torts class notes

5/27/2018 Torts Class Notes

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Class 20: 14thNovemberIntroduction to Negligence

Readings: Solomon pp.283-292

Class 20: 19thNovemberDuty of Care

Readings: Solomon pp.293-314Class 1: 8th JanuaryExam Return & Review

No Readings.Class 2: 15th JanuaryDuty of Care Continued

Readings: Solomon pp. 314-318, n2p318, 320-323.

D2L: Childs v. Desormeaux, 2006 SCC 18Class 3: 22nd JanuarySpecial Duties of Care

Readings: Solomon pp. 327, 329-330, n6p331, 332-337, 356-359, 373-378, 439-442,

551-553.

D2L: The Good Samaritan Protection Act, C.C.S.M. c.G65Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753

Class 4: 29th January

Special Duties of Care

Economic LossReadings: Solomon pp.445-447, 451-459, 463-469, 477-485 (n2n4p483-84), 487-512.

Nov 14, 2013

Negligence

keywords: carelessness, community, foreseeability

1. Wrongful conduct in negligence consists of a failure to take the necessary care not to

cause harm

2. A failure to take reasonable care to prevent foreseeable harm to another person

3. Conduct which falls below the standard accepted in the community

History -Writs

1. Trespass vi et armis

2. Trespass on the case (where interference wasn't direct/forceful but careless). Even

before the carelessness element was involved, certain relationships allowed for trespass

on the case:

a. apothecaries

b. surgeons

c. keepers of animals or other dangerous things

d. users of roads

Donoghue v Stevenson, 1932 *starting point of modern day negligenceF: P's friend bought her a beer @ a pub, stopped her from drinking it when he noticed a

snail.

1. Special facts:

i. Donoghue couldn't sue the pub because it was her friend who bought the drink.

ii. Couldn't sue the server cause they brought her the drink, only.

iii. P had to show relationship w manufacturer to sue; Donoghue couldn't show this.

2. Court found that it was reasonably foreseeable that the P would suffer from


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manufacturer's failure to fulfill futy of care.

3. Lord Atkin: even though no prior relationship, this shouldn't hinder the P from

recovering. Rule = don't injure neighbour. Who's my neighbour? Persons so closely and

directly affected by my act that I ought to reasonably have them in contemplation as

being so affected

i. good samaritan principleii.

Expanded Duty of Care

1. Winfield: nuisance, Rylands v Fletcher (dangerous things), assumpsit (duties

voluntarily assumed), common calling (persons pursuing a common calling) --> separate

entities brought together in Donoghue v Stevenson

2. Donoghue dissents:

a. Buckmaster: (floodgates argument) impossibly wide proposition/makes it difficult

to conduct trade (floodgates)

i. reach would be too farb. Tomlin (dissent): scope of liability and problem of remoteness

6 Elements of a Negligence Claim

1. Duty of care

i. Was there a legal obligation by the D to exercise care?

2. Standard of care & breach

i. Did the act fall short of the std of care? (what a reasonable person would do)

3. causation ('but for' test)

i. was the loss suffered caused by the D's failure to exercise the std of care

4. remoteness/foreseeability

i. was the loss sufficiently proximate? (as opposed to intentional torts, where allconsequences can be claimed for)

5. actual loss

i. was it a legit loss, something that's recoverable?

6. defenses

i. contributory negligence etc.

Lord Denning's summary of the 6 elements of negligence: is the consequence within the

risk?

Nov 19 2013

Walford (litigation guardian of ) v jacuzzi canada)

1. agreed duty of care; disagreed on causation


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2. even if there's a duty of care; there's a std of care

3. dissent: std of care was met

4. causation: failure to respond to inquiries by warning of risks.

5. court found coreena 20% negligent

Classical Approach to negligence (pre-donoghue + stevenson)1. negligence not based on moral responsibility

2. broader duties for the legislators to enact (no assumption that you owed duty to

people on a day to day basis)

3. acts more culpable than omissiones

4. physical injuries more compensable than emotional

Donoghue v Stevenson (category vs. arguing duty of care

1. Duty of Care:

a. reasonably foreseeableb. closely and directly affected

c. reasonably in contemforeseeablityplation

Le lievre v Gould

Atkin quoting in donoghue:

1. 'one may may owe a duty to another even though there's no contract between them,

if one man is near to another or is near to the property of another, a duty lies upon him

not to that which may cause a personal injury to that other or may injure his property'.

a. closeness

2. 'the decision of heaven v penderwas founded upon the principle that a duty to takedue care did arise when the person or property of one was in such proximity to the

person or property of another that, if due care was not taken, damage might be done by

the one to the other'

3. Atkin: 'if proximity be not confined to mere physical proximity but be used, as I think

it was intended, to extend to such close and direct relations that the act complained of

directly affets a person whom the person alleged to be bound to take care would know

would be directly affected by his act'. aka mere foreseeability not enough: need

proximity

4. foreseeability/remoteness

5: keep foreseeability + proximity separate: when thinking about scope of duty, not justconfined to people who are physically close (but close in connection/relationship):

6. why impose a duty of care? main quality that restricts negligence actions -->

recognition that you want to allow negligence actions to take place; control + moderate

behavior

Development of duty of care


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1. Hedley byrne & co v Heller & partners

2. Home office v dorset yacht (getting more expansive)

3. anns v merton london borough council (1977) 'Anns test' *peak of expansiveness of

duty of care. don't have to fit into categoriesmore general test:

a. sufficient relationship of proximity based on reasonable foreseeability?

i. in the reasonable contemplation of the former, he ought to consider potentialinjury

b. any considerations to reduce/limit or negative duty of care?

-before anns, policy questions were implicit in judgments. decision in anns: policy =

something we should consider. (explicit)

-diff in anns: court assumes duty of care exists, then they look for policies that might

restrict duty of care

4. caparo industries plc v dickman (1990) leading case in UK

a. HoL overturned Anns next year in murphy v brentwood district council

b. 3 step test: a) foreseeability b)proximity c)policyc. shift from (in anns) default duty of care to (caparo) default no duty of care -->

return to a pre-anns, conservative incrementalist approach to duty of care

In Canada, anns test accepted in kamloops. Kamloops/anns test refined in cooper

(2001). Cooper = seminal case for establishing a DoC in a novel case (where no DoC has

been established in that category)

Anns (2 stage test): 1)prima facie DoC [proximity + reasonable foreseeability] 2) policy:

any reason we should limit imposing duty?

Cooperfactors in choosing to establish a duty exists:

+the harm was foreseeable Moule: 1)ilya foreseeable risk of injury?

2)probability of injury 3)whether the Ps losses are too remote

+there is a sufficient relationshipof proximityQ of legal proximity, not just

physical. Are the P & D so close such that the D will have the P in his

contemplation when acting?

+the situation is one in which a new duty of care should be recognized (policy)

Anns/cooper test:

1. is there an established category for the case? Yes DoC exists.

2. was the harm reasonably foreseeable to P?3. was there a sufficiently close relationship between the parties? i.e. expectations,

representations, reliance etc.

4. Policy considerations to limit DoC? (onus on D)

Cooper v Hobart, 2001

Where no sufficient proximity to put Ps welfare in Ds contemplation no DoC

P + others invested money in mortgage company. Statute of BC allowed D to investigate


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complaints, suspend licenses of brokers etc. When D suspended license of company,

investors had already lost a lot. P claims if D acted faster, wouldt have lost so much

Clarifies 2 part test of Anns:

Stage 1: 2 qs which lead to a prima facie duty of care (foreseeable risk? + proximate

relationship between litigants?)Stage 2: residual policy reasons to negative duty

Court: D may have had foreseeability but insufficient proximity; even if they had found

DoC, it would have been negative by policy considerations (indeterminate liability)

Foreseeable Risk

Moule v NB Elec Power, 1960

While power co. have a duty to prevent foreseeable injuries (kids climbing trees), this

doesnt extend to every injury (where kid needs ladder, unusual height). Where there is

no foreseeability, no DoC. Foreseeability also factors in at the remoteness stage.

10 yr old climbed tree near power lines, got electrocuted. TJ found there was negligence

in not removing tree growing so close to power lines. Damages rescinded in appeal.

Amos v NB Elec Power

DoC here; distinguished from Moule this case only has tree, Moule had kid swinging

from one tree to another. Also lax tree trimming practices.

3 boys climbing tree on side of highway. Tree was leafy and concealed high tension

wires. 1 boy caused the tree to bend and touch a wire, electrocuting himself. A neighbor

had to cut down the tree to free him, further injuring the child.

Plasgraf v LI Railway

Forseeability

Keywords Case Facts + Analysis

Tree climbing

Makeshift Ladder/Platform

Power Lines

Moule v. NB Elec

Power Comm

1960 - SCC

Kids climb tree with boards as makeshift ladder; touches electrical wircompany trimmed branches to height of 13ft>Unusual circs needed to create risk (cross plank, ladder)>Duty of care exists only wrt foreseeable consequences

Tree climbing

Obscured Power Lines

Untrimmed Tree

Amos v. NB Elec

Power Comm

1976 - SCC

Tree climbing competition; power lines obscured by branches of tree; ktree sways and touches power lines>Unlike Moule, only casual attempts to trim branches, also no ladder

>Foreseeable that kids will climb trees>DOC: Must ensure trees near power lines are properly maintai

Fireworks in Suitcase

Foreseeable Plaintiff

Plasgraf v. Long

Island RY Co.

1929 NY CA

Man w/ fireworks in suitcase helped into train by attendants; Suitcaseexplosion knocks down scales which injure P>Attendants negligent, but not in relation to P

>Negligence results from breach of duty to particular person or

persons;Creation of sphere of risk is not enough


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Duty of care in canada

1. Kamloops (city) v nielsen (anns/kamloops approach): endorsed 2 stage wilberforce

test in anns (considered expansive test of duty of care) (assumption that duty of care

existed)

a. is there a reasonably close relationshipaction by D could injury P?

b. ryan v victoria cityc. in ann/kamloops no policy question

2. cooper v hobart (A/K revisited/restated)

a. was the harm in questionreasonably foreseeable and is there a sufficient degree

of proximity between the P and the D to justify the imposition of a duty of care? (broad

policy)

b. is the situation in question one in which a new duty of care should be recognised?

(residual policy)

-not that anns/kamloops test rejected in cooper v hobart; just revisited

-practical result: P's burden to establish duty of care

Policy issues *this not examinable

1. the proximity analysis involved @ the first stage of the anns test focuses on factors

arising from the relationship between teh P and the D. These factors include q's of policy

in a broad view...at the second stage of the anns test, the question still remains whether

there are residual policy considerations outside the relationship of the parties that may

negative the imposition of a duty of care.

2. policy considerations:

a. 1st part of the test: consider the relationship between the parties

b. 2nd part: not thinking about P & D: thinking about consequences on imposing thistype of relationship on the legal system + society

Proximity

1. Proximity - type of relationship where DoC arises

2. sufficiently proximate relationships identified through use of categories *canada's

reversion back to categories, which donoghue tried to push us away from

3. categories are not closed

4. 2nd step only arises where DoC not in recognized category

*problem w hobart and cooper: only argue doc where it's a novel situation

Cooper stage 1

1. prima facie duty? reasonable foreseeability + 'close and direct relationship of

proximity or neighborhood?'

a. courts start w: whether case falls into existing category. if answer yes,

2. childs v desormeaux (2006)

a. burden on P to show prima facie duty


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b. proximity analysis doesn't apply to established categories

3. combined effect of cooper + childs: established categories not subject to anns/cooper

test. if there's no established category, you have to establish a doc through proximity +

foreseeability

Cooper stage 2 (residual policy questions)1. burden shifts to the D (childs)

2. what is the likely effect of recognizing a duty of care on other legal obligations, the

legal system and society more generally?

a. alternative remedy?

b. give rise to indeterminate liability?

c. govt policy making that should be immune?

d. solomon '(list) is only limited by lawyers' imaginations'

-practical result of this stage: if lawyers can successfully argue that there shouldn't be a

doc (because of effect on society), Ps don't get their remedy --> balance of protecting P

and the 'opening of floodgates' on society

Anns/cooper test

4 questions:

1. is there already a category? }

2. reasonable foreseeability }existence of duty of care?

3. proximity }

4. residual policy considerations } negate/limit duty of care?

Jan 22 2013

Last class follow up qs/comments:

1. Who is a social host? (commercial host: someone selling alcohol for a profit)

+not employer

2. Blame v responsibility3. double jeopardy

4. injuries to intoxicated guest

-diff between relying on insurance and courts deciding that theres a legal liability

-claim by intoxicated guests vs 3rd parties > theres a closer relationship between

guests and the host than 3rd parties and the host

5. morality vs legal liability


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Affirmative Action

1. Justice McLachlins distinction in Childs between misfeasance (positive acts) and

nonfeasance (failure to act):

a. Should the court impose duties of affirmative action?

2. Negligence is at its core, about discouraging people about acting in ways that areliable/injurious to others

a. Historically, the English courts was too overburdened by others.

b. requiring people to act in a certain way violated notions of English personal

autonomy

c. rule against nonfeasance acted against broader notions at the time: capitalistic

economy, laissez faire

d. positive obligations are more intrusive than negative obligations

3. General rule: theres no duty of affirmative action, but the courts are beginning to

carve out exceptions on this general rule

4. No common law duty to rescue (Osterlind v Hilll)

a. Drunk guy in canoe, 1/2 hour screaming for help, he eventually drowned

b. Osterlind cites Vanvalkenuburg v Northern Navigation Co (captain ship had no

legal duty to help employees who fell overboard)

5. In both of these cases, there was a foreseeable injury if the D failed to act.

2 scenarios where duty may be imposed:

a. special relationships

i. D voluntarily assumes responsibility/special relationship

ii. thus: incremental change in the courts (case by case basis) whereby the duty of

care is increasingb. Exceptions (non-exhaustive)

a. contractual/quasi contractual: employer/employee

b. fiduciary: parent/child

c. professional: doctor/patient

.d. authority/supervision: teacher/student, guard/prisoner

e. occupier/visitor e.g. innkeeper

f. professional rescuers: firefighters, police, EMS

Courts will look atin determining special relationships (to differentiate D from other

members of the public):

a. Whether responsibility was voluntarily assumed?b. was there control, authority, supervision?

c. did the D derive commercial benefits fr the relationship?

d. close family or personal bonds?

e. any reasonable reliance of the dependance by P on D?

f. any special expertise of the D in emergency services or rescue operations?

g. extent of burden imposed if the D acts?

h. did the D contribute directly or indirectly to teh peril?


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i. statutory obligations?

j. cost of action vs benefit it bestows?

Tony Weir: you may ignore an infant drowning in a pond unless its your infant, your

pond or youre a lifeguard

Matthews/(Horsley) v MacLaren: Duty to rescue

1. Canada Shipping Act 1927, s526

a. At the lower court, the court was influenced the master of a vessel must rescue

anyone lost at sea or in danger of being lost'

2. Diff in relationship between boat owner and passenger diff between passenger and

fellow passengers

3. Factors:

a. authority/control of boat owner over passengers

b. implied assumption of responsibility of boat owner for safety of passengers

c. trust and reliance passengers place in the boat ownerd. expertise and competence that passengers expect

Statutory Duty

1. Scenario 2: duties established by statute

2. Criminal Code: s129b; s252 (requires a driver of a vehicle in an offense to help

someone injured in the accident)

Child and Services Act: 18.1 and 18.2

3. Quebec Charter of Human Rights and Freedoms s2:

every human being whose life is in peril has a right to aid... every person must come

to the aid of everyone whose life is in peril by giving him necessary assistance unless it

would be injurious to himself or 3rd persons5.Context:

a. 70 people die making rescue attempts

b. CAEP: 1/4 chances that strangers will do CPR and 2000 lives a year could be saved

if strangers did CPR half the time

6. Encouraging Assistance: Good Samaritan Laws (a means of reducing the fear of

liability for attempting to rescue someone)

7. MBs Good Samaritan Act: unless the person is grossly negligent, a person is not liable

for injury that a victim sustains in an emergency (after the person tries to rescue them)

Gross Negligence

1. McCulloch v Murray (SCC) very marker departure from the standards by which

responsibility and competent people govern themselves

2. Solomon: less blameworthy than criminal negligence but worse than ordinary tort

negligence

Duties Owed to the Unborn


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1. Pre-conception wrongs (Paxton v Ramji) Paxton: its only after birth that the fetus

assumes a separate personality

2. Wrongful Birth (claim by mom)/wrongful life (claim by child):

a. where a physician wrongfully informs she has an unusually high risk of not giving

birth/giving birth successfully> not an injury, but depriving mom of making an

informed choice3. Wrongful Pregnancy (e.g. pregnancy was unwanted for one reason or the other)

Suite v Cooke, Joshi v Wooley, Kealey v Berezowski, Krangle v Brisco (a disability case)

pp389

a. what damage can the parents claim? > for child till the age of independence or

beyond?

b. these cases: regular child rearing costs can be claimed in the cases of wrongful

pregnancies

c. Krangle v Brisco:

4. Pre-natal injuries (whether a child can sue for prenatal injuries)

a. Montreal tramwaysi. SCC: its OK to pretend that the child was already an independent legal person (the

born alive rule)upon birth

b. Winnipeg Child & Family Services v G

i. Winnipeg Child and Family Services wanted to rehab the mom who was addicted to

glue sniffing. SCC confirmed that the law doesnt recognize that an unborn child has

rights > thus Child and Family Services cant force a mom to rehab because the moms

interests

c. NB: if a child isnt born alive, theres no claim, because youre operating on a legal

fiction that juridical personality was available to a fetus

Dobson v Dobson (precedes Cooper v Hobart, thus you have the Anns/Kamloops test,

which is slightly different)

1. Mother was driving car insured by father (he was insured against negligence by any

driver of the vehicle)

2. Justice Cory: its in everyones best interests for the child to claim insurance money

3. Trial judge said the prenatal child could sue because existing jurisprudence allowed

the prenatal C to sue anyone but the mom, so we should allow him to sue mom as well.

4. Paragraph 23:

a. for reasons of public policy the court shouldnt allow the ability of fetus to suemom, because of the autonomy rights of women.

b. Pregnant moms physical proximity to child = too close > anything could possibly

harm the child > theres no rational limit to the possible duties that could be imposed

on a pregnant woman (slippery slope argument)

5. Legislation argument:

a. Maternal Tort Liability Act (Alberta): makes a mom liable to injuries suffered pre-

birth for automobile accidents if theres insurance


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Was Cory J right to deny the existence of any duty of care betw a pregnant woman and

her unborn child in Dobson? Would the imposition of such a duty require -as he

suggests- the courts to scrutinise a womans lifestyle choices?

-Which is the most convincing policy reason Cory J presents for denying hte existence of

any duty of care? Which is th least?

January 29

Duty to Warn

Jane Doe v Metro Toronto Police (1998): failure on the part of the Toronto Police to

not warn potential victims

+SCC: Odhavji Estate v Woodhouse; Hill v Hamilton-Wentowrth Regional Police:

negligence action against police are possible

+Jane Doe: Police owe (and here breached) duty of care to victim that they knew to

be at particular risk of attack from a serial rapist+Operational not policy decisions

+There must be a very specific risk

+Community mobilizing: WAVAW/LEAF

s+7&s15 Charter claims > Jane Does security of person was violated. In total shewas awarded large damages for failure to warn.


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+Police dont have a general duty to warn, but they have lesser duties to warn forspecific groups

Horsley v MacLaren

Duty to rescuers (not the duty to rescue)

Issue: standard of rescue duty the captain didnt do the best thing he couldvedonebut still met the standard of care

Because Horsleys rescue attempt was prompted by MacLarens failure to rescue,Liability can only be imposed if the first rescuer was negligent

Ritchie J: any duty owing to Horsley must stem from the fact that a new situation of

peril was created by MacLarens negligence which induced Horsey to act as he did.I dont think that the evidence justifies the finding that any fault of his (MacLaren)induced Horsley to risk his life as he did.

SCC: while MacLaren made a mistake in his choice of rescue techniques, he wasnt

negligent.

Laskins dissent: there was possibility for Horsleys family to pursue an actionagainst MacLarens family.

Duty of Care Owed by a BarristerDemarco v Ungaro

1. A lawyer owes a general duty of care to a client to act competently. Its alsopossible the lawyer might owe a duty to a 3rdparty.

Demarco v Ungaro 1969, England

Court: if youre a barrister and you mess up a case, you cant be sued A barrister must exercise reasonable care, skill and knowledge

B must be properly diligent in the prosecution of the case there is noimmunity

Policy arguments for immunity:

1. Conflict between duties to client (explore every option to win case) and tothe Court (expediency of justice)

Demarco found that theres no empirical evidence

2. Harm to public interest in relitigating issues:Demarco founds that bad public policy to confer immunity exclusivelyon lawyers engaged in court work

Also, prospect of relitigation not enough to justify immunity

3. Lawyers have an obligation to accept clientsDemarco: doubtful that duty exists

4. Absolute privilegeDemarco: concerns special relationship between client and lawyer not

involved in negligence claim


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Pure Economic Loss

History: there was no rule/allowance for pure economic loss. In recent years,

Canadian courts have moved from this general rule (i.e. no recovery for pure

economic loss), but the approach is still quite restrictedThese are the categories that come to play in a PEL suit (Bruce feltdhusen)

1. Negligent misrepresentation ** main focus of class2. Independent liability of statutory public authorities3. Negligent performance of a service4. Negligent supply of shoddy goods or structures5. Relational economic loss

If the court wants to recognize PEL outside of these categories, theyll use Anns-

Cooper

+Policy reasons: want to narrow the ambit for PEL now that its somewhatpermittedcourts are hesitant to go outside these categories

Negligent misrepresentation standard duty test

Oral & written communicationv physical acts & omissions.

Negligent misrepresentation Negligence

Oral & written communication physical acts & omissionsEconomic loss

Physical injury

Physical injury

Economic loss

+Encompasses: incomplete/inaccurate advice by professionals

+in Hercules, Laforest writes: negligent misrepresentation is a statement made that

the plaintiff relies on to their detriment

*** proximity and indeterminacyare the crux of the problem

+PEL: raises issue of tort law interfering the marketlaw expects biz people to

protect themselves through means such as contracts or insurance

Hedley Byrne (1963): *only thing you need to know: its the first case thatrecognizes the scope of PEL. HOL recognized possibility of duty of care for PEL

Hercules Management v Ernst & Young

+clear position in Canadian law wasnt articulated until Hercules+question in Hercules: how far to extend the duty of care?

did the duty extend to shareholders?


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Laforest: negligent misrepresentation isnt a separate area of law, doesntneed special consideration just use general rules of negligence laid down in Anns

ALTHOUGH Laforest says hes using the same test, he addsreliance negligent misrepresentation test is a modified Anns testTest: 1. Was there a prima facie duty: reasonable foreseeability + reliance?

Could the D have foreseen the P would rely on his representation?pp457:

Factors:

taken into account of (mis)representor

seriousness of the occasion excludes casual conversation

presence/absence of disclaimer

information requested (Premakumaran pp461)if you indicate you

want to receive the info, thats some indication that youll rely it: doesnt meanvolunteered info will trigger a duty

financial benefit (could be indirect or direct) grants a greater value to

the advice youre giving even more clear that theyre relying on the information

nature of statement made (a murky line to drawn): fact v opinion.Statement of facts have more weight than opinions. However, most often

professionals are giving statements of opinion.

In Hercules,the court found that there was a duty of carereasonablyforeseeable reliance. Court struggled with policy in Hercules: problem ofindeterminacy (scope of liability too broad). Liability for an indeterminate amount toan indeterminate class (.

Pp455: Laforest: because auditor statements could be used by a variety ofpeople (customers, auditors, etc) this could lead to a risk of loss disproportionate tofault would lead to time and money spent to defend claims/defensive practices would lead to increase in cost of service (detriment to profession) and lessen access (to

public). (floodgates argument)The prima facie duty in Hercules was therefore negated for these policy

considerations. However, the court left a wedge of door opened for a different case fora different fact scenario not

Exam question tip: Q: was there reasonable reliance? You go through factors

in checklist

Concurrent Liability (Tort & Contract)

BG Checo International: negligent misrepresentation also a contract term rightto sue in both?

Yes, may sue in either or both

The K didnt limitthe duty of care owed by Hydro to Checo nor did Checo waiveits right to sue in tort

parties should limit liabilities in their contracts if that is their intention


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Majority judgment: where theres concurrent liability, you can see in either orboth. The contract didnt limit the duty of care owed by Hydro and Chico (no waiverto not sue in torts)

Q: why sue in tort if you can sue in contract? A: diff damages: whats remedied ismisrepresentation in tort, expectation in contract

Martell Building v Canada

1. Negligence shouldnt be extended into precontractual negotiations because:a. No real economic loss to societyb. Would discourage economically efficient conductc. Tort law not insurance scheme for bad bargainingd. Would force court to scrutinize minutae of pre-Ke. Would encourage unnecessary litigation

Negligent Performance of a Service1. BDC v Hofstrand Farms (grant was being sent and the New Year happened,

affected things)

a. Court said: in the performance of a service by a courier, apply normalrules of negligence + Hedley Byrne considerations

2. James v BC (2005): Minister forgot to put the clause ina. Case raised the issue of how tob. Court: distinction between cases such as this (P as passive, not

actively relying) vs cases where the P acts on the strength of a

misrepresentationdiff = voluntary assumption of responsibility by

D

c. Appropriate test to use: Cooper test but unlike the negligentmisrepresentation cases, its unnecessary to prove detrimentalreliance

d.James v BC: In the absence of detrimental reliance, you can show

the D voluntarily assumed responsibility taking out reliance

and adding voluntary responsibility

Current state of Law: Apply Cooper, policy branch to consider whether detrimental

reliance or voluntary responsibility

3. Wills: Will be held liable (to the beneficiary of a will) if negligent in drafting awill.

Supply of Shoddy Goods or Services

1. These tort claims normally arise when you cant show privity of contract2. Winnipeg Condominium Corp v Bird Construction:


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a. Considered question of whether contractor would be responsible fornegligence to the subsequent purchaser of the building (to which he

has not contract with)

b. No problem with indeterminacy:i. there wasntpotential class of Ps = owners + inhabitants of

the condo building;ii. no indeterminancy risk of cost because it would be limited to

cost of repairwork to building; real and substantial danger tothe inhabitants of the building pp 496

iii. no indeterminate risk of time; limited to useful life of building3. Caveat emptordue diligence such as building inspection

a. SCC: caveat emptor doesnt apply here.

Relational Economic Loss

1. A injures B which results in a loss to Ca. Traditional approach: deny recovery in such cases

2. Canadian National Railway v Norsk Pacific (The Jervis Crown)a. First decision to recognize RELb. A really strong dissent from Laforest: forms basis for Bow Valley

continuous dialogue

i. Court: the adoption of the Ann/Kamloops 2 stage approachwas enough to put a brake on the problem of indeterminacy

ii.3. Bow Valley Husky (Bermuda) v St John Shipbuilding

a. Exclusionary rule of REL (no recovery) with 3 exceptionsi. Claimant has a possessory or proprietary interest in damaged

property

ii. General average casesiii. Joint ventures

Wed, Feb 5

Duty & Standard of Care

The std of care is behavior required by D to satisfy the duty of care

Differences between duty of care and std of care

Duty of care Std of care

Who is my neighbor? How should I act toward my neighbor?

Q of law (legal relationship) Q of mixed fact and law: bec youresetting out what the std is (law) and

whether the std was met (fact)

Determining law vs fact:important bec. questions of fact

are resistant to appeal

Judge Judge/jury (fact + law)


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The Reasonable Person

D must act according to the std of care of the reasonable person

Blythe v Birmingham Waterworks (1856)

Negligence is:

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

considerations which ordinarily regulate the conduct of human affairs would do, ordoing something which a reasonable and prudent man wouldnt do

Arland v Taylor (1955)

a person of normal intelligence who makes prudence a guide to his conduct.1. Charge of judge to the jury:

Consider respondents negligence, put yourself in the drivers seat of the car,

ask yourself if you wouldve done what he did2. CoA: the judge was wrong because he emphasized too much their own biases

PLUS hindsight is 20/20the jury knew something that the D didnt

Thus the problem of putting the personal into the reasonable person concept

The subjective vs the objective contrast

Reasonable man: not extraordinary, reflects the ordinary person

Morans essay Rethinking the reasonable person

1. Vaughn v Menlove: court rejected the best efforts test that the test to be usedis based on the individual

Its the law, not the individual that determines the best efforts

Objective test:Interpersonal equality

o reasonable under the circumstanceso eliminate subjectivity (mindset of the individual is irrelevant)

o objective standard has a higher standard of expectation

Issue: objective test still allows subjectivity because of the idea of thereasonable person under the circumstances

2. Critiques (feminist)

Vehicle for judges own beliefs/attitudes: because the std is so flexiblebased on the circumstanceit thus reflects the bias of the judge i.e.

Reinforces privilege of the powerful The std is always calibrated by what is reasonable under the

circumstances. But what the case law reveals isnt a uniform norm ofreasonableness applied to all but rather a std that is often adjusted to

mirror the actual qualities of the litigant in q

o Should the std be changed or should the std be more nuanced?(can it be redeemed)


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Factors in determining breach

Factors to determine whether a risk was reasonable or not:

1. The probability and severity of the harm? (affected: the victim)

+Bolton v stone (1951)+paris v stepney borough council

2. the cost of risk avoidance? (affected: the accused)

+Vaughn v Halifax-dartmouth bridge comm

+law estate v simice

3. the social utility of value of the conduct? (affected: the community)

+watt v Hertfordshire country council

The probability and severity of the harm

1. Probability (Bolton)+the greater the risk of an activity, the higher the std of care

2. Severity (Paris)

+the greater the harm of an activity, the higher the std of care

Bolton (probability of harm)

1. Facts: P was standing outside her house, near a cricket field when she got hit with

a ball

2. Ps argument: Because it had happened before, it would happen again std ofcare had been breached.

3. Court: the test for whether the D had breach the stda. whether the risk was so small that the reasonable person in the shoes of the D

(from the point of view of safety) wouldve taken reasonable steps to avoid thedanger.

b. in the crowded conditions of normal life, even the most careful person will incur

some risks

::::this case was borderline, but there was no negligence in exposing the P to such a

risk. But if the risk was high and avoidable, then maybe the cricket field will have to

be closed down

damages had been awarded to P by CoA, but when HoL overturned CoA, they

didnt order damages to be returnedthey were looking to establish the principle,not concerned about the damages

Paris v Stepney (severity of the injury)

1. Facts: One-eyed worker was rendered blind

2. Issue: should the standard be different for a one eye vs a two eyed worker?

3. Ds argument: because it wasnt customary to provide goggles for other workers,it wasnt needed to provide goggles for the one eyed worker


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4. HoL: although the degree of risk wasnt greater, there was a risk of greaterinjury to the one eyed worker

+the reasonable employer wouldve taken better care of the one eyed worker

Law = algebra

US v Carroll Towing CoFormula for standard of care: B


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+age/degree of skill/training the kids have in the activity

+the nature + condition of the equipment in use

+the competency and capacity of the students

+a host of other matters

3. Thornton et al v Board of School Trustees of School District

Supraparental expertise(teachers more multifaceted than the average parent):+is the activity suitable to the age, mental and physical condition of the

participants?

+have the participants been progressively taught and coached to perform the

activity properly and to avoid the dangers inherent in the activity?

+is the equipment adequate and suitably arranged?

+is the activity being supervised properly for the inherent danger that is

involved?

Wednesday, February 12

1. clearly identified thesis

2. accurate and critical understanding of substantive law

3. an appreciation of how the issue relates to theory and policy issues discussed in

class

4. compelling and convincing advocacy of a psotion

Creative

1. effort + attention to detail in composition2. innovation and original expression

3. thoughtful and intentional linkage between expression and legal comment

Special Standards of care

Mental Disability

1. Arguments againstliability:

a. liability will not be a deterrent on behavior

b. only those who are morally at fault (blameworthy) should be held liable

c. treat in a manner consistent with other disabilities that tort law excuses(childhood and physical disability)

2. Arguments in favor of liability:

a. compensation argument: when one of 2 innocent parties are injured the

one who caused the damage should bear the loss

b. imposing liability will make guardians of mentally ill take greater are

c. if theres no liability tortfeasors will be apt to feign insanity


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d. courts are unable to deal effectively w these kinds of evidentiary or

credibility questions

tort laws primary purpose is compensation and therefore it would be unfairto the victim not to be compensated

e. its too difficult to draw a lien betw severe mental incapacity and mere

variations of temperament and ability (low intelligence, clumsiness)

Case law:

1. Buckley & Toronto Transportation Comm v Smith Transport 1946 On CA: driver

was under severe delusions, found he had syphilis of the brain;

a. court held: because drivers illness prevented him from understanding thenature/quality of his act, he couldnt be held liable

i. argument:

2. Fiala v Cechmanek (2001)

a. Facts: Mcdonald went for a run, had a manic episode, not previously diagnosed;

went through sun roof of the car of one woman, put foot on the gas

b. Court: fault v compensation debate.+Compensatory nature of tort law is paramount concern; function of

negligence law = compensate victim rather than punish wrongdoer

+negligence is all about fault

+corrective justice: if compensation is the goal of tort law, there will have to

be a lot of legal fictionswe need fault to keep the structure of tort law other

purposes can be served by other stuff e.g. compensation schemes

+TEST of for accommodating mentally ill (as a result of sudden mental illness

without warning the D:

a. had no capacity to understand or appreciate the duty of care owed

at the relevant time OR

b. was unable to discharge their duty of care as they had nomeaningful control over their actions at the time the relevant conduct fell below the

objective std of care

+Wenden v Trikha(1991): Trikha had been warned not to drive while his

illness was manifest. Implicit in such warnings was he posed a danger to himself and

others. Court held: the reasonable man, having been forewarned, would have seen

to it in the event he became mentally ill that someone wouldve .

Physical disabilities

1. Carroll v Chicken Palace:reasonable person with a similar disability2. Linden: negligence law has departed from its obj std in its treatment of physical

disabilities; it has made the std of care partially subjective in order to take them into

acct. A person with a hearing disability is not required to hear, a physically disabled

person neednt be nimble nor is a blind person obliged to see; although they areexpected to avoid getting themselves into positions of danger.

Children

1. McEllistrum v Etches(1956): mixed obj/subj test for childrenchildren ofsimilar age, intelligence and experience


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2. reasonableness doesnt come to play w children3. Joyal v Barsby(1965) (kid crossing busy highway)

a. court: ordinary child wouldve act differently+pp552: she was thoroughly trained on dangers of highwaywo looking had

entered place of danger; had she looked she wouldve seen the vehicle. If

contributory negligence couldnt be found in this case, it wouldnt be found forchildren

+pp553: court judge: the trial judge didnt say children couldnt be capableof contributory negligence, only that it wasnt found hereshe was distracted byhonking other children wouldve been also distracted4. Children of tender years (under 5): no possibility to be found liable (Tillander v

Gosselin)

5. Children who conduct adult activities subjected to the adult std(Ryan v Hickson)

6. Parents are not vicariously liable for the actiosn of their kids: but they can be if

they fail to supervise kids reasonablyparents have the duty to supervise (SOC of

a reasonable prudent parent)

+(Thomas v Hamilton, Laplante v Laplante /dad allowed 16 yo kid drive on icyhighway on large speeds/, CS v Miller /volunteer camp counselor didnt reportsexual assault of kid/)

Elderly

1. Responsible to know their own limitations

Professionals

1. White v Turner:surgeon negligent in performing surgery of breast reduction

a. judged by std of profession

2. error in judgment by professionals not automatically negligenceP must provethat the bad result was brought aboutby negligent conduct

3. Location: std of care the same (Layden v Copesmall city doctor has same SOC

to SOC of big city doctor)

4. Interns/residents/volunteers/secondary field: dont need to know case names in

notes:a. person practicing in secondary field only needs to satisfy liability of

primary field

midwifery: no consistent practice: Carere v Cressman (child delivered

prematurely)/Rowlands v Wright

+Carere v Cressman: para 70: because there was no std practice at the

time, the court has to now determine the SOC based on the evidence. Judge: no idea

what was going on 1985; conflicting evidence from witnesses; its up to me as judgeto decide things from common sense. Judge found Damages: 3.5 million

+Rowlands v Wright: CoA said judge was not entitled, in the face of

conflicting medical opinions, to rely on common sense to determine the SOC wasnt


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met. While there was conflicting evidence, there were matters on which the experts

all agree on: the CoA disagreed with the matters agreed upon

5. You need expert evidence on the SOCtoo technical for judge

6. professional codes of conduct dont amount to expert evidence:a. Galambos v Perez (2009): a bookkeeper that was also a client of the firm.

Rule of conduct: lawyer cant borrow money from client; didnt know she was aclient.

Custom

1. ter Neuzen v Korn: can judge/jury find that std of practice itself is too low for

SOC?

a. Court: on complex area of medical practice, its unreasonable to judge thatstd as a non-professional that its inappropriate

EXCEPTION: if the std of practice fails to adopt reasonable precautions

(obviously dangerous) which are readily apparent to a trier of fact, its no excusethat she was conforming to standard practice

Anderson v Chasney 1950 (5 yo boy died after operation becausesponge had been left in his throat. Evidence: at time of surgery, there was tape on

the sponges that enabled them to be pulled out. It wasnt common practice to usedtape on them to pull them out.

Court: not a question of skill there were obvious precautions

that couldve been taken (not leave sponge in someones throat)b. Ter Neuzen: 2 SOC:

a. screening for HIV was beyond what could be expected at the time,

b. screening for STDs was expected

Wednesday, February 26

By the time of causation, the P has already breached the std of care

Causation: connection between fault (breach of SOC) and harm

Fact & Law

Cause in Fact (Causation)

Cause in Fact (Causation)

1. D' negligence caused P's loss

2. Connect between act & loss


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3. justifies imposing liability

4. factual causation

Cause in Law (remoteness stage)

1. good reasons to limit inability for reasons of fairness, because it's too remote2. 'legal causation'

But-for test

1. would the loss ot the P have occurred but for the actions of the D?but for the Ds breach of the std of care

a. if yes, no negligence

2. A cause not sole cause (Athey v Leonati 1996)3. Guy had herniated disc in back; preexisting condition; got into a couple of car

accidents; got into incidents of his own doing before the herniated disc occurred.P had history of back problems, suffered 2 separate accidents; because of

rehabilitation exercises he was doing, he suffered from herniated disc. Judge found

herniated disc was combo of preexisting problems + Ps negligence: P 25%responsibleshe awarded 75% of damages to him.

a. SCC said no: on the balance of probabilities, judge found D was ONE cause

of injury, even though not sole cause liability found

4. Snell v Farrell: need a robust + pragmatic + common sense approach on a

balance of probabilities

a. although courts advice that, theres always some level of hypothesizinginvolved

b. Jane stapletons comment: where this analysis actually plays out5. Kauffman v Toronto Transit Commission: P taking the escalator, in front of her

two ppl having a scuffle. The subway authority had put in a new handrail that wasnta standard handrail: a cause of the accident

a.argument: if it hadnt been a new handrail the P wouldve been fineb. no evidence that the P wouldve grabbed onto the handrail, no evidence

that that the old handrail wouldve saved herc. evidence found no dutiful testing but this is not an issue given the

causation part fails

6. Barnett v Chelsea & Kensingtonhost:

a. Facts: arsenic in tea, theyd been vomiting several hours; doctor didnt seethem; they were sent home. Claim: doctor breached the std of care, shouldvechecked them.

b. It was found that even if there had been intervention one of the Pswouldve still died: so even though theres a breaech of std of care, it wasnt whatcaused the injury

7. Lucy & Ethel: Ethel ran through a stop sign because she was talking on her cell

phone, she accidentally crashed into Lucys vehicle.a. But for test:


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Knutsen: that Lucy mightve been drinking, doesnt matter because weshould be looking at Ethels action, which was A causeBUT FOR ethels actions,lucy would not have been injured.

Exceptions

1. Multiple negligent defendants:2. learned intermediary (hollis v dow corning)

a. an intermediary who has expert knowledge. The public doesnt haveknowledge and it only passes to the public through the intermediary

b. duty to warn: as a general rule is owed by the manufacturer directly to the

ultimate consumer UNLESS theres someone in between if so the manufacturercan pass the knowledge to the middle man, and it then falls on the middle man to

pass on the knowledge to the consumer

b. hollis v dow corning: manufacturer hadnt dutifully informed the doctorof the risk.

The doctor didnt have the knowledge the manufacturer had, so the doctor

couldnt be expected to pass on the info to the patient.d. SCC: not that the learned intermediary rule doesnt apply, it just dont have

the context in this case: because the doctor (intermediary) didnt have theknowledge

3. Informed consent (Hopp v Lepp, Reibl v Hughes, Arndt v Smith)

objective/subjective test

a. patient has to argue that if it hadnt been for the lack of information by thedoctor,

b. the but for test doesnt work in this scenario where one party, who holdspower of testimony, has an interest in saying she wouldnt have done it

c. to reduce subjectivity/bias, the test is whether the reasonable person

wouldve still gone ahead w the procedure4. Material contribution

a. fact scenarios create an evidential gap/causal indeterminacy:

impossible to know if negligence caused loss (P cant prove that if it wasnt for X shewouldnt be injured, because there is a second or third or fourth variable etc thatmightve prevented the injury)

b. material contribution test: a but for test that doesnt work becausetheres insufficient evidence for the but for part.

Actions caused or contributed to the injury

c. walker estate: material contribution outside of the de minimis level

d. MC test set out in Athey v Leonati, then Walker Estate v York Finch

Hospital (HIV/American blood screening case): case law sets out cases where MC

test will work (Solomons argument: no diff between MC test and but for test)e. preconditions to trigger (Hanke v Resurfice Corp, 2007): the manufacturer

of the ice surfacing machine didnt mark clearly where gas and water had to go: poorlabeling led to P pouring water into the wrong part of the machine, caused injury

SCC: MC applies where it must be impossible for the P to provecausation under the but for test. This impossibility must be


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beyond the Ps control: Cook v Lewis (circular causation),

Walker estate v York Finch (dependency causation)

Circular causation: factual causation where impossible toprove which of 2 situations cause the harm

Dependency causation: situations where impossible to prove

if 3rdparty wouldve taken steps that wouldve prevented theinjury

P must prove: that D breached the std of care, that breachcreated risk of injury, and the injury was of the same type as

the risk

MC is easier than but for test bec. P needs only show that thebreach created the risk, and that the injury was due to the risk

Knutsen: MC test = loophole for those strange cases where the

using the weight of evidence of Ds behavior is just plain wrong5. Materially increased risk

But for versus Material contribution test (MC test = very narrow, only inmultiple defendants case)

1. Clements v Clements

Problem: if the nail was in the tyre, it wouldnt have mattered what speed thehusband was going.

**issue of material contribution will make its way on the test in some way

a. court found MC test inapplicable in this case.

b. SCC: scientific precision isnt need for but for causation. The but for testallows judges to make common sense inferences from the test.

c. but for test : factual enquiry, whereas MC test: jumps evidentiary gapfor policy purposes

d. restated Hankes limits (impossible to prove/exposed to risk of injury)e. Define meaning of impossible to prove

MC Test: where impossible to prove causation and its clear that Dbreached duty of care, which created risk of injury and same injury

type suffered

Not just insufficient facts: because MC Test goes against grain ofnegligence law

Where MC test used: Cases of multiple Ds in which each contributedto the risk of harm; impossible to know which created risk of harm

Cook v Lewis

MC test shouldnt be applied in single defendant cases But for needs certain factual link; MC test: inference can fill in

evidentiary gap

Multiple causes pp583-591 (unassigned)

1. Are the injuries divisible or indivisible?

a. divisible losses: Can the injuries be divided into distinct losses that are

each attributable to distinct defendants?


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b. indivisible losses: cant divide and attribute neatly to defendantse.g. of divisible loss: 2 gunshot wounds, each from defendant 1, defendant 2;

whereas blood loss suffered because of gunshot wounds is indivisible loss

2. Are there independent sufficient causes or independent insufficient causes

If insufficient but for test and no single factor is itself the but for test,the but for test still works (Athey v Leonati)

If sufficient, significant or substantial factor (may be reframed asmaterial contribution now) & possible burden shift

substantial factor test:

burden shifting: if there are multiple negligent Ds, the P only has toprove that injury caused by one of the multiple negligents, and the

burden falls on the Ds to disprove causation

3. Independent or joint tortfeasors:

if youre an independent tortfeasor, youre only liable for your ownactions

if youre a joint tortfeasor, youre responsible for the actions of othertortfeasors

o agent acting on principals behalfo employee action on employers behalfo acting in concern to bring about common end thats illegal,

inherently dangerous or in which negligence can be

anticipated

Tortfeasors and Contributory Negligence Act (Manitoba): makes alltortfeasors liable for full amount of damages awarded, and P can opt

to execute final judgment against any of the judgesthis makes it

easier for P to get award; can pick those who can pay OR Ds can

look each other up to split costs, this pushes the burden of coughing

up money to Ds

Materially increased risk (a jump/an inference)

1. complex conditions/disease where extremely difficult to prove that the injury

wouldnt have resulted but for the actions of the defendants2. Snell v Farrell: a but for case with a causal problem

a. cataract surgery performed by eye doctor; Ps eyes had hemmorhaging;months later P suffered stroke in optic nerve and became blind P had causal

proof problemcouldnt prove the blindness caused by doctors negligence; could

also have been caused by the strokeshould the burden of proof shift for causation shift to the D to disprove a

medical causal link?

court found for P: that the but for test is inappropriate in medical cases

because medical knowledge rests with defendant; although its for P to provecausation, an inference in causation may be drawn in absence of scientific proof

inference can only be made if the weight of the evidence supports the case

of negligence; a weighing of proof


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mcLachlin: smudging of some evidence to sufficient evidence; in theabsence of evidence to the contrary, an inference of causation may be drawn

although factual causation hasnt been adducedinference of causation in absence of proof; still for P to prove

Thin & Crumbling skulls

1. Knutsen: the causation step in the negligence analysis deals w the Dsresponsibility for the Ps injury occurring. Remoteness and damages steps deal wthe Ds responsibility for the extent of the harm2. thin skull: remoteness/proximate cause stage

3. crumbling skull: Ps deteriorating, preexisting condition condition that Pscondition wouldve been brought about anywaygets asses in damages stage

Wednesday, march 5

Causation step has already been established (the FACTUAL step)remoteness is

the legal question on the relationship between the breach and the harm

Two control mechanisms to contain negligence: 1) duty of care 2)remoteness

Causation and remoteness

+ causation is logical/factual

+remoteness cuts off logical based on policy

(causation)

breach of SOC --------------Ps harm/loss

problem with remoteness = its an arbitrary cut off point

Directness test

+Ps loss is not too remote if it was a direct result of Ds act+Re Polemis(spark exploded into fumes; ignited ship)

+court: reasonable foreseeability didnt apply here but liability was imposedbecause of the directness of harm and injury

+polemis test out of favor by mid-20thcentury because unworkable, unfair,pro-Plaintiff, logically unsound

Reasonable foreseeability (this test replaced directness test)

+Wagon Mound #1 (oil escaped from ship, water carried it over to Ps; some moltenmetal fell on oil and it ignited;

the fire was found to be unforeseeable but the court applied the directness test to

impose liability

case was appealed to much higher court: directness rule was repudiated in favor

of reasonable foreseeability dismissed polemis/directness test


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test finds foreseeability only where negligence is reasonably foreseeable

original articulation of foreseeabilty seems strict, seemingly pro-defendantapproach, but jurisprudence has shaped it more fairly

Modifications/interpretation (KIND OF INJURY IMPORTANT, not specifics)

A. judicial discretion * consequence for this test: if you know the steps and apply theanalysiswhere your conclusion amounts to doesnt matter because of the amountof discretion given to judges in the remoteness step

parameters of judges discretion:1. kind of injury (hughes vs lord advocate) construction workers left lid off

manhole + put up lights that were lit by paraffin lamps; some kids came along, kid

explored manhole, exited manhole, upon exiting.dropped lamp down manhole; kidfell down manhole and hurt himself

the means by which the harm happened was scientifically shown to be a very

unlikely consequence

court: not necessary to foresee manner/mechanics of accident (explosion)

what was SUFFICIENT to establish foreseeability: foreseeability of KIND ofinjury/harm (burns)

court: both accidents were burning incidents; how the injury materialized

(the manner in which it occurred) is not of import

2. thin skulled P (smith v leech, marconato v franklin)

a. as long as some injury was foreseeable, the D is liable for all consequences

of injury even if consequences themselves werent foreseeable (even if due tounique condition of the P)must take V as you find her and compensate for FULL

EXTENT of loss (even if disproportionate to what would otherwise occur in a quasi-

parallel situation)

b. Smith v Leech Brain (facts: man predisposed to cancer; molten fell on lipand incurred cancer)

court recognized that the P was predisposed to cancer and the burn was

considered a promoting agentsufficient that injury (burn) was foreseeable, not

necessary that CANCER or death foreseeable (injuries that FOLLOW the first injury)

crumbling skull rule reduced damages for D (P was doomed to have

cancer anyway)

c. marconato v franklin (predisposition leads to psychiatric injuryperson

reacts extremely emotionally to something). Psychological consequence from

physical injury still considered foreseeable due to thin-skull idea. Is this too

harsh? The thin-skulled rule can result in a grossly disproportionate liability for

defendants.

d. policy rationale for thin skulls:

+promotes compensatory goals of negligence law

+relieves the court of determining foreseeability in context of

uniqueness of individual (efficiency)

+harshness mitigated by crumbling skull rule at damages stage

**crumbling skull =


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a. not only thin but doomed to damage (the wrongful act merely accelerates injury

from being complete, versus thin skull where the injury might never have occurred)

b. (only comes in at the damages stage)

3. Possibility of injury (wagon mound @2)a. different facts in wagon mound 1 and 2:

WM #1: D was owner of wharf;

WM #2: P was different; owner of boat

WM #1court found that fire wasnt foreseeableWM #2court found that fire wasnt probable but it was foreseeable*in NSW, contributory negligence = full defenseP was contributorily negligent in

WM #1 (he kept welding after he was aware of the fire)needed directness test

b. assiniboine school v Winnipeg gas (P lost control of snowmobile; hit a gas

something; led to gas leak + explosion in school)

it is enough to fix liability if one could foresee in a general way the sort of thing thathappened. The extent of the damage and its manner of incidence neednt beforeseeable if physical damage of the kindwhich in fact ensues is foreseeable.

c. mustapha v culligan (Mustapha changing the water for the water cooler; sees

flies in new water cooler Mustapha nor his family drank any of the waterbut

his family had been dependent on the water for 15 years)

+Mustapha was horribly traumatized by what he saw; became obsessed with what

couldve been reality; M diagnosed with phobia + dissociation with realitylower court found that Mustapha case was bizarre nevertheless awarded huge

amounts of money for loss. Court found it was clearly foreseeable that anyone who

saw the flies wouldve suffered some kind of nervous shock.SCC:

i. difference between probable/possible is misleading (everything that has already

happened mustve been possible in the first place)+unusual reactions to events caused by negligence are imaginable but notreasonably foreseeable.objective test must be imposed on the type of reaction(must be reasonably foreseeable)

+P failed to show that person of ordinary fortitude wouldve suffered seriouspsychological injury from the discovery

EXCEPTION: it would be different if the D knew of the Ps particularsusceptibilities (knew of the thin skull)

how do you reconcile this with the thin skull rule?

+the thin skull rule applies, but it applies in a later step

+remoteness test (first step) = separate from thin skull rule (second step, distinct

conception of remoteness)

thin skull only applies after the remoteness hurdle (person of ordinary fortitude

Mustapha didnt get past theremoteness hurdle) a. establish that injury was reasonably foreseeable (objective) (the type of

harm???? Serious psychiatric injury)


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b. if injury is legitimate, then meet this injury with the thin skull rule (how

serious it is doesnt matter fully compensable)

****negligent infliction of nervous shock not examinable

4. intervening acts (Bradford v kanellos; price v milawski)a. Ds breach + subsequent intervening act that causes or contributes to lossb. by this step, causation has already been established (causation = look at multiple

causes and whether there are diff acts that caused the injury)

c. intervening acts = the intervening act contributes or increases to the loss

d. Ds act is always cause-in-fact of the damage (the causation has been met fordamages)

e. issue is remoteness of damage and unfairness of holding D liable when

Intervening act triggers or worsens loss

f. historically, D was relieved of liability and last wrongdoer responsible

g. modern approach within the scope of risk: foreseeability test

threshold for IA: when the D triggered the wrongful act, whether the interveningact was foreseeable

Bradford v kanellos

a. P caused fire in restaurant; fire got put out with extinguisher; Fire with automatic

extinguisher; made popping, hissing noise while being used; someone thought there

was a gas leak (yelled out fire, gas) and P was trampled in the ensuing commotion

b. not cleaning the grill properly = the negligent act

c. SCC: intervening act was unforeseeable. minor grease fire not foreseeable that

people would think it was a gas leak, that P would get trampled as a result.

d. SCC dissent: the intervener acted in a very usual, human way and it was

foreseeable that someone would think it was a gas explosion and cause panic.e. the contrasting SCC judgments reflect the unevenness fo the decision making

price v milawski (compound negligence)

1. F: soccer injury; x-ray doesnt look at ankle but foot due to doc giving wronginstructions to x-rayer doc diagnoses it was normal sprain; orthopedic uses docsxrays, gives wrong diagnosis P suffers permanent disability

2.two negligent doctors

Dr. M = 1sttortfeasor

Dr. C = 2ndtortfeasor

3. Court: it was reasonably foreseeable that Dr. C would use the xrays from Dr.M.

reasonable foreseeability of continued negligence

an intervening action is not in itself enough to relieve the primary tortfeasor of

liability

1stnegligent doctor can be held liable for additional loss caused by 2nddocs

negligence

where there are joint negligent tortfeasors, the first tortfeasor can be liable for ownacts + acts of second negligent feasor, if the second negligent act was reasonably

foreseeable in light of the action fo the first negligence


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33/50

o CoA: not reasonable foreseeable: didnt focus enough on objectivecomponent of test for reasonable foreseeability (foreseeability at the

duty of care stage).

o SCC: echoes CoA+ manufacturers duty to consumersRemotenessanalysis

Psych injuries thought to be lesser harms: normally get kickedout of court at duty stage (before foreseeability at remoteness

stage)

SCCs analysis at remoteness stage is more confusing than CoA:

Wednesday, March 12

DEFENCES

1. Contributory negligence*

2. Voluntary assumption of risk3. Criminal/immoral act4. Inevitable accident5. Burden of proof on D6. May plead/prove multiple choices

Evolution of negligence in common law (from 1 to 4)

1. Tort liability for a single injury was indivisible2. P had right to recover damages for the entire loss from any tortfeasor who

shared liability (can pursue action against multiple Ds)

3. Tortfeasor who paid wasnt entitled to contribution from other tortfeasors

4. D had complete defense to an action for tort if the P own negligencecontributed to the injury (any insignificant contributory act by P allowed full

defense for D)

Last Clear Chance doctrine

1. Developed by the courts to avoid the harshness of the contributorynegligence bar

2. Who had the last chance to avoid the injury?a. P can recover in full if the D was the one who had the last opportunity

to avoid the injury caused by negligence and FAILED

3. Considered P-friendly but still all or nothing approach4. All provinces have enacted legislation to abolish the contributory negligence

bar and to provide for the apportionment of fault between D and P

5. Doctrine no longer really relevant in Manitoba

Tortfeasors

1. Joint and several liability: tortfeasors who have combined to cause a single

indivisible loss are each liable to the injured person for the full amount of the

damage suffered (liable whether separately or together either one)


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a. Where the actions of one or more tortfeasors cause the injury they can be

severally or jointly liable

2. Joint tortfeasors where one is the principal of or is vicariously responsible for the

other, a duty imposed jointly upon both tortfeasors isnt performed or there is aconcerted action to a common end

a. actions of different tortfeasors cause different damages OR cause the samedamage

Tortfeasors: common law procedure

1. P required to claim against all joint tortfeasors in the same proceeding

2. Judgment against one joint tortfeasor discharged all joint tortfeasors

3. if there was a divisible damage all the actions in CL had to be separate. P required

to claim against several tortfeasors in several proceedings

Manitoba tortfeasor & contributory negligence legislation

1. legislation to alleviate harshness of CL

2. Tortfeasors act came in force in 1939; modified twice in 1973 + 1980.3. Ds liability is joint & several

Defendants ' l iabi l i ty joint and several

s5 Where two or more defendants are found negligent they are jointly andseverally liable to the plaintiff for the whole of the damages apportioned againstboth or all of them

legislation means that each D bears the risk that the other may not pay up: iffound liable, they have to pay up even though the other might not do so.

4. joined of parties is now dealt with by the Court of queens bench rules (5.02-5.05)5. SCC (athey v Leonati para 22): P is compensated till shes put back in her originalplace. Each D remains fully liable to the P for the injury since each was a cause of the

injury. The legislation simply

6. proportionate liability: distributed by the court to the P from each D. Up to P to

hound the D for each portion.

7. the amount of thecontribution recoverable will be found by the court to beequitable; court may exempt contribution from each person

Apportionment (MB)*

1. s2.1-s2.2 TCNA

2. No mechanism for apportioning any shortfall in payment: the Ds who found liablein the initial court action has to deal w the shortfall

a. the law reformed commission recommends a redistribution: once its clearthat theres a portion of the liability that is not collectable, should be reallocatedamong the remaining Ds.

3. Sasketchawan is the only province with reallocation of shares (where legislation

provides for equitable redistribution)
http://web2.gov.mb.ca/laws/statutes/ccsm/t090f.php#5http://web2.gov.mb.ca/laws/statutes/ccsm/t090f.php#5http://web2.gov.mb.ca/laws/statutes/ccsm/t090f.php#5


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4. Mortimer v Cameron, 1994: rare case of appellate court interfered with trial

courts apportionment of liability.a. At trial level, city found liable for failing to keep up with building code:

found 25% liable for failing to upkeep building. Trial judge apportioned liability:

40% city, 60% building owner. Contributory negligence wasnt found.

5. Ryan v Victoria City: apportionment is a question of fact that can only beoverruled at the appellate level if theres an overriding error in the trial level6. Court of Queens bench:

CROSSCLAIM

WHERE AVAILABLE

28.01 A defendant may claim against a co-defendant who,

(a) is or may be liable to the defendant for all or part of the plaintiff's claim;

(b) is or may be liable to the defendant for an independent claim fordamages or other relief arising out of a transaction or occurrence or series

of transactions or occurrences involved in or related to the main action; or(c) should be bound by the determination of an issue arising between theplaintiff and the defendant;

and shall do so by way of crossclaim.

3 CATEGORIES OF CONTRIBUTORY NEGLIGENCE

1. Ps negligence may be a cause of the accident e.g. horseplay by P on driving D2. P put herself in position of foreseeable harm from Ds negligence e.g. sober Pgetting into car of drunk D

3. P fails to take measures e.g. P doesnt wear seatbelt

Contributory negligence

1. Walls v Mussens: fire at gas station caused by Ds employees who were fixing atimberjack on the Ps premises. When the fire started, everyone forgot there werefire extinguishers on property, tries to put it out with snow. P arrives on scene,

doesnt point out theres extinguishers.i) Court: no contributory negligence. Reaction of P/owner coming to the

scene in a panicked state and reacting the way he did = reaction of

prudent ordinary man with no context (the standard)

ii) What is fire spread to neighbours property: P became D? The standardwouldve changed in this case: from ordinary person to ordinary owner ofservice stationstill considered an objective std takes into accountsimilar things e.g. foreseeability of harm only difference is the courtsassessment is more lenient

2) Osborne: conventional, arbitrary and lenienta) Conventional: pretty standard apportionment formula: reduce by 20-30%

(contribution by P) or 50-50 responsibility (if equally negligent)
http://web2.gov.mb.ca/laws/rules/qbr1f.php#28.01http://web2.gov.mb.ca/laws/rules/qbr1f.php#28.01http://web2.gov.mb.ca/laws/rules/qbr1f.php#28.01


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b) Arbitrary: pretty consistent reductions of 20-30% for different levels ofblameworthiness on the part of the P: same reduction inSteward & Petty (P

25% liable) compared to Crocker(P 25% liable)

c) Lenience: very rarely see a reduction of more than 50% of Ds liability(Mussen v Walls). Reason for leniency is partly insurance.

Seatbelts

1. Gagnon v Beaulieu, 1977: car accident and passenger thrown into windshield.

Ps injuries: couldnt remember if he was wearing seatbelt. Evidence = P wasntwearing seatbelt. Court creates 3 part test for seat belt wearing:

a) did the P know/ought to have known the seatbelt lessened injury?

B) was the P wearing seatbelt?

C) would seatbelt have lessened/prevented injury?

2. Rewcastle v Sieben 2003

3. Highway traffic act s186: Manitobas legislation on seatbelt wearing

Voluntary assumption of risk

1. Volenti non fit injuria : to one who is willing no harm is done (volenti defense)P consented to risk of harm generated by Ds negligencefull defense: precludes recovery

theoretically defense is available but its rarely accepted/applied, mostly insports scenarios

volenti test is very narrow, set out in Dube v Labar: D must prove there

was an express/implied agreement to physical and legal riskof injury to

Ds negligence. Legal risk = abandoning right to sue+in Dube v Labar, despite having signed the waiver, the court was hesistant

to apply it because the P was so drunk+where the volenti does apply is where P is sober. Courts tend to leave

volenti and go to contributory negligence.

Criminal or Immoral Acts

1. Ex turpi causa non oritur action: from a dishonorable cause an action

doesnt arise2. complete defense/precludes recovery

3. Hall v Hebert, 1993: P and D drinking in excess and then driving. Action of

ex turpi causa was based on the fact that the driving was under influence and

therefore illegal. Judge rejects justices corys suggestion that Ps conduct islegit policy reasons for denying recovery.

McLachlin: look @ basis of defense + rationale. Conceptually its betterlocated as a defense after claim has been made out. The ETC principle

most naturally acts as a defense: the power of the court to deny recovery

represents concerns independent of this relationship. The power to

preclude recovery on the basis of moral conduct is in derogation of

relevant principles of tort in society: therefore onus has to rest on D to

prove ETC. The defense can only apply when the integrity of the legal


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system is potentially compromised by allowing a claim. Thus it only

applies in 2 situations:

a. using tort action to make direct profit from illegal conduct

BC v Zastowny: illustrates what it means to profit fromillegal conduct: sexual assault case + young man with a mild

coke habit + while in prison assaulted by prison guardtwice. After released from prison, he became a heroin

junkie. Assault responsible for drug addiction and

criminality: awarded damages + expenses for counseling +

wage loss (time spent in prison following initial assault)

b. P using tort action to circumvent, subvert or negate criminal

penalty

Inevitable accident

1. Rintoul v X Ray & Radium, 1956 SCC

+SCC acknowledges of defense of inevitable accident exists. Deniesapplicability to the facts because

+test for IA: D must prove he had no control over accident and couldnt avoidit

+ defense not applied in Rintoul because it gets stopped in SoC stage

+is it a true defense?Seems like a breach question: doesnt really matterhere.

o reality: no liability for accidents: an accident is not negligence. Thequestion is whether it was a question or not

o its kinda a faux SoC: whether D met the standard of careo D must show that the SoC was taken and that the accident

unavoidableo Osborne: a legal curiosity, neither helpful nor particularly harmful;

merely emphasizes the centrality of fault pp 118

Exam: open book, bring anything you want; advice: bring in clear organized outline

+ charting of questionsthis semester = massive tort & you will get lost in the

steps. Exam = similar to last terms. more nuance to questions. Two or three smallfact patterns to deal with particular elements e.g. discuss causation in this fact

pattern.

Last 2 classes = review.

Wednesday, march 19


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P = legal balance on a balance of probabilties

Legal burden circles evidentiary burden

During trial, D has to persuade

Legal burden = burden as establishing your case i.e. major

burden/persuasive burden/primary burden Evidentiary burden of putting the issue into play = minor burden/burden of

moving case fwd/burden of producing evidence

Circumstantial evidence = re ipsa loquitor (the thing speak for itself)

Re ipsa loquitor: the fact that it happened was enough to show the Dsnegligence (because this sort of accident wouldnt have occurred wo Dsnegligence)

o Means of overcoming lack of prima facie case (can see theresnegligence wo evidence)

o Classic case: Bryne v Boadle (1863). Facts = barrel falls out ofwindmill, P walking by when it hits him. Res ipsa loquitor = Dsnegligence that caused the barrel to fall.

Onus shifts to D to disprove evidence Circumstantial evidence points to fact that D was negligent

unless D can prove otherwise

3 things to trigger res ipsa loquitor:

occurrence must not, in ordinary course of events, occurwithout negligence

D must have sole control of instrument of harm

There has to be no direct evidence as to why the harm

occurred (if there was direct evidence, you wouldnt

need circumstantial evidence)o Problem with Res ipsa loquitor

Some felt it shifted BoP to D Some felt it allowed trier of fact to make the inference if they

chose

Clarification: Fontaine v BC:P + D were dead; had beenmissing for 3 months; there was bad weather that weekend but

no one when they crashed; skid marks on the road

Fontaines widow brought action that occurrence of accidentestablished that it was attributable to drivers negligence;argument = accident wouldnt have happened but for his

negligence. TJ + CoA said P hadnt shown that in the ordinary course

of events the accident wouldnt have happened wonegligence of D

SCC: res ipsa loquitor more confusing than helpful. Themaxim has expired + no more value. All the maxim is a

way to deal w circumstantial evidence, when really is


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should be dealt w either way by trier of fact, maxim or

no maxim.

Application of this shifted interpretation:

1) was there any direct evidence of cause of accident?

2)if theres no direct evidence, dont consider direct +

circumstantial evidence as mutually exclusive 3)was there circumstantial evidence by which to

infer the accident was caused by negligence

attributable to D?

o does not happen without negligence

o D in sole control

Court felt any inference was deducible. Moral of thestory: taking away the label of res ipsa loquitor, but still

keeping the gist of it lessens the formal weight of

circumstantial evidence but the process of weighing it is

still the same

Wakelin v London 1886: Man was killed by train while crossing footpath.Wife brought suit for damages claiming Ds train drove across footpath wotaking precautions. Train line countered: Wakelin wasnt paying enoughattentionhe was the one who didnt take enough precautions.

o Jury found 800 pounds for widowyes it was Ds negligenceo Division court + CoAPs husbands negligenceo HoLnothing to show that the train ran over the man, rather than

that the man ran against the trainits incumbent on the P to provethat husbands death was caused by some sort of Ds negligence. Also,the jurys award of 800 pounds was made wo fragment of evidence tojustify such a finding.

3 Burden of proof exceptions:

o Statutorily reversed onus (Highway Traffic Act s153) Onus is on Driver to disprove negligence not on P to prove

negligencelike application of Wakelin v London on

Manitobas Highway Traffic Act Up to legislature to implement reverse onuses

o Directly caused injury (Dahlberg v Naydiuk) MBCA decision Negligence and trespass

Not only shot P but they had trespassed on his land:

circumstances 2 different onuses: With negligence, onus on P. But withtrespass, the onus is on the P to disprove it. Trespass is

actionable per sea mere blade of grass thats touched

trespass: Once the P has proved the interference, BoP

on D.

compelled to follow Cook v Lewis: onus to shift onto D D failed to prove not negligent


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When there is a directly caused injury (negligence is indirect),

when theres a trespassthe onus shifts to Do Multiple negligence parties

1. Both D & Pwere negligent & caused injury

e.g. car collision in which both cars were not in their

proper lanes both parties equally liable (Leaman v Rea)

where theres proof that both parties were involved 2. if EITHER d & p negligent & caused injury: cant decide

from facts whos responsible + facts dont point that BOTHwere causesNEITHER party is liable (Wotta v Haliburton)

multiple negligent defendants: both Ds negligent but only 1caused injury (Cook v Lewis): both fire but only one bullet hit

eye.

Cook v Lewis: because impossible to say whose gun had

fired the bullet, negligence cant be found for either

SCC: instructions for jury is that they can find bothliable if thats how the proof goes.

Rand Js judgement: P must prove that the evidencespeaks to inseparability (of consequence of both partiesnegligence) for onus of proof to shift to D

Distinction between Rands and Cartwrightsjudgments: both emphasize inseparability of

negligences consequence but Rand emphasizesevidenceneed to articulate the Ps conundrum ofdestruction of evidence

Similarities between both judgments: because you cantprove which did it, the onus shifts to D, if they cantdisprove itboth held liable despite only one person

having shot itoverrides negligence general rule that

there must be fault before you can establish negligence

It is still for P to show the breach (either one or both ofDs) of SOC

March 26, 2014

Damage awards; 3 types:

COMPENSATORY

Punitive

Nominal


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Negligence = primary = compensatory damages bec negligence wants to put

o There is compensatory to award aggravated damages bec of stress of

P felt bec of Ds actions; but negligence = mostly lack of intentionalitythus very rare (focus on Ps interests)

Punitive damages = possible but extremely rare/ D wouldve had to act in ahigh handed manner (focus on Ds action)

Nominal: only in intentional torts you dont have to prove damages/ innegligence, you need to prove damages thus no nominal damages

Negligence Damage/actual loss

Not actionable per se

Basic premise: no liability in negligence unless P suffers damage as a result of

Ds wrongful act

The argument could be made that theres a case for negligence wo damagesuffered: why wouldnt we want to deter ppl fr acting negligently for futureinterests?floodgates argument: court too busy, inefficient use of judicialsystem

+what constitutes harm? The marginal cases usually exclude the marginal claims;

psychiatric lawskinda define negligence harm. But more to do w remoteness

rather than what constitutes damages

+q of what damage is is rarely discussed bec its normally self evident+P bears burden of proving suffered a recoverable loss and proving quantum

of damages claimed

standard of proof for losses

Prior to trial Post trial

Balance of probabilities; if successful,

100% if not, nothing

+Historically BoP (all or nothing);

nowadaysreasonable or substantial

possibility e.g. 20% likelihood = 20%

damages

M

torts class notes

Documents