Exam

Torts Trespass A. Historical Context Goshen v.
. Larin onus falls on defendant to prove that his act was both unintentional and without negligence Torts Trespass B. Accidental, Negligent and Intentional Conduct Garrat v. Dailey Intention is not the same thing as desire Carnes v. Thompson transferred intent Basely v. Clarkson The intention to do an act, doesnt mean an intention to do a wrongful act. Torts Trespass C. Volition and Capacity Smith v. Stone Involuntary action is not a tort Tillander v. Gosselin Lack of capacity => no intent Lawson v. Wellesley Hospital Torts Trespass D. Assault I. De S & Wife v. W. De S charged with assault, having put her in fear of a battery Zanker v. Vartzokas relatively immediate imminent violence proved directness. Stephens v. Myers In order to be assault, there must be a means of carrying out the threat Tuberville v. Savage Bruce v. Dyer Attempted assault is assault Torts Trespass E. Battery Cole v. Turner the least touching of another person in anger is battery. Restatement of Torts, second Bittel v. Yim Intention is intention to do the act, not intention to bring about the consequences. Torts Trespass F. Sexual Wrongdoing Norberg v. Wynrib Defence of consent is central issue: There are some cases where the power relationship negates consent Torts Trespass H. False Imprisonment Bird v. Jones If you can escape (via a reasonable means of escape), you cant be imprisoned Robinson v. Balmain New Fairy Co system was reasonable therefore cannot be false imprisonment i.e. adequate notice (sign), reasonable amount of time, reasonable price. Chaytor v. London, New York and Paris Association of Fashion Ltd. And Price If you psychologically believe you are imprisoned, false imprisonment may be valid in this case Damages in trespass Directness Was The Contact Sufficiently Direct? Scott v. Shepherd Novus actus interviens - a new act intervening. Chapter 7: Duty A. Concept of Duty Generally Donoghue v Stevenson281 Home Office v. Dorset Palsgraf v. Long Island Railroad
Torts Taylor Fall 2008 Monick Grenier
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re reasonable foreseeability Anns v. Merton London Borough Council Anns Test Hill v. Hamilton Wentworth Regional Police Services Board, Anns Test Analysis Childs v. Desormeaux Duty Of Care/Positive Duty Of Care Ratio ANNS TEST Analysis for Determining Breach in Negligence Syl Apps Secure Treatment Centre v. Douglas Baptiste Holland v. Saskatchewan Bottom line: There is no duty of care in government just not to break the law, but there is a duty of care to implement a judicial decree. Jane Doe v. Board of Police Commissioners for the Municipality of Metropolitan Toronto specific threat to a specific group of people Chapter 5: Standard of Care A. Unreasonable Risk Bolton v. Stone Cricket ball accident was such a small risk, therefore standard not breached. Four considerations in Negligence (size/outcome/cost/social utility) Exercise is of social utility and therefore we will tolerate the small risk involved. Chapter 5: Standard of Care B. The Reasonable Person Vaughan v. Menlove Blyth v. Birmingham Waterworks standard of care within a tort of Negligence Chapter 5: Standard of Care C. Custom Waldick v. Malcolm Custom is not a defence to negligence if the custom itself is negligent. Chapter 5: Standard of Care: D. Statutory Standards Canada v. Saskatchewan Wheat Pool Simply because something is against a statute does not make it a tort. But it can be proof of negligence Chapter 5: Standard of Care: D. Statutory Standards 1. Limitations Gorris v. Scott Sheep overboard: intent of the statute must speak to the damages incurred if an action is to be maintainable. Chapter 5: Standard of Care: D. Statutory Standards 2. Compliance Ryan v. Victoria compliance with a statute does not necessarily make you non-negligent Chapter 5: Standard of Care: E: Liability and the Young Heisler v. Moke The reasonable person for a youth is based on a reasonable person of that age, intelligence, alertness, etc. Chapter 5: Standard of Care: F: Mental and Physical Disability Fiala v. Cechmanek Chapter 5: Standard of Care G: Professional Negligence: Doctors Challand v. Bell Test for Standard of care for doctors Bolam test re popular treatments Reibl v. Hughes Consent to surgery Chapter 5: Standard of Care G: Professional Negligence: Lawyers Brenner v. Gregory
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Lawyers are held to the standard of care of a reasonable lawyer Chapter 11: Tort Liability of Public Authorities Just v. Queen in the Right of British Columbia You cannot sue under policy; you can under operational procedures Factors to determine policy v. operational decisions: See p. 499 Chapter 9: Defences to Negligence Chapter 9: Defences to Negligence :A. Contributory Negligence Butterfield v Forrester Plaintiff cannot collect damages for Defendants fault, if Plaintiff was not using ordinary care Davies v. Mann Negligence Act Parties can apportion blame Chapter 9: Defences to Negligence: B. The Seatbelt Defence Galaske v. ODonnell Chapter 9: Defences to Negligence: C. Volenti Non Fit Injuria Voluntary Assumption of Risk Hambley v. Shepley Chapter 9: Defences to Negligence: D. Illegality Hall v. Hebert Bars from compensation where s conduct was illegal or immoral. BC v. Zastowny Causation, Remoteness and Nervous Shock Causation But-For Test Cabral v. Gupta Cottrelle et al. v. Gerrard Cook v. Lewis Resurfice Corp. v. Hanke. [2007] 1 SCR 333 But For Test the standard => see attached Chapter 6: Proof: E. Interfering Causation Snell v. Farrell The robust and pragmatic approach (common sense) to causation Walker Estate v. York Finch General Hospital 264 Applies the material contribution test instead of the but-for test. Chapter 6: Proof: F. Multiple Causes Fairchild v. Glenhaven Funeral Services268 Asbestos by employer A or B or both? Chapter 6: Proof: G. Market Share Liability Sindell v. Abbott Laboratories274 McGee v. National Coal Board Aristorenas v. Comcare Health Services et al. 83 O.R. (3d) 282 Application of Snell (Sopinkas robust and pragmatic approach). Nervous Shock A note on Psychiatric Damage Chapter 8: Remoteness The Wagon Mound (No. 1) v Morts Dock test of remoteness is to be judged by the standard of the reasonable man Thin skill doctrine
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Smith v. Leech Brain Mustapha v. Culligan Malcolm v. Broadhurst page351, no 4 Mental suffering caused by physical injury is compensable under thin skull rule Athey v. Leonati Crumbling Skull Principal: Plaintiff is liable for additional damage, but not pre-existing damage. Hughes v. Lord Advocate354 Whether the type of damages suffered are too remote to be recoverable: NO Doughty v. Turner Manufacturing Co. Ltd Whether the type of damages suffered are too remote to be recoverable: YES Wagon Mound #2 Pure Economic Loss: Introduction Five categories of pure economic loss Pure Economic Loss: Negligent Performance of a Service BDC Ltd. v. Hofstrand461 Pure Economic Loss: Relational Economic Loss Design Services of Canada. Canadian National Railway Co. v. Norsk Pacific Steamship Co. Bow Valley Husky v. St. John Shipbuilding Negligent Misstatement Hedley Berne v. Heller Herecules v. Ernst & Young439 Chapter 12: D. Vicarious Liability 671122 Ontario Limited v. Sagaz VL arises for the torts of an employee but not for the torts of an independent contractor Bazley v. Curry Salmond Test Jacobi v. Griffiths No vicarious liability due to lack of intimacy in job description; rather Griffiths seized the moment John Doe v. Bennet P.S. v. Miki Chapter 17: Damages Andrews v. Grand & Toy Pecuniary Loss Non-Pecuniary loss McCabe v. Westlock RC Separate School Board735 Whiten v. Pilot Insurance750 Punitive damages McIntyre v. Grigg Nuisance and Rylands and Fletcher Chapter 13: Nuisance: Private Nuisance Pugliese v. NCC Tock v. St. Johns Metropolitan Area Bd actionable uses are only those which interfere with ordinary comfort Nor Video Services v. Ontario Hydro Russell Transport v. Ontario Malleable Iron Ineffectual Defences in Nuisance Nuisance what is the fault element in nuisance? Chapter 12: Strict Liability Rylands & Fletcher Two elements to the tort in Rylands v. Fletcher
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Rickards v. Lothian Use of land which brings about Rylands must be non-natural use. Reid v. J. Lyons & Co Strict Liability of Rylands v. Fletcher is recognized when element Escapes from land and is non-natural use Defences in Rylands v. Fletcher 531 1. Consent of the Plaintiff 2. Default of the Plaintiff 3. Act of God 4. Deliberate Act of third person 5. Legislative Authority
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Torts list of torts covered

Trespass to person (also a crime) o False Imprisonment (intentional or negligent) o Assault (intentional or negligent) => causing fear o Battery (intentional or negligent) => physical contact o Trespass to land Negligence Governmental and Professional Liability in Negligence and others!
Monicks Summary: Trespass (assault/battery/false imprisonment) => is actionable per se 1. Conduct (fear/contact/imprisonment) () 2. State of mind (intentional/negligent/neither/involuntary) () 3. Directness => was conduct sufficiently direct? Negligence => is not actionable per se 1. Duty of care => Anns test (see below) 2. Breach of standard of care => see analysis for determining breach 3. Damages => (a) causation and (b) remoteness. (no defences) If the defendant can put forward a valid defence to negligence then its not negligence. Anns Test 1. Foreseeable and proximate 2. policy considerations By contrast, the final stage of Anns is concerned with residual policy considerations
which are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally: Cooper, at para. 37, cited in Hill v Hamilton Police, para 31
Torts Trespass Trespass (onus on to prove action; onus on to disprove mens rea) Type of Conduct Mens Rea Directness Must be established Assault putting into fear Intentional Negligent Must be established Battery physical contact Intentional Negligent Must be established False Imprisonment imprisonment Intentional Negligent Trespass to land There is also a possible involuntary mens rea in which case is not liable, i.e. Smith v. Stone (1647). It is possible as well for the mens rea to be neither intentional nor negligent. Each one of the above is sort of an independent requirement for the tort. If you sue in trespass, the plaintiff has to prove that the conduct has happened. The defendant (the tortfeasor) has to prove that they did not do it either intentionally or negligently (Cook v. Lewis). In the tort of Negligence, the plaintiff has to prove everything. In the tort of Trespass (negligence) the defendant has to disprove that they acted negligently.
TORTS TRESPASS A. HISTORICAL CONTEXT

Goshen v. Larin (1974 NS CA) (page 37) Negligent Battery
Facts: Referee leaving a match, was being harassed by people, puts arms up to protect himself, and knocks the plaintiff, who fractured his wrist. This is a case of battery without assault. Issues: Who bears the burden of proof in an action for trespass to the person? Reasons: Court cites Letang v. Cooper, if he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care (if you touch somebody negligently it should be under the law of negligence.). Court refused to follow Letang, instead being bound by Supreme Court decision in Cook v. Lewis [1952] which establishes the norm in Canada => [In trespass] where proves that he has been injured by defendant, the onus falls on defendant to prove that his act was both unintentional and without negligence on his part, in order for him to be entitled to dismissal of the action. Trial Judge found was not intentional but negligent in the battery. Appeal Court found that (Appellant) was neither intentional nor negligent. Case dismissed. Ratio: where proves that he has been injured by defendant, the onus falls on defendant to prove that his act was both unintentional and without negligence on his part, in order for him to be entitled to dismissal of the action.
TORTS TRESPASS B. ACCIDENTAL, NEGLIGENT AND INTENTIONAL CONDUCT

Garrat v. Dailey (American - 1955)41: the 5-year old and the disappearing chair trick. Trial judge found that chair
was not moved intentionally, therefore, case dismissed. Appeal court found that a battery would be established if proved that chair was moved with reasonable foreseeability of the outcome regardless of intentionality. Court found for the plaintiff.
Intention is not the same thing as desire. Also intent has reference to the consequences of the act rather than the act itself42.
Carnes v. Thompson
(Missouri 1932)42: If you try to strike one person but hit another, you are still guilty of assault and battery to the third person: transferred intent.
Basely v. Clarkson [1681]43: mowed s grass by mistake. Is that intentional? Yes. And the was found liable in
trespass because his act was intentional. He intentionally mowed the grass but he did not intend to do a legal wrong (he intended to mow his own grass). The intention to do an act, doesnt mean an intention to do a wrongful act.
TORTS TRESPASS C. VOLITION AND CAPACITY

Smith v. Stone (KB 1647)44:
guy carried onto someone elses land and charged with trespassing.
Involuntary action is not a tort.
Tillander v. Gosselin (Ontario 1967)45:
Infant fractures other infants skull.
Lack of capacity => no intent The very young presumed incapable of negligence as they lack judgement to exercise reasonable care.
Lawson v. Wellesley Hospital
(CA 1975)47: In this case the Mental Health Act states no hospital shall be liable for tort of a patient; but if patient lacked capacity, and was incapable of intending to commit a tort, it is not a tort, and presumably hospital can then be liable.
TORTS TRESPASS D. ASSAULT

I. De S & Wife v. W. De S. (1348)50 I Des and M, his wife, are suing W. Des. They are from the town of S. W.
Des insulted M and struck her. The jury found that defendant came into the plaintiffs house, knocked on the door with a hatchet, and the woman stuck her head out the window and he swung at her with the hatchet but did not hit her. He was charged with assault, having put her in fear of a battery.
Zanker v. Vartzokas 34 A Crim R [Australian Criminal Reports], p. 11 relatively immediate imminent violence proved directness.
Stephens v. Myers (1830)51 Angry church guy who gets the boot from meeting:
In order to be assault, there must be a means of carrying out the threat
Tuberville v. Savage (1699)51 the plaintiff said to , putting his hand on his sword and said
if it were not assize time, I would not take such language from you. The question was if that were an assault. Answer, no.
p. 52, para 1-3. In all of these cases the courts held that the statements made were assault. 1. If you come one step closer, Ill run you through 2. Ill run you through, if you dont get out of here? 3. Give me all your money, or Ill run you through Unlike Tuberville (you are not going to be assaulted, reason: judges are in town), these cases were considered assaults (interpretation of their statements: you are about to be battered).
Bruce v. Dyer (OR 1970)53: road rage: it is enough believes he is in danger of violence from
Attempted assault is assault
TORTS TRESPASS E. BATTERY

Cole v. Turner at page 55
the least touching of another person in anger is battery. This is tipping the balance too far because there are some contact with the human body which could not be called in anger but do constitute battery: i.e. medical treatment without consent is battery. A hostile intent is not strictly required for battery. The reason is that you have the right to the integrity of your body. A doctor can presume consent in some cases, unless theyve been explicitly denied consent.
Restatement of Torts, second - Battery: Harmful Contact page 56 Sec. 13

An actor is subject to liability to another for battery if: a. he acts intending to cause a harmful or offensive contact with the person of the other or a third person or am imminent apprehension of such a contact and b. an harmful contact with the person of the other directly or indirectly results. This is American and not binding in Canada. not a very good guide to the details of the laws of Canada, therefore dont be mislead by it. Indirectly does not represent the law of Canada. If damage indirectly occurs in Canada, due to your actions, it is negligence if anything.
Bittel v. Yim (1978)57 threw squibs into s store.
grabbed to shake him and get confession but injured him in the process, unintentionally (Provocation is not a defence to assault). However, on s own evidence his act in grabbing the with both his hands and shaking him constituted the intentional tort of battery. argues no liability for accidental harm. The issue in this case is if the aspect of foreseeability used in negligence should be adopted in the tort of trespass to the person in battery. Court says, NO, indicating, the logical test is whether was guilty of deliberate, intentional and unlawful violence or threats of violence. If he was, and a more serious harm befalls than was intended by , , and not the innocent , must bear the responsibility for the unintended result.59 Yim is liable for damages to Bittel.
Intention is intention to do the act, not intention to bring about the consequences. You are responsible for the outcome of your actions. Novus actus interviens - a new act intervening. You cant on the other hand, blame every consequence on some action in the past. Intention is intention to batter, not to bring about other consequences (your intention to bring about the consequences is not valid only the intention to batter).
TORTS TRESPASS F. SEXUAL WRONGDOING

Norberg v. Wynrib61 & 101

La Forest J. -- This case concerns the civil liability of a doctor who gave drugs to a chemically dependent woman patient in exchange for sexual contact. The central issue is whether the defence of consent can be raised against the intentional tort of battery in such circumstances. The case also raises the issue whether the action is barred by reason of illegality or immorality. The Supreme Court held this was sufficiently serious exploitation that the consent was not to count as a real consent. The real issue is of a power relationship that existed and not necessarily that he was a doctor. This is an abuse of power which a veterinarian, ie, could also have exercised. Defence of consent is central issue: There are some cases where the power relationship negates consent
TORTS TRESPASS H. FALSE IMPRISONMENT

Bird v. Jones (QB 1845)68 tries to cross Hammersmith Bridge, which has been closed. Is not allowed to cross
and claims false imprisonment. Lord Denman had instructed the jury that the facts disclosed at the trial constituted an imprisonment of the plaintiff. This was the objected direction. In the Appeal, majority Coldridge finds no false imprisonment as could have went back where he came from. It is partial obstruction, not total. Imprisonment also includes some form of restraint. In this case, the plaintiff could have left but insisted on staying at the entrance to the bridge. Denman dissents calling it false imprisonment as was deprived of his liberty with reference to the purpose for which he lawfully wished to employ [it]. New trial was called for.
If you can escape (via a reasonable means of escape), you cant be imprisoned
Robinson v. Balmain New Fairy Co 74, para 9

system was reasonable therefore cannot be false imprisonment i.e. adequate notice (sign), reasonable amount of time, reasonable price. about a Ferry system whereby you pay a penny to get in the gate, either going one direction or the other. He went in, but changed his mind and decided not to take the ferry. They would not let him out unless he paid another penny. He sued for false imprisonment and in fact this is an issue of consent. See para 8 at page 74. Robinson received adequate notice of the price of passing through the gate. There was not a reasonable amount of time (it was not long enough to be called false imprisonment); there in fact did have a means of escape (if he waited for the ferry, he could get on it or he could have just paid the penny to get out); the price to leave was also reasonable. If he does have a reasonable means of escape then we dont have a problem with consent.
Chaytor v. London, New York and Paris Association of Fashion Ltd. And Price70
The plaintiffs owned a store across the street from London Ltd. They were accused by London Ltd of visiting their store to assess their prices of competition purposes. London Ltd called the police, who brought plaintiff to the police station, apparently of their own volition, but claimed false imprisonment they accompanied the police to avoid embarrassment but were not charged with anything. You dont have to put up a fight to be falsely imprisoned.
If you psychologically believe you are imprisoned, false imprisonment may be valid in this case
Held: for the plaintiffs
DAMAGES IN TRESPASS
Special Damages lost wages, medical treatment (something that can be quantified in dollars and cents). General Damages reimbursement for the inconvenience, trouble, loss of pleasure in life, etc., that you have suffered. Joint and Several Liability = means that if you are a plaintiff you can sue any tortfeasor for the whole amount.
Tort of trespass are actionable per se: in all cases of Tort of Trespass to the Person, the tort of trespass to the person is a tort that is actionable per se. This means that you do not have to suffer any quantifiable loss or damage in order to sue under the tort of trespass to the person. Once a trespass has been committed to your self of anytime, you have grounds to sue under that tort. Actionable per se (in itself), trespass to the person is a tort regardless of any damages which you may suffer.
DIRECTNESS WAS THE CONTACT SUFFICIENTLY DIRECT?

Scott v. Shepherd See. P. 36 at bottom, footnotes 5 and 6 and 7.

Defendant throws a lighted firework (squib) into a market, some guy picks it up and throws it away, next does the same, and the next has the firework go out and loses his eyesight. Was the Defendant responsible for the Plaintiffs injuries?
Novus actus interviens - a new act intervening.

Blackstone found it was insufficiently direct, but the majority found that yes, it was direct, and the two market owners in between who threw the firework were merely acting out of necessity and with no intent to cause any harm.
CHAPTER 7: DUTY A. CONCEPT OF DUTY GENERALLY

Donoghue v Stevenson281
Ginger beer case. Ms. Donaghue found a snail in her ginger beer and sued Stevenson, who said her allegations do not constitute a valid cause of action. HL set about to decide if Donaghues claim was a valid cause of action (could not sue on contract due to the doctrine of privity). Lord Atkin announced this principle (see p. 283): There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ...The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to bepersons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. from the judgment (at 580) (emphasis added) Lords Tomlin and Buckmaster dissented with this. Majority: Atkin and Thankerton and MacMillan.
Home Office v. Dorset

referring to Donaghue, may be considered a milestone but not to be treated as a statutory definition. It will require qualification in new circumstances it is a principle, not a statute.
Palsgraf v. Long Island Railroad

re reasonable foreseeability. See page 365 (not requiring reading); The plaintiff was standing on the platform, having
bought a ticket. A train arrived for another destination. Two men arrived to get on that train. One man with a package was getting on, losing his balance. Two employees helped him on the train, one pulling the other pushing, in the interim, he dropped his package: which contained fireworks. The fireworks exploded, causing another item to become a projectile, and hit the plaintiff in the head, who is suing the rail company for damages.
Anns v. Merton London Borough Council [1978] 286

Anns Test
1. 2. Is there reasonable foreseeability & is there a sufficiently close relationship between the parties? Is there any reason why not - are there policy considerations which out to negate or limit?
Some refinement of this did take place in the case of Hill v. Hamilton Wentworth, at para 31, is there anything in the relationship between the plaintiff and defendant to negative the duty of care?
Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41

Issue: do the police have a duty of care to the suspects who they are investigating? The Supreme Court decision was split 6 to 3. The majority (McLachlin C.J.) said, yes there is a duty of care, but on the standard of care, the majority says it was not breached. The minority (Bastarache, Charron and Rothstein JJ.) says, there is no duty of care. The outcome in both cases for the plaintiff is the same, he loses. In a way, therefore, the dissenting judgment is not so much different.
There is a sufficiently close relationship between police and suspects. And that imposing a duty of care will not stop police from doing their jobs. But they go on to make more points along these lines: not only will imposing a duty of care on police not prove negative, but it may have positive police considerations by reducing the risk of wrongful convictions. Procedural History: This tort of negligent investigation was brought to the Ontario Superior Court of Justice and the trial judge held that the police were not liable in negligence. The Ontario Court of Appeal unanimously recognized the tort of negligent investigation, however a majority of the court held that the police were not negligent in their investigation. Appellant appealed from the finding that the police were not negligent before the Supreme Court of Canada. The respondents cross appealed from the finding that there is a tort of negligent investigation. Held (dissenting on the cross appeal: The dissent rejects a duty of care owed by police to suspects due to POLICY CONSIDERATIONS). The appeal and the cross appeal should be dismissed. Facts: Hill was investigated on suspicion of a crime (robbery), arrested and imprisoned for 20 months and later acquitted. Hill alleges negligence in the course of a police investigation. The evidence against Hill included a tip, a police officers photo identification of Hill, eyewitness identifications, a potential sighting of H near the site of one of the robberies, and witness statements that the robber was aboriginal. During their investigation, the police released Hs photo to the media. They also asked witnesses to identify the robber from a photo lineup consisting of Hill, who is an aboriginal person, and 11 similar looking Caucasian foils. The police, however, also had information that two Hispanic men, one of whom looks like Hill, were the robbers. Two similar robberies occurred while Hill was in custody. Hill was charged with 10 counts of robbery but 9 charges were withdrawn before trial. Trial proceeded on the remaining charge because two eyewitnesses remained steadfast in their identifications of Hill. Hill was found guilty of robbery. He appealed and a new trial was ordered. Hill was acquitted at the second trial and brought a civil action that included a claim in negligence against the police based on the conduct of their investigation.
Anns Test Analysis:

1. Is there a duty of care owed by police to a specific suspect? Do police owe a private law duty of care to suspects? There is no question that the police owe a duty to the public to investigate crime. Determining whether this translates into a private duty owed to suspects under investigation requires examining reasonable foreseeability and proximity. Prof: obviously reasonably foreseeable. The real question comes in two filters: 1 is there proximity and 2. policy considerations. 2. Is the relationship of sufficient proximity to establish that duty of care? Is the relationship between police officer and suspect marked by sufficient proximity to make the imposition of legal liability for negligence appropriate? The reasonable foreseeability requirement poses no barrier to finding a duty of care. A police investigator can readily foresee that a targeted suspect could be harmed as a result of the negligent conduct of an investigation. o The relationship between the police and a suspect identified for investigation is personal, and is close and direct. We are not concerned with the universe of all potential suspects. The police had identified Hill as a particularized suspect at the relevant time and begun to investigate him. This created a close and direct relationship between the police and Hill. He was no longer merely one person in a pool of potential suspects para 33. Similar point to the point made in DOE: not just a similar threat to everyone in the universe, but a specific threat, to a specific group of people o the targeted suspect has a critical personal interest in the conduct of the investigation. At stake are his freedom, his reputation and how he may spend a good portion of his life. These high interests support a finding of a proximate relationship giving rise to a duty of care. Para 34. 3. Are there any residual policy reasons to negate a duty of care? Various Policy Reasons set forth in stage two which were denied including chilling effect and floodgates (indeterminate liability) 4. What is the standard of care that must be attained (and was it breached)? The court found that they do not hold the standard of care to that of perfection but of the reasonable police officer in those same situations (including based on the policies which were in place at the material time). 5. And dont forget: has the plaintiff shown that there are compensable damages? And has the defendant provided a defence that will show that there was in fact no negligence?
Decision: Majority, McLachlin C.J , (Binnie, LeBel, Deschamps, Fish and Abella JJ. concurring) found Police officers do owe duty of care to suspects but that this standard had not been breached. Minority, Charron J., (Bastarache and Rothstein JJ. concurring) found that there was no standard of care owed to suspects.
Childs v. Desormeaux 2006 SCC 18

Duty Of Care/Positive Duty Of Care -third-party liability - neither the trial court or the court of appeal found a reason to grant a duty; at trial, found a prima
facie duty of care, but it is negatived by social policy; while the appeal court did not find there was sufficient proximity at the 1st stage of the Anns test to even establish a prima facie duty of care. Facts: Desormeux was at a BYOB house party. He drove home drunk and was involved in a car accident wherein one person died and three were seriously injured. The plaintiffs sue Desormeux, as well as the people who held the party, Zimmerman and Courrier, for damages. Issues: whether social hosts who invite guests to an event where alcohol is served owe a legal duty of care to third parties who may be injured by intoxicated guests. para 8. The court was faced with the question of whether or not there was an established duty of care.
Ratio: No duty of care exists between a social host and its guests. A social host at a party where alcohol is served is
not under a duty of care to members of the public who may be injured by a guests actions, unless the hosts conduct implicates him or her in the creation or exacerbation of the risk. Para 47 [The] necessary proximity has not been established and, consequently, that social hosts of parties where alcohol is served do not owe a duty of care to public users of highways. First, the injury to Ms. Childs was not reasonably foreseeable on the facts found by the trial judge. Second, even if foreseeability were established, no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act. Para 26 Reasons: Based on the Anns Test as developed, it did not give rise to a duty of care on social hosts of parties where alcohol is served, to members of the public who may be injured by an intoxicated guests conduct. Para 14
ANNS TEST was established as a broad test for determining the existence of a duty of care in the tort of Negligence:
1. 2. Reasonable Foreseeability and (1/2) proximity (i.e. personal, and is close and direct) Policy considerations
Anns Test required to establish duty of care (Cooper v. Hobart may have done away with this need if there was a categorical relationship but, closest thing was commercial hosts, which is considered distinct). Why is a commercial host different than a social host? This is a case of Conduct v. Omission there is no duty of care where the private party host has simply omitted take action to stop someone from driving; if however, the social host exacerbates the risk, then by engaging in that CONDUCT, then the private party cost does bring himself under a duty.
The First Element of Negligence Duty of Care

-Court found that the plaintiff has a legal burden of establishing a valid cause of action and a duty of care - however, once the plaintiff establishes a prima facie duty of care, the evidentiary burden of showing countervailing policy considerations shifts to the defendant. Commercial host liability has already been established - so the plaintiffs felt they could reasonably draw that analogy. But the Court did not buy that argument - significant differences between the two: 1. different kind of relationship 2. the ability to monitor and the responsibility to monitor 3. expectations that are generated by the relationship; raises spectre of reliance 4. special knowledge and training to recognize signs of intoxication
**important to note that this was a BYOB party; could significantly change the fact pattern and give a greater degree of control ... and thus there may be a different outcome if the hosts were serving alcohol..** -trial judge said it was enough that the hosts knew that he had driven drunk before was enough to establish that the hosts should have known he was drunk that night ... However, the SCC said drunk driving in the past, doesnt mean drunk driving in the future or in the present -even if the host knew or should have known that Desormeaux was drunk ... the court says it doesnt matter because at best, this is simply an omission. -once they move over to omissions; typically, the reason that there should be no duty in cases of omission is because of residual policy considerations about autonomy. No duty in case of omission ... except when there is a special relationship; Court notes three different relationships we raised seven, court raised three ... not an exhaustive list 1. Defendant intentionally invites participants to partake of an event that is inherently dangerous; also invitor and invitee relationship 2. Paternalistic relationships 3. Defendants who either exercise a public function or engage in a commercial enterprise that includes implied responsibilities to the public at large. Court decides that none of these apply; -no proximity because the events are not reasonably foreseeable -its an omission, and no impetus to compel a positive duty to act.
Recap: Anns Test

Stage 1 - foreseeability Proximity of relationship Policy concerns related to relationship Stage 2 - residual policy concerns Plaintiff has to establish all the elements of stage 1, thus stage 2, its for the defendant to prove there are residual policy concerns that would negative duty. Still do have residual policy concerns in Stage 2 - that where you consider government liability; new confusion - where do you deal with omissions; used to be Stage 2 - but in this case, deals with omissions in Stage 1. Omissions can be considered under Stage 1.
The Second Element of Negligence - Breach of Duty

There are three phases to the analysis when you are trying to determine if there is a duty of care; and then its the plaintiffs burden to show if that duty has been breached.
Analysis for Determining Breach in Negligence

Three Steps: 1. First - who is the reasonable person in establishing a standard of care? 2. Second - what is the impugned conduct - just pinpointing in the facts - what is the precise conduct that the plaintiff is focusing on, in making that claim of negligence? 3. Third - balancing formula - whether has taken an unreasonable risk in doing what they did. Remember the unreasonable risk formula - what is the foreseeability of harm and the degree of harm; and what is the burden of precautions that would have prevented the harm - must know, in order to answer those questions, what the impugned conduct is.
Reasonable Person Standard The crucial thing we need to know when using this standard - it is conceived of as being an objective standard -supposed to be free of variable idiosyncracies - set so that everybody in our society is expected to meet a minimum standard - this standard sets the bar at the minimum. The reasonable person is not perfect, reasonable people make errors in judgment, but they dont take unreasonable risks. The reasonable person is a fictitious being.
Syl Apps Secure Treatment Centre v. Douglas Baptiste

In this case, Defendant is appealing, therefore defendant goes first. The judgment was, even if the facts are true, you lose because there is no cause of action. On appeal, they argued, if the facts were true, there was a cause of action. Supreme Court agreed with trial judge, saying, actually, there is no duty of care here. Would these facts be found to be true just by a duty of care. Supreme Court says no they wouldnt. In Syl Apps, it is reasonably foreseeable, yet there is no proximity established. In this statute we see that the duty is to this girl and not to anyone else. Whereas in Hill it is to suspects. Why? This is a different type of activity. This is medical treatment, not investigation of a suspect. Implications in this case family members cannot sue for negligence (the patient themselves can).
Holland v. Saskatchewan
(See attached) Appeal on pure question of law: How does this work in the law of negligence? You must satisfy the requirements of the law of negligence. Just because there are damages, it is not enough. You can only get damages if you come within the requirements of the tort. Mr. Holland starts class action suit. He has to come within the requirements of the tort of negligence. The court holds that if the facts are true, there is one way in which he has a case. He put forward two possible ways in which the government could be liable. The court held against him on one, but for him on the other. The Appeal was allowed in part with costs in the cause. What is the first thing he lost on: government failed to act (see paras 7-9) Court will not recognize liability between Class and government for policy reason: chilling effect and indeterminate liability (para 10)
The court decided due to policy considerations there was no duty of care. He fails on point one: declaration of invalidity made; see para 8-11 app. Holland consists of a class of 200 people. Therefore indeterminate liability is gone. Para 60 from Hill v. Hamilton Police: Recognizing sufficient proximity in the relationship between police and suspect to ground a duty of care does not open the door to indeterminate liability. Particularized suspects represent a limited category of potential claimants. Second we have a policy reason for recognizing the validity of the claim. In the first duty of care situation in Holland there are in indeterminate number of potential claimants. In the second, there are a numbered amount (200) of claimants. Rule of law is not the same as duty of care in negligence. In considering if we should recognize duty of care, we can consider policy. One of those policy considerations is the need to uphold the rule of law.
Bottom line: There is no duty of care in government just not to break the law, but there is a duty of care to implement a judicial decree. This provides an incentive for the government to implement judicial decrees.
Jane Doe v. Board of Police Commissioners for the Municipality of Metropolitan Toronto 508
Jane Doe raped at knifepoint in Church/Wellesley area. The police knew about the perpetrator but failed to advise the public because they didnt want the rapist to flee. The case depends on their being a specific threat to a specific group of people. The police therefore owed a duty of care, largely because the group in danger was limited. The smaller the class the easier to see that a duty of care is in place. Threat has to be sufficiently specific (what that is we are not certain).
Torts Taylor
Fall 2008
Monick Grenier
CHAPTER 5: STANDARD OF CARE A. UNREASONABLE RISK

Bolton v. Stone 167
Cricket ball accident was such a small risk, therefore standard not breached.
What would the reasonable person have done about the extremely small risk (which did materialize). The court decided nothing ought to have been done because the risk was so small. Held: while they had a duty of care, they did not have a standard of care. The risk was too small to be considered. We cannot spend all of our time worrying about unlikely risks. At page 169, Lord Reid gives his opinion. Read it. In considering risks, you consider just how serious the risk is and how remote. Lord Reid says, I do not think it would be right to take into account the difficulty of remedial measures. Prof says this is wrong, and apparently Lord Reid also took it back later. Wagon Mound No 2 at p. 361, is where Reid changes his tune.
Four considerations in Negligence (size/outcome/cost/social utility)

1. Size or degree of risk (how likely) 2. Consequences if it does happen 3. Difficulty or expense of getting rid of the risk 4. What is the social utility of the activity (NEW as per Wagon Mound 2) If we can get rid of the risk at no or minimal inconvenience then obviously we should do so. Exercise is of social utility and therefore we will tolerate the small risk involved. Take the flow of traffic on the roads. This is a social utility. In relation to that activity we tolerate a risk of death and injury due to car accidents. Another example, gang disputes. It has no social utility. Therefore we do not tolerate it. What would a reasonable persons response to a risk be? The four considerations above would be taken in account by the reasonable person. There may be other considerations as well: i.e. what were the professional standards at the time? The Agony of the Moment somebody is suddenly faced with a colossal risk. Decision must be made in short order re response. In an agony of the moment we will demand less of the reasonable person than we might demand if the reasonable person had a significant time to respond. The court understands that under some circumstances one may not have time to take into account all those things that a reasonable person given the time would. In addition to the four considerations, it is also necessary to consider any other considerations. I.e. the four considerations are not a reason to shut off your brain.
CHAPTER 5: STANDARD OF CARE B. THE REASONABLE PERSON

Vaughan v. Menlove 175
Hayrick catches fire despite warnings of the danger. Held (Paterson): to be held to have acted to the best of his judgment (he wasnt possessing the highest order of intelligence). Tindal: reasonable person more definite and should be maintained.
Blyth v. Birmingham Waterworks (1856)177: The fireplug was installed in 1855; after a severe frost flooding
resulted. Court ruled that did all that a reasonable man would have and therefore could not be held liable. The unusual frost was a contingency against which no reasonable man can provide. This is a case of a standard of care within a tort of Negligence.
CHAPTER 5: STANDARD OF CARE C. CUSTOM

Waldick v. Malcolm 183 Mr. Waldick slipped and fell on an icy area in a town where the custom was to not salt and
sand. s claimed that they could not be held liable because they acted according to the town custom. Claimed the duty of care did not include salting or sanding the ice because that was not a custom in the area, therefore by omitting that, they had not breached their standard of care. The court disagreed, stating that this custom was not one that could be taken account in working out whether the standard of care had been complied with. This does not mean that custom is never relevant, but that a custom can still be negligent.
Custom is not a defence to negligence if the custom itself is negligent.
CHAPTER 5: STANDARD OF CARE: D. STATUTORY STANDARDS

Canada v. Saskatchewan Wheat Pool (1983)186
The Wheat Pool supplied wheat to the Board. The wheat was infested with rusty grain beetle larvae. Relevance of this case is that it is brought as a breach of the Canada Grain Act. The plaintiff did not plead negligence. Does breach of the statute alone create a tort? The court, said no. This is something the English did, but Canada decided not to. Partly because there are so many statutes that if we did that we would be creating absolute liability for so much that it would be unmanageable. And, because that is not what the legislature had in mind when creating the statute. Simply because something is against a statute does not make it a tort. But it can be proof of negligence . Effect of this in the law of negligence. P. 190. They had a duty of care, but discharged their duty of care, by taking various measures (they came up to the standard of care), and therefore were not negligent. Essentially the board was trying to make the pool the insurer and it is not.
CHAPTER 5: STANDARD OF CARE: D. STATUTORY STANDARDS 1. LIMITATIONS

Gorris v. Scott 193 Sheep overboard. Shepherd sues for breach of statutory duty to keep sheep in pens; had
they been in pens they would not have gone overboard: but the purpose of the statute was to prevent disease; therefore damages cannot be claimed because purpose of the statute was not meant to keep sheep on ship (If the sheep had suffered disease due to the breach, action would have been maintainable). Sheep overboard: intent of the statute must speak to the damages incurred if an action is to be maintainable.
CHAPTER 5: STANDARD OF CARE: D. STATUTORY STANDARDS 2. COMPLIANCE

It is pretty clear that breach of a statute is not necessarily negligence. The converse is also the case: that compliance with a statute does not necessarily make you non-negligent. Ie. if the speed limit is 50, you are not breaking the law, but if the road conditions are such that 50 is too fast, you can still be negligent even though you have complied with the statute.
Ryan v. Victoria 197 Motor bike wheel was caught in a railway track, and the biker sued the City and the railway
company. Rail company claimed it was not negligent as it had complied with all statutes. The court disagreed.
compliance with a statute does not necessarily make you non-negligent
CHAPTER 5: STANDARD OF CARE: E: LIABILITY AND THE YOUNG

Heisler v. Moke201 [1972] was a young person of 9 years old and the question was, does the age of the child require
that we take into account what the reasonable person would have done? Yes, we are allowed to take the age of the into account in establishing what a reasonable person would have done (except when we cant).
The reasonable person for a youth is based on a reasonable person of that age, intelligence, alertness, etc. Exception: adult activity doctrine Page 205 => adolescence in cars. You dont want a 14 year old to get away
with dangerous driving just because they are 14; or, more precisely, you do not want to deprive the person involved in an accident with a driver of 14 years old, of access to the insurance fund. When children engage in adult activities they are subject to the adult standard of care. This is the adult activity doctrine. Unless engaging in adult activities, older children are held to a standard of a reasonable cnild of the same age, intelligence and experience: McEllistrum v. Etches.
CHAPTER 5: STANDARD OF CARE: F: MENTAL AND PHYSICAL DISABILITY

Fiala v. Cechmanek207 (2001). MacDonald was bipolar, thought he was God and had a plan to save the world.
He approached the car driven by and began to choke her. To escape, she drove away, hitting Fiala. The action proceeded in negligence (as opposed to battery). Question: What allowance do we make for the fact that MacDonald was ill? Held: that we would take into account the fact that Mr. MacDonald was subjected to a mental illness at this time, in working out what his standard of care was. So, we would not bring in the reasonable person, but instead would ask, what can we expect from someone with this mental illness. In order to be relieved of tort liability; MacDonald must show on a balance
of probabilities that (1) as a result of illness, he had no capacity to understand his duty of care; or (2) as a result of illness; he was unable to discharge his duty of care as he had no meaningful control over his actions. MacDonald showed both. Identical result in TTC v. Smith211. In Wenden211, however, they did not.
CHAPTER 5: STANDARD OF CARE G: PROFESSIONAL NEGLIGENCE: DOCTORS

The standard of care required of doctors if the same both in contract and in tort. When a doctor undertakes to treat you, the doctor has a duty of care towards you in the law of negligence. Most of the law is not about duty of care, therefore, but standard of care, that the medical profession is required to display. What standard of care is required?
Challand v. Bell215 (1959) => is great to review as it includes a good summary.

Test for Standard of care for doctors. See p. 217, the test laid down by the Supreme Court
Surgeon should be of average skill, knowledge and judgement Average is specific to the speciality of the doctor, and including whether they are rural or urban based (which arguably is no longer valid). 3. If the decision was the result of exercising that average standard, there is no liability for an error in judgment. If the standard were higher, we would lose doctors. We do not impose liability for not being cured of an illness. There is another rule as well: Where the experts disagree but some of them support the treatment given, then surely the treatment given by the general practitioner should not be criticized, and one must always keep in mind the importance of viewing one treatment and seeing matters through the eyes of the attending physician. P. 217 Bolam test re popular treatments, If there is a respectable body of medical opinion on the treatment, then it is not negligent. Say there are three treatments: A, B and C. A is used by 60% of the doctors, B is used by 38% of the doctors, and C is used by 2% and is pretty much discredited. If a doctor uses treatment A or B, they will not be held liable. As for treatment C however, the doctor could possibly be held liable, depending on the specifics on a case by case basis. Provision of Information Up until now we have been talking about the actual treatment. Before the treatment however, the patient requires informed consent of the treatment. Bolam privilege does not apply here, only in selecting the treatment. 1. 2.
Reibl v. Hughes222 (SCC 1980)

Consent to surgery
Mr. Reibl had to undergo a treatment, a risk of which was stroke. He was also almost up to ten years service for his company, at which case he would have been eligible for his pension. He did have a stroke and could no longer work and could not therefore work until ten years and get his pension. He sued the doctor, claiming that had he known of the risks, he would have waited until his pension had vested. Plaintiff lost on battery but won on negligence and so he won overall. Does the doctor have to disclose every risk? No. At page 229, note 4, you will see an attempt to analyze this. = > only a material and unusual or special risk. They have to disclose risks that are significant (which is dependent upon the severity of the result of likelihood of the risk). Recall that to be liable in negligence you need to satisfy all three: 1. Duty of care 2. Standard of care 3. Damages a. Causation b. Remoteness We know between doctors and patients there is a duty of care. The question we need to deal with in these cases is standard of care. You only have to do what is reasonable to prevent risk. There is no such thing as a risk free life.
CHAPTER 5: STANDARD OF CARE G: PROFESSIONAL NEGLIGENCE: LAWYERS

Brenner v. Gregory237 (Ontario 1973).
something that was requested of them.
A real estate translation.
Lawyers are held to the standard of care of a reasonable lawyer and not above that unless specifically failed to do
CHAPTER 11: TORT LIABILITY OF PUBLIC AUTHORITIES

See p. 491 At common law the Crown (the government), was immune to tort actions. The King can do no wrong. In modern times, suits would be brought not against the government per se, but against the civil servant would was involved and the Crown stood behind its servant and paid damages. Then in the 19th C came the movement to make the Crown liable in tort directly. Current statute in Ontario is set out on page 491 Proceedings against the Crown Act. This looks as if the Crown has been place in the same position as a person of full age and capacity.
Just v. Queen in the Right of British Columbia493
(SCC 1989)
You cannot sue under policy; you can under operational procedures. If the policy says, we wont pay for this
form of inspection, too bad for you. Just v. BC involved a road to Whistler, which was not properly inspected. A huge bolder fell off the cliff, killing someone. Issue: was this act a result of policy or operation on the part of the government? Held: it was a question of operation because the government had decided the policy was to inspect the road, and in inspection the road (operation) they made a mistake. p. 494 A policy decision must be bone fide (in good faith). Provided that there is a bone fide policy decision made, then the government cannot be sued for doing so. Secondly, the court also says, that they cannot inspect at all and get away with it (if it is a bone fide policy decision); but they cannot inspect badly if they are going to inspect. In this case, the government had decided to inspect the road, and because of that, it had to be determined if the road had been inspected properly. Holding Order a new trial. In determining liability of government agencies in tort actions, we need to first distinguish between a government policy decision and its operational implementation. True policy decisions should be exempt from tortuous claims so that government are not restricted in making decisions based on social, political or economic factors. However the implementation of these decisions may well be subject to claims in tort. Ratio In cases involving allegations of negligence against a government agency, it is appropriate for courts to Majority consider and apply the test laid down in Anns. In this case, a duty of care was owed by the province to those that use its highways. The roads are an open and welcoming invitation by the province to use the facilities that the road leads to. With duty of care established, it is necessary to explore two aspects in order to determine whether liability may be imposed upon the province: 1. The applicable legislation must be reviewed to see if it imposes any obligations upon the province to maintain its highways or alternatively if I provides an exemption from liability for failure to so maintain them. 2. It must be determined whether the province is exempted from liability on the grounds that the system of inspections, including their quality and quantity, constituted a policy decision of a government agency and was thus exempt from liability. A review of the applicable legislation shows that the statutory provisions do not appear to absolve the respondent from its duty of care to maintain the highways reasonably. Rather by inference, they appear to place an obligation on the province to maintain its highways at least to the same extent that a municipality is obliged to repair its roads. There is a need to distinguish between a government policy decision and its operational implementation. True policy decisions should be exempt from tortuous claims so that government are not restricted in making decisions based on social, political or economic factors. However the implementation of these decisions may well be subject to claims in tort. Court holds: the inspection procedures were manifestations of the implementation of the policy decision to inspect and were operational in nature. Order a new trial to determine whether the standard of care was met. Ratio The reasons of the majority expand the liability for negligence of public authorities by subjecting to judicial Dissent review their policy decisions which were hitherto not reviewable. In this case, as policy decision was made that inspections would be carried out by a crew of men. Factors to determine policy v. operational decisions: See p. 499. The more complicated a matter is, the more likely it is a policy decision. A high level of generality points to policy decision. This operational policy thing is an add on to the law of negligence (as Holland and Sask illustrates), you have to satisfy the ordinary requirements for a duty of care. In Summary to be liable, need to show all the normal (negligence) conditions + it has to be operational. It is not saying Crown is liable whenever it takes an operational decision; there are still the normal conditions which must be
fulfilled (reasonable foreseeability, proximity, and policy considerations + it must be operational (and not policy). If it is operational but not all normal conditions are satisfied it is not liable. We are not freed from having to go through all the normal stuff.
CHAPTER 9: DEFENCES TO NEGLIGENCE

1. 2. 3. Duty of care Standard of care Damages a. Causation b. Remoteness No defences => (1) contributory negligence (2) Volenti (3) Illegality (maybe others)
4.
CHAPTER 9: DEFENCES TO NEGLIGENCE :A. CONTRIBUTORY NEGLIGENCE

Butterfield v Forrester 409 (KB 1809)
Plaintiff cannot collect damages for Defendants fault, if Plaintiff was not using ordinary care If by ordinary care might have avoided the damages, he is the author of his own wrong. In the good all days contributory negligence was a complete defence as here. In common law contributory negligence completely defeated what we now call an action in negligence. This means if the plaintiff was 5% negligent and the defendant 95%, the plaintiff lost. This rule had the expected consequence. No contributory negligence may be found by the jury, or the plaintiff would lose. Because of the rules juries would find thus so as not to defeat an otherwise worthy claim.
Davies v. Mann 410(1842) Donkey collision. Plaintiff (donkey owner), who left his donkey on the highway,
sued who struck and killed donkey. Although wrong for to leave donkey on the highway, was driving too fast & still liable for his actions.
Negligence Act412 Apportion legislation. Chief section is s. 3.. read in any action for damages that is
founded upon the fault of negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree or fault or negligence found against the parties respectively. Parties can apportion blame. This means if the defendant is found 70% at fault, and the Plaintiff 30%, the plaintiff may receive 70% of the damages. In working out if there is contributory negligence on the s part, it is necessary to decide if did not come up to a standard of care. Did the come up to a reasonable standard of care for himself? See p. 413, note 3. They must exercise as much care for their own safety as a reasonable person in similar circumstances? Were they acting in the heat of the moment (so that we couldnt expect them to act any better than they did?). When we are looking at this, we are actually allocating blame. Not that the contributed to the claim in a merely causal way. If the is merely crossing the road, they are not contributorally negligent. No, did the act in a blameworthy way, in a way which does not exercise reasonable care for their own safety. If is crossing the road in a safe manner, and is hit by a car, there is no contributory negligence, even though the could have stayed home. That is blame. There is a difference between blame and causal responsibility. s. 1 of the Negligence Act: jointly and severally (separately) liable. This means if there is contributory negligence, a passenger can sue its driver for the full amount. If there is a jury, the jury will be asked to decide on the apportionment.
CHAPTER 9: DEFENCES TO NEGLIGENCE: B. THE SEATBELT DEFENCE

Galaske v. ODonnell421
Facts: is truck owner, giving a ride to , aged 8, and his father. did not ensure that the child was wearing a seat belt because he figured that it was the responsibility of father. Accident and the child injured. ( was not responsible for the accident). Only thing that the is being blamed for is failing to take steps to ensure that seatbelt was worn. We are looking at this under contributory negligence because the SCC talks about this before getting to the real issue of this case. SCC takes from DENNING ruling in saying that there is a duty for everyone to wear a seat belt, all the time. It is not acceptable for people to fear wearing seatbelts (being trapped in the car, etc) and thus not wear them => not something that a reasonable person would do. The courts in CAN consistently deduct 5-25% from claims for damages on the grounds that the victims were contributorally negligent for not wearing seat-belts when it can be shown that the injuries would have been reduced if the belts had been worn. Case is really about the duty that an adult driver owes to a child passenger to ensure that they are wearing their seatbelt. The court states that there is this duty. The driver has care over the vehicle; we see that this is like supervision and control. You have a particular responsibility for child passengers, who are not capable of looking out for their own safety. Court states that there is a duty owed by a driver to ensure that passengers under 16 wear seat belts. Regardless of WHO else is in the car, the driver is always one person who will assume this responsibility. This is because they are the one ultimately in control of the car. Also, this is supported by the Motor Vehicle Act which states that no person shall drive with a child between the age of 6 - 16 who is in a seat without them having their seatbelt fastened. According to SK Wheat Pool, this is evidence of negligence. The drivers duty of care is NOT negated by the presence of a parent (Arnold v. Teno). We see that it will fluctuate (e.g. 17 year old driver with old dad and his kid will have lower duty). This will all be determined by the reasonable person in the circumstances. This is all because of policy: - Economic: people may complain that this will increase insurance. However at the same time this will reduce the cost of healthcare too. - Morality: Importantly we are fostering the safety of children. Held: There is contributory negligence on part of , a new trial is needed to determine the amounts.
CHAPTER 9: DEFENCES TO NEGLIGENCE: C. VOLENTI NON FIT INJURIA

Voluntary Assumption of Risk
This is the official name of this defence. Volenti, a rarely established defence. Used in relation to hang gliding, bungee jumping as well. Generally fails, but is brought at times by insurance companies. Where a defendant driver may want its passenger to receive judgment, the insurance company are in control and may plead volenti because if successful, no judgment can be given and the plaintiffs claim (the passenger) will fail. Volenti is a complete defence; whereas contributory negligence allows for apportionment.
Hambley v. Shepley431, 1967, ON CA

Law today: must have consented to risk AND to the lack of reasonable care which may produce risk. Facts: policeman is P, looking to recover damages. He was told by radio instructions to block a road with his cruiser: before the policeman can get out of the car, however, he is hit by . Issue: is this a voluntary assumption of risk? Held: for . No volenti. Reason: Trial Judge stated that the police officer is barred from recovering because of volenti. CA held that modern construal of volenti doctrine requires evidence of actual consent, and it does not exclude employers from actions brought by employees for harm from known. Thus, the court rules that TJ is wrong, and that the principle does apply so far as to bar individuals who are discharging a public duty (police) from recovering from the negligent actions of others. The courts state that although there is assumption of risk in the employment context as a police officer, this does not waive all his rights. What he is doing is not necessarily voluntary because he is doing as told in the course of his job. Ratio: FLEMMING quote: The defence of volenti cannot succeed unless the evidence permits a genuine
inference that the consented not merely to the risk of injury, but to the lack of reasonable care which may produce the risk.
CHAPTER 9: DEFENCES TO NEGLIGENCE: D. ILLEGALITY

Hall v. Hebert 435 2 SCR 159
Bars from compensation where s conduct was illegal or immoral.
=> allows court to preserve integrity of legal system and is exercised only where this concern is an issue. Do not want criminals to profit from their crimes. Facts: owned car and permitted to drive it after it had broken down. It was claimed that was negligent because had been drinking and was not in a fit state to drive and knew had no experience driving his souped up car. Illegality was that they were drinking and driving. This is an important point you must be able to point to something illegal that the P has done (do not necessarily need a criminal conviction). The court found the defence of illegality was not applicable here because it will only succeed where it is necessary for the courts to preserve the integrity of the legal system. Not so here: therefore can claim. Held: for the Plaintiff. Reason: McLachlan J states traditional public policy reason for denying recovery is based on the notion that a damage award should not allow a person to profit from illegal or immoral conduct, or permit an evasion or rebate of a penalty prescribed by criminal law thus introducing an inconsistency in the law. McLachlan J reasons that one should not be allowed to profit, e.g. when there is a tort against another for financial loss arising from a joint illegal venture (Canada Cement LaFarge). However, it is reasoned that is different from compensation for personal injury. Such damages accomplish nothing more than to put the P in the position he or she would have been in had the tort not occurred. No part of the award can be said to be the profit of, or the windfall from an illegal act. This is a defence, for which the onus rests of the defendant. The P should not be required to disprove the existence and relevance of his/her illegal or immoral conduct. Rather it should be for the defendant to establish it. This is an complete defence. Notes: in this case the P is found CN due to intoxication.
BC v. Zastowny 2004 SCC 4. Also for Illegality: aka Ex Turpi Causa Non Oritur Actio Doctrine
Facts: Zastowny was sexually abused while incarcerated, allegedly leading to a downward spiral of crime. Zastowny sues, among other things (accepted at trial) for loss of income that he would have made had he not been in jail. The sole issue on the appeal is whether Zastowny is entitled to compensation for wage loss while he was incarcerated. Para 8, psych. Dr. Robert Ley, an expert who said had this sexual offence not occurred, he would not have embarked on his life of crime and been sentenced to prison. Therefore Zastowny has turned around and sued BC for not adequately supervising the ward, who sexually abused him. The court here puts its foot down and says the defence of illegality is going to succeed here. Judge Rothsteins judgment . Why does Zastowny lose? Essentially because his wage loss while he was incarcerated was made up of illegal activities , para 22, highlight, Zastownys wages and giving to the other. Para 30: In asking for damages for wage loss for time spent in prison, Zastowny is asking to be indemnified for the consequences of the commission of illegal acts for which he was found criminally responsible. Zastowny was punished for his illegal acts on the basis that he possessed sufficient mens rea to be held criminally responsible for them. He is personally responsible for his criminal acts and the consequences that flow from them. He cannot attribute them to others and evade or seek rebate of those consequences.
CAUSATION, REMOTENESS AND NERVOUS SHOCK

Causation
Remoteness and Causation both come under damage. Why? Because the damage has to be caused by the breach. If you suffer damage but it is not caused by the breach, then you cannot recover. If you suffer damage that is caused by the breach but is too remote, i.e. Mustafa, then you also cannot recover.
But-For Test
The test for causation in Canada is the but for test (p 264), also known as causa sine qua non (a cause without which not). The but-for is over-inclusive and under-inclusive. The law of torts does not require us to provide one thing as the cause. All we have to do is determine that the negligence of the defendant was A cause of the injuries to the plaintiff.
Cabral v. Gupta 263

A situation in which there are multiple possible causes: But for the doctors negligence, there still would have been a 30% chance that the plaintiff would have suffered the medical set back that she suffered anyway. What does that mean in terms of causation? The plaintiffs loss was caused by the doctors negligence on the balance of probability. Recall that in civil law we do not require proof beyond a reasonable doubt, but only beyond the balance of probabilities. TJ reduced damages by 30%; CA said, no, 100%. The plaintiff does not get 70% of her damage, she gets 100% because the damage was caused. Mind you, if she had been 30% at fault she would then only get 70% damages as per contributory negligence. Causation is not like contributory negligence. It is no or off, there is either a cause or not a cause.
Cottrelle et al. v. Gerrard [2003] O.J. No. 4194 see the case for notes. This is an example of the but for
test being over-inclusive and overruled on appeal. Woman with infection ends up having to get leg amputated. Argues but for dr.s negligence, leg would have been saved. In an action for delayed medical diagnosis and treatment, a must prove on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. If, on a balance of probabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, then plaintiff's claim must fail. It is not sufficient to prove that adequate treatment would have afforded a chance of avoiding amputation unless that chance surpasses the threshold of "more likely than not". There was no evidence that, on a balance of probabilities, but for the defendant's negligence, would not have lost her leg. The evidence demonstrated that it was more likely than not that even if the defendant had lived up to the standard of care, the plaintiff would have lost her leg. The plaintiff established no more than the loss of a less than 50 per cent chance of salvaging her leg had the defendant not been negligent. Loss of a chance is non-compensable in medical malpractice cases. Now for an example where the but for test is under inclusive. Theres a hypothetical illustration. There is a victim out hunting and two hunters, H1 and H2 think hes a moose or something, and each hit him with a deadly shot. What is the causation here? But for the shot of H1 the victim would have been killed anyway by H2 therefore the cause of the death of the victim is not as a result of H1. But for the shot of H2 the victim would have been killed anyway by H1 therefore the cause of the death of the victim is not as a result of H2.
Cook v. Lewis265
In the case of this hypothetical did happen. Out grouse hunting, Cook and Akenhead, shot Lewis. SCC found that each shot was to be regarded as a cause. But-for test. Cartright J held that they must both be held liable. Rand J (concurring) gave some more elaborate reasoning. And dissenting judge, Locke J, not my problem if this guy cant recover, tough. He gives a solution which is attractive under the but-for test but has problems of its own. Here, but-for test does not work here so we will abandon the but-for test in this case.
Resurfice Corp. v. Hanke. [2007] 1 SCR 333

But For Test the standard => see attached
Plaintiff bears the burden of showing that but for the negligent act or omission of each defendant, the injury would not have occurred. Must be a substantial connection between the injury and the defendants conduct: Snell v. Farell (Sopinkas robust and pragmatic approach). Held: for defendant: But for test not workable and liability cannot be inferred due to lack of evidence.
CHAPTER 6: PROOF: E. INTERFERING CAUSATION

Snell v. Farrell258 [1990]
The robust and pragmatic approach (common sense) to causation became blind in one eye after cataract operation. Dr found negligent at trial because, although there were other possible causes, his continuing to operate after eye began to bleed was also a possible cause of the blindness. Conflicting evidence from expert witnesses. So, is not able to establish on BUT FOR test causation. court takes issue with this standard which denies the compensation b/c is not able to prove all the technical facts. Therefore court departed from but-for test (where must show on balance of probabilities that but for s actions, blindness would not have occurred), and applies McGee v. National Coal Board, that if showed s actions increased risk, it becomes the onus of to show proof of lack of causation. Issue: is there some less onerous standard that can be used? Reason: Sopinka states that there are a variety of times when we might want to deviate from but for test in the name of fairness. He starts by maintaining the onus is on to prove on a balance of probabilities. The onus only shifts for defences. But, even if you can adduce expert evidence, is still the only one that can really recount what happened. So, Sopinka decides to relax the onus instead of shift it. He says there are problems, but they lie in the fact that there is too rigid an application of the factual causation standard. He says that you do not need scientific precision. We get an alternative test in medical malpractice cases, it will take very little affirmative evidence to justify an inference of causation. Policy Argument for: Institutional Competence: Courts are the right place. Sopinka is convinced that in medical malpractice suits, s are going with other routes of compensation because factual causation is hard to do. Also: economic Argument the benefits outweigh the costs. Policy Argument against: (1) Judicial Administration: Floodgates - The liberalization of rules for recovery in malpractice suits is the cause of the medical malpractice crisis of the 1970s in the US. (2) Economic Argument: insurance premiums become exorbitant, and some insurers just w/drew all together. This will make it harder to get insurance. (3) Also, there would then be the practice of defensive medicine, and less innovation. (4) Also, there is the fear that there will be more doctors that will be held unjustly liable. Held: evidence supported drawing an inference of causation between appellants negligence and respondents injury and dismissed the appeal. Ratio: the legal or ultimate burden remains with the Plaintiff, but when the facts lie particularly in the knowledge of the defendant, in the absence of evidence to the contrary adduced by , an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. NOT JUST MEDICAL. This is NOT a shift in onus, either a legal or evidentiary burden. It is lower a tactical burden.
Walker Estate v. York Finch General Hospital 264

Applies the material contribution test instead of the but-for test. But for test not done because impossible to prove what a particular person in the causal chain would have done had the defendant not committed a negligent act or omission (not giving proper pamphlet). Facts: Tainted blood. Allegation of negligence against the hospital is that Robert should have been told that he should not give blood, even if he appeared to be in good health. We didnt know which of several donors infected the plaintiff, therefore could not say what would have happened had they been told not to give blood. Therefore we rely on the material contribution test. A contributing factor is material if it falls outside the de minimus range.
CHAPTER 6: PROOF: F. MULTIPLE CAUSES

Fairchild v. Glenhaven Funeral Services268

Asbestos by employer A or B or both? Where employers A and B both breached duty to employee, and no other cause could have caused damages, employee is entitled to recover against both A and B. Even though damages may have been caused by only A or only B, it is more unjust to leave without recovery, where both A and B did breach their duty. Plaintiff exposed to asbestos in two separate positions for two different employers. It may be that one of those exposures would have been sufficient to make him sick. Or that he needed exposure to both. Like HIV case.
CHAPTER 6: PROOF: G. MARKET SHARE LIABILITY

Sindell v. Abbott Laboratories274
Facts: P is suing via class action for injuries allegedly resulting from prenatal exposure to chemical DES manufactured by one of the Ds. DES was marketed as a safe drug to prevent miscarriage without adequate testing or warning. Found that less than 1% of DES daughters were susceptible to cancer; but proven the drug does cause this problem. Breach failure to do proper testing or warn once drug was on the market. But because it takes so long for the injuries to show themselves, it is difficult for the women to prove who took it and who manufactured it. A number of drug companies manufactured DES by the same formula. P asserts that Eli Lilly and 6 other companies produced 90% of DES. Traditional Rule: causation on B of P. There are 11 different companies. The P has been able to show through expert evidence that the problem was from the DES. But she has to establish on a BOP which company it was. But none of them had more than 50% of the market, so they could not say that on BOP it was them. 1) You could not use Snell b/c the companies would be in no better way to tell which co gave the pill to the mother. The part that the P cannot prove is which company made the pill that her mother took. 2) Cook there are more than two Ds, so you cannot lay the problems of proof at the feet of the companies. However, court decides that it can extend the rule in Summers v.Tice. When these facts are present 1. Must be shown that the product in question caused the Ps damage. 2. Must be shown the product has to be generic produced by all companies with the same formula. 3. Mfg that caused the damage can not be identified through no fault of the P (cannot be contributory negligence). 4. The P has to sue enough different Ds to add up to a substantial share of the market. (A substantial percentage, roughly 75-80%). this will be sufficient to show causation. Then, you get REVERSE ONUS. They each D will be liable according to their market share unless they can exculpate themselves (e.g. that they did not mfg until after time when mother was pregnant, or that they did not market in that region where mother was). McGee v. National Coal Board (page 258) got sick, perhaps from his work under one employer or from another source. House of Lords had to decide if employer could be said to have caused illness. They said that if the plaintiff could show that the defendant materially increased the risk of injury, then the onus reverses to the defendant to disprove. McGee is not Canadian law, we dont need McGee in Canada pretty much. So you can ignore that for the most part, but not totally I guess or he wouldnt have mentioned it. Canadian Law: Causation is a question of fact and need be proved only on a balance of probabilities.
Aristorenas v. Comcare Health Services et al. 83 O.R. (3d) 282

Application of Snell (Sopinkas robust and pragmatic approach).
This is the new mother who developed flesh eating disease. There must be some evidence that one thing lead to the other. Ie. That the doctors care (lack thereof) was the cause of the flesh eating disease. This case is an important one because it speaks to the very important issue of causation which must be raised in a case such as this. The trial judge applied material contribution test and took a robust and pragmatic approach (Snell) in concluding the doctor was negligent. CA Majority (ROULEAU J.A.) examined Sopinkas robust and pragmatic approach to inferring causation but found the present case does not support an inference of causation using the "robust and pragmatic" approach due to lack of support. Causation does not have to be proven absolutely, but there must be at least some evidence of it (Of course it is not enough to show that one event occurred before another). What we would have needed is an expert to say it is more likely than not that this delay caused to [flesh eating disease]. MacPherson J.A. (dissenting): felt that TJ did not err in applying robust and pragmatic approach and was negligent. Held: A causal link was not established and the plaintiff therefore lost her damages.
NERVOUS SHOCK
A note on Psychiatric Damage See page 310-11
Disability that can be caused by a negligent act. Its a broad term, but of course, the law is not psychiatry. Its an inexact phrase which does the trick. In order to prove that someone has suffered from nervous shock you need some medical expert to say that the person has suffered some diagnosis, i.e. depression, anxiety disorder, PTSD, etc. Many or most cases of nervous shock would occur due to sudden act/change. Not that nervous shock has to be caused by the negligent act. If you were already suffering from depression, you cannot say that the negligent act caused it. You also need a psychiatrist to say that on the balance of probabilities it was the defendants act that caused the nervous shock. Or you could say that the act exacerbated a pre-existing condition. Nervous shock is a bit of a problem because it is easy to fake. Nervous shock can also be widely distributed. Example of a trampling incident that was aired on live television. Do all the effected viewers hold a claim for nervous shock? No. In Canada, the principal has been adopted that you cannot recover for NS if the event would not have caused NS in somebody of reasonable remoteness and fortitude (Vanek). It is reasonably foreseeable of course that not everybody is going to have reasonable robustness and fortitude. In Canada, the case will be made based on the test of the reasonable person (of reasonable robustness and fortitude). Tame v. New South Wales. Bizarre case; plaintiff suffered nervous shock as a result of a police report. It failed and it would have failed here based on the fact that the reasonable person would not have suffered nervous shock from reviewing a police report. If you are a police officer or a paramedic, you are considered to be a person of more than reasonable fortitude and cannot claim for nervous shock stemming from an incident during the normal course of their employment.
Torts Taylor
Fall 2008
Monick Grenier
CHAPTER 8: REMOTENESS
The Wagon Mound (No. 1) v Morts Dock, 1961, Australia, PC, Viscount Simonds
Facts: Respondents owned a Wharf and there was a ship that was being worked on at the time. The Appellants were charterers of the Wagon Mound that was moored at a short distance away. Due to their carelessness, Wagon Mound was leaking furnace oil into the harbour. Morts Dock stopped welding when this was discovered. But after consulting with the manager of the oil company and it was decided that it was ok to continue working. They continued to work for an entire day until it caught fire, damage is done to Rs wharf and ship being worked on. It was not foreseeable that furnace oil spread on oil would ignite. Experts testified to this, and the P and Ds agreed on this fact. This is important for WM 2. Morts Dock did suffer damage apart from fire damage (from oil congealing around the slipways of the wharf) and this was foreseeable. Court followed Polemis: can be held liable for all consequences flowing from wrongful conduct regardless of foreseeability. Decision: appeal allowed for Wagon Mound. Reason: Courts in this case find that directness test in Polemis, is NO LONGER GOOD LAW. Ratio: an actor is considered to be responsible for the probable consequences of his act. Thus, the test of remoteness is to be judged by the standard of the reasonable man such that the negligent party is responsible only for those damages which were reasonably foreseeable. The court says that fire damage was NOT foreseeable, but the congealing damage WAS. THIN SKILL DOCTRINE: proposition that the defendant must take the plaintiff as he finds him => cannot say to because you had a pre-existing sensitivity to this type of injury, I cannot be held liable as it is too remote. Smith v. Leech Brain349 provides illustration in which a piece of molten metal struck the lip of the plaintiff who developed cancer of the lip of which he eventually died. Held: not too remote because some physical injury was reasonably foreseeable, the cannot say this type of physical injury is not reasonably foreseeable. Physical injury is a type of injury for the purposes of remoteness and once a little bit of it is foreseeable, all of it is foreseeable, if the only reason for occurring is the plaintiffs particularly vulnerability. That is, since they could foresee the burn, they are responsible for the result of the burn (cancer).
Mustapha v. Culligan
Mustapha found a fly in his water bottle and suffered a severe psychological injury. In Mustapha, the type of injury was not foreseeable at all. Recall Mustapha claimed that he had not suffered physical injury, but psychological injury. In Mustapha you cannot apply this one in all in approach. Court held: in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligans negligence, Mr. Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do. You can have an egg shell psyche. In order to get in the gate some psychological injury had to have been reasonably foreseeable. The defendant can only say no psychological injury was foreseeable at all and if true that is a defence. But if some type of psychological injury were reasonably foreseeable in a person of normal fortitude, then whatever type of psychological injury suffered by a thin skull person is compensable. But for Mustapha, he didnt make it: damages too remote. Aside: This brings to mind the tort of intentional infliction of mental suffering: Wilkinson v. Downton. Eggshell skulls amounts to an abandonment of remoteness once youve gotten through the gate of some type of injury being foreseeable, its as if there is no longer a rule of remoteness.
Malcolm v. Broadhurst page351, no 4

Mental suffering caused by physical injury is compensable under thin skull rule.
Athey v. Leonati352, note 8.

Crumbling Skull Principal: Plaintiff is liable for additional damage, but not pre-existing damage.
i.e. Negligent act is committed in 2008 causing the plaintiff to lose his eyesight. But the plaintiff would have lost his eyesight in 2012 anyway. We estimate that the plaintiff would have lived until 2020. Therefore he gets compensation for the loss of eyesight from 2008 to 2012 but not from 2012 to 2020. He has a crumbling skull. Page 735, number 29 => Jobling => some guy developed cervical myopathy which developed post accident. When a plaintiff is incapacitated see highlight. Re intervening things.
Hughes v. Lord Advocate354

Whether the type of damages suffered are too remote to be recoverable: NO. What types of damage are reasonable foreseeable from a manhole? The obvious types; tripping and falling, climbing down into the manhole. But what about climbing down and tripping over a lamp and causing an explosion. The court found that the type of damage caused is of the same type as would be reasonably foreseeable therefore is recoverable.
Doughty v. Turner Manufacturing Co. Ltd356

Whether the type of damages suffered are too remote to be recoverable: YES There was a bath of very hot solution in which someone dropped something, causing an explosion. At the time it was not known that this type of damage might result from dropping something such as was dropped, into it. Therefore it was not reasonably foreseeable because no one even thought it possible to occur, until this. could not recover damages. If we could have said, the type of injury that is reasonably foreseeable is one that is in the workplace, then we could have said that this type of injury was reasonably foreseeable. But this is too general. .
Wagon Mound #2359

Foreseeability rule is extended to include those acts which are possible: foreseeable but still highly unlikely This was the same incident as Wagon Mound #1 but different evidence was brought to trial former plaintiffs concerned about contributory negligence
PURE ECONOMIC LOSS: INTRODUCTION

This is loss that is not related or connected to physical damage to the plaintiffs own person or property. I.e. BDC and Hofstrand Farms where owned land and sued a courier company which failed to get some docs to Prince George. Only damage was to their financial interests: they lost a contract and the profit they would have got from that contract. So, its not related to physical damage to plaintiffs own personal property. See Cdn National Railway v. Norsk for example. Norsk drove into railway bridge which was owned by Public Works Canada. Obviously PWC can recover, but loss suffered by CN is purely economic loss. When purely economic loss there is another stage to determine if a duty of care existed. Recall: Duty of care => extra stage required in duty of care analysis Breach Standard of care Damages => indeterminate liability ; i.e. power goes off in TO and 4 million Torotonians are effected, TTC doesnt work, many many people effected. The class of plaintiffs in a case like this is enormous. Strictly speaking, physical damage to property or person is a primitive control mechanism in that it limits those who can claim damages. In purely economic loss, those effected may be much greater so it must be limited in some other way. Loss of money is not the greatest loss. Several good reasons why we treat economic loss differently than damage to person or property.
Torts Taylor
Fall 2008
Monick Grenier
Five categories of pure economic loss: page 439

1. 2. 3. 4. 5. Negligent misrepresentation Negligent performance of a service Defective products or structures Relational losses (losses arising from commercial relationships) Public authority liability (weve done this) => operational/policy decisions.
PURE ECONOMIC LOSS: NEGLIGENT PERFORMANCE OF A SERVICE

BDC Ltd. v. Hofstrand461
A crown grant is a crown grant of land when, in legal theory the crown owns all land (in countries where it rules). Crown grant of land was granted to Hofstrand (was plaintiff, now respondent), which had to be registered by 31 Dec 1976 or else fourth party contract can be treated by fourth party as over. Crown gives grant to courier company to be delivered by 31 December, but it fails. Law of contract is useless, because Hofstrand had no contract with courier co. Hofstrand lost contract and profit they would have got from that contract. So it is about land, but land has not been damaged, it is purely economic loss. Hofstrand won in court of Appeal for BC. But lost in SCC. Only four judges sat on this case which is interesting apparently. There were five, including Mr. Justice Richie actually but he did not render any judgment. Maybe he was related to the plaintiff or something but its very odd apparently. They lost because there was no actual or constructed knowledge of the courier461. This is indeterminate liability. Constructed knowledge is knowledge you should have had (and would be equivalent to imputed knowledge in Hadley v. Baxendale). So, the law construes the situation as if you had the knowledge. The courier did not know and had no reason to know that the rights of a third party could be in any way affected. The other category of cases is at p. 463: Whittingham v. Crease & Co. where law firm prepares a will with an error in it causing the heirs to lose out. Obviously heir has no contract with law firm. It has been held in these cases that beneficiaries can sue in negligence as they have missed out on a benefit which would otherwise come there way, so its purely economic loss. In drafting the will, the lawyer knows who the potential plaintiffs are under this heading, namely the beneficiaries. This opposite to the case above where the courier company has no idea who may be potential plaintiffs. In these cases (read p 463-464). The limited number of beneficiaries has been the saving factor in the case, i.e. no indeterminate.
PURE ECONOMIC LOSS: RELATIONAL ECONOMIC LOSS

Design Services of Canada.
Design Services involved a Public Private Partnership (PPP) => very common practice. In this PPP, they had decided to create a design-build tendering process, where private parties are responsible for designing and building a naval reserve building. As part of this procedure, the government had to decide who is going to do this, so it runs a tendering process under which various companies submit bids and the government decides who will get the job. This is structured under the common law in the following way: Contract A => with all the various tenderers and the government Contract B => between the winning tenderer and the government. This case involved the contract A stage. At this point the plaintiff, Design, is part of a team. The team is headed by Olympic, which has the contract with government. Design is a part of the team of Olympic.
The government did not consider the bid in a fair and just way. It awarded the tender to a non compliant bidder. The problem for the plaintiff is that it cannot sued the government in contract under the doctrine of privity of contract (it has no contract directly with the government). So, if you cant sue in contract, you sue in tort instead, and thats what they did. They sued in tort claiming the government had a duty of care to them to consider the bid in a fair and just way. This is clearly a case of pure economic loss. No property has been lost. No damages to the person (Design has no body). The court concluded that you cannot use the law of tort to get around the doctrine of privity. Otherwise, what is the point of the doctrine of privity. The court says at para 55 that the bidding documents 55 Importantly, the SOQ documents provided an opportunity for a general contractor and its subcontractors to submit their bid as a "joint venture proponent". Section 3(1) of the SOQ reads: While there is no requirement for firms to participate in this procurement in joint venture, firms may elect to do so if they see fit. Olympic and the appellants did not choose the joint venture option. Therefore, Olympic was the only one submitting the bid and thus the only one with which PW formed a "Contract A". 57 There are certainly factors that indicate a close relationship between PW and the appellants, such as the appellants' expectation that PW was choosing a design-build team at the SOQ stage and the reliance of the appellants on a fair selection methodology in the tendering process. Nonetheless, the appellants' ability to foresee and protect themselves from the economic loss in question is an overriding policy reason why tort liability should not be recognized in these circumstances. The appellants had the opportunity to arrange their affairs in such a way as to be in privity of contract with PW relative to "Contract A", but they chose not to do so and they are now trying to claim through tort law for lack of a contractual relationship with PW. Tort law should not be used as an after-the-fact insurer.
The appellants did not mitigate their losses even when the opportunity to clearly existed. PROF: to mitigate losses assumes they would be eligible for damages. Furthermore, although there are similar mechanisms in torts, mitigation of loss is a contracts consideration.
Is there anything the relationship such that we should not recognize a duty of care. Law of Economics School (Judge Richard Posner), says that the purpose of the law in relation to commercial law is that it should try to aim for the most economic allocation of risk. The point is partly that negligence is going to happen anyway. Given the fact that negligence happens, what is the law going to do about it? It should be trying to, not punish people for negligence, but to allocate the risks of negligence occurring in the most economical way, to the party that has the greatest ability to bear them. This sort of takes the teeth out of negligence. The Law of Economic School says, we cannot prevent a certain amount of negligence but to allocate the risk. In a commercial case like this the Law of Economics school would say, we are not concerned so much with preventing negligence but allocating the risk in the most efficient way; and the allocation may not fall to government in this case but to the private parties in that they entered into the arrangement that they did, and not a joint venture which would have made that party to contract A. They have chosen the most economically effective way of doing their business, and if as a consequence they are the victim of a sort of negligence, thats too bad for them. The problem with this in profs view is that it is fixed on the market. Anns Test
Design fails on relationship stage of Anns Test => they did not have a contractual relationship with the government (no proximity) Design also fails on final stage of Anns Test, namely that there could be an unlimited class of plaintiffs. Indeterminate liability. See para 63. 63 In the present situation, the subcontractors were identified and vetted by PW at the SOQ stage of the tendering process. The subcontractors could not be substituted without the consent of PW. On its face, this seems to indicate that the class of plaintiffs was determinate. However, one of the appellants, Canadian Process Services Inc., was not named as part of the design-build team at the SOQ stage. Only its parent company, G.J. Cahill Co., was named. This suggests that the class of plaintiffs was not as well defined as found by the trial judge since a subsidiary of one of the design-build team members also made a claim. In my view, since the class of plaintiffs seems to seep into the lower levels of the corporate structure of the design-build team members, this case has indications of indeterminate liability.
Canadian National Railway Co. v. Norsk Pacific Steamship Co.

This was a split case; minority of 3+1. Majority agree appeal should be dismissed: that CN should recover its damages. 3+1 judges agreed. But the reasoning was different. And there was a dissenting minority of 3. The court concluded CN should recover but by this strange 3+1 outvoting 3. P 484 => it was their property because they were in a joint venture p. 474 => was not a joint venture in this judges opinion. There was also a disagreement about how to deal with purely economic loss situations from a relational perspective aside from if there is a joint venture or not. Held: CNR was allowed recovery even though damage by Norsk was NOT to CNR's property. Majority thinks there is enough proximity there to justify recovery, b/c both the owner of bridge and CNR suffer loss from damage to bridge.
Bow Valley Husky v. St. John Shipbuilding485

sums this up: page 486. She suggests using Anns Test. Is this just a special case of Anns as per MacLauchlin, or is this a case where recovery is not allowed but for an exceptional situation. There is suggestion Anns Test is the route to go. Bow Valley appears to have endorsed the other approach. This was a case with fairly complicated facts: there was an oil rig which the two plaintiffs had to pay for whether it was in use or not and even though it was not their property. It was damaged by someone so they named as defendant. Question was: could they recover for that damage even though it was purely economic loss. The claims were dismissed because essentially they just entered into a bad contract, and wanted the law of torts to come to the rescue for entering a bad contract, which is not the function of the law of torts. The case is notable however, because the court appears to have endorsed La Forest J from the CN case. See page 488, highlighted. => you can only recover if you are under one of the three exceptions. See page 486 for exceptions. 1. joint venture; 2. general average cases and 3. If Plaintiff had proprietary interest The court then announced in Bow Valley that this approach was the one to be adopted (three exceptions). Since last year the case of Design Services v. Canada has been decided. Design Services seems to have taken back the exclusionary rule from Bow Valley, and replaced the Anns Test. Bow Valley has not even been mentioned in Design Services. In asking if a new DOC should be recognized, they refer to the Anns Test.
In applying Anns in purely economic loss case, we do not lose site of the fact that it is a purely economic loss case. The court makes a special mention of the fact that they had other opportunities to regulate this area. Para 57. Things we consider in purely economic loss cases when running the Anns test. Would consider if there are policy reasons: - Number of plaintiffs => what these criteria are doing is responding to the reason why it is that purely economic loss is a category of case in which we are hesitant to recognize a DOC due to possibility of indeterminate liability. So, we ask, how many possible plaintiffs are there? This is dealt with in Design Services, para 63. - Other opportunities - Ties to deal with it. - If there is property damage: if there is property damage, how distant is the plaintiff from the damage. In the CN case, CN was verging on being the sole user of the bridge, therefore the property damage was very close to the plaintiff. In that case the Plaintiff was virtually identical to the owner. In Design services, however, there is no property damage. If there is property damage that the plaintiff is close to that it will force the claim to be taken more seriously. The Anns test appears to have been found to be adaptable enough to serve the needs of this type of purely economic loss as well, as long as it is kept in mind that this is purely economic loss. We dont just recognize a DOC willy nilly but examine through Anns if there is one.
NEGLIGENT MISSTATEMENT
Is a variety of economic loss. Say a doctor misdiagnoses an illness, and you dont have it, it is a negligent misstatement, which may lead to non-economic loss (you may drop dead or whatever). Derry v. Peek (1889) => decided there could be no liability for negligent misstatement. Statement in this case was negligent but not dishonest. They were sued in deceit but the court decided that there is no liability if you are sued in deceit, if you spoke negligently, and if you honestly believed your deceit.
Hedley Berne v. Heller439, Hedley Berne advertises for its client, and guarantees work: becomes nervous
and writes to their clients bank for assurance. Bank assures all is good, in writing with disclaimer. Client goes belly up. Hedley Berne tries to recover from bank. The House of Lords held that there was no liability due to an exclusion clause which said we are not liable for the correctness of this statement but most of the case dealt with what the law would have been had the statement not been there. So there is an enormous obiter which says that there can be liability for negligent statement. Just because the acts concern our words, does not mean that there is no duty of care. Derry v. Peak remained good authority on the tort of deceit (that there is no liability if you believed what you said) but Hedley adds, Yes, but you can be liable in negligence. While you wouldnt put a product out on the market lightly, words can be uttered lightly; therefore, there is a way of increasing liability dramatically. Words can be used without being consumed (You dont run out of them). Words are particularly dangerous in a way therefore.
Herecules v. Ernst & Young439

Auditors were sued due to an error in their report, by companies who had invested in the company, in reliance on the audit. The audit in question is conducted not to give investors advice, but so that the company can know its own status. Held: no liability essentially because the investors had misused the audit. They were trying to make the auditors into insurers of their investment. The difficulty is indeterminate liability: If we start going around making auditors responsible in this way, people will stop being auditors. So there would be various problems with holding auditors responsible. The company, on the other hand, who ordered the audit, could hold the auditors responsible. Good illustration of the problem of indeterminate liability.
1. Is there a duty of care at all? Does the plaintiffs reliance on the defendants misrepresentation reasonable? See page 449: Special relationship. Dont be mislead by this term, it is essentially a non-issue. The issue is if the reliance by the Plaintiff was reasonable. In order to decide that we have a helpful list of hints from Felthusen, endorsed by La Forest, p 452. This is not a statute, just a handy hint list of considerations. There may be further considerations not here listed. 2. To whom is the duty of care owed? La Forest found there was a duty of care, but it was not owed to these particular plaintiffs. Could an omission to say something be considered negligent? Only if you had a pre-existing duty to say it.
CHAPTER 12: D. VICARIOUS LIABILITY

VL is not a tort. Rather, it is a way of making more people liable for torts that have already been committed. VL is when the law holds one person responsible for the misconduct of another. It is based on (1) their relationship (i.e. employee-employer); and (2) that the tort was committed in the course of their employment (problem arises when the tort is not authorized by or completely opposed to the employer). VL is a strict liability tort: it requires no proof of personal wrongdoing.
671122 Ontario Limited v. Sagaz p. 547

VL arises for the torts of an employee but not for the torts of an independent contractor. Numbered company suffered losses when consultant of Sagaz committed a tort to get Canadian Tire contract. Is Sagaz responsible for tortious conduct of consultant? Depends on the two factors below: (1) Relationship: consultant must be an employee and not a contactor. Factors used to determine an employee from contractor: see list on page 549. (2) Tort must be committed by the employee in the course of employment. Easy call if tort is authorized by employer. If tort was not authorized by employer, employer may still be VL. Policy Reasons for VL: First, which party is going to suffer for the wrong of a guilty third party. The innocent party: the plaintiff, victim of the sexual assault in our example, and if we deny compensation from the employer, they may not get any compensation at all because the employee has gone to jail. Secondly, the employer at least created the opportunity to commit the crime. Held: Sagaz not VL; was a contractor.
Bazley v. Curry550 Childrens Foundation was sued by the torts committed by Mr. Curry who sexually
assaulted children in the custody of this foundation. Mr. Curry is of course liable for battery (sexual assault). Held: the Childrens Foundation is liable in VL. This case is distinct in that the facilities were residential care facilities. The Childrens Foundation operated as a substitute parent. That is important. This is opposite to our next case, Jacobi. Salmond Test: Test was applied to determine that Childrens Foundation was VL. It has two steps: 1. Employee acts authorized by the employer; and, 2. Unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing authorized acts. Consists of two stage test. The question was, is this a mode of doing an authorized act? Difficult to apply, court turns to two-stage test. First, are there existing precedents which unambiguously determine VL? Second, is to determine if VL should be imposed in light of the broader policy rationales behind strict liability. The SCC reformulated the Salmond Test. P. 552 the court says again that (1) they should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of scope of employment and mode of conduct. (2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of VL. Or is there a significant connection between the unauthorized conduct and the relationship of employment. If yes, then VL will be imposed on employer.
That is the new Canadian test. Establishing time and place without more is not sufficient. The court doesnt stop there in terms of giving guidance to conditions in which VL will be imposed. On p. 552 are five factors to consider (but there may be other factors): a. opportunity to abuse power by employer to employee b. extent to which wrongful act furthered employers aims c. extent to which wrongful act was related to friction, confrontation or intimacy inherent in the employers enterprise. d. extent of power conferred on the employee in relation to the victim e. the vulnerability of potential victims to wrongful exercise of the employees power Held: Childrens Foundation is VL for Currys sexual assault as it created opportunity to abuse (intimacy).
Jacobi v. Griffiths
No vicarious liability due to lack of intimacy in job description; rather Griffiths seized the moment Case involved Vernon Boys and Girls Club which was infiltrated by a pedophile, Harry Griffiths. Court was split. Dissenting decision is noted first (McLachlin). Majority judgment is further down (Binnie). In this case the majority of the court come to the conclusion that there as no vicarious liability on the facts of this case. At bottom of 555, the opportunity that the club gave Griffiths as slight. At page 556, para 2, while it was .. part of [his] job to develop a positive rapport with children, the relationship envisaged by the Club had no element of intimacy comparable to the situation in the Childrens Foundation. So the distinguishing feature is the different levels of intimacy involved. There were three dissenting judges in this case however. They hold that almost all relevant factors suggest that Griffiths torts wee linked to his employment. Those judges are aware that the acts occurred outside the premises of the club. The club had put Griffiths in there and said, here is someone you can trust
John Doe v. Bennet 2004 SCC 17 (not 2002). page 557.

A priest committed offences against children and the question is if the diocese is VL for t hose offences. Held: The court decided the diocese was VL for the tort of the priest. (Like Bazley) The reason was that this event occurred in a very isolated area, St. Georges, Newfoundland, where the court was quite a big figure in the town. People in the town revered the priest and thought if he wanted to he could turn you into a goat and that he had God like authority. Due to all this authority the priest had, when children told their parents, can we sleep at the priests house, the parents of course allowed that to happen without concern. So, he was not technically living with the children as in Bazley, but he was so intimate with them, that he fell on the Bazley side of the line and not on the Jacobi v. Griffiths side of the line. So, you are not required to be literally living with the children, but the level of intimacy is key. Point is: VL will arise even when the intimacy does not consist of living on the same premises as the plaintiff.
P.S. v. Miki
A case where vicarious liability does not arise. Miki was a landlord, who sent his cousin to do repairs at his property, and while there sexually assaulted the tenant. Is Miki liable for the torts of the carpenter he sent simply because he was the landlord who sent him? The answer is no; he is not liable on the basic principles. The carpenter simply seized an opportunity that was not at all related to the job. This is similar to Jacobi v. Griffiths (who seized the moment). There was no VL there, and there is even less here. [13] The question then narrows to this: whether a landlord who sends his employee, of whom he knows nothing to his detriment, to repair leased premises is vicariously liable for a sexual assault by the employee on the tenant.
CHAPTER 17: DAMAGES

Damages in the law of torts are compensatory, in principle. Their aim is to put you in the position that you would have been in had the tort not been committed (in so far as money can do that).
Andrews v. Grand & Toy, p. 716

(establishes the quantification for recovery of damages in a personal injury case part of the Trilogy of cases) Basis of calculation is made on actuarial evidence but that evidence depends on the soundness of the premises or assumptions that are fed into the calculation. Pecuniary Loss Cost of future care amount which may reasonably be expected to put the plaintiff in the position he would have been had there been no injury. Money is a barren substitute for health and personal happiness. Award must be moderate and fair to both parties. Seeking compensation, not retribution. o What the plaintiff will need for future medical care Special Equipment one time payment for special medical equipment needed Monthly Payments payments for ongoing care costs. Based on projected life expectancy taking into account the injuries, and the reasonable level of care based upon the needs of the plaintiff Deduction for Contingencies the premise is that, even uninjured, he would need some medical care for other problems, so the damages can not double compensate him for these Inflation/interest adjustment calculate the amount that you would need to give as a lump sum today that, if properly invested, would yield the amount calculated above over the course of the persons projected life. (higher return, lower award. Higher inflation, higher reward) Lost earning capacity Not a loss of earnings award, but a loss of earning capacity. Need to take into account the level of earnings that he was making before the accident and the length of working life. There is a general practice to take into account contingencies which might affect future earnings such as unemployment, illness etc. o What the plaintiff would have made over the course of his life had he not been inured. Time frame normal life expectancy (i.e. pre accident life expectancy) Pay per month average pay projected as if he were to continue on his current employment path The monthly pay is discounted for downside contingencies like periods of unemployment or illness dropping the average Further discount for duplication of things like shelter, already done under future cost of care Further modified based on investing the lump sum Considerations Capitalization rate the allowance for inflation and the rate of return on investments and the allowance for tax. Use the present rate of return on long-term investment and make some allowance for the effects of future inflation. For taxes, no deduction for tax which might have been attracted had it been earned over the working life of the plaintiff. No consideration should be taken of the amount by which the income from the award will be reduced by payment of taxes on interest, dividends or capital gains. Non-Pecuniary loss Calculation of losses where it is not easy to attach a dollar value to (pain and suffering). No objective yardstick for translating non-pecuniary losses such as pain and suffering and loss of amenities into monetary terms. There is no market for expectation on life.
Award must be fair and reasonable and fairness is gauged by earlier decisions. An upper limit of $100,000 for non-pecuniary loss. Criticisms We only look at downside contingencies, but not up side ones will pushs towards under- compensation. Dogmatic aversion to double compensation. Why more concern with D overpaying than with P? How can you predict the long-term movements of the market when working out lump sums? SUMMARY: 1. There is no duty to mitigate in negligence 2. Damages are compensatory even if a very large sum 3. Regarding non-pecuniary damages (p 727), problem is quantitatively different from that of pecuniary losses. There is no medium for exchange for happiness. No money can provide true restitution. The court uses the non pecuniary damages to deem the award `in check`.
McCabe v. Westlock RC Separate School Board735

Re: calculating damages for this woman. There was an issue of how to calculate future loss of income considering she had hoped to have four kids and also women were generally paid less. See pages 738-9. This case raises complicated value judgments concerning how to calculate future loss of income. Are children more valuable than money? Because wanting children would subtract from her future loss of income.
Whiten v. Pilot Insurance750

Punitive damages. Whiten was a contract law case, which usually does not provide for punitive damages. But in this case, its not commercial per se, but dealing with a family. This was a contract to provide peace of mind. Whiten is the leading punitive damages case in Canada. At the middle of page 752, the court is hesitant re retributive punishment: the main purpose of punitive damages is deterrence, not retribution.
McIntyre v. Grigg
How damages can be apportioned in cases of contributory negligence. But for our purposes, an example of punitive damages. We have an odd phenomenon of punitive damages being awarded in negligence. Punitive damages are designed to punish the defendant. Therefore, you would expect it would be awarded to punish some sort of intentional conduct of the defendant. So, how does it make sense in negligence to award punitive damages? McIntire v. Grigg is a long case so see para 53-89 and the dissent of Justice Blair will be sufficient. In this case, punitive damages were allowed. The court was not unanimous. There was a dissent by Blair J. Majority decision by Fedak at para 59 and 60: General principles of punitive damages: [59] Punitive damages are awarded to meet the objective of punishment, deterrence, and denunciation of the defendants conduct, and not to compensate the plaintiff. Whiten, supra, and should only be awarded in exceptional cases. [60] An award of punitive damages therefore requires the defendant to have engaged in extreme misconduct. The type of conduct required to attract punitive damages has been described in many ways, such as: malicious, oppressive, arbitrary and high-handed that offends the courts sense of decency (Whiten, see also Hill v. Church of Scientology of Toronto); a marked departure from ordinary standards of decent behaviour (Whiten, ibid.); harsh, vindictive, reprehensible and malicious (Vorvis, supra, at para. 16); offends the ordinary standards of morality or decency (Norberg, supra, at paras. 57-58); arrogant and callous (ibid.); egregious (Hill at para. 196); high-handed and callous (Doobay (c.o.b. Venus Fashions v. York Gate Mall Ltd., [2000] O.J. No. 2219 at para. 3 (C.A.); arrogant, callous of the plaintiffs rights and deliberate (Starkman v. Delhi Court Ltd., [1961] O.R. 467 (C.A.); harsh, reprehensible and malicious (Fleury v. Fleury); outrageous or extreme (Ferme Grald Laplante & Fils Lte v. Grenville Patron Mutual Fire Insurance Co.); highly unethical conduct which disregards the
plaintiffs rights (Gerula, supra, at para. 72); and recklessly exposing a vulnerable plaintiff to substantial risk of harm without any justification (Roose v. Hollet). [67] At the end of the trial, during the motion to strike the claim for punitive damages, the Appellants Grigg argued that an award of punitive damages required the defendants conduct to be specifically directed at the plaintiff. We disagree with this submission and with the reasoning in both Kaytor, supra and Nichols, supra insofar as they would require the misconduct to be deliberately directed at the injured party. Of course, the defendant did not specifically set out to injure the plaintiff. is arguing that because of this, punitive damages should not be awarded. Court disagreed. Punitive damages allowed according to the majority even though damages were not directed at the injured party deliberately, because the court decided the criminal law was not sufficient. The evidence in the civil trial was that his behavior should warrant a significant punishment. But the criminal trial did not produce this, para 81: Given Andrew Griggs fine of $500, punitive damages would not amount to double punishment, and indeed would be more appropriate punishment. What is the purpose of the law of torts? Is punishment an appropriate goal? Lets say the answer was yes. Then the majoritys view looks a lot more attractive. Then you at least are more likely to agree with the majority. You might at least say you cant interfere when the criminal law has come to the correct conclusion as the primary means for punishment. The majority does here see that the law of torts can award as punishment. However, Para 88: [88] In our view, the jury award of $100,000 is not rational to meet the objectives of retribution, deterrence and denunciation. The lower level of moral blameworthiness given the isolated nature of the misconduct, the lack of a relationship between the parties (in comparison to a relationship of trust) and the fact that the misconduct was not specifically directed at the plaintiff, indicates that a lesser quantum of punitive damages would be rational. In light of this, as stated above, we would reduce the quantum awarded by the jury to $20,000. For those reasons, the jurys award was too high. Dissents decision. Blair J is the dissenting judge, para 131, on account of the fact that insurance will pay the damages therefore award punitive damages punishes no one but every insured who will in turn have to pay higher premiums: [131] . it is unlikely that Mr. Grigg or other impaired drivers in similar situations will have to pay the punitive damages awarded (subject to policy limits). Many insurance policies provide that they will not pay punitive damages. But this policy did not. The official law. Wy does justice Blair think punitive damages should not be awarded here: because doing so would distort the core rational of tort law, namely compensation in fundamental ways: [134] Erosion of the rarity principle drives other considerations that also militate against an award of punitive damages. Although he did acknowledge that such damages may be awarded in negligence in a proper case, Binnie J. noted, in Whiten, supra, at para. 67, that punitive damages by their very nature will largely be restricted to intentional torts. I think there can be no doubt, however, that if punitive damages are found to be available in this case, they will be found to be available and will be awarded in many other personal injury or fatal accident cases arising out of alcohol-related motor vehicle accidents . In my opinion, such a development would distort the core rationale of tort law, namely, compensation, in fundamental ways. A lot depends on our starting assumptions. If you start with the wrong assumptions, it wont work. Similarly, a lot will depend on the fundamental assumptions, i.e. that the law of torts consists to award damages, including punitive damages. But Blair J starts with a different assumption, that the core rational is compensation. This of course, blows punitive damages out the window as they are not compensatory.
[135] As the jurisprudence makes clear, punitive damages are not compensatory and have nothing to do with a plaintiffs injuries; they are designed to punish, to deter, and to denounce a defendants egregious conduct. Thus, an award of punitive damages is a complete windfall for the plaintiff. While this may be of marginal concern where the award is made in the isolated rare and exceptional case, it becomes more disquieting if the award is made in a broader range of less exceptional circumstances. What is the rational purpose served by encouraging judges and juries who may be emotionally outraged by the impaired driving aspect of a case to make damage awards that are completely divorced from any injuries sustained by the plaintiff and thus unrelated to the compensatory raison dtre of tort law, on a more frequent basis? In my opinion, there is none. This is an example of how if you start out with certain assumptions, your conclusion will follow. [145] A judge or jury in the civil proceeding cannot know the answer to this latter question or, indeed, to the question of whether the fine imposed in the criminal proceeding was appropriate for that proceeding without knowing all of the evidence and all of the factors underlying the disposition of the criminal proceeding. They cannot know these dynamics of the parallel criminal case without having tried it. There is a well-founded policy against the duplication of legal proceedings. I do not see how the preservation of public order and the tempering of harm done to the public good the objectives of punitive damages are advanced by allowing judges or juries in civil cases to override what they may perceive to be imperfections in the criminal proceedings, except in the truly rarest of cases. In other words, we assume the criminal law would be defective if it gave Grigg only a fine of $500 for his conduct. But is it? And who are we to say its done wrong?
NUISANCE AND RYLANDS AND FLETCHER

Both torts involve land in some way. The obvious way of protecting your interest in land is the tort of trespass to land. But no time for that. These two torts are also more or less torts of strict liability. There are two types of nuisance: public nuisance and private nuisance. See case book page 561. a very well written recitation on Nuisance in Canada, and difference between public and private nuisance. Public nuisance is a criminal offence dealt with in the criminal code. It involves such a colossal inconvenience to the public welfare that it is worthy of being considered an offence against the public as a whole. Public nuisance it itself does not really fall under the banner of this course. What does, is private nuisance and, secondly, the possibility of damages for a public nuisance. Because you can, as a private person, from time to time get damages for a public nuisance, even though the public nuisance is an offence against the whole population. When you are a particular private individual to whom substantial damage is caused over and above what is caused to the public, is when one might be eligible for damages from a public nuisance. I.e. a bawdy house is a public nuisance, but the next door neighbour who is adversely affected, may be able to get damages for the public nuisance. When is it that your damage is more than the public damage? There are a couple of cases in the book on this question. Page 563, Hickey v. Electric Reduction Co. of Canada. The defendant poured stuff into the bay, which was a public nuisance, but the plaintiff suffered damage particularly. But he did not win. When the damage is common to all persons of the same class, then a personal right of action is not maintainable. At page 564, see highlighted. Anyone can fish in the waters, so therefore, how can you say youve suffered a peculiar damage? This similar issue was raised in Gagnier and Canadian Forest Products Ltd, (not in the book) in B.C. 51 BC Law Reports 2, 218 (1990), and the facts are similar. The plaintiff was a commercial crab fisherman, the defendant operated pulp mills who discharged noxious waters into the waters and the crab farm of the plaintiff was lost. Is this a case were damages can be awarded for public nuisance? The answer of the court was quite possibly, and that all that should need to be proved is a different degree of damages between the public
generally and the plaintiff. And in fact the court specifically said the Newfoundland case was too restrictive (Hickey). The court does clearly say that Hickey is far too narrow. It also says that you should look at the volume of damage suffered. Hickey only looks at the type of damage suffered. So there is a rather interesting conflict in Canada. There is one another case in the case book on this, which features a judgment by Denning L.J. Lord Justice Denning. Mint v. Good. In this case the plaintiff was injured when a wall next to a highway collapsed. The collapsed wall was a public nuisance. Had this boy suffered special damage as a result of the collapse of the wall? Yes. In fact the case is so simple, that the prof brought in the Gagnier case. See page 572, first para starting Whether or not youll see a handy list used to determine if an activity is a public nuisance.
CHAPTER 13: NUISANCE: PRIVATE NUISANCE

Pugliese v. NCC573
Definition of nuisance: Private nuisances, at least in the vast majority of cases, are interferences for a substantial length of time by owners or occupiers of property with the use or enjoyment of neighbouring property. We also need to ask if the person has made reasonable use of their property in light of the fact that they have a neighbour. It is not reasonable to expect total silence from ones neighbour at all times for example
Tock v. St. Johns Metropolitan Area Bd575

actionable uses are only those which interfere with ordinary comfort. This is what constitutes enjoyment of property. So this means, not too fussy or not too ready to take offence.
Nor Video Services v. Ontario Hydro580

Hydro had built something that cancelled cable TV to Atikokan. The people of Atikokan had no television services anymore. The question was, was this a nuisance? And the answer was that people of plain and sober taste do not watch television. Hydro said that nuisance only covers things of convenience under plain and sober taste. The court rejected that, and said at page 581, what counts as plain and simple taste is: television viewing is an important incident of ordinary enjoyment of property and should be protected as such. Obviously what constitutes plain, sober and simple notions of living will change as technology develops
Russell Transport v. Ontario Malleable Iron 576

What type of activities as a plaintiff in nuisance, can you claim to have covered? Where the plaintiff claimed that their cars were being damaged by the particles that were being spewed out into the air by Ontario Malleable Iron. Page 578, in determining what is a nuisance or not: what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey. That is to say, what would be a nuisance in a residential area would not necessarily be one in an industrial area. This case is interesting because the plaintiff came to the nuisance, that is to say, the defendant was their first, operating its foundry, then the plaintiff came along afterwards. Obviously, since the plaintiff won, this was not a bar to the plaintiffs success. Page 573: what is reasonable considering the neighbourhood? Nevertheless, in this case, the plaintiff storing his cars, won. It was held that this type of activity went beyond what was reasonable even in an industrial area. At page 586, a question that often arises, para 10, in this case the plaintiff complained of loss of view as a nuisance. Loss of view cannot amount to a nuisance. There is no property in a view.
INEFFECTUAL DEFENCES IN NUISANCE

See list of ineffectual defences on page 577. There are quite a few defences that do not work. See highlighted for the most noteworthy. Re injunctions in nuisance are not examinable.
Whether something is a nuisance or not will depend on the facts. It is not a question that can be decided by application of simple rules. We are looking at character of neighbourhood, type of conduct, regularity, utility of the activity, difficulty involved in lessening or removing the risk. In fact, it is rare that you can say with absolute certainty, yes that is a nuisance or not.
Nuisance what is the fault element in nuisance?

Nuisance is a tort of strict liability. See para 4, page 577. It is no defence that all possible care and skill are being used to prevent the operation complained of from amounting to a nuisance. Nuisance is not a branch of the law of negligence. See page 573: nuisance may be caused by negligent or intentional act: please note this does not always have to be the case. Russel Transport in fact is an example: it was not intentional nor negligent. On the other hand, you can commit an action that is both negligent and a nuisance.
CHAPTER 12: STRICT LIABILITY

Rylands & Fletcher 515 to 535
Fletcher was the Plaintiff. He had a coalmine which he worked. The defendants were Rylands and some other guy, who constructed a reservoir near the mine. There was no negligence on their part. But the reservoir gave way, water escaped and flooded the tunnels of the plaintiff, Fletcher. That caused damage and the plaintiff sued. Held: that the defendant was not liable. Plaintiff lost on the grounds that there was no tort. It then went on appeal, to the court of exchequer chamber (which was the appeal court). That court allowed the plaintiffs appeal and held the defendants liable. Then that went on to appeal of at least three law lords. They held that the defendants were liable. Page 516 see highlighted. Mr. Justice Blackburn: anything likely to cause mischief if it escapes Lord Chancellor (page 517)s says any purpose which I may term a non natural use, or something in its natural condition, was not in or upon it (the land). Cranworth: anything which if it should escape may cause damage to his neighbour Two elements to the tort in Rylands v. Fletcher. One of them is escape. The second one is something like non natural use of land or bringing onto land of a dangerous article, which if it does escape, may cause harm.
Rickards v. Lothian519
Use of land which brings about Rylands must be non-natural use. Facts: Someone deliberately turned on water and plugged sink, causing flood; claim brought against owner in Rylands v. Fletcher. Sinks are natural uses of land. Court finds in having on his premises such means of supply he is only using those premises in an ordinary and proper manner, and although he is bound to exercise all reasonable care, he is not responsible for damage not due to his own default, whether [it] be caused by inevitable accident or wrongful acts of third persons. Held: Defendant not liable.
Reid v. J. Lyons & Co525

Strict Liability of Rylands v. Fletcher is recognized when element Escapes from land and is non-natural use . Factory for making shells. One shell blew up injuring the plaintiff, who sued in Rylands v. Fletcher, but it was fond that there was no liability as the shell did not escape, it was still on the property. Page 526, Simon speaks to the issue of escape: Rylands v. Fletcher is a tort involving the escape of material from land under the defendants control to land not under the defendants control.
Torts Taylor
Fall 2008
Monick Grenier
Differnce between Rylands v. Fletcher and nuisance. Rylands only has to happen once; whereas nuisance has to be an ongoing activity. Nuisance does not necessarily involve an object. Ie. You can cause a nuisance by noise, but not Rylands v. Fletcher.
DEFENCES IN RYLANDS V. FLETCHER

1. Consent of the Plaintiff
531
If the tenant uses a sprinkler system and uses it for his or her own purposes, they cannot later complain of it for damages. You would be complicit in its storage on the land by using it. Thats a type of consent, which you cannot then go back on. The consent point applies pretty much to all areas of the law.
2. Default of the Plaintiff

Confusing. 1. we can say, contributory negligence is irrelevant in Rylands. And this is probably the situation. Some courts have been reluctant to use contributory neg in strict liability cases. Therefore the defendant remains liable as if the contributory negligence had not occurred. That harmonizes with idea that Rylands is a strict liability tort. Defendant has brought a dangerous substance onto land, and it has escaped. That is Rylands. It is not a fault based tort. There are two cases in which contriburty neg, on the other hand have been used successfully as a complete defence. 2. As in the law of negligence, contributory negligence is a complete defence. 3. The statute does not apply, but we are going to apportion the damages as if it did apply anyway. And there is authority in the SCC for doing that in Maritime law.
3. Act of God
Act of God in Rylands has been only rarely applied because if we relied too strongly on act of God, the whole principle of Rylands would be nullified. You have to take care of any dangerous substance you bring onto your land irregardless of acts of God. There have been, nevertheless, some cases where acts of God have been recognized. Ie. Nickels and Marsland is one where it was applied successfully. Scope is limited to circumstances were no human foresight can reasonably anticipate
4. Deliberate Act of third person

Weve already seen in Richards and Lothier, where someone stopped up the bathroom sink and let the water run over producing water damage. The court found this case could not give rise to liability on the owner because it was a circumstance clearly out of owners home or even foresight. Malicious act of a third party will not ground liability under Rylands, but it must by a malicious act of a third person. If someone commits a negligent act, you can still be liable under Rylands.
5. Legislative Authority
The legislature can step in an authorize something. I.e. no action can be taken for so and so. We wont receive an exam question on this.
Torts Taylor
Fall 2008
Monick Grenier

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Torts Trespass A. Historical Context Goshen v.

Torts list of torts covered

TORTS TRESPASS A. HISTORICAL CONTEXT

Goshen v. Larin (1974 NS CA) (page 37) Negligent Battery

TORTS TRESPASS B. ACCIDENTAL, NEGLIGENT AND INTENTIONAL CONDUCT

TORTS TRESPASS C. VOLITION AND CAPACITY

Involuntary action is not a tort.

Tillander v. Gosselin (Ontario 1967)45:

Infant fractures other infants skull.

Lawson v. Wellesley Hospital

TORTS TRESPASS D. ASSAULT

TORTS TRESPASS E. BATTERY

Restatement of Torts, second - Battery: Harmful Contact page 56 Sec. 13

Bittel v. Yim (1978)57 threw squibs into s store.

TORTS TRESPASS F. SEXUAL WRONGDOING

Norberg v. Wynrib61 & 101

TORTS TRESPASS H. FALSE IMPRISONMENT

Robinson v. Balmain New Fairy Co 74, para 9

DIRECTNESS WAS THE CONTACT SUFFICIENTLY DIRECT?

Scott v. Shepherd See. P. 36 at bottom, footnotes 5 and 6 and 7.

Novus actus interviens - a new act intervening.

CHAPTER 7: DUTY A. CONCEPT OF DUTY GENERALLY

Home Office v. Dorset

Palsgraf v. Long Island Railroad

Anns v. Merton London Borough Council [1978] 286

Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41

Anns Test Analysis:

Childs v. Desormeaux 2006 SCC 18

The First Element of Negligence Duty of Care

Recap: Anns Test

The Second Element of Negligence - Breach of Duty

Analysis for Determining Breach in Negligence

Syl Apps Secure Treatment Centre v. Douglas Baptiste

CHAPTER 5: STANDARD OF CARE A. UNREASONABLE RISK

Four considerations in Negligence (size/outcome/cost/social utility)

CHAPTER 5: STANDARD OF CARE B. THE REASONABLE PERSON

CHAPTER 5: STANDARD OF CARE C. CUSTOM

Custom is not a defence to negligence if the custom itself is negligent.

CHAPTER 5: STANDARD OF CARE: D. STATUTORY STANDARDS

CHAPTER 5: STANDARD OF CARE: D. STATUTORY STANDARDS 1. LIMITATIONS

CHAPTER 5: STANDARD OF CARE: D. STATUTORY STANDARDS 2. COMPLIANCE

compliance with a statute does not necessarily make you non-negligent

CHAPTER 5: STANDARD OF CARE: E: LIABILITY AND THE YOUNG

CHAPTER 5: STANDARD OF CARE: F: MENTAL AND PHYSICAL DISABILITY

CHAPTER 5: STANDARD OF CARE G: PROFESSIONAL NEGLIGENCE: DOCTORS

Challand v. Bell215 (1959) => is great to review as it includes a good summary.

Reibl v. Hughes222 (SCC 1980)

CHAPTER 5: STANDARD OF CARE G: PROFESSIONAL NEGLIGENCE: LAWYERS

A real estate translation.

CHAPTER 11: TORT LIABILITY OF PUBLIC AUTHORITIES

Just v. Queen in the Right of British Columbia493

CHAPTER 9: DEFENCES TO NEGLIGENCE

CHAPTER 9: DEFENCES TO NEGLIGENCE :A. CONTRIBUTORY NEGLIGENCE

CHAPTER 9: DEFENCES TO NEGLIGENCE: B. THE SEATBELT DEFENCE

CHAPTER 9: DEFENCES TO NEGLIGENCE: C. VOLENTI NON FIT INJURIA

Hambley v. Shepley431, 1967, ON CA

CHAPTER 9: DEFENCES TO NEGLIGENCE: D. ILLEGALITY

CAUSATION, REMOTENESS AND NERVOUS SHOCK

Cabral v. Gupta 263

Resurfice Corp. v. Hanke. [2007] 1 SCR 333

CHAPTER 6: PROOF: E. INTERFERING CAUSATION

Walker Estate v. York Finch General Hospital 264

CHAPTER 6: PROOF: F. MULTIPLE CAUSES