

- Protects possession, so wrongful possessor may sue COSTELLO V CHIEF CONSTABLE OF DERBY SHIRE

CONSTABULARY [2001] – POSSESSION IS ENTITLED TO SAME LEGAL PROTECTION WHETHER OBTAINED LAWFULLY OR NOT

- stolen car must be returned to unlawful possessor- P – prove interference with possession; D – prove

absence of intent- Mistake is no defence (A: 384238 Ontario Ltd (1983))- Remedy – always damages – reduction in market value

or cost of repair- Actionable w/o damages?

Yes: no touching valuable items, remedy for moving or temp use

No: damage should be essential: dignitary interest in the inviolability of chattels

B. DETINUEElements: (1) P with right to immediate possession requests item and (2) D refuses to return it- Usually: unique goods or not easily replaced- Aim: protects the plaintiff’s right to the chattel and

focuses on the defendant’s denial of the plaintiff’s rights by refusing to return it

- Rule: P must ask and D must refuse; return: action ends- Remedy:

Order to return (dif from trespass and conv) Damages for it’s value and retention

- Assessed at time of judgment (continuing tort) AITKIN V GARDINER (1956) ON HC – FACT THAT NO LONGER

IN POSSESSION IS NOT A DEFENCE – AUTHORITY FOR DETINUE

- shares converted, can sometimes also claim consequential losses

C. CONVERSIONElements: (1) intentionally interferes with the chattel in such as way as to (2) seriously harm the plaintiff’s rights to it.- Usually: severe interference so seeking damages- Examples: taking, withholding, transferring, destruction- Intent – not avail for negligent interference- Key Test: Damage is such that D is responsible for full

value: forced judicial sale to D so no returning required MACKENZIE V SCOTIA LUMBER CO (1913) IS A CONVERSION

BUT D CANNOT HAVE BOTH FULL DAMAGES FOR CONVERSION AND PROPERTY BACK.- rafts returned to their owner with one additional one by mistake.

FOULDES V WILLOUGHBY (1841) – NOT SEVER ENOUGH DAMAGE FOR CONVERSION

- Mistake no Defence: innocent seller and purchaser both liable Exception: packing, storing, carrying with no know

- P must replace as soon as practicable (mitigate loss)- Court will consider:

The duration of the interference The kind of interference The purpose of the interference (motive/mistake no

defence but will be considered in remedy) The amount of damage inflicted

- Damages calculated at time of taking AITKIN V GARDINER (1956) ON HC - SHARES

D. ACTION ON THE CASE TO PROTECT A REVERSIONARY INTERESTElements: (1) chattel has been destroyed or permanently damaged by the intentional or negligent act of D- P does not have possession or immediate right to

possession but wants to protect goods from damage

Other Points:Replevin- Not a tort, is a procedure for speedy recovery to the P

pending results of trial when timeliness importantRecaption- Not a tort, limited legal right of self-help: person with

strongest possessory right may use reasonable forceRemedy of Distress Damage Feasant- Owner of land can seize chattle if it is causing damage,

cannot sell but can demand compensation


II WITH ECONOMIC INTERESTS- Not role of torts to protect from market losses (econ

argu: force actors to internalize own costs) – contrary to usual corrective justice model,

- Idea is to protect fairness, line btw autonomy & deceit

A. DECEITPurpose: Protect P from fraud and protect D from unfair stigma

DERRY V PEEK (1889)– AUTHORITY ON DECEIT: IF RECKLESS AS TO TRUTH, YOU COULDN’T HAVE BELIEVED IT WAS TRUE; MISTAKEN BELIEF MAY BE DEFENCE (DOES NOT HAVE TO BE REASONABLE)- tramway shares sold on steam belief- Statement is false due to lack of care (not) vs. Statement is false and made without care (deceit)

1. D made false statement- usually written or spoken but may be for actions

ABEL V MCDONALD [1964] – SILENCE IS NOT ACTIONABLE IN DECEIT, BUT THERE MAY BE AN OBLIGATION TO SPEAK

- Seller of house, obligation to disclose if dangerous or uninhabitable

2. D had knowledge that statement was false (or was objectively reckless to truth or falsity of stmt)

- P show D acted dishonestly or objectively reckless- Honest mistake is denial of recklessness3. Statement made with intent to mislead P (or

substantially certain it would)- Merely intention to mislead, do not need cheat/injure- Onus on P to show that D intended P to act or rely- If reasonably foreseeable – constructive intent4. P suffers loss from reasonable reliance- Reasonable People: recognize salespeople exaggerate,

less likely to rely on predictions of the future (no one can tell the future), less likely to rely on opinions (they are subjective and open to interpretation)

- D show P would have acted anyways, deceit fails- Does not need to be sole reason for P’s actions, but

should be material GRAHAM V SAVILLE [1945] – DECEIT W NONECON LOSSES

- pain of preganancy, he said he was single PASLEY [1789] - DECEIT DEPENDS ON REASONABILITY OF

RELIANCE; REMEDY AGAINST DECEITOR

P V B [2001] – DECEIT MAY APPLY IN FAMILY RELATIONSHIPS

B. PASSING OFFPurpose: Protect reputation and good will of producers and prevent consumers from being deceived (unregi trademks)

CIBA-GEIGY CANADA LTD V APOTEX [1992] – AUTHORITY FOR PASSING OFF; PROTECT PRODUCERS AND CONSUMERS

- drugs look same as P should confuse someone1. Existence of Goodwill- May be for brand name, trade descript or labeling- Power to attract customers and retain loyal cust- Exists where goods or services may be identified as Ps2. Deception of the public due to misrepresentation- May be intentional or not, leads public to believe that

goods are those of the P- Does not apply when only people misled is a ‘moron in a

hurry’ (Morning Star Coop v Express Newspaper [1979])3. Actual or Potential Damage to the P- Examples of misreps: goods of D are goods of P; goods

of P are goods of D; origins of goods; quality of goods; business relationship with P

C. INTIMIDATION- Just identify – focus on contract- Only need show threat was made, not carried through

CENTRAL CAN POTASH V GOV SK (1979)- TWO PARTY INTIMIDATION – A THREATENS B (WITH TORT YES, WITH CONTRACT NO, HAS REMEDY ALREADY IN CONTRACT)

ROOKES V BARNARD [1964] – THREE PARTY INTIMIDATION – D THREATENS A WITH BREACH OF CONTRACT UNLESS A CAUSES DAMAGES TO P (WHO HAS NO CONTRACTUAL REMEDIES)

1. Defendant threatened to commit an unlawful act, such as a crime, a tort or, in some circ, a breach of contract

2. The defendant’s threat was effective in that it induced someone to act in a particular way; and

3. The plaintiff consequently suffered a loss.

D. CONSPIRACYPurpose: act indep and not push out better for business

ALLEN V FLOOD (1897)– NOT TORTIOUS TO DESTROY A BUSINESS

CANADA CEMENT LAFARGE V BC LIGHTWEIGET (1983) – AUTHORITY FOR TWO TYPES OF CONSPIRACY

1. Conspiracy to Injure (Dom Purpose to hurt P)2. Conspiracy to Commit an unlawful act

Scheme directed at plaintiff Should have known scheme would harm P

- Not limited to business dealings


ONUS ON D: DEFENCES- Not mutually exclusive

A. CONSENT NON-MARINE UNDERWRITERS V SCALERA [2000] – CONSENT

IS FREESTANDING DEFENCE

-For D to prove not for P to disprove as element- Needs to be specific to the tort- Freely and voluntarily given- Complete defence (justification not excuse)- Can be explicit or implicit (from behavior, participation

or demeanor, or where P fails to object or withdraw)Implied Consent:- Look to all facts

WRIGHT V. MCLEAN (1956) – CONSENT TO TAKE ORDINARY RISKS OF SPORT IN WHICH ENGAGED (NO MALICE OR ILLWILL)-mud fight in which a stone was thrown at the P

ELLIOTT V AMPHITHEATRE [1934] – CONSENT WHEN P AWARE OF THE RISKS

- Amateur hockey player hit by puckExceeding Consent:- Consent exists but action goes beyond

AGAR V. CANNING (1965) – SPORT PLAYERS CONSENTING TO ORDINARY RISK OF INJURY BUT THERE SHOULD BE A LIMIT ON PLAYER’S IMMUNITY. HEAT OF THE GAME ACTIONS CANNOT BE JUDGED ON POLITE SOCIAL INTERCOURSE

- Exceeded Consent when illegal check in retaliationCompetency to Consent:- Capable of understanding nature and consequence

C (JS) V WREN (1986) – NECESSARY CAPACITY AND MATURITY FOR MINORS.- parents attempted an injunction abortion

- Factors: age, physical or mental illness, intoxication- Consent to criminal act:

HALL V HEBERT [1993] – PURPOSE OF PRINCIPLE THAT PERSON CANNOT RECOVER FOR CONC OF ILLEGAL OR IMMORAL ACT IS TO PROTECT THE INTEGRITY OF THE LEGAL SYSTEM

- Rarely applies for P seeking comp for injuries, but will apply if attempting to profit financially

- Consent to medical treatment:- Full and frank disclosure, more then just a form- May be withdrawn at any time MARSHALL V CURRY [1933] - IMPLICIT CONSENT TO

NECESSARILY INCIDENTAL TREATMENTS (TESTICLE) MALETTE V SHULMAN (1987) –REFUSAL DOES NOT NEED TO

BE INFORMED, IT MAY BE ABSOLUTE

B. SELF-DEFENCE- Complete defence (justification not excuse)

Onus on P: Factors Vitiating Consent:a) Fraud

1. D must be aware or responsible for P’s misapprehension

2. Fraud must be directly related to the nature of the act (not a collateral matter) R V WILLIAMS [1923] – DECEIVED AS TO NATURE OF ACT, SO

NO CONSENT

- Thought sex was singing lesson HEGARTY V SHINE (1878) IRELAND – FRAUD TO HARMFUL

CONC OF D’S ACT WOULD NOT VITIATE CONSENT *REJECTED*- consent to sex not negated by transmission of STD

R V CUERRIER (1998) – FRAUD VITIATES CONSENT WHERE THERE IS CONCEALMENT OF SIGNIFICANT RISK OF SERIOUS BODILY INJURY

- Consent to sex vitiated by undisclosed HIV status in crim context

b) Mistake 1. D must be responsible for creating the belief

TOEWS V WEISNER (2001) – D’S MISTAKEN BELIEF THAT P CONSENTED, IS DIFFERENT FROM P’S CONSENT DUE TO MISTAKEN BELIEF

- nurse gave injection to child under belief that parents consented

c) Duress LATTER V BRADDELL (1880) – CONSENT AS A RESULT OF

DURESS IS NOT VALID

d) Public Policy LANE V HOLLOWAY [1968] – CANNOT CONSENT TO BEING

KILLED OR SERIOUSLY INJURED

- Clear that elderly person no match for fight R V JOBIDON [1991] – NO D OF CONSENT IF SERIOUS

PHYSICAL HARM WAS INTENDED AND CAUSED

- even in fair fight NELITZ V DYCK (2001) – TWO PART TEST TO DETERMINE

WHERE A POWER IMBALANCE VITIATES CONSENT

1) proof of inequality (usually power dependency) 2) proof of exploitation (in light of community standards)

Defence of Reception of Chattels- Not applicable if already dispossessed, too risky and


- Social contract theory (give up rights, but if protection fails, right re-emerges)

1. Honestly and Reasonably believed that Assault was Imminent

- Honest: subjective, Reasonable: objective, Imminent: modified objective test

2. Amount of force was reasonable in the circumstances- Look to nature of force and all surrounding

circumstances, should be proportionate (minimal) WACKETT V CALDER (1965) – D DOES NOT NEED TO MEASURE

EXACT FORCE OF BLOW (GIVEN IMMEDIACY, NOT MUCH TIME FOR REFLECTION); DISS: REQUIREMENT TO WALK AWAY

- Bar fight, second punch enough to end the fight- Walk away: Law holds ppl to ideal, duty to leave problematic, role to stop bad not encourage good, self assertion: why walk away from infringement on right to bodily integrity

BROWN V WILSON (1975) – IF FORCE REASONABLE, DO NOT NEED TO CONSIDER CONSEQUENCES (DEBATE ON THIS LAST)- Bear hug is reasonable even if led to death (trip)

BECKFORD V R [1987] – TEST IS FROM PERSPECTIVE OF D AND THEN WHETHER A REASONABLE PERSON WOULD HAVE USED THE SAME LEVEL OF FORCE

R V LAVALLEE [1990] – EVIDENCE ON BATTERED WIFE SYNDROME IS ADMISSIBLE & APPROPRIATE TO CONSIDER A WOMAN’S EXPERIENCE AND PERSPECTIVE WHEN DECIDING ON A REASONABLE PERSON’S SELF-DEFENSE.

Defence of Third Party1. Same elements

GAMBRIELL V CAPARELLI (1974) – HONEST MISTAKE OF FACT DOES NOT PRECLUDE DEFENCE OF SELF-DEFENSE

- Mother hits son’s attacker with reasonable force

Defence of Real Property MACDONALD V HEES (1974) – ELEMENTS OF DEF OF

PROPERTY

- Enter hotel room believing they were invited, excessive force used

BIRD V HOLBROOK (1828) – INTENT TO CAPTURE NOT ACCEPTABLE

- a gun was rigged to protect tullips, fence hen1. Request to leave and opportunity given to do so2. Reasonable force used to remove

puts D in position of aggressorElements 1) be in possession 2) attempting to immediately

regain possession or in hot pursuit 3) if innocently picked up, must be requested before force used

Defence of Provocation1. Conduct that causes a reasonable person to lose

control and act in way they did- exam, flag it as an issue, run through the issue and

state that it is unlikely to be relevant in torts as courts very loath to allow provocation in

Defence of Discipline- Common law rule and section 43 of cc (according to

Solomon, CDN courts tend to use crim for civ)- “Every schoolteacher, parent or person standing in the

place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”

1. Force used by way of correction (educational)2. Force used was reasonable in the circumstances

R V DUPPERON (1984) – AUTHORITY FOR DEFENCE OF DISCIPLINE

- Was educational but not reasonable for this child R V BAPTISTE (1980) – INTERPRET S 43 IN LIGHT OF

PREVAILING SOCIAL STANDARDS AND CUSTOMS RATHER THEN THOSE OF D- Drop out of use for battery? Still use for false I.

CANADIAN FOUNDATION FOR CHILDREN, YOUTH AND THE LAW [2004] – SECTION 43 IS CONSTITUTIONAL WITHIN LIMITS

- sober, reasoned, and address actual behaviour- child must be able to understand and benefit (not <2yr)- the force must be transitory and trifling, must not harm

or degrade the child, and must not be based on the gravity of the wrongdoing. (so no teens as that may encourage aggressive or antisocial behave)

- not be applied using objects or to the head.- not reasonable in schools, although teachers may use

force to remove children from classrooms or to ensure that they follow instructions.

Extra Judicial Damages (used as defences):1. Recapture of Chattles – can use reasonable force to

regain when someone takes if from them tortiousely2. Reentry onto land – needs to be a reasonable force to

reenter land and regain possessory interest in land - reasonable infringement of property rights

3. Abatement of uses – reasonable force to stop or prevent a nuisance ex remove a dead tree branch


C. ASSERTION OF LEGAL AUTHORITY- Defence in a range of statutesCriminal Code and Charter- s495(1)(b) CC - authorizes peace officers to arrest

(without a warrant) anyone whom they have reasonable grounds to believe has committed or is about to commit and indictable offence.

- S25(1) CC (if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose)

- S25(3) (force intended or likely to cause death or grievous bodily harm limited to self preservation of preservation of indiv in protection)

- S25(4) (as much force as necessary in preventing flight – including deadly per solomon)

- s1 (limits in free and democratic society)- s8 (unreasonable search and seizure)- s9 (arbitrarily detained or imprisoned)- s24(1) (any remedy court sees fit)- s24(2) (exclude evidence if bring admin of justice into

disrepute)Rights in Arrest Process

KOECHLIN V WAUGH AND HAMILTON (1957) – RIGHTS IN ARREST PROCESS

- (1) No general right to ask individuals to identify themselves. Must rely on a recognized power, such as that inferred from S450 (need to have reasonable and probable grounds to suspect).

- (2) Police need to tell the individual why they are being arrested – i.e. they are entitled to know on what charge or on suspicion of what crime they are being arrested.

- (3) Failure to inform the individual of the reasons for arrest can give rise to a claim for false imprisonment.

- (4) If the individual is not informed, they are entitled to resist the unlawful arrest.

CL power to Search following Lawful Arrest R V CASLAKE [1998] - SEARCH ONLY JUSTIFIABLE IF PURPOSE

OF THE SEARCH IS RELATED TO THE PURPOSE OF THE ARREST (THIS APPLIES TO ITEM LIMITS AND TEMPORAL LIMITS)

CL power to Enter to Search for Wanted Person ECCLES V BOURQUE [1975] - BROAD PRINC OF SANCTITY OF

HOME SUBJECT TO EXEMPTION UPON PROPER DEMAND

- Elements: 1) need reasonable and probable grounds for the belief that the person sought is within the premises (hearsay is ok) and 2) proper announcement is made prior to entry (otherwise could give rise to violence)

REMEDIES– no great detail – just indicate that you are aware of

what remedies are available – will not be central issue in fact patterns

1. Damages- Aims: Retribution, Deterrence, Vindication/Educative/

Upholding Law & Fostering Respect- Judges should give reasons according to aims

a) General/non pecuniary – damages for non monitary harms: physical and emot suffering, loss of rep…

b) Special/pecuniary – damages for monitary losses1) Nominal – The Mediana [1900]2) Compensatory - Dodd Properties Ltd. v

Canterbury City Council [1980]3) Punitive – not about harm

WHITEN V PILOT INSURANCE CO [2002] – PRINCIPLES IN PUNITIVE DAMAGES

- Only serious misconduct; appellate courts may reduce; not limited to specific categories of cases; fact of crim puni just one factor to be considered…

4) Disgorgement (restitutionary)c) Aggravated Damages - Recognition that 1)

malicious, highhanded or outrageous action of D may have 2) resulted in additional humiliation, loss of dignity and embarrassment (Rookes v Banard [1964] accepted in Vorvis v Insurance [1989])

2. Injunctiona) Prohibitive – stop (ex nuisance: damages/fines are

license after the fact, so injunction more useful)b) Mandatory – do something (ex specific

performance in contracts)- equitable remedies – need clean hands3. Declaration- give a preliminary ruling on a point, clarify a legal

position without litigating- Ex: insurance policy – declaration whether the

policy covers x or not- Ex: declaration of paternity – want to do a paternity

test and have the court declare results4. Order of Specific Restitution/Disgorgement- court tries to prevent someone from profiting from a

wrong, asking for delivery up of profits B.(P.) V. B.(W.) (1992) - NON-P COMP DAM

(VICTIMIZATION, SHAME, LOSS OF SELF-ESTEEM); AGGRAVATED DAM (GROSS BREACH OF TRUST); PUNITIVE DAM (RAPE WHEN SHE WAS 20)


DEFAMATION- Actionable per se (strict Liability)- Function: Protect Loss of reputation (often a

commercial interest in reputation)- Balance with Freedom of expression (easy to prove but

lots of defences avalib)- Damages based on loss of reputation (need one)- Old: Libel written and actionable per se & Slander

spoken and needs damagesElements:

SIN V STRECH [1936] – ELEMENTS OF DEFAMATION

- Fact that a ‘small debt is owing to servant’ is not1. Material is Defamatory? (Question of Law)- in the mind of a ‘right thinking person’ (list on p936)a. Plain meaning – includes normal meaning and those

things that an ordinary person would infer (b&c)b. Ref to extraneous cirs (legal innuendo) – special

knowledge of P or circ required (he is married)c. False innuendo – ordinary person without special

knowledge could infer SLIM V DAILY TELEGRAPH [1968] CONTEXT IMPORTANT:

COURTS VIEW PUB AS A WHOLE INCL HEADLINES, PHOTOS. VOGEL V CBC [1982] – FACIAL EXPRESSSIONS, GESTURES AND

TONE OF VOICE PART OF CONTEXT

COLOUR YOUR WORLD CORP (1998) – RIGHT THINKING IS PROB ORDINARY IN CANADA

DENNIS V SOUTHAM (1954) – NOT INTENDED AND GOOD MOTIVE IRRELEVANT

2. Reference to the P- burden on P- not usually for large groups, ord person would not belie

KNUPPFER V LONDON EXPRESS [1944] – REFERENCE MAY BE SASTIFIED IN TWO CONDITIONS

Statement capable of ref to P (Q of law) Statement would lead reasonable person to thing it ref

to P (Q of fact)3. Publication- must be communicated to 3rd party who understands

LAMBERT V THOMSON [1937] - EVERY REPUB IS ACTIONABLE

WENNHAK V MORGAN (1888) NO PUB WHERE ABOUT SPOUSE

MCNICHOL V GRANDY [1931] NO PUB WHERE OVERHEARD ENTIRELY BY ACCIDENT

- Originator not liable unless: i) gave express or implied authority ii) made the remark to someone who they knew had a moral or legal responsibility to publish it iii) republication is the natural and probable consequences of their actions

B. DEFENCES- D has burden of proof1. Justification- Whole of statement is substantially true- Motive irrelevant (truth should not be actionable)

MEIER V KLOTZ (1928) – SUBSTANTIALLY TRUE

WILLIAMS V REASON (1983) – JUDGE RULES WHAT CAPABLE OF MEANING AND EVIDENCE TO DISPROVE THIS ALLOWED

- Took boot money before allegation of hypocrisy2. Absolute Privilege- Statement falls into protected category: value candid s- a) by executive officers relating to affairs of the state

DOWSON V THE QUEEN (1981) – EXECUTIVE AB PRIV AUTHO: I) MADE BY ONE OFFICER TO ANOTHER II) RELATE TO STATE MATTERS III) MADE IN COURSE OF OFFICIAL DUTY

- b) made during parliamentary proceedings- c) in course of judicial or quasi-judicial proceedings

STARK V AUERBACH [1979] – JUDICIAL AB PRIV AUTHO

HUNG V GARDINER (2003) – PROTECTION TO PERSON PROVIDING INFO TO QUASI JUDICIAL BODY (PWR TO DETERMINE LEGAL RIGHTS AND AFFECT STATUS OF MEMBERS)

3. Qualified Privilege- Moral, social or legal duty- No def if malicious

a. Public Duty Protection of own interests (Adam v Ward [1917]) Protection of another’s interests (Watson v Longsdon

[1930] – P’s infidelity told to wife) Furtherance of common interest if there is reciprocal

interest (McLoughlin v Kutasy [1979] doc report)- Not usually media – need reciprocal duties:

publish and receive Protection of public interest (Campbell v Jones (2002)

lawyer can report on racial motivation for search)b. Fair and Accurate Reporting – reports of

proceedings that are open to the public HILL V CHURCH OF SCIENTOLOGY [1995] – NEED ACTIVE

MALICE IN DEF; Q PRIV ATTACHES TO OCCASION OF COMMUNICATION NOT COMMU ITSELF & RIGHT TO PROCEEDINGS IS PRE-TRIAL INFORMATION TOO

- lawyer made statements at press conference


4. Fair Comment- Reflects importance of free speech

EARLY CASE: CHERNESKEY V ARMADALE [1979] – EDITORS NEED TO AGREE WITH LETTER AND WRITER MUST SUBMIT IN GOOD FAITH. DISS: CHILLING EFFECT

WIC RADIO V SIMPSON [2008] – FAIR COMMENT IS AN OBJECTIVE HONEST BELIEF TEST: ELEMENTS AND NOTES

- Stated factual basis of comment helped (tape)a. Material was a comment (not an accusation of

allegation of fact)b. Which any person could honestly expressc. Based on facts that are trued. Pertaining to a matter of public interest Note:

i. Court not required to assess proportionality of statement

ii. Fairness not an element (in eyes of beholder)iii. Honesty test is a low threshold (just needs a base in

the facts)iv. Evidence of malice may defeat the defence (hard to

find malice in media)5. Responsible communication on matters of public

interest- To plug Gap, if making a statement of fact (not opinion)

that could not be proven true on BoP, and not under duty GRANT V TORSTAR [2009] – ELEMENTS OF RESP COMMU ON

MATTERS OF PUB INTEREST, JUSTIFIED ON BASIS OF DEMOCRATIC DISCOURSE AND TRUTH-FINDING

a. Publication must be based on public interest (decided by court)

b. D must show publication was responsible (or was diligent in trying to verify the allegation)

- Will look at seriousness, public importance, urgency of matter, status and reliability of source, P’s side sought and reported accurately, inclusion of defm justifiable, where pub interest lay in fact that it was made (rather then truth)

6. Consent- Narrow to protect from nonconsensual republishing- When stmts put into circulation by P or P’s agent, or

where reasonable to conclude that P consents, or where P asks D a question where def remark is invited or anticipated JONES V BROOKS (1974) – COMMUNICATION OF DEF TO AN

AGENT IN RESPONSE TO AN INQUIRY IS CONSENT

- Secret agents asked for the Def to be communicated to them

C. REMEDIES1. Injunction- Given pretrial rarely if: a) clearly defamatory and b) D

does not plead justification or it is impossible for def of justification to succeed CANADA METAL V CBC (1975) – INJUNCTION CRITERIA FOR

DEFAMATION

2. Damages HILL V CHURCH OF SCIENTOLOGY [1995] – DAMAGES FOR

DEFAMATION MAY BE GENERAL, AGGRAVATED AND PUNITIVE – NO CAP, UP TO THE JURY


HISTORY OF NEGLIGENCEWrits:1. Trespass vi et armis - strictly liable for direct, forceful

interferences with another indiv’s person or property2. Trespass on the case - the award of a remedy where the

interference was not direct or forceful Onus on p to prove that the loss was a direct result of

the intentional or careless conduct of the d Harmonization: later also needed to show failure to

meet standard and that harm was a direct result Categories: user of public roads, doctor, keeper of

animal or other inherently dangerous thing Limitation: only categories previously accepted

DONOGHUE V STEPHENSON – SOURCE OF MODERN NEGLIGENCE LAW; LIABILITY BASED ON THE FORESEEABLE PLAINTIFF; REASONABLE RELIANCE AND INSPECTION

- Lord Aitkin – must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour: judicial law making based on Christian principles or recognition of underlying princ in other cases?

- Buckmaster D – floodgates- Tomlin D – remoteness: scope of liab and where

there is a direct causative link

Mod Neg from (Winfield):a. Nuisance

How limit exposure:- Failure to meet pre-existing duty- Some other limiting factor (interest in land)- Aitkin is revolutionary since based on

foreseeable claimant not physical neighbourhood

b. Control of dangerous things (Ryland v Flecther)c. Duties voluntarily assumedd. Duties on bailees and those in common calling

DUNSMORE V DESHIELD (1977) – CONTRIBUTORY NEG DEFENCE. DISTRIBUTOR ACCEPTS NEG LIAB WHEN FAILS TO TEST BUT COULD HAVE

- Broken glasses were not impact resistant version

ELEMENTS OF ACTION IN NEGLIGENCE1. The Duty of Care- Did the defendant owe a duty of care to the plaintiff?- Existence, nature and scope of obligation determined

by court

2. The Standard of Care and Breach- What was the standard of care owed by the defendant

to the plaintiff, and did the conduct in question fall short of that standard?

- Usually that of a reasonable person, except some professionals

3. Causation- Was the loss suffered by the plaintiff caused by the

defendant’s failure to meet the required standard of care? Was the breach the cause of the loss?

4. Remoteness of Damage- Was the loss suffered sufficiently proximate? Was the

loss reasonably foreseeable, or was it instead too remote?

- Usually limited to foreseeable consequences of actions (unlike I torts which is all damages)

5. Actual Loss; and- Was the loss in question recognised by the courts as

recoverable?- Death and grief are not recognizable in common law

but are under legislation

6. Defences- Is there a defence available to the defendant - such as

contributory negligence or a voluntary assumption of risk on the part of the plaintiff?

- Other considerations, general defences


DUTY OF CARE- Question of LawFunctions1. Establish liability: overall framework for range of sits

where liab could arise2. Limit on liability: boundaries of liab for concs of careless

behave3. Allocates risks in society

NOVA MINK V TRANS CANADA AIRLINES [1951 ] – CONC OF LAW IS REALLY A CONC OF POLICY: NEG DECIDES RISK ALLOCATION. LIAB ONLY IMPOSED IF IT CAN DETER HARMFUL BEHAV NOT JUST FOR COMPENSATE PEOPLE DESERVING

- Damage to minks unforeseeableReasonably Foreseeable P Test: (Donoghue’s)1. Reasonably foreseeable2. Proximity: Would be closely and directly affected- 2 stage good per G: not restricted to those physically

close & proximity important within range of things that affect reasonably foreseeable

ANNS V MERTON LONDON BOROUGH COUNCIL [1978] – DUTY OF CARE FACTORS

- Council could owe duty for cracked walls and floors- Critique: starts with assumption of duty of care

then looks to negate it- Counter: Cdn judges happy to balance policy; did

not actually lead to flood of cases

Anns Approach (is not really a test):1. There is a sufficient relationship of proximity based

upon foreseeability; and2. There are no principled reasons why the court should

not recognise a duty of care: a) scope of duty b) class of ps c) damages to which a breach may give raise

CAPARO INDUSTRIES V DICKMAN [1990] – BRITISH APPROACH: ADDS THIRD LIMITING FACTOR THAT IT MUST BE ‘FAIR, JUST AND REASONABLE’ FOR COURT TO IMPOSE A DUTY

- False statement, loss after buying more shares- Presumption shifts against finding of duty- Return to conservative and incrementalist

approach

KAMLOOPS V NIELSEN [1984] – CANADA ACCEPTS 2 STAGE ANNS TEST

- City did neg house inspect COOPER V HOBART (2001 ) – SCC ACCEPTS 2 STAGE ANNS

TEST; NOT REQUIRED IF EXISTING CATEGORY

- Combo of foreseeability and proximity in stage 1 have practical effect of shifting onus to P? SCC favour incremental approach?

Approach in Canada (Anns as accepted in Cooper v Hobart)1. Harm reasonably foreseeable and sufficient degree or

proximity to justify imposition of duty of care? (P)- RF: Objective since not concerned with blame

MOULE V NB POWER (1960) – COINCIDENCE OF EVENTS VERY UNLIKELY MEANS LESS FORESEEABLE. FORESEEABILITY RELEVANT TO DUTY, STANDARD, AND REMOTNESS.

- Chain involving high climbing unforeseeable AMOS V NB POWER (1676) - FORESEEABLE RISK OF INJURY

DUE TO INACTION

- Lack of preventative actions by d are key PALSGRAF V LONG ISLAND RY CO (1928) – NEG IS BREACH OF

DUTY TO A PARTICULARE CLASS OF PERSONS

- P unforeseeable to guards when they pushed NESPOLON V ALFORD (1998 ) – UNFORESEEABLE THAT

DROPPING INTOXICATED TEEN OFF WOULD EVENTUALLY CAUSE NERVOUS SHOCK TO SOMEONE IN P’S POSITION

HALEY V LONDON ELECTRICITY (1964 ) – PROBABILITY ALONE IS NOT DETERMINANT OF FORESEEABILITY.

- Owe duty to blind man- Proximity

ODHAVJI (2003 ) – PROX: COMMONSENSE NOTION OF LINKING BTW THE PARTIES

- Common sense connection between low quality of invest into police shooting and family’s harm

2. Policy: situation on in which a new duty of care should be recognized?a. Law already provide a remedy? (Martel)b. Spectre of unlimited liab to unlimited class?

(Osterlind)c. Other reasons of broad policy? – operational not

political. JUST V BC [1989] – GOV CAN MAKE POLICY DECISION NOT TO

IMPLEMENT, BUT IF DO IMPLEMENT MUST NOT BE NEG


Affirmative Action- Hesitation to impose liability on non-feasance

a. Offends against personal autonomy/individualismb. Ideological commitment to capitalist notions of

choicec. + obligs to act more intrusive then - obligs not tod. Just a linguist diff bet non and mis – failure to apply

breaks just as harmful as failure to save from drown. Resolve misf=worsening P’s position; non=failing to improve.

1. Duty to Rescue OSTERLIND V HILL (1928 ) – NO DUTY TO RESCUE IN CL

- Let man drown per autonomy argument STEVENSON V CLEARVIEW (2000) – NO DUTY ON OFF-DUTY

AMBULANCE. POLICY: ONEROUS, WOULD AVOID CAREER.- Arguments in favour

a. Reflects common sense understanding of moralityb. Removes inconsistency (why special but not gen?)c. Utilitarian argument (Bentham) – benefit out

weighs cost = net gain for societyExceptions- Duty Established by statute & once commenced

MATTHEWS V MACLAREN (1969 ) – DUTY TO RESCUE FROM STATUTE AND WHERE SPECIAL RELATIONSHIPS EXIST 1) ONCE COMMENCED RESCUE DUTY EXISTS 2) DRUNKENNESS OF PASSENGERS IRRELEVANT 3) ONUS ON P TO SHOW D’S NEG WAS EFFECTIVE CAUSE OF HARM

- Master of vessel has statutory duty to rescue ZELENKO V GIMBEL BROS (1936) – ONCE UNDERTAKE A TASK

SUCH AS FIRST AID, CANNOT THEN OMIT TO DO WHAT AN ORDINARY PERSON WOULD (SUCH AS SUMMON AID)

2. Voluntary assumption of duty/duty to control actions of others JORDAN HOUSE V MEWNOW (1973 ) – DO NOT OWE A DUTY

OF CARE TO DRUNK PEOPLE MAY FIND DUTY WHERE A) THERE IS A PREXISTING RELATIONSHIP (INVITEE/INVITOR) OR B) STATUTORY DUTY EXISTS

- Invitor-invitee relation btw hotel and patron CROCKER V SUNDANCE (1988 ) – LIABILITY FOR THE

INTOXICATED: APPLY ANNS DUTY NOT TO PLACE ANOTHER IN A POSITION WHERE IT IS REASONABLY FORESEEABLE THAT THEY COULD SUFFER INJURY

CHILDS V DESORMEAUX (2006) - DUTY OF CARE IN SOCIAL HOSTS NEGATED BY POLICY. PROXIMITY: 1) COM GREATER ABILITY TO MONITOR 2) SOC NOT REGULATED 3) SOC NO PROFIT FROM SALE

JANE DOE V METRO TORONTO POLICE (1998) – DUTY TO WARN DEPENDS ON THE FACTS OF THE CASE

3. Duty owed to Rescuers HORSLEY V MACLAREN (1969 ) – DUTY WHEN FAULT CREATES

NEW DANGER THAT INDUCES RESCUER TO ACT

4. Duties owed to unborn children1) Pre-conception wrongs – injury to parent causes harm

to child before conception. Child must then be born. PAXTON V RAMJI (2008 ) – RULE: NO DUTY OF CARE TO CHILD

WHICH HAS NOT YET BEEN CONCEIVED 1) INSUFF PROXIMITY BTW PHYS AND POTENTIAL CHILD 2) WOMAN HAS COMPLETE AUTONOMY, CANNOT SUE HERSELF. A) DUTY CAN NEVER BE OWED FROM PHY TO CHILD OF PATIENT, CONFLICT OF INTEREST B) WOMEN DO NOT OWE A DUTY TO THEIR FUTURE CHILDREN

WINNIPEG CHILD AND FAMILY SERVICES V G [1997 ] – WOMAN HAS COMPETE AUTONOMY, CHILD SEPARATE AT BIRTH

2) Wrongful birth and wrongful life – doc fails to warn of high likelihood of child with disabilities and so she cannot make informed decision- Rule – dealt with in duty of doc to inform of risks

3) Wrongful pregnancy – careless abortion or sterilization- Rule – general princ of med liab- 1) what damages 2) cost of child until when? 3)

more for disabled child? JOSHI V. WOOLEY (1995); SUITE V. COOKE [1995 ] – CAN

AWARD DAMAGES FOR HEALTHY CHILD

KRANGLE V BRISCO [2002 ] – DAMAGES FOR PAIN AND SUFFERING OF GIVING BIRTH TO DISABLED CHILD TO MAJORITY

4) Pre-natal injuries BOURHILL V YOUNG (1943) –NO SPECIAL DUTY OF CARE TO

PREGNANT WOMEN (NOT FORSEEABLE P) DUVAL V SEGUIN [1972] – PREG WOMEN ARE FORESEEABLE

MONTREAL TRAMWAYS V LEVEILLE [1933] - BORN ALIVE RULE: ONCE BORN CAN LOOK BACK TO DAMAGES WHICH OCCURRED DURING PREG

DOBSON V DOBSON (1990) – MOTHER OWES NO DUTY

5. Health Professional’s Duty to Warn HAUGHIAN V PAINE (1987) – DUTY TO INFORM OF MATERIAL

RISKS A) HIGH RISK/LOW HARM OR LOW RISK/HIGH HARM B) TO PARTICULAR P C) P MUST SHOW THEY RESONABLE PERSON WOULD HAVE REFUSED

6. Manufacturer’s duty to warn HOLLIS V DOW CORNING CORP (1995 ) – WARNINGS MUST BE

COMMUNICATED AS TO RISKS OF NORMAL USE SINCE MANU HAS MORE KNOW (MORE RISK/MORE DUTY). LEARNED INTERMEDIARY RULE: INTERM SAME KNOW AS MANU.

7. DUTY OF CARE OWED by Barrister DEMARCO V UNGARO (1979) – REASONABLE CARE, SKILL AND

KNOWLEDGE IN THE CONDUCT OF LITIG AND MUST BE PROPERLY DILIGENT IN PROSECUTION OF THE CASE.


8. Pure Econ Loss- Categories not closed but reluctant to expand (Martel)

a. Negligent Misrep –Anns w/ Hedley in 2nd per Hercules- Generally hesitant to comp for neg misstatements

a. Chilling effects on social relationshipsb. Indeterminacy problemc. Law expects business people to protect from losses

by using contracts and insurance ULTRAMARES V TOUCHE (1931) – PRIMARY POLICY

CONSIDERATION: LIABILITY IN AN INDETERMINATE AMOUNT FOR AN INDETERMINATE TIME TO AN INDETERMINATE CLASS

MURPHY V BRENTWOOD (1991) – INJURY TO PERSON OR PROPERTY REQUIRES REMEDY, ECONOMIC LOSS DOES NOT

Hedley Byrne v Heller (1963) – AUTHORITY FOR NEG MISSTATEMENT. COURT STILL LOOKS TO OTHER FACTS WHEN ESTABLISHING A DUTY OF CARE.

- Take away waiver and duty would have held5 stage test for neg misstatement: (Hedley per Hercules)1) There must be a duty of care based on a “special

relationship” between parties- three-stage Reid testa. Possession of a special skill by the defendant;b. Reliance on the exercise of that skill by the plaintiff;c. Knowledge or awareness of the possibility of

reliance on the part of the defendant2) The rep must be untrue, inaccurate or misleading3) The rep.tor must have acted neg.ly in making the rep4) The rep.tee must have relied on the rep5) The reliance must have resulted in detriment/damages

HERCULES V ERNST & YOUNG (1997 ) – CANADIAN POSITION: 1) NEG MISREP IS NOT SEPARATE AREA SO SHOULD USE ANNS 2) CONSIDER THE HEDLEY RULES IN THE 2ND STAGE

- Knowledge of the P is dealt with in the policy stageb. Independent liability of statutory public authorities

MARTEL BUILDING V CANADA (2000) – TORT SHOULD NOT BE AVALIB IN PRE-CONTRACTUAL SETTINGS FOR FIVE REASONS

a. Always winners and losers in nego. No econ loss to society, just movement of wealth.

b. Observed that useful social and economic relations might be discouraged: “hard bargaining” is good.

c. Argued that tort law should not be used as an insurance scheme for unsuccessful negotiations.

d. Argued it would result in the courts examining every detail of pre-k nego while doctrines of undue influence and economic distress deals with this.

e. Court worry: encouraging unnecessary litigation.

c. Negligent performance of a service – apply Anns in 2nd consider whether there has either detrimental reliance or voluntary assumption of responsibility, duty if yes BCD V HOFSTRAND (1986) –NORMAL ANNS, NOT DENIED ON

POLICY IF THERE IS SUFFICIENT PROXIMITY

- Here prox fails – unforeseeable plaintiff to deliver JAMES V BC (2005 ) – IF NO DETRIMENTAL RELIANCE,

VOLUNTARY ASSUMPTION OF RESPONSIBILITY ON THE PART OF THE DEFENDANT IS SUFFICIENT

d. Negligent supply of shoddy goods or structures: Anns- Usually where loss but no privity

WINNIPEG CONDO V BIRD (1995) – APPLY ANNS, NO INDETER ISSUE WITH ESTABLISH DUTY FROM SUBCONTRACTOR TO CONDO INHAB BASED ON FORESEEABLE LOSSES. CAVEAT EMPTOR DOES NOT APPLY (REASON IS TO ENCOURAGE INSPECTION).

- a) class restricted to inhabitants b) amount limited to reasonable fix c) time limited to life of building

e. Relational economic loss: closed, open, closed cycle- Pure econ loss relating to 3rd party

CPR V NORSK (1992 ) – ANNS WILL PROTECT FROM INDETERM. DISS: SHOULD BE DENIED EXCEPT IN VERY LIMITED CASES

BOW VALLEY HUSKEY V SAINT JOHN SHIPBUILDING (1997 ) - RECOVERY ONLY AVALIB IN 1) CLAIMANT HAS A POSSESSORY OR PROPRIETARY INTEREST IN DAMAGED PROPERTY; 2) GENERAL AVERAGE CASES (AVERAGING OUT LOSES INVOLVED – VERY SPECIFIC TO THROWING GOODS IN WATER); AND 3) JOINT VENTURE. NOT CLOSED BUT CHANGES WILL BE INCREMENTAL.

9. Negligent Infliction of nervous shock- Generally – no coverage a) Suspicious of psyco injury b)

Flood gate worries c) Assessment of damages difficult d) Psyco harms some how less then phys

1) Injury must fall into category of nervous shock- Manifest as physical disord or recog psyco ill; not upset

2) Rsb Fsc and sufficient degree of Proximity- No indeterm or flood worries if harm direct to p- More issues in cases of relational victim: floodgates!

ALCOCK V YORKSHIRE POLICE [1991] - BRITISH: PROXIMITY CONDITIONS 1) TEMPORAL 2) RELATIONAL 3) LOCATIONAL

- 1) need immed aftermath, forecloses on gradual shock 2) ‘close ties of love and affection’ (family, spouses), prove others 3) ‘own unaided senses’, mediated info not necess less shock

PAGE - REJECTED IN CND – PSYCO INJURY DOES NOT NEED TO BE FSB OR MATERIALISE FOR PRIMARY VICTIMS

MUSTAPHA V CULLIGAN (2008) – RSB FSB DAMAGE TO PERSON OF ORDINARY FORTITUDE: ALCOCK CRITERIA SHOULD BE


BROUGHT INTO SECOND STAGE OF ANNS TEST

STANDARD OF CAREQuestion of Fact & LawGeneral Standard: that expected of a reasonable person in like circumstances- Objective

- Public protection over fairness- Feminist critique – rsb man- Objectivity critique – rsb judge BLYTHE V BIRMINGHAM WATERWORKS (1856 ) – RSBL

PERSON

ARLAND V TAYLOR (1955) – CDN AUTHORITY

ROE V MINISTER OF HEALTH (1954) – ASSESSED AT TIME OF BREACH NOT HINDSIGHT

Qualifications/Limits of Rsbness1. Probability and severity of the harm

- Greater risk/potential harm: greater standard BOLTON V STONE (1955) – TAKE ALL RSB PRECAUTIONS IN

THE CIRCUMSTANCES TO AVOID LIKELY DAMAGE

- Cricket: don’t have to guard against far fetched; there are always risks in life

- If risk too high and unavoidable, then prohibit PARIS V STEPNEY BOROUGH COUNCIL (1951) – RSB PROB

OF HARM AND SEVERE INJURY THEN IT IS UNRSB RISK

- One eyed man should have goggles: lo cost, hi risk2. The cost of risk avoidance

VAUGHN V HALIFAX-DARTMOUTH BRIDGE COMM (1961 ) – COST OF PRECAUTION LAW, LIKELY FIND NEG

- Paint blowing on cars3. Social utility or value of the conduct

WATT V HERTFORDS h IRE COUNTY COUNCIL (1954 ) – SOCIAL UTILITY OUTWEIGHED COSTS

- saving life justifies riskSpecial Standards1) Children- Modified objective: care to be expected of child of

like age, intelligence and experience (about capacity not culpability)

- Elderly: stigmatizing, don’t lack experience, variation MCELLISTRUM V ETCHES (1956) – MODIFIED STANDARD

JOYAL V BARSBY (19565) – ACCEPTS MODIFIED STANDARD

HEISLER V MOKE (1971) (ONHC) – TENDER AGE: NOT CAPABLE OF APPRECIATING RSB RISK (TILLANDER V GOSSELIN) AND ABOVE TENDER AGE: MODIFIED STANDARD

RYAN V HICKSSON (1974) – CHILD HELD TO ADULT STANDARD WHEN ENGAGING IN ADULT ACTIVITY

2) People with Disabilities- Mod Obj test

CARROLL AND CARROLL V CHICKEN PALACE (1955) – RSB PERSON WITH SAME DISABILITY. RECOG PHYSICAL LIMITATIONS AND NOT TAKE UNRSB RISKS.

- fell on way out of restaurant FIALA V CECHMANEK (2001) – SUDDEN MENTAL ILLNESS:

1) NO CAPACITY TO UNDERSTAND DUTY OF CARE 2) NO MEANINGFUL CONTROL OVER ACTIONS TO DISCHARGE DUTY

HUDCHINS – MEETING WITH GOD IS NO M CONTROL

ROBERTS – KNEW OF STROKE, DROVE ANY WAY: LIAB

3) Professionals WHITE V TURNER (1981) – STANDARD OF PROFESSION

- breast reduction without standard check LAYDEN V COPE (1984) – GP: RSB COMPETENT GP INCL

KNOWING WHEN NEED A SPECIALIST

TER NEUZEN V KORN (1995) – SPECIALISTS IN LIGHT OF OTHER SPECIALISTS

- Jury cannot know to tell profs how to behave LAW ESTATE V SIMICE (1994) – DUTY TO PATIENT

OUTWEIGHS DUTY TO BUDGET

CAUSATION- Factual – P show that D’s acts caused harm- Test: Would loss have occurred but-for the neg?:

- Relies on hypotheticals KAUFFMAN V TORONTO TRANSIT (1960) – NO EVIDENCE

THAT AN ALTERNATIVE WOULD HAVE STOPPED HARM

BARNETT V CHELSEA & KENSINGTON HOSPITAL (1969 ) – NEG DELAY DID NOT CAUSE/AVOID MORE HARM

REEVES V COMMISSIONER OF POLICE (2000) – MERE CONDITIONS (NO AGENCY) NOT BUT-FOR

COTTRELL (2003 ) – NO LOSS OF CHANCE

RINTOUL V X-RAY (1956 ) – D COULD NOT AVOID ACCIDEN

- Causal Indeterminacy Problem1. Evidential Insufficiency – impossible to determine WALKER ESTATE V YORK-FINCH (2001 ) – MATERIAL

CONTRIBUTION TEST: OUTSIDE DE MINIMIS RANGE

- HIV screening pamphlets2. Multiple insufficient Causes – no single cause suff ATHEY V LEONATI (1996) – THIN SKULL RULE ALLOWS D

TO TAKE 100% LIAB – BUT FOR ACCIDENT, NO HARM

- Pre-existing back problems3. Multiple Suff Causes – either could have caused LAMBTON V MELLISH – SIGNIFICANT OR SUBS FACTOR TEST

4. Materially increased Risk – inference of causation where scien imp to prove cause & know with doc


THOMAS V HAMILTON (1994) – CAREGIVER ONLY LIAB IF INJURY IS A RESULT OF FAILURE TO CONTROL CHILD’S CONDUCT: RSB PARENT OF ORDINARY PRUDENCE

SNELL V FARRELL (1990) – INFERENCE OF CAUSATION MAY BE DRAWN UNLESS REBUTTED BY DEFENDENT

- Optic surgery breach standard, cause blindness?

REMOTENESS- Legal – limitation of liab for fairness and policy- Is the loss reasonably foreseeable?- Separation from Duty:

- Btw parties (limits neigh) fsb, indeterminacy VS- Btw act and loss (limits causation) – directness,

immediacy, fairness, probable outcome- Duty limits scope; Rmt limits logical imp of causat

- Old Directness test- Unfair: resp for all direct losses, like strict liab, not

resp for fsb indirect losses/stress remot not fsb RE POLEMIS (1921) – CLOSE, TEMPORAL AND SPATIAL CONN

BTW D’S BREACH AND P’S LOSS

- Current test: Type of harm reasonably foreseeable? WAGON MOUND NO1 (1961 ) – FAIRNESS FROM

FORESEEABILITY

- Fire damages unforeseeable WAGON MOUND NO 2 – RSB FSB: RSB PERSON IN D’S

POSITION WOULD HAVE FORESEEN AS A REAL RISK, ESPECIALLY IF ACTION TO REMOVE EASY

- Increasing Flexibility – easier for P1. Shift from manner of accident to type of harm HUGHES V LORD ADVOCATE (1963) – OUTCOME, NOT

SEQUENCE, TO DETERMINE RSB FSB

- Depends on how characterize harm2. Treat as sequence of discrete events and ask

whether each step is f/s: AC if ABC ASSINIBOINE SOUTH SCHOOL DIVISION V WINNIPEG GAS

(1971) – DANGEROUS ITEM RUN LARGE: BROAD FSB

- Depends on how you slice the action3. Increasingly focused on fairness

- Few cases stop here, incoherent rule, get rid?Thin Skull Rule- If rsb fse injury, then full recovery for all harms of

extra sensitive – speaks to quantum SMITH V LEECH BRAIN (1962) – VICTIM IRRELEVANT

- Burnt lip gives cancer MARCONATO V FRANKLIN (1974 ) – HARM TRIGGER

PREDISPOSED PSYCO ILLNESS

- Crumbling Skull : onset hastened: resp to extent that worsened (Athey)

Intervening Causes- Traditional Last Wrongdoer Doctrine: convenient,

understandable, common sense, accords w/ linear model - But: unfair

- Next: Category approach: (define 2&3? Moral Luck?)

- Current Intervening Causes: within scope of risk/fsb test: Could original rsb fse the intervening act? BRADFORD V KANELLOS (1973) - MORE CULPABLE, LESS

FORESEEABLE – USE TO MAKE POLICY DECISIONS

PRICE V MILAWSKI (1977) – FIRST LIAB FOR NEW DAMAGES FROM 2ND WHEN RSB FSB CONC OF ORIG NEG

- Xray foot; used fsb as poss but same really HEWSON V RED DEER (1976) - DELIBERATE, ILLEGAL AND

WRONGFUL MAY STILL BE RSB FSB

- tractor on dirt pile

DEFENCES1. Contributory Negligence- Old: if P could have prevented, then 100% liab. Easy

for judges, but now mechanisms to be consistent. Not fair. But they were last but-for. No good reason to make all for nothing – so must be unfair

- Legislation allows courts to divide fault- Negligence Act : apportionment based on fault

- Fault cannot be deter=equal (s1)- Damages offset if both parties at fault (s2)- Legal costs apportioned as well (s3)

BOW VALLEY HUSKY – ABOLISHED RULE REGARDLESS OF LEGISLATION

- Conduct carelessly contributed to harm suffered:1. P did not take reasonable care of him/herself2. Lack of care contributed to injury WALLS V MUSSENS (1969) - RSB IS WHAT IS EXPECTED

IN THE CIRCUMSTANCES – MAYBE NOT IF FAIL TO SOLVE EMERG

- Can’t judge actions in emergency from rsb if no GAGNON V BEAULIEU – RSB IS ALL PRECAUTIONS OF

ORDINARY PRUDENCE (OBJECTIVE)- Seatbelt beliefs irrelevant MORTIMER V CAMERON (1994) – LACK OF MAINTENANCE

NOT WITHIN RSB FSB

2. Volenti (Vol Assumption of Risk)- Complete, but rare since inflexible; maybe sport

1. Knew of and understood precise risk occurring2. Voluntarily assumed the risk DUBE V LABAR (1986) – INFORMED EXPRESS OR IMPLIED

CONSENT TO BOTH PHYSICAL AND LEGAL RARE IN CANADA

3. Public Policy/Criminal Act- Complete, so narrow interp

1. P stands to profit from illegal activity2. Comp would amount to avoidance of crim


1. Naturally occurring: liab as long as fsb (not unusual)2. Neg intervening acts: breaks chain3. Delib wrongful or illegal: always breaks chain

sanction HALL V HERBERT (1993 ) – BETTER TO DEAL IN DEFENCES

THEN NEGATE DUTY

4. Inevitable Accident – deal with in causation

LIABILITY OF PUBLIC AUTHORITIES- Not generally liable for Legislative or Judicial

(Wellbridge Holdings (1970)- May be liable for administrative- Legislative: Statutory immunity to parliament; Court

given immunity for margin of legit error in bylaws- Harm always occurs when legislating

- Judiciary: Immunity if acting in good faith- Broad protection for tribunals, jps…- BC Prov Court Act s 27.3 and s42- Landslide: but could set standard at gross neg- Add to or take away from institution trust?- Don’t give to anyone else, why just here? BRADLEY V FISHER (1872) – JUDGES IMMUNE AS REQUIRED

BY INDEP OF JUDICIARY

- Administrative and Operational: only liab is here1. Decision made to fulfill statu duty

- Liab only if carelessly or fail to do (clear leg intent)2. Decision with statu discretion

- Liab for operational not policy JUST V BC (1989) – POLICY IS BROAD ALLOCATION OF

FUNDS, NARROW SO AS NOT TO BLOCK SUITS

- Look at in 2nd branch Anns, look at budget in standard

BROWN V BC – CONSIDERATIONS INFORMING THE DECISION, NOT WHO IS MAKING IT, IS KEY TO CHARACTERIZATION

- Organize shifts according to resourcesMisfeasance in Public Office

1. Conduct specifically intended to injure a person or class of person

RONCARELLI V DUPLESSIS (1959) - MISFS IS A TORT

2. Conduct where the officer knows their action is outside of the power granted by the public office and that it is likely to injure the plaintiff

ODHAVJI ESTATE V WOODHOUSE (2003) – 1) DELIBERATE AND UNLAWFUL 2) AWARE THAT IT IS AND THAT WILL INJURE

- Police violated statutory duty to cooperate

STATUTORY TORTS AND DUTIES1) Statute may create an indep cause of action

- Creates a duty or describes a standard TRACHSLER V HALTON – STATUTE DEFINED SCOPE

2) Statute may change/limit the operation of cl duty/tort

- Indirect, SP CLDC CLCA (Canada – allows Anns policy considerations and no strict liab)

- Inferred, SP CLCA (UK) – not in CND SK Wheat R V SK WHEAT POOL (1983 ) – NOT A NOMINATE TORT,

DEAL WITH IF CL DUTY OF CARE EXISTS

GALASKE V O’DONNELL (1994 ) – STATUTE INDICATES UNRSB CONDUCT TO BE CONSIDERED IN DUTY

- Duty on driver supported by motor vehicle act RYAN V VICTORIA (1999) – STANDARD OF CARE MAY BE

STRICTER THEN STATUTORY STANDARD

- Impact of the Chartera) May inform CL causes of action and defencesb) Rights violates = express statu CA under s24(1)

VANCOUVER V WARD (2010) – DAMAGES UNDER 24(1) IF APPROPRIATE AND JUST AND FULFILL COMPENSATION, VINDICATION OR DETERRENCE


OCCUPIERS’ LIABILITY- Does not fall under Neg historically1) Occupier – direct control

PALMER V ST JOHN (1969 ) – DEFN OCCUPIER

2) Premises3) Visitor

1. Trespasser – no permission – refrain from intent or reck injuring (children usually licensee)

VEINOT V KERR-ADDISON MINES (1975) – OUGHT TO HAVE FSN A TRESPASSER

- Duty not onerous, not to inspect; depended on degree of danger, age, reason, knowledge of occupier, cost of preventative measures

2. Licensee – permission, no bene – protect from unusual or hidden dangers which occupier has knowledge of

MCERLEAN V SAREL (1987 ) – UNUSUAL IS OBJECTIVE – NOT USUALLY FOUND IN CARRING OUT TASK

- Blind curve in gravel pit not usual BARTLETT V WEICHE APTS (1996) – LICENSEE, NOW

DANGERS WHICH OUGHT TO KNOW TOO

3. Invitee – Permission, bene – unusual dangers knows or ought to know – closest to Neg

4. Contractual entrant – premises fit for purpose FINIGAN V CALGARY (1967) – VISITOR PRACTICE RSB CARE

TOO

Occupiers Liability Act- Static, predictable, harmonize w/ negligence- S1: defn occupier (can be >1) and premise (moveable)- S3: Standard: rsb care in the circ to ensure entrants

are rsb safe on the property- Considers: 1) f/s of damage 2) degree of risk of

injury 3) gravity of threatened injury 4) kind of premises 5) burden of preventative measures 6) practice of other occupiers 7) purpose of the visit

- Limit: Rural, Criminal- S4: Contractually restrict

1) rsb notice, only privy – 3rd party/no priv=s3 std2) not for those empowered to enter w/o consent

- S5: Duty to indp contractors- No liab if rsb to have retained ic to do the work

and rsb care taken in selection and supervision- S6 – landlord is occupier, liab if not do lease repairs

WALDICK V MALCOLM (1991 ) – STATUTORY – CIRC DO NOT INCL LOCAL CUSTOM

STRICT LIABILITY- Movement to fault based, so getting rare- Advantages: admin efficient, powerful deterrent,

predictable, consistent with compensatory model, promotes enterprise liability (intern costs)

- Problems: imprecision of elements and fairnessDangerous Item on Land

RYLANDS V FLETCHER (1868) – STRICT LIABILITY IF BRING SOMETHING DANGEROUS ONTO LAND AND IT ESCAPES

- Elements – see changes to mitigate harshness1. Non-natural use of land – ‘danger’: extraordinary

and not of benefit to the community- Water in bulk, explosives, nuclear, biological- Degree of danger, utility and normality, circ of

time and space = looks like negli2. Escapes and caused mischief READ V LYONS (1947) – ESCAPE MEANS FROM PLACE

WHERE D HAD CONTROL

3. Damage – fsb conc of use (Cambridge Water)- Defences

- Consent – Liberal interp, suff that knew and stayed, may be implied Peters v Prince of Wales

- Common benefit – Carstars v Taylor (1871)- Default of the P – partially fault of p: no liab for

d. (like old Neg) Dunn v Birmingham Canal- Act of God - so unfsb that d could not have

guarded - Nochols v Marsland – contra strict liab- Act of Stranger – deliberate and unforeseen –

Rickards v Lothian (1913)- Statutory authority – Benning v Wong (1969)

VICARIOUS LIABILITY- Mechanism where one person becomes liab for the

actions of another- Answer Neg, then deal with thisEmployee/Employer- Elements

1. Employee or Contractor? Direct control 671122 ON V SAGAZ (2001) – KEY TEST IS PERF

BUSINESS ON OWN ACCOUNT: EQUIP, SUBK, OP PROFIT, OP FOR LOSS

2. Harm during course of employment?- Broad Interp: Emp best able to regulate; more

likely to recover; emp gets benefit- Express prohibitions only effective when

prohibit, not regulate, activity (Lockhart) BRAZLEY V CURRY (1999) – EMP CAN BE LIAB FOR INT

TORTS IF THEY PLACE EMPLOYEE IN SIT THAT INCREASES RISK OF WRONGFUL ACT

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