-1Torts Law Outline

1. An introduction to Tort Law...........................................................................................................9 1. Torts: Basic Terms and Themes...............................................................................................9 a) Doctrine of Legislative Supremacy.........................................................................................9 b) Courts of Equity......................................................................................................................9 c) Rule of Law.............................................................................................................................9 d) Primary Sources of Law...........................................................................................................9 2. Torts Distinguished from Other Areas of Law.......................................................................9 3. A Brief History of Tort Law...................................................................................................10 4. Tresspass and Case: A Brief Review of the Case Law.........................................................10 5. What is a Tort?........................................................................................................................11 a) Deterrence...............................................................................................................................11 b) Compensation/Reparative Theory..........................................................................................11 c) Normative Theories................................................................................................................12 i) Resource Redistribution......................................................................................................12 ii) Retributive Justice..............................................................................................................12 iii) Corrective Justice..............................................................................................................12 iv) No-Fault............................................................................................................................12 d) Three main elements of liability.............................................................................................12 6. Tresspass and Case, the Case Law.........................................................................................12 a) Scott v. Shepherd, [1955-1774] (England).............................................................................12 b) Leame v. Bray, (1803) (Eng. KB)..........................................................................................13 c) Williams v. Holland (1833), 10 Bing. 112,131 ER 848 (CP).................................................13 d) Holmes v. Mather (1875) (Exch.)..........................................................................................13 e) Cook v. Lewis, [1952] (SCC).................................................................................................13 2. The Basic Concept of Remedies in Tort Law..............................................................................13 1. Introduction..............................................................................................................................14 a) Judicial and Extrajudicial Remedies.......................................................................................14 Judicial Remedies...................................................................................................................14 Extrajudicial Remedies...........................................................................................................14 2. Classification of Damages.......................................................................................................14 3. Types of Damages in Intentional Torts..................................................................................14 Nominal......................................................................................................................................14 b) Compensatory........................................................................................................................14 c) Punitive (Exemplary).............................................................................................................14 d) Disgorgement........................................................................................................................14 i) Penarth Dock Engineering Co. v. Pounds, [1963] (Eng. QB)............................................15 3. Intentional Interference With the Person....................................................................................15 1. Basic Principles of Liability....................................................................................................15 a) Volition...................................................................................................................................15 i) Smith v. Stone (1647) (KB) Tresspass to Land................................................................15

-2b) Intent......................................................................................................................................15 1. Imputed (Constructive) Intent.............................................................................................15 2. Transferred Intent...............................................................................................................15 2. Motive, Mistake and Accident................................................................................................15 a) Motive....................................................................................................................................15 i) Duress..................................................................................................................................16 a) Gilbert v. Stone, (1648)82 ER 539 (KB) Tresspass to Land, Tresspass to Chattels...16 ii) Provocation........................................................................................................................16 a) Miska v. Sivek(1954) 18 DLR (2d) 363 (Ont CA).........................................................16 b) Mistake..................................................................................................................................16 i) Hodgskinson v. Martin, [1929] 1 DLR 367 (B.C. C.A.)....................................................16 ii) Ranson v. Kitner (1888), 31 Ill. App 241 (Ill. CA)...........................................................16 c) Accident.................................................................................................................................16 d) The Liability of Children and the Mentally Ill......................................................................17 3. Tresspass to the Person............................................................................................................17 1. Battery....................................................................................................................................17 a) Bettel v. Yim (1978), 88 DLR (3d) 543 (Co. CT).............................................................17 b) Non Marine Underwriters, Lloyds of London v. Scalera, (2000) (SCC).........................18 c) Smith v. Stone and Gilbert v. Stone...................................................................................18 2. Assault...................................................................................................................................18 a) Holcombe v. Whitaker (1975) (Ala. S.C.).........................................................................19 b) Police v. Greaves, [1964] (Eng. C.A.)...............................................................................19 c) Bruce v. Dyer (1966) (Ont. H.C.)......................................................................................19 3. False Imprisonment...............................................................................................................19 a) Bird v. Jones, (1845) (QB) (Unchallenged for 150 years)................................................19 b) Campbell v. S.S. Kresge Co., (1976) (NS TD).................................................................19 c) Herd v. Weardale Steel, Coal and Coke Co., [1915] (HL)................................................20 4. Tresspass on the Case..............................................................................................................20 1. Malicious Prosecution...........................................................................................................20 a) Nelles v. Ontario, (1989) (SCC)........................................................................................20 b) Abuse of Process...............................................................................................................21 2. Intentional Infliction of Nervous Shock................................................................................21 a) Wilkinson v. Downton, [1897] (Eng. QB)........................................................................21 b) Radovskis v. Tomm, (1957) (Man QB)............................................................................21 c) Samms v. Eccles, (1961) (Utah SC)..................................................................................21 d) Innominate Intentional Torts.............................................................................................22 3. Protection of Privacy.............................................................................................................22 a) Is there a Common Law Tort Action for the Invasion of Privacy?...................................22 i) Motherwell v. Motherwell, (1976) (Alta. CA)...................................................................22 b) The Statutory Protection of Privacy..................................................................................22 ii) Hollingsworth v. BCTV, [1999] (BC CA)........................................................................22 c) Action for Breach of Confidence (Confidential Information)...........................................23 4. The Common Law Tort of Discrimination............................................................................23 a) Bhadauria v. Bd. Of Gov. of Seneca College of Applied Arts and Technology, (1979) (Ont. CA)................................................................................................................................23

-3b) The Bd. Of Gov. of the Seneca College of Applied Arts and Technology v. Bhadauria, (1981) (SCC)..........................................................................................................................23 5. Current Legal Protection from Racial Insults.......................................................................23 a) Assault and Battery.............................................................................................................23 b) Intentional Infliction of Emotional Distress.......................................................................23 6. Objections to a Tort for Racial Insults....................................................................................23 a) Difficulty of Measuring Damages......................................................................................23 b) Difficulty of Apportioning Damages.................................................................................23 c) Fraudulent Claims and Floodgates..................................................................................23 Elements of the Proposed Cause of Action............................................................................24 4. Intentional Interference with Chattels........................................................................................24 1. Tresspass to Chattels...............................................................................................................24 a) Fouldes v. Willoughby, (1841) (Ex. Ct.)................................................................................24 2. Conversion................................................................................................................................24 3. Detinue......................................................................................................................................24 4. Permanent Damage to Reversionary Interests.....................................................................24 5. Intentional Interference with Real Property...............................................................................24 1. Tresspass to Land....................................................................................................................25 a) Entick v. Carrington, (1765) (USA CP).................................................................................25 b) Turner v. Thorne, (1960) (Ont. HC).......................................................................................25 c) Harrisson v. Carswell, (1976) (SCC)......................................................................................25 2. Tresspass and Nuisance...........................................................................................................25 Nuisance ....................................................................................................................................26 1. Public Nuisance..................................................................................................................26 2. Private Nuisance.................................................................................................................26 a) Kerr v. Revelstoke Bldg. Materials Ltd., (1976) (Alta. SC)...................................................26 6. Defences........................................................................................................................................26 1. Consent.....................................................................................................................................26 a) Implied....................................................................................................................................27 Wright v. MacLean, (1956) (BC SC).....................................................................................27 b) Exceeding Consent.................................................................................................................27 Agar v. Canning, (1965) (Man. QB), affd (Man. CA)..........................................................27 c) Competency to Consent..........................................................................................................27 d) Vitiating Consent....................................................................................................................27 i) Fraud (Deceit).....................................................................................................................27 Hegarty v. Shine, (1878) (Ireland CA)...................................................................................27 R. v. Cuerrier, (1998) (SCC)..................................................................................................27 ii) Mistake...............................................................................................................................27 Toews v. Weisner, (2001) (BC SC)........................................................................................28 iii) Duress................................................................................................................................28 Latter v. Braddell, (1880) (CP)...............................................................................................28 iv) Public Policy.....................................................................................................................28 Nelitz v. Dyck, (2001) (Ont. CA)...........................................................................................28

-4e) Ex Turpi..................................................................................................................................28 Hall v. Hebert, (1993) (SCC)..................................................................................................28 John Bead Corp. v. Soni, (2002) (Ont. CA)...........................................................................28 Tallow v. Tailfeathers, (1973) (Alta. CA)..............................................................................28 Can. Cement LaFarge Ltd. v. B.C. Lightweight Aggregate Ltd., (1983) (SCC)....................29 f) Consent to Treatment and Counselling...................................................................................29 Malette v. Shulman, (1987) (Ont. HC).......................................................................................29 The Burden of Proof and Consent Forms...................................................................................29 Competency to Consent..............................................................................................................29 i) Minors.................................................................................................................................29 C. v. Wren, (1986) (Alta. CA)................................................................................................30 ii) Adults.................................................................................................................................30 Substitute Consent......................................................................................................................30 Informed Consent: Battery or Negligence?...............................................................................30 Reibl v. Hughes, (1980) (SCC)...............................................................................................30 2. Self Defence..............................................................................................................................30 Wackett v. Calder, (1965) (BC CA)...........................................................................................30 3. Defence of Third Parties.........................................................................................................30 Gambriell v. Caparelli, (1974) (Ont.Co.Ct.)...............................................................................31 4. Discipline..................................................................................................................................31 R. v. Dupperon, (1984) (Sask. CA)............................................................................................31 5. Incapacity.................................................................................................................................31 6. Defence of Real Property........................................................................................................31 MacDonald v. Hees, (1974) (NS SC).........................................................................................31 Depue v. Flateau, (1907) (Minn. SC) ; Dunn v. Dom. Atlantic Ry. Co., [1920] (SCC)............31 R. v. Haverstock, (1979) (Co. Ct.)..............................................................................................31 Bird v. Holbrook, (1828) (CP)....................................................................................................31 7. Defence of Recapture of Chattels...........................................................................................32 8. Necessity....................................................................................................................................32 a) Public......................................................................................................................................32 Surrocco v. Geary, (1853) (Cal. SC)......................................................................................32 R v. Dudley v. Stevens, (1884) (Eng.)....................................................................................32 b) Private.....................................................................................................................................32 Vincent v. Lake Erie Tpt. Co., (1910) (Minn. SC).................................................................33 9. Apportionment of Fault..........................................................................................................33 7. Intentional Interference with Economic Interests.......................................................................33 1. Deceit (Fraud)...........................................................................................................................33 Derry v. Peek, (1889) (HL).........................................................................................................33 2. Injurious Falsehoods................................................................................................................34 Slander of title (like defamation)................................................................................................34 Slander of Goods........................................................................................................................34 Ratcliffe v. Evan.....................................................................................................................34 Proctor v. United Steelworkers...............................................................................................34

-5s.17 of the Libel and Slander Act...........................................................................................34 Wilts v. United Dairies...........................................................................................................34 3. Passing Off.................................................................................................................................35 Ciba-Geigy Canada Ltd. v. Apotex Inc., (1992) (SCC).............................................................35 4. Intimidation...............................................................................................................................35 Central Can. Potash v. Govt of Sask., (1979) (SCC)..................................................................35 Rookes v. Barnard, (HL)............................................................................................................36 5. Conspiracy.................................................................................................................................36 Posluns v. Toronto Stock Exchange, (1964) (Ont. HC).............................................................36 6. Interference with Contractual Relations................................................................................36 Posluns v. Toronto Stock Exchange, (1964) (Ont. HC).............................................................36 7. Intentional Interference by Unlawful Means.........................................................................37 Gershman v. Man. Vegetable Producers Marketing Bd., (1976) (Man. CA)...........................37 8. Strict and Vicarious Liability........................................................................................................37 1. Escape of Dangerous Substances.............................................................................................37 Rylands v. Fletcher, (1868) (HL)...............................................................................................37 Read v. J. Lyons & Co., [1947] (HL).........................................................................................37 Gertsen v. Metro Toronto, (1973) (Ont. HC).............................................................................38 Defences to Rylands v. Fletcher ................................................................................................38 1. Consent...............................................................................................................................38 2. Common Benefit.................................................................................................................38 3. Default of the Plaintiff........................................................................................................38 4. Act of God..........................................................................................................................38 5. Act of a Stranger.................................................................................................................38 6. Statutory Authority.............................................................................................................38 2. Liability for Animals................................................................................................................38 a) Dangerous Animals................................................................................................................38 Richard v. Hoban, (1970) (NB CA)........................................................................................38 b) Cattle Tresspass......................................................................................................................38 Acker v. Kerr, (1973) (Ont. Co.Ct.).......................................................................................38 3. Vicarious Liability....................................................................................................................39 Principal-Agent Relationship......................................................................................................39 T.G. Bright & Co. v. Kerr, [1939] (SCC)...............................................................................39 Master-Servant Relationships.....................................................................................................39 B.(P.A.) v. Curry, (1999) (SCC).............................................................................................39 Independent Contractors.............................................................................................................40 671122 Ontario Ltd. v. Sagaz, (2001) (SCC).........................................................................40 9. Negligence....................................................................................................................................40 1. Terms, Themes and History.....................................................................................................40 2. Elements of Negligence.............................................................................................................40 a) Duty of Care...........................................................................................................................40 i) General Duty of Care Test..................................................................................................40

-6MAlister (or Donoghue) v. Stevenson (1932)(HL)...........................................................40 A. Note on Products Liability.............................................................................................41 ii) Modern Law of Duty Origins Anns/Kamloops...............................................................41 A. Foreseeable Risk...........................................................................................................41 B. Foreseeable Plaintiff.....................................................................................................42 iii) Affirmative Duties............................................................................................................42 A. Rescue............................................................................................................................42 B. Control of Others Conduct............................................................................................43 iv) Special Duties of Care.......................................................................................................46 A. Owed to Rescuers..........................................................................................................46 B. Owed to the Unborn.......................................................................................................46 C. Nervous Shock (Witnesses)...........................................................................................48 D. Health Professionals Duty............................................................................................50 E. Manufacturers or Suppliers Duty to Warn..................................................................51 F. Barristers Duty of Care.................................................................................................53 b) Standard of Care.....................................................................................................................53 i) Reasonable Person Test.......................................................................................................53 Arland v. Taylor, [1955] 3 DLR 358 (Ont. C.A.)...............................................................53 ii) Factors Considered for Breach...........................................................................................53 A. Economic Analysis........................................................................................................55 iii) Special Standards of Care.................................................................................................55 A. Persons with Disabilities................................................................................................55 B. Children..........................................................................................................................56 C. Professionals..................................................................................................................56 iv) Degrees of Negligence......................................................................................................57 v) Custom................................................................................................................................57 Ter Neuzen v. Korn (1995), (SCC)....................................................................................57 Heeney v. Best (1979) (Ont. C.A.).....................................................................................57 c) Causation................................................................................................................................57 i) The Cause-in-Fact...............................................................................................................57 A. But-for Test....................................................................................................................57 B. Material Contribution Test.............................................................................................57 C. Materially Increased Risk..............................................................................................58 ii) Multiple Causes..................................................................................................................58 A. Independently Insufficient............................................................................................58 B. Independently Sufficient................................................................................................59 d) Remoteness of Damages........................................................................................................60 i) Directness vs. Foreseeability...............................................................................................60 Wagon Mound No.1; Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] (Privy Council)........................................................................................................60 ii) Foreseeability Test Modified.............................................................................................60 A. Kinds of Injury...............................................................................................................60 B. Thin Skulled Plaintiff Rule............................................................................................61 C. Wagon Mound Two Possibility of Injury...................................................................62 iii) Intervening Causes............................................................................................................62 Bradford v. Kanellos (1973) (SCC)- Negligence of Another Person.................................63 Oke v. Weide Tot. Ltd. (1963) (Man CA)..........................................................................63 Price v. Milawski (1977) (Ont. CA)...................................................................................63

-7Papp v. Leclerc (1977) (CA)..............................................................................................63 Block v. Martin [1951] (Alta SC)......................................................................................63 Hewson v. Red Deer (1976) (Alta. Trial Division)............................................................64 Tong v. Bedwell [2002] (Alta QB).....................................................................................64 e) Assessment of Damages.........................................................................................................64 i) Introduction.........................................................................................................................64 A. The Purpose of Damage Awards in Negligence............................................................64 B. Preliminary Issues..........................................................................................................65 ii) Personal Injury...................................................................................................................66 Principles Underlying Damages.........................................................................................66 Pecuniary Loss Future Care.............................................................................................67 Pecuniary Loss: Lost Earning Capacity.............................................................................68 Considerations Relevant to Both Heads of Pecuniary Loss...............................................68 Non-Pecuniary Loss............................................................................................................69 iii) Survivor and Dependent Claims.......................................................................................69 A. Survival Actions...........................................................................................................69 B. Fatal Accidents Legislation............................................................................................69 C. Death of the Family Provider.........................................................................................70 D. Death of a Dependant Family Member.........................................................................70 iv) Property Loss.....................................................................................................................70 v) Collateral Benefits..............................................................................................................71 A. The Doctrine of Subrogation........................................................................................72 3. Specific Categories of Negligence............................................................................................72 a) Negligent Misrepresentation...................................................................................................72 i) Causing Pure Economic Loss..............................................................................................72 Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] (HL).............................................72 Donoghue v. Stevenso, [1932] (HL) ..................................................................................72 Kieth Plumbing & Heating Co. v. Newport City Club Ltd. (2000) (BC CA)....................72 Hercules Management Ltd. v. Ernst & Young (1997) (SCC)............................................73 Glanzer v. Shephard, (1922) (NY CA)...............................................................................73 Caparo Industries Plc. V. Dickman, (1990) (HL)...............................................................73 Beebe v. Robb, (1977) (BC SC).........................................................................................73 Deraps v. Coia, (1999) (Ont. CA).......................................................................................73 ii) Negligent Misrepresentation/Contract...............................................................................73 A. Concurrent Liability in both Tort and Contract.............................................................74 B. Pre-Contractual Misrepresentations...............................................................................74 4. Defences.....................................................................................................................................74 a) Contributory Negligence........................................................................................................75 i) Development of the Defence...............................................................................................75 ii) Conduct Constituting Contributory Negligence.................................................................75 Walls v. Mussens Ltd. (1969) (NB CA).............................................................................75 A.G. Ont. V. Keller, (1978) (Ont. CA)...............................................................................75 Lewis v. Todd, (1980) (SCC).............................................................................................75 Heeney v. Best, (1979) (Ont. CA)......................................................................................75 Gagnon v. Beaulieu, [1977] (BC SC).................................................................................75 Galaske v. ODonnell, (1994)(SCC) .................................................................................76 iii) Apportionment of Loss.....................................................................................................76

-8Negligence Act, RSO 1990, c.N.1......................................................................................76 Bell Canada v. Cope (Sarnia) Ltd., (1980) (ON CA).........................................................76 Boma Manufacturing Ltd. v. CIBC, (1996) (SCC)............................................................76 Mortimer v. Cameron, (1994) (SCC).................................................................................76 Ryan v. Victoria (City), (1999) (SCC)...............................................................................77 Chamberland v. Fleming, (1984) (Alta QB).......................................................................77 b) Voluntary Assumption of Risk...............................................................................................77 Dube v. Labar, (1986) (SCC).............................................................................................77 Dyck v. Manitoba Snowmobile Assn., [1985] (SCC)........................................................77 Allen v. Lucas, (1971) (Sask CA)......................................................................................77 c) Ex Turpi Participation in a Criminal or Immoral Act.........................................................77 Hall v. Hebert, (1993) (SCC)..............................................................................................77 John Bead Corp. v. Soni, (2002) (Ont. CA).......................................................................78 d) Inevitable Accident ................................................................................................................78 Rintoul v. X-Ray and Radium Indust. Ltd., [1956] (SCC).................................................78 e) Limitations..............................................................................................................................78 Bannon v. Thunder Bay (City) (2002) (SCC)....................................................................78 5. Proof of Negligence...................................................................................................................79 a) Burden of Proof......................................................................................................................79 Wakelin v. London & South Western Ry. Co. (1886) (HL)...............................................79 b) Exceptions..............................................................................................................................79 i) Statutes and Shifting Burdens of Proof...............................................................................79 MacDonald v. Woodard, (1974) (Ont.Co.Ct.)....................................................................79 AG Ont. v. Keller (1978) (Ont. CA)...................................................................................80 ii) Directly Caused Injury: Unintended Tresspass.................................................................80 Dahlberg v. Naydiuk, (1969) (Man. CA)...........................................................................80 iii) Multiple Negligent Defendants.........................................................................................80 Cook v. Lewis, [1952] (SCC).............................................................................................80 Wotta v. HaliburtonOil Well Cementing Co., [1955] (SCC).............................................80 c) Res Ipsa Loquitur....................................................................................................................80 Fontaine v. British Columbia (Official Administrator), (1997) (SCC)..............................81 10. Role of Statutes...........................................................................................................................81 a) Introduction..............................................................................................................................81 b) Express Statutory Causes of Action.......................................................................................81 Tresspass to Property Act, RSO 1990, c.T.21 (casebook, p.608)...............................................81 Competitionn Act, RSC 1985,c.C-34 (casebook p.609) ............................................................81 Trachsler v. Halton, [1955] (HC)...............................................................................................81 c) The use of Statutes in Common Law Negligence...................................................................81 R. in Right on Can. V. Sask. Wheat Pool, (1983) (SCC)...........................................................81 Horsley v. MacLaren, (1972) (SC).............................................................................................82 Rintoul v. X-Ray and Radium Indust., [1956] (SCC)................................................................82 Bux. V. Slough Metals Ltd., [1973] (CA)..................................................................................82 Varcoe v. Sterling, (1992) (CA).................................................................................................82 London Passenger Tpt. Bd. V. Upson, [1949] (HL)...................................................................82 11. Tort Liability of Public Authorities See Handout..................................................................82

-9-

1. An introduction to Tort Law The Law of Torts governs the relations between individuals, not between individuals and the state. It is an area of Private Law. The Law of Torts is primarily Common Law driven, and case based, although statute and equity are important. Equity is especially important in determining remedies.

1. Torts: Basic Terms and Themes a) Doctrine of Legislative Supremacy 1. Where a statute is enacted in any area, it is supreme over the Common Law, but still remains critical for interpreting statute. 2. Gaps in statute are addressed through Common Law. 3. Legislation is subject to political bias and subject to repeal, while this is theoretically untrue of Common Law. 4. Stare Decisis we stand on precedent to give the law predictability, consistency, certainty and uniform application. o Precedents may be binding, persuasive or distinguished. 5. This allows flexibility and adaptability to new situations. b) Courts of Equity Unfair results in Common Law caused the creation of Courts of Equity under Chancellors, who were supposed to be the conscience of the law. A discretionary power to suspend Common Law decisions. The Courts of Equity eventually became established and more rigid that the rigid Common Law system it was supposed to correct. Judicature Act, 1880s, combines the 2, introduced equitable principles into the Common Law. c) Rule of Law The law is the highest authority, everyone is subject to the law. All citizens are equal before the law and under the law. This ensures stability and good government and supports rationality and an ordered society. Retroactive actions can be of no force, and are void.

d) Primary Sources of Law Cases, statutes, regulations, decisions of panels and tribunals.

2. Torts Distinguished from Other Areas of Law Latin for twisted, crooked. Civil wrongs causing harm to the person, property, reputation of a person, addressed through monetary damages. Torts are infinite and various. They can be divided into intentional and negligence torts. Tort law falls under provincial legislation. The proving of a Tort depends on the establishment of the elements of liability. Tort law examines the existence of involuntary obligations between one or more parties. The plaintiff must establish the liability of the defendant on the balance of probability. Types of Torts: 1. Wrongful conduct of the defendant, with or without intent. (Each Tort has its own definition of wrongful conduct). 2. Causation of harm by this wrongful conduct (cause and effect). Other injuries without causation do not apply.

- 10 Harm to the plaintiff For Intentional Torts, wrongful conduct and causation must be proven harm is assumed. For negligence, the plaintiff must prove harm. If the plaintiff proves harm, focus then shifts to assessment of damages, how the defendant must compensate the plaintiff. Parties may agree on damages, but still go to trial on liability. (I agree your medical bills are $5000, but I shouldnt have to pay them). This can also go the other way. (I did it, but you want too much money). Tort actions follow the rules of civil procedure: A writ (breve) is produced ( or a statement of claim). Many Tort decisions are subsequently overturned, legislated against or altered. The aggrieved party must carry and initiate the action. (including finance, until recently). He plaintiff is motivated by compensation. Backward looking, tries to put people into the position they would have been in had the Tort not occurred. The obligations enforced by Tort law are established by policies to protect the public good. Tort law must involve a harm. Breach of trust, etc. are equitable, not Tort. Equitable remedies are discretionary. Restitution law is one of obligations. It treats obligations which do not fit into contract or Tort law. There are three branches of obligation law: 1. Contract 2. Tort 3. Restitution Unjust enrichment Commenced and financed by the plaintiff Different from restitution as a remedy in contract law 3. A Brief History of Tort Law 1066 Norman conquest by William rules were arbitrary and focused on dealing with immediate matters only, no law. William allowed people to keep their laws, and established Common Law. (Blood money, payment instead of feuding). o Public/private split, public crimes can no longer be resolved by payment. o Establishment of the writ system, caused by the chancelry, the claim would have to fall within the writ to be valid. Originally, only actions with the force of arms against the Kings peace and trespass on the case were valid. Trespass | V Direct | V Intentional Torts | V Violent Acts, Theft Trespass with force Tresspass on the case | V Indirect | V Negligence | V No Force 3.

4. Tresspass and Case: A Brief Review of the Case Law Standard writs were developed that a plaintiff could buy to bring a case. These were trespass. If a new writ had to be developed for an action, it was an on the case action. Eventually, people didnt need writs. They can now just plead the facts of their case. Basis for applying liability: Fault for compensation

- 11 Automobile accidents and workmans comp. Do not need proof of fault to be compensated, just proof of harm. Flaws in the fault principle o If fault cannot be proven, an innocent victim who has been harmed would receive no compensation. Insurance distributes economic liability beyond the Tortfeasor. Fault ignores dispute resolution and community values. Those with few resources would have few occasions for redress. Damage assessment is speculative rather than substantive. A projection may not be accurate. Unmerited attempts at recovery may be encouraged. Fault-based proceedings take 5-7 years to be decided, then one must still pursue the judgment this is slow and expensive. o

The Tort system is still based on fault. There is a 2-step test: 1. Duty of care and proximity. 2. Policy to extend or limit duties people have to one-another. Increasing the scope of duty can increase the scope of liability. There are 4 types of torts: 1. Intentional Torts Based on faults. Tresspass with force. Direct and forceful interference with a person or their property. Usually have to prove intent to cause harm. 2. Negligence Failure to take care to prevent harms where there is a duty to do so. 3. Strict Liability Prove the harm and causal connection, but not intent or negligence. Usually based on policy for public goods. 4. Absolute Liability Conduct causing harm is liable. No need to prove intent or negligence, just causation. No fault, no causation. Not found in tort, but found in some regulations. 5. What is a Tort? There is a difference between criminal and Tortious acts. Many tortuous acts are also criminal acts. o Negligence criminal negligence o Deceit fraud o Battery assault The tort action may be stayed to pursue a criminal charge. Criminal burdens of proof are higher, even if a criminal action fails, the tort action may succeed.

a) Deterrence Most tortuous conduct is spontaneous, careless. There is no forethought for deterrence to affect. Potential liability costs may be weighed against the cost of avoiding damages, people may make a decision to pay damages rather than be safe if its cheaper (efficiency). This means those with more resources can take more risks. Victims are also never fully restored. (A payout doesnt give me back the ability to walk.)

b) Compensation/Reparative Theory This is a primary function of Tort law. Designed to restore the plaintiff to the position they would have been in had the tort not been committed.

- 12 This is the primary reason plaintiffs will litigate. Damages lottery o Litigation is not a speedy form of recovery. o Doesnt pay as much as was lost. o A handful get a lot, the rest get nothing. o If everyone got personal disability insurance, everyone would be more likely to be compensated. Eisen, the Forensic Lottery o Socio-economic and racial differences affect damages. Fair faced victims tend to get more money. Winning and losing seem random. Damages are paid in one lump sum, maybe a system based on long-term care would be more effective. The goals or compensation and deterrence may in fact be at odds with each other. o Compensation requires going after the deep pockets, deterrence looks to the morally culpable.

c) Normative Theories i) Resource Redistribution To reapportion resources more equally

ii) Retributive Justice Imposes liability on a blameworthy actor to penalize, punish or nullify moral fault. o Do we want to encourage revenge? Those with more resources are better able to pursue revenge.

iii) Corrective Justice Attempt at proportionality between the extent of the wrongdoing and the extent of the remedy.

iv) No-Fault A plan instead of liabilities, gives money for loss, but you cant sue. Usually quicker, but you get less.

d) Three main elements of liability 1. Wrongful conduct 2. Causation of harm by this conduct 3. Loss, injury or harm as a result 6. Tresspass and Case, the Case Law a) Scott v. Shepherd, [1955-1774] (England) Facts: The defendant lit and threw a firecracker into a crowded marketplace. There were 2 intervening acts, then the firecracker exploded and blinded the plaintiff. The jury found a verdict for the plaintiff with lb.100 damages, subject to the opinion of the court of this case. Issue: Was the harm direct and consequential, or do the intervening acts represent a break in causation? Analysis: Nares, J. - The writ of trespass requires proof of injury and force. There is a direct causal link between the defendants tortious act and the plaintiffs injury because the defendant gave the mischievous quality to the squib. The intervening actors were not considered free agents as they were reacting to the danger caused by the defendant. Ratio: For an action under trespass, the liability is for all of the consequences that flow from the act. Dissent: Blackstone, J. The action is not immediate. The direct action of the defendant extends only to the first intervening act. Therefore, this is not a case of trespass, it is one of trespass on the case because the damage was not direct. It was consequential. This judgment allows liability to be extended into infinity. Where would it end? This could be a definite policy problem.

- 13 b) Leame v. Bray, (1803) (Eng. KB) Facts: The defendant drove his horse-drawn carriage into the plaintiffs carriage. The plaintiffs horse panicked, he jumped out of the carriage and broke his collarbone. The case was thrown out as non-suited the judge said it should have been framed as an action on the case, not trespass. Held: Held for the plaintiff in trespass. Analysis: The plaintiff received an injury by the direct force of the defendant, it doesnt matter whether the defendant meant to or not. Ratio: The intent is not a factor in cases of trespass with force of arms. c) Williams v. Holland (1833), 10 Bing. 112,131 ER 848 (CP) Facts: The carriage of the defendant struck the carriage of the plaintiff, injuring his son and damaging the carriage. The plaintiff was deprived of the services of his son, who was also his servant, and had to pay doctors bills. Issue: Can an action on the case be brought on the case where negligence is direct? Ratio: There is no authority that says where direct negligence should be tried. Where negligence is direct, the plaintiff can choose whether to bring an action on the case or of trespass. d) Holmes v. Mather (1875) (Exch.) Facts: A horse went out of control and hit a woman even though its owner tried to steer it away from her. She sued for negligence and trespass. Issue: If the action is direct, but not negligent or wilful, is it actionable? Ratio: If an act is not of direct force, nor wilful, nor negligence, or if it is direct but not wrongful, it is considered and accident and is not actionable. e) Cook v. Lewis, [1952] (SCC) Facts: The plaintiff is suing for damages following being shot and injured by the defendant, Cook, while hunting. The jury found that one of Cook or Akenhead shot Lewis, but the defendants shot at the same time, so there is no telling which one shot Lewis. Held: The plaintiff, Lewis, won at appeal to the Supreme Court. Analysis: 1. This is a case on trespass, not on the case because it was direct and with force. The plaintiff must prove this. 2. The defendant must prove that it was neither negligent nor wilful, that it was an accident. 3. In an action on the case, the plaintiff would have to establish causation. In a trespass case, they dont. 4. This is a case of negligent trespass. It is direct and with force. This defines whether it is trespass or case. Ratio: In a case of negligent trespass, the onus is shifted to the defendant to prove the lack of negligence and wilfulness instead of the plaintiff having to prove they were. In trespass you are not limited to reasonable foreseeable circumstances, all consequences are tortious. 2. The Basic Concept of Remedies in Tort Law

- 14 1. Introduction Establishing liability is only a means to achieving a remedy, damages. a) Judicial and Extrajudicial Remedies Judicial Remedies 1. Damages Available in most Tort actions. Grants the plaintiff a legal right to money. May still have to pursue creditors remedies to recover the money. 2. Injunction Directs someone to do something. a) Prohibitive Injunction Keeps the person from doing something. b) Mandatory Injunction Makes the person do something. Ignoring an injunction puts the person in contempt of court, which can lead to imprisonment. These are discretionary, traditionally an equitable remedy. 3. Declaration A formal statement of a persons legal rights. 4. Order of Specific Restitution Makes the person restore a pre-existing condition or return an object(p.24) Extrajudicial Remedies 1. 2. 3.

Recapture of Chattels Re-entry onto land Abatement of Nuisance

2. Classification of Damages a) Pecuniary Can be measured (monetary). b) Non-pecuniary Cannot be measured, emotional loss, pain and suffering. (non-monetary). 1. Special Damages Can be calculated exactly at the time of the trial. 2. General Damages Cannot be calculated at the time of the trial. 3. Types of Damages in Intentional Torts Nominal b) Compensatory Compensate for actual loss. To place the injured party in the same place she would have been had the tort not occurred. (Dodd Properties v. Canterbury City Council, Livingstone v. Rawyards Coal Co.) A small award ($50) to recognize a legal right the law protects when there is no real harm. Only awarded for torts that are actionable per se, or without proof of loss.

c) Punitive (Exemplary) Designed to hurt the defendant. Used for retribution and deterrence. (Vorvis v. Insurance Grour of B.C.(1989)) questioned as to their purpose and effectiveness (Whiten v. Pilot Insurance, B.(P.) v. B.(W.)

d) Disgorgement Takes away from the defendant benefits that he obtained as a result of his own wrongdoing.

- 15 Available in some cases (including breach of contract) but not others (assault, battery, false imprisonment)

i) Penarth Dock Engineering Co. v. Pounds, [1963] (Eng. QB) The defendant profited by leaving his pontoon boat at the plaintiffs dock for eight months. He had to give up the money he saved by not having to rent other space. 3. Intentional Interference With the Person 1. Basic Principles of Liability A defendant is only liable if volition and intent are shown. a) Volition Desire to do an act. An act is voluntary if it is directed by the defendants conscious mind. (p.40) Volition is rarely an issue in cases because it is rarely in question except with children and the insane.

i) Smith v. Stone (1647) (KB) Tresspass to Land The defendant was sued for trespass. He claimed that while he was on the plaintiffs property, there was no volition on his part because he was carried there by other men against his will. The judge said it was the trespass of these other men, not the defendant, because he did not have the volition.

b) Intent Desire to produce the result that follows the act. Refers to a persons desire to bring about the results or consequences of his act, rather than his desire to do the act itself(p40). Subjective intention The actual intention in the mind of the actor.

1. Imputed (Constructive) Intent Intent includes both the desire to bring about the consequences of an act, and those unintended consequences that are certain or substantially certain to result from it(p41). Used to establish intent when there is no simple intent. Objective intent what a reasonable person would conclude. 2. Transferred Intent Imposes liability for the unintended consequence of an act. Applied when someone intends to commit an intentional tort against the plaintiff, or intends to commit one tort against the plaintiff and commits another against him. Historically limited to battery, assault, false imprisonment, trespass to land, trespass to chattels, and only for the actions of hurling, casting and shooting. Used to establish intent when there is no simple intent. Objective intent what a reasonable person would conclude. 2. Motive, Mistake and Accident a) Motive Motive is an essential element of some torts, ie: malicious prosecution. The reason for wanting something to occur. The plaintiff in an action must prove the defendants conduct was intentional and voluntary, but not the blameworthiness of their motive. Motive is taken into account in several ways, especially in assessing damages. (Pilot Insurance).

- 16 i) Duress An inoperable defence.

a) Gilbert v. Stone, (1648)82 ER 539 (KB) Tresspass to Land, Tresspass to Chattels The defendant plead not guilty of trespass to land and stealing money because he was threatened by 12 armed men who would injure him if he did not. The Court found that this was not a valid defence because the plaintiff cannot receive satisfaction from the party who did the threatening. (Policy Concern). Duress did not negate volition nor intent. It is simply a factor the Courts will consider in assessing damages. Duress is only a defence in criminal law.

ii) Provocation A partial defence, only used in damages.

a) Miska v. Sivek(1954) 18 DLR (2d) 363 (Ont CA) The plaintiff sued for damages after being intentionally shot by the defendant. The defendant argued selfdefence. The plaintiff chased him to his house. There was evidence of bad blood between the parties. The Jury found for the plaintiff. The defendant appealed on 2 grounds: 1) The judge told the jury the defendant had to show the force he used was in self defence and not excessive. 2) He failed to tell the jury they should take provocation into account in assessing damages. The first ground of appeal failed. The second was dismissed because the judge found there was no provocation. The defendant was in his house with the door locked when he shot the plaintiff. Provoking behaviour: Insulting or abusive conduct or language, sudden passion, lack of self control, annoyance. The appeal was dismissed with costs. Provocation usually reduces damages if accepted as a defence. Policy argument, if we allow people the defence of provocation when the provocation is not immediate, we could be encouraging people to seek retribution for past provocations. The Test: Did the plaintiffs conduct cause the defendant, as a reasonable person, to lose his power of selfcontrol? (Objective test)

b) Mistake Occurs when the defendant intended the consequences of his act, but thought that the consequence would have a different factual or legal significance than that contemplated(p45). This is not a defence to an intentional tort. Provides an incentive for people to exercise great care not to make mistakes. Only matters as a defence in cases of self defence and defence of a third party, where one has to react immediately to danger.

i) Hodgskinson v. Martin, [1929] 1 DLR 367 (B.C. C.A.) The plaintiff sued for damages for trespass to the person. The defendant, a Deputy Minister, forcibly removed the plaintiff from his offices. He was not entitled to do so, but he thought he was. The judge found that the mistake was not a valid defence for the intentional interference with the plaintiff. He did, however, find that the mistake was a mitigating factor. He reduced the damages awarded to $10, nominal damages.

ii) Ranson v. Kitner (1888), 31 Ill. App 241 (Ill. CA) The plaintiffs sued the defendants for killing their dog. He defendants argued they were hunting wolves, the dog looked like a wolf, and it was an honest mistake. The judge found this was no defence. That they were acting in good faith does not change that they caused harm to the plaintiffs property. They are liable for the dog.

c) Accident

- 17 A situation where the defendant injured the plaintiff, but without intent or negligence. An accident is distinguished from a mistake by the absence of intent.

d) The Liability of Children and the Mentally Ill While children and the mentally ill are subject to the rules of liability in intentional torts, but this is tempered by another test, whether the defendant could appreciate the nature and quality(p48) of their actions. Parents are not liable for torts committed by their children unless they were negligent in supervising or controlling the child. Parental responsibility legislation in Ontario, Manitoba, and B.C. requires that defendants prove there was enough supervision or that the damage was unintentional. The defendant is only liable if they failed to provide reasonable supervision of the child.

3. Tresspass to the Person There are three main forms of Trespass to the Person 1. Battery 2. Assault 3. False Imprisonment 1. Battery An intentional infliction of harmful or offensive contact on another person. The defendant must have intended that the contact occur. The cause of action arises when the victim realises the harm has occurred. Assault is the threat of violence, battery is the actual contact. Requires volition and intent. Actionable per se, dont need to prove harm. Plaintiff must prove it is direct and with force. Defendant must raise defences, or show that there was no intent and no negligence, ie. An accident. The plaintiff doesnt have to have been aware of the battery at the time it occurred. (asleep, anaesthetised, etc.). Not all contact is battery. Jostling in a crowd, etc. are seen as just part of life. a) Bettel v. Yim (1978), 88 DLR (3d) 543 (Co. CT) Facts: The plaintiffs son was throwing lit matches into a convenience store. A bag of charcoal caught fire, but the defendant did not see who threw it. The defendant grabbed the plaintiffs son and shook him, trying to make him confess. While he was shaking him, the defendant hit the boy on the nose with his head, causing him to fall to the floor and bleed. He said this was an accident. Issue: Did the defendant commit battery on the plaintiffs son? Rule: 1. The action is framed as assault. It should have been battery: The intentional infliction upon the body of another of a harmful or offensive contact(p50), but in Canada an assault can include battery. The action will proceed as battery. 2. For it to be battery, the defendant must have directly injured the boy. 3. There is no liability for accidental harm. Analysis: 1. The defendant testified that he intended to grab the boy and shake him. This constitutes battery. His testimony did not fit any of the defences to battery; consent, self defence, defence of property, necessity or legal authority.

2. The defendant intended to grab the boy but did not mean to hit his head. Fleming, in Law of Torts, 4th Ed.
(1971), p.28, writes; it is not necessary that the actor intended to inflict bodily harm, since we have seen the legal is complete without it(p51). If the defendant intentionally commits violence or threats of violence, and a

- 18 more serious harm than he intended happens to his victim in the course of this, the defendant must bear the brunt of this. This was a case of transferred intent, he intended to commit one tort and he committed another. Conclusion: Damages awarded to the plaintiff. The defendant was liable for all injuries the defendants son suffered as a result of the incident. b) Non Marine Underwriters, Lloyds of London v. Scalera, (2000) (SCC) Facts: Vincent Scalera was a bus driver who had an affair with a minor who worked in a store on his route. After she came of age, the plaintiff sued the defendant for battery, claiming she did not consent. The defendant had insurance which may have had to cover the damages payment. He court found it did not, the defendant appealed. The insurance company is trying to prove that the act was intentional so they dont have to pay. Issue: Does the onus rest on the plaintiff to prove she did not consent in a case of sexual battery? Rule: 1. Tresspass is a rights-based tort. The traditional rule in rights-based torts is that the plaintiff must prove direct interference with her person(55). The burden then shifts to the defendant to present a defence, like consent. (Sullivan, Tresspass to the Person in Canada: A Defence of the Traditional Approach (1987), 19 Ottawa L. Rev. 533 p.562; Bell Canada v. COPE (Sarnia) Ltd. (1980), 11 CCLT 170 (Ont HC). 2. The argument that battery must involve harmful or offensive contact does not justify shifting the burden of proof to the defendant (p57). This argument is advanced to protect people from nuisance lawsuits caused by everyday contact. Sexual touching is not everyday contact. It is a singling out of a person. 3. There is nothing about sexual assault that justifies the creation of a new rule. Placing a rule on sexual battery that is not present in any type of battery otherwise places an unfair burden on sexual battery plaintiffs. It runs contrary to the criminal codes provisions against victim blaming in sexual assault cases. The defendant is also the only person who really knows whether he thought there was consent, so he is in the best position to present evidence to explain his behaviour. Ratio: There is nothing exceptional about sexual battery that should make it necessary to change the traditional rules of battery cases. To change the onus of proof to the plaintiffs would put an unfair burden on sexual battery cases. There is no need or justification to change this rule. c) Smith v. Stone and Gilbert v. Stone Is Stone any more blameworthy in Gilbert than in Smith? It doesnt matter. The test is volition and intent. If they are there, the defendant is liable.

2. Assault The intentional creation in the mind of another of a reasonable apprehension of immediate physical contact. It has been stated that conditional threats, and words alone, without some overt act, cannot constitute assault. However, the courts have begun to reconsider these limitations and focus instead on the impression created in the plaintiffs mind(p61). Intentional creation in the mind of another of a reasonable apprehension of an imminent battery (harmful or offensive contact). Even if the defendant lacks the ability to carry out that harm. (Pointing an unloaded gun at someone). Fear is not required (but it really really helps).

- 19 Imminence, must not be too far in the future. The threatened harm must be immediate. Assault is usually followed by battery, but you can have one without the other. Actionable per se, doesnt have to be great harm.

a) Holcombe v. Whitaker (1975) (Ala. S.C.) Facts: A doctor tries to break down his wifes door, saying hell kill if she divorces him. The defendant argued it was not assault because the threat was conditional. Ratio: The defendant cannot threaten to harm the plaintiff if she does something she has a legal right to do. She reasonably thought he could harm her, combined with his show of force, the threat was imminent, and she reasonably apprehended the harm. b) Police v. Greaves, [1964] (Eng. C.A.) Facts: Drunk defendant points a knife at police and tells them to get out or hell stab them. Issue: Is this assault if the threat was conditional? Ratio: A threat that gives a condition interfering with the lawful occasions of the threatened person or constitute an assault. c) Bruce v. Dyer (1966) (Ont. H.C.) Ratio: The threat of violence has to be such that a reasonable person would apprehend imminent harm. This may provide the basis for defences of consent, self defence, or provocation. 3. False Imprisonment Derived from the writ of trespass. Imprisonment must be total. How long is less important. It is not false imprisonment if there is a reasonable means of escape. Reasonable = Available to the plaintiff without danger. If an obstruction causes damages, a remedy may be found in negligence (Sue insurance companies) or public nuisance, but it cant be false imprisonment without total restraint. You can be liable for false imprisonment if you order someone else to wrongfully imprison someone. (Only if you order someone to do it. If you simply provide them with information, you are not responsible for what they do).

a) Bird v. Jones, (1845) (QB) (Unchallenged for 150 years) Facts: The plaintiff was trying to use a public highway. He was prevented from going in the direction he wanted by the defendant and his agents, who were policemen. The plaintiff was free to go in any direction except the one he wanted, no actual force or restraint was used on him. Issue: Does this constitute false imprisonment? Ratio: Patteson, J. - Imprisonment must be a total restraint of a person, not a partial obstruction of his will. Dissent: Lord Denman CJ The plaintiff was stopped with force and made to go in a direction he did not want to go. They prevented him from doing what he had a right to do. b) Campbell v. S.S. Kresge Co., (1976) (NS TD) Facts: The plaintiff went Christmas shopping at K-Mart. She took a cart, put some things in it, but couldnt get the attention of a clerk, so she left. Someone said they saw her shoplifting, so a security guard stopped her outside the store. He told her she should come inside to avoid further embarrassment. When she went in, she demanded to know

- 20 what was going on and demanded to be searched. The security guard, not seeing his informant, told her he was just trying to get the facts and she was free to go. She left the store. Issue: Did the security guards actions constitute false imprisonment? Ratio: There must be a boundary for false imprisonment, but this doesnt have to be a physical barrier. Threat of arrest or embarrassment is enough. c) Herd v. Weardale Steel, Coal and Coke Co., [1915] (HL) Facts: The plaintiff worked in a mine. He was brought down, then refused to work because he said the work was too dangerous. He demanded to be brought to the surface, and was told he would have to wait for the regular time. He had to wait 20 minutes. Issue: Did the defendants refusal to bring the plaintiff up as soon as he asked constitute false imprisonment? Ratio: Voluntary confinement for a fixed period negates a claim for false imprisonment. One cannot be harmed by what one agrees to. 4. Tresspass on the Case 1. Malicious Prosecution Derived from trespass on the case. Improper institution of criminal prosecution proceedings against an individual. Intent counts, malice must be present Must establish injury, damages, and interference, but indirect. Usually protects prosecution from liability. Motive matters. To strike a balance between encouraging people to keep the pace and keeping them from starting frivolous cases. Usually limited to the criminal context. In the civil context, it is usually limited to bankruptcy and winding-up matters.

a) Nelles v. Ontario, (1989) (SCC) Facts: The plaintiff was charged in the deaths of 4 babies. After a long public hearing, the charges were dropped. She sued several police officers, the Ontario Attorney General and the Crown for false imprisonment, malicious prosecution, negligence and violation of her Charter rights. Issue: Are the Attorney General and Crown immune to suits for malicious prosecution? Ratio: There are 4 necessary elements of the tort of malicious prosecution: a) They must have been initiated by the defendant. b) They must have ended in favour of the plaintiff. c) There must be no reasonable or probable cause Subjective, there has to be a belief in the accuseds guilt. Objective There has to be a rational basis for this belief. The plaintiff must prove these are not present. d) There must be malice, or a main purpose other than a lawful one Ill will, vengeance. Doesnt have to be malice, but motive counts. To coerce someone, improperly shift blame. Errors in discretion or judgment are not actionable. Belief in the subjects guilt must pass subjective and objective tests. The initiator of the action must believe it and it must be reasonable to believe it. The burden on the plaintiff requires that she prove that the Attorney General or Crown Attorney defrauded the justice system and in the process perverted or abused their office and the process of criminal justice.

- 21 There may also be a violation of the plaintiffs rights under ss. 7 to 11 of the Charter. For the AG and Crown to be immune to these suits would encourage public confidence in these offices, but this would violate equality before the law. The Attorney General and the Crown are not immune to malicious prosecution. b) Abuse of Process Focuses on the nuisance of civil proceedings for a purpose other than the resolution of the claim. The plaintiff must prove: 1. That the defendant brought a civil action. 2. That it was done for some extrinsic process. 3. That the defendant undertook, or threatened to undertake, some overt act or threat other than the litigation itself in order to further the improper purpose. 4. That the plaintiff consequently suffered a loss. Proceedings do not have to have terminated in favour of the plaintiff. The overt act is usually difficult to prove. 2. Intentional Infliction of Nervous Shock

Usually refers to one shocking event, but can refer to a pattern. (Clark v. Canada) The harm must be a recognized illness or psychiatric disorder. The person mustnt be predisposed to nervous shock. The Supreme Court has refused to allow the Intentional Infliction of Nervous Shock in family cases because of flood gates arguments about vindictive prosecution.

a) Wilkinson v. Downton, [1897] (Eng. QB) Facts: The defendant told the plaintiff her husband had been injured in an accident. This caused a nervous shock, which caused her to vomit, and further suffering that caused her weeks of suffering and incapacity and cost her husband money in medical bills. She was not unhealthy before the incident. The defendant said he did this as a joke. Ratio: Causing a nervous shock to a person is a tortuous act. Where the act is plainly calculated to cause harm, motive for greater harm may be imputed. This was the first case to recognize the intentional infliction of nervous shock as a tort. The plaintiff has physical symptoms. b) Radovskis v. Tomm, (1957) (Man QB) Facts: The defendant raped the plaintiff, a 5 year-old girl. He was convicted of the rape and sent to jail. The child is now suing the defendant for trespass to her person, her father is suing for medical bills, lost pay and worry. Her mother is suing for nervous shock. Issue: Can the mother of a molested child recover for nervous shock? Ratio: Visible and provable illness resulting from a violent emotion caused by the defendants is a recoverable harm. The illness must be a natural and direct result of the wrongful act. c) Samms v. Eccles, (1961) (Utah SC) Facts: The plaintiff is a married woman. The defendant harassed her from May to December 1957 by phoning her at all hours asking her to have sex with him and once came to her house and exposed himself to her. As a result, she claimed she suffered nervous shock. She is suing for $1,500 in actual damages and $1,500 in punitive damages. Issue: Are the damages for nervous shock recoverable?

- 22 Ratio: This tort need not be based on negligence. The test: 1. An action for severe emotional distress can be brought where the defendant intentionally engaged in conduct toward the plaintiff. a) Objective - With the purpose of inflicting emotional distress. b) Subjective - Where any reasonable person would have known this would result, and his actions are ones that could be considered outrageous and intolerable according to generally accepted standards of decency and morality. d) Innominate Intentional Torts

Some see Wilkinson as establishing an innominate intentional tort for all unjustified intentionally inflicted bodily injuries (such as nervous shock). Others see Wilkinson as creating a nominate tort, Intentional Infliction of Nervous Shock. Some intentional conduct is morally blameworthy and likely to cause injury but dont fall into the traditional named actions, like poisoning someone, setting a trap in someones path, infecting them with a disease, etc. Innominate actions allow these claims to be redressed without disturbing accepted principles of nominate torts. 3. Protection of Privacy a) Is there a Common Law Tort Action for the Invasion of Privacy? There is no established tort of invasion of privacy in Canada, but some cases have recognized that privacy is something to be protected. In Ontario there is no tort of privacy per se. Other jurisdictions rely on statute. Privacy is difficult to define and can be problematic. It depends on personal attitudes and expectations. The legal approach has been to rely on statutory protection of privacy. In some provinces the Common Law Applies. In others remedies lie in other torts. In BC, Manitoba, Saskatchewan and Newfoundland there are privacy acts. This should influence the Common Law in these areas and the development of Common Law and statute in other areas.

i) Motherwell v. Motherwell, (1976) (Alta. CA) Develops anew category of Tort under nuisance, invasion of privacy by way of the telephone. Ratio: A nuisance of this kind must be a real interference with the comfort or convenience of living according to the standards of the average man to be actionable. b) The Statutory Protection of Privacy ii) Hollingsworth v. BCTV, [1999] (BC CA) Facts: Mr. Hollingsworth got hair plugs and consented to have the procedure videotaped for educational purposes. Seven years later, BCTV interviewed the doctor who did the surgery. He gave them the tape for a TV show. He said Mr. Hollingsworth had consented to the use of the tape, but he didnt know where Mr. Hollingsworth was. They showed the tape on the 6 oclock news. He sued for defamation, breach of obligation of confidentiality, and breach of the Privacy Act, creating a statutory tort. Issue: Are the three causes of action actionable? Analysis: 1. Defamation: BCTV did not lie about the plaintiff. No. 2. Breach of Obligation of Confidentiality: BCTV did not know and should not have known the tape was confidential. 3. Privacy Act: BCTV did not violate the plaintiffs privacy wilfully, and they had an honest and reasonable belief that the tape was OK to use.

- 23 c) Action for Breach of Confidence (Confidential Information) 3 Elements: 1. The information in question must have a quality of confidentiality. 2. It must be imparted in circumstances creating an obligation of confidence. 3. Its unauthorised use must be detrimental to the confider. Originally an equity action, now supported in law. Usually used to protect trade secrets. Can also be used for personal information, and so to protect privacy. 4. The Common Law Tort of Discrimination a) Bhadauria v. Bd. Of Gov. of Seneca College of Applied Arts and Technology, (1979) (Ont. CA) Facts: The plaintiff applied for 10 jobs at the college, and had all of the necessary qualifications. She did not get an interview for any of them. She claims this is because she is Indian. She sued at Comon Law instead of filing a complaint under the Ontario Human Rights Code. Issue: Is there a Common Law Tort of discrimination? Ratio: There is or should be a Common Law Tort of Discrimination. b) The Bd. Of Gov. of the Seneca College of Applied Arts and Technology v. Bhadauria, (1981) (SCC) Ratio: The enactment of the Ontario Human Rights Code forecloses civil law remedies, including actions in tort. The Code has remedies for Discrimination, and these are the ones that should be used. 5. Current Legal Protection from Racial Insults a) Assault and Battery Only applies if there is a physical or reasonable threat of harm. Damages are not available for mental anguish.

b) Intentional Infliction of Emotional Distress Recovery is limited to severe distress. There must be harm or extreme or outrageous upset. mere insults are not always considered enough.

6. Objections to a Tort for Racial Insults a) Difficulty of Measuring Damages Interests are intangible and difficult to measure and prove. These types of damages are routinely assessed for other actions such as invasion of privacy and emotional distress. b) Difficulty of Apportioning Damages The plaintiffs susceptibility to racial insults may depend on past experiences of racism. The degree of harm caused by one defendant may be dependant on the degree of harm caused in the past.

c) Fraudulent Claims and Floodgates The inconvenience and distress and expense caused by litigation are enough to deter most fraudulent claims.

- 24 Elements of the Proposed Cause of Action The plaintiff should be required to prove: o that language was addressed to him or her by the defendant that was intended to demean through reference to race. o That the plaintiff understood it as intended to demean through reference to race. o That a reasonable person would recognize such as a racial insult. This proposed tort is seen as a way to balance interests. Tort law is seen as a supplementary or alternative scheme to Human Rights Legislation. o Dual systems exist for motor vehicle, criminal injuries compensation. Under the Human Rights Code, there is discretion as to whether your action will proceed. o At the discretion of the government, bureaucracy. Why are racial insults worse than gender insults or any other immutable quality?

4. Intentional Interference with Chattels 1. Tresspass to Chattels Touching something that doesnt belong to you. Direct and with force, the plaintiff must prove this. The defendant must prove lack of intent or negligence(accident) in order to raise a successful defence. Protects the right to possession, not the rights of ownership (although ownership supercedes mere possession). Used to allow owners to take their Chattels back without legal recourse. It is unclear whether you can commit battery to get your chattels back. a) Fouldes v. Willoughby, (1841) (Ex. Ct.) Facts: The plaintiff was on a boat and caused a disturbance. His horses were put on shore in the hopes he would follow them. He did not. The horses ran away and later turned up at a stable. The stable owner refused to release the horses to the plaintiff until their keep had been paid for. The horses were eventually sold at auction to pay for their keep. The trial judge told the jury to consider conversion. Damages were awarded to the plaintiff. Ratio: Where someone carries away goods without the intent to make any claim to them, it is not a conversion but a tresspass. 2. Conversion The plaintiffs chattel has to be too damaged or destroyed to return it. Damages are based on the market value of the thing when it was taken. To constitute conversion, the party taking the goods must intend to use them, or destroy or consume them, or otherwise exert control over them. (Fouldes v. Willoughby) 3. Detinue Ongoing unlawful detention of a chattel

4. Permanent Damage to Reversionary Interests When the owner is out of possession when the damage occurs. Innominate tort. The owner may sue a third party for damage to their Chattels while they are in the possession of a bailee. 5. Intentional Interference with Real Property An owner who is out of possession but has title can bring a number of remedies. 1. Ejectment (Property, not tort) To recover property. Doesnt depend on possession, but title.

- 25 2. 3. Peaceful entry onto the land and request the occupier to leave. If there is no compliance, reasonable force may be used to eject them. If they have the right to immediate possession and they take possession, they are deemed to have been in possession from the time they obtained the right to immediate possession. Entitled to mesne profits, losses from use of land, the wrongful occupation. This is called trespass by relation, a legal fiction which allows the title holder to date their claim to the land from the time they first obtained the right to the land.

1. Tresspass to Land A wrong against possession DIRECT. Direct and intentional physical intrusion onto land in possession in another. Interference must be intentional or negligence privacy, property, possessory interests.

a) Entick v. Carrington, (1765) (USA CP) Facts: The defendant broke into the plaintiffs house and carried away some papers. The defendant claimed authority under a warrant from the Secretary of State. The plaintiff sued the defendants in trespass. Ratio: The tort of trespass is actionable per se. No damage need be proven. If a person admits to the trespass, the burden is on her to prove a justification. If there is no excuse available, the plaintiff is entitled to judgment. b) Turner v. Thorne, (1960) (Ont. HC) Facts: Thorne mistakenly delivered a load of goods to the plaintiffs home instead of his business. He entered the plaintiffs garage without permission and stacked the goods inside. When the plaintiff came home, he tripped over the boxes and was injured. Issue: What is the liability of a trespasser for injuries caused to the possessor of the land as an indirect result of trespass? Ratio: 1. 2. That a trespass was by mistake does not relieve the trespasser of liability for the results of the trespass. A trespasser is liable for injuries stemming directly from the trespass, as well as those caused indirectly or consequently by the trespass.

c) Harrisson v. Carswell, (1976) (SCC) Facts: The defendant was charged with trespass for picketing in a shopping mall for four days. She was convicted and fined $10 for each day at County Court. The convictions were set aside by the Manitoba Court of Appeal. It was then appealed to the Supreme Court. Ratio: Property owners have a right to exclude anyone they wish from their property. There is a right to picket, but there is also a law in Manitoba prohibiting picketing on private property. We must defer to the legislature. Dissent: Laskin CJC - The common areas of a shopping mall are open to the public and therefore more public than private property. Where someone is ejected from a public area for picketing, an activity they have a right to do, she is the one who is injured. 2. Tresspass and Nuisance A private nuisance is a substantial and unreasonable interference with the use and enjoyment of land in the possession of another. Nuisance is only actionable if there is proof of loss. Protects the quality of possession. Concerned with the effect of conduct, not the nature of it.

- 26 Liability may be imposed even if the conduct was not intentional or negligent.

Nuisance 2 Types: 1. Public Nuisance Protects the public in the exercise of rights common to all. Not a tort, a crime at Common Law or under statute. For example, easements, or digging a hole in the highway without permission.

2. Private Nuisance Protects the rights of one person, a tort. A substantial interference with the use or enjoyment of a persons land. An interference that is offensive and inconvenient to a reasonable person. Usually one landowner against another. Used to prevent damage or obtain compensation for damages that have already occurred. For example decline in property value. A public nuisance may give rise to a private nuisance. There are 2 main causes of nuisance in tort: 1. Indirect cause of physical damage to the land of the plaintiff. Liability is established with only one occurrence of the act Liability is usually strict, will flow unless a defence is established. 2. Conduct not leading to damage, but is an indirect barrier to the use and enjoyment of land. The tortious act must be continuing. Various factors are weighed in, such as the defendants intent or neglect (state of mind). The plaintiff must establish substantial and unreasonable interference, as well as continuing harm, proof of damages. Action on the case, requires proof of damages. Eg. Noise, odours, damage caused by tree roots, pollution, fumes, sewage, water. a) Kerr v. Revelstoke Bldg. Materials Ltd., (1976) (Alta. SC) Facts: The Kerrs built a motel on a lot chosen for its matural beauty. Revelstoke set up shop across the street seven years after they opened. The plaintiffs had to deal with smoke, sawdust, dust, fly ash and noise. The defendants took measures to help the situation, but the motel closed in 1971, 20 years after it opened. Issue: Do these inconveniences constitute nuisance or trespass? Ratio: Noise, fumes and substances entering the plaintiffs property constituted a nuisance. 6. Defences 1. Consent A full defence, goes to liability. Canadian Torts tend to place the burden of proof on the defendant. The issue of consent is tied to the specific tort. What constitutes consent depends on the tort. Consent extends to normal risks, not to negligence. Consent may be explicit: spoken or written, or implicit: shown through participation, demeanor, etc.

- 27 a) Implied Wright v. MacLean, (1956) (BC SC) Facts: Some boys had a mud fight on a dirt pile near a construction site. One of the boys was slightly injured by a hard object. He joined the play willingly and participated. The boy who threw the hard object that hit the plaintiff did not intend to cause harm. Issue: Did the plaintiff consent to the possible harm of the mud fight by participating in it? Ratio: Where there is no ill will, and the defendant was invited to join the game, there is no liability apart from culpable carelessness (negligence). Where there is no negligence, blows given in sport and not maliciously in conditions of fair play and good temper are not actionable. If the fair play and good will end, so does the consent. b) Exceeding Consent Agar v. Canning, (1965) (Man. QB), affd (Man. CA) Facts: During a hockey fight, the plaintiff checked and hooked the defendant in the neck. The defendant turned around and brought his stick down on the defendants face, blinding him in his right eye and injuring his nose. Issue: Did the plaintiff consent to the injury because it happened in the course of a sporting event? Ratio: There is a limit to a players immunity from liability. Each case must be decided on its own facts, but when a person shows a definite resolve to cause serious injury, this goes beyond implied consent. c) Competency to Consent For a consent to be valid, the giver must be capable of understanding the nature and consequence of the act. If they cannot, because of age, physical or mental illness, intoxication or other reason, the consent if not valid. If a person is competent, the law upholds their right to make any decision they choose, except in certain circumstances. (A person cant consent to sex if they are under 14) o Age might be defined by statute, consent to something is contextual, depending on statute. d) Vitiating Consent If consent is vitiated, the defendant is held liable as if there had been no consent. i) Fraud (Deceit) 2 requirements: a) misapprehension. b)

The defendant must have been aware of or responsible for the plaintiffs The fraud must be directly related to the nature of the act, not a collateral matter.

Hegarty v. Shine, (1878) (Ireland CA) Ratio: Consent to sex is not negated by the transmission of an STD because it was collateral. R. v. Cuerrier, (1998) (SCC) Ratio: Consent to sex was vitiated by undisclosed HIV status in the criminal context. ii) Mistake A plaintiffs consent is only vitiated by a mistaken belief if the defendant is responsible for creating the error. Some American scholars find that the defendants knowledge that the plaintiff consented based on a mistaken belief vitiates the consent. This dies not apply where the defendant thinks the plaintiff has consented to an act she has not consented to. This is no defence.

- 28 Toews v. Weisner, (2001) (BC SC) Ratio: A nurse who administers a shot to a child thinking she has the parents consent is still liable if the parents have not in fact consented. iii) Duress Latter v. Braddell, (1880) (CP) Facts: Ms. Latters employers called a doctor to examine her and see if she was pregnant. Throughout the exam, she protested that she did not want to be examined, but she didnt refuse or fight him. She claimed she did not consent. The trial judge found for the doctor. The maid appealed. The action against the employer was dropped. Issue: Did the maid consent to the examination? Ratio: Lopes, J. - Where someone does as much as they can do to repel an examination without using physical force, they did not consent. Dissent: Lindley, J. There was no force or violence used, want of consent could not be distinguished from reluctance. The doctor was just a agent of the Braddells, and did nothing wrong. The wrong done to the maid was her dismissal even though the allegation proved false. iv) Public Policy Consent is vitiated in some cases because it makes good public policy. o You cant consent to being killed or seriously injured (Lane v. Holloway, R. v. Jobidon) o You cant consent to someone exploiting a position of authority. (Sex with parents, doctors, teachers, etc.) (Norberg v. Wynrib, M(M) v. K(K)).

Nelitz v. Dyck, (2001) (Ont. CA) Facts: The plaintiff had chiropractic treatments through her insurer, Gore. Gore had a hard time getting information about her from her chiropractor, so they sent her a letter telling her to show up and be examined by Dr. Dyck. She claimed that he injured her by pressing on the top of her head at the end of the exam. The Court held that Gore used Dr. Dyck to commit battery against her. Ratio: There is a 2 part test to determine where a power imbalance vitiates consent. 1. Proof of inequality, usually in the context of a power dependency relationship. 2. Proof of exploitation, considers the type of relationship in light of community standards. e) Ex Turpi Hall v. Hebert, (1993) (SCC) Ratio: A person cannot recover in tort for the consequences of her own illegal or immoral conduct. This is intended to protect the integrity of the legal system. People cant profit from their illegal or immoral behaviour. This rarely applies to a plaintiff seeking compensation for an actual loss. John Bead Corp. v. Soni, (2002) (Ont. CA) Ratio: 2 examples of when the ex turpi defence will be used to deny damages. 1. Where the wrongdoer claims against another for profits from his own wrongdoing. 2. Where someone claims lost earnings from illegal activities. Tallow v. Tailfeathers, (1973) (Alta. CA) Ratio: The ex turpi defence was limited to violations of federal criminal law.

- 29 Can. Cement LaFarge Ltd. v. B.C. Lightweight Aggregate Ltd., (1983) (SCC) Ratio: The Supreme Court held that ex turpi extends to illegal and immoral conduct. f) Consent to Treatment and Counselling Health care providers and counsellors must usually obtain consent before any treatment or counselling. This should be obtained ahead of time, and cover the procedure, record keeping, reporting and other disclosures. If the patient is competent to consent, her consent is all that is needed. This consent must be a voluntary product of her conscious mind, and based on a full and frank disclosure of the nature of the procedure and its risks without vitiating factors. Consent can be implicit by behaviour or participation, or explicitly, orally or in writing. Just seeking treatment can imply consent. A health care professional cannot override the limits a patient places on her consent (Malette). There is now a Consent to Treatment Act (1992), replaced by the Health Care Consent Act(1996) to govern these rules. Exceptions: Requirements of strict consent are relaxed by the courts in 3 situations: 1. In a medical emergency when it is impossible to obtain consent, health care professionals may intervene to save the persons life. 2. Patients who have given a general consent to a course of treatment will be viewed as consenting to the whole course of treatment. This consent will be negated if the person objects. 3. Canadian Courts used to let health care professionals hide things from patients if they thought it would help them. Newer cases reject this. (Meyer Estate v. Rogers), or narrow it (Pittman Estate v. Bain) Malette v. Shulman, (1987) (Ont. HC) Facts: A Jehovahs witness was seriously injured in a car accident. Her doctor found a card in her wallet saying she did not want a blood transfusion. Her gave her one anyway, and continued even after her daughter showed up and told him to stop. Issue: Does the refusal of medical treatment have to be informed? Ratio: The doctrine of informed consent does not extend to informed refusal. A card refusing treatment is a valid demonstration of intent to refuse treatment, and should be honoured. The Burden of Proof and Consent Forms Professionals have the burden of proving consent on the balance of probabilities. Unless there is a governing statute, consent may be given orally or in writing. A signed consent form doesnt remove liability. It is only some evidence of consent. The key issue is whether the patient understood the basics of the procedure and the risks. There will be problems with its validity if the patient is drugged, intoxicated or in severe pain when she consents, or it is presented as a mere formality or in circumstances where she cannot read the form. Competency to Consent Consent must be given by a patient who is legally competent to be valid. The common law test of competence focuses on the patients ability to understand the nature of the proposed treatment and its risks, not her ability to make a reasoned or prudent decision. i) Minors The test for competency is the same whether the patient is an adult or a minor. Statute may impose a minimum age to consent to specific procedures in specific situations.

- 30 C. v. Wren, (1986) (Alta. CA) Facts: A 16-year-old got pregnant and tried to have an abortion. She was approved for the procedure by a statutory committee. Her parents sued her doctor on the grounds that she is a child and cannot give informed consent to a surgical procedure. Ratio: The parental right to determine whether or not their minor child will have a medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. ii) Adults Usually involves mentally ill or senile patients. The capacity of each patient in relation to each procedure must be assessed. This is vary difficult to apply. Consent given while a patient is sedated or in pain may be invalid. Health care professionals cannot take the blood from unwilling or unconscious subjects for the police except with a special warrant. Substitute Consent When patients cannot give valid consent, the nex-of-kin may be substituted. This will only be upheld by the courts if it is proved that the patient was unable to consent and that the next-of-kin acted in good faith in the patients best interests. Legislatures and courts have not addressed this issue when the procedure is solely for research purposes. Informed Consent: Battery or Negligence? Reibl v. Hughes, (1980) (SCC) Ratio: 3 situations where an action in battery should proceed: 1. The patient did not consent at all. 2. The consent was exceeded. 3. The consent was obtained fraudulently. Lack of fully informed consent should be brought as a negligence action. Under statute in the Ontario Health Care Consent Act, consent is not valid unless it is informed. Under the Act lack of consent creates a battery action. 2. Self Defence Full defence to actions derived from the writ of trespass. A person can use reasonable force to repel real violence or a reasonable threat of violence. In the US, you can use deadly force if the event occurs in your home. Not in Canada. Deadly force can only be used where your life or serious injury is threatened. Must show that the amount of force used was reasonable under the circumstances. o Nature of the Attack o Size and strength of the attacker (weapons). o Availability of non-violent means. o Defence must not measure his force with nicety, even if a more serious injury than necessary results. Wackett v. Calder, (1965) (BC CA) Facts: Drunk tried to start a fight, man punched him, tried to walk away. The drunk got up, attacked him from behind, he punched him again and broke his cheekbone. Ratio: It is not necessary to exercise an exit option. You are entitled when confronted with violence to defend yourself using reasonable force. Dissent: Any exit option must be exercised before force can be used. Force must not be excessive. 3. Defence of Third Parties Recognized in the criminal context at the appellate level, but so far only at trial level in the civil context.

- 31 Reasonableness of force used is evaluated similarly to self-defence. The intervenor can raise the defence independently of the rights or position of the person being defended.

Gambriell v. Caparelli, (1974) (Ont.Co.Ct.) Facts: A man and a boy bumped cars. They got in a fight. The man grabbed the boy by the throat. The boys mother came out and hit the man with a hoe to make him stop. Ratio: Where the person is intervening to rescue another and holds an honest, though possibly mistaken, belief that the person is in imminent danger, they can use reasonable force to accomplish the rescue. The necessity for intervention and the reasonableness of the force are to be decided by the trier of fact. 4. Discipline Force is allowed if it is for correction (s.43 of the Criminal Code) This had been criticized because corporal punishment has been outlawed for adults. Why do we allow it for children? The reasonableness of the force used is important. Captains of ships and airplanes are allowed to exercise reasonable force against their passengers to secure the safety of their ship or passengers. o You cant call the cops when youre at sea or in the air. o Probably only applies when the ship is at sea or the plane is in the air and the police are not available. R. v. Dupperon, (1984) (Sask. CA) Facts: The defendants son misbehaved. He strapped him, leaving large bruises. Ratio: Force may be used if it is corrective, and if the force is reasonable under the circumstances, considering the nature of the offence to be punished and the composition of the child. 5. Incapacity 6. Defence of Real Property The law is unclear on the use of mechanical devices and technology to eject people o Barbed wire, dogs, etc. are seen as OK. o Spring guns, electric fences, vicious dogs, etc. are not usually OK.

MacDonald v. Hees, (1974) (NS SC) Facts: The plaintiff unlawfully entered the defendants motel room. The defendant ejected him with force. The plaintiff sued in battery. Issue: Was the use of force justifiable because of the unlawful entry? Ratio: You cannot forcefully eject someone unless you have first asked them to leave and given the opportunity to do so. Defence of real property is based on the legal status of the entrant. The amount of force must be reasonable and must not go beyond ejectment. Depue v. Flateau, (1907) (Minn. SC) ; Dunn v. Dom. Atlantic Ry. Co., [1920] (SCC) You may have to tolerate a trespasser if ejecting them would risk their safety. R. v. Haverstock, (1979) (Co. Ct.) You cant shoot tresspassers, but you can threaten them with a loaded gun. Bird v. Holbrook, (1828) (CP) Facts: The defendant had a walled garden with valuable tulips, protected by spring guns and trip wire. There is no notice posted. A man trespassed into the garden to retrieve a little girls lost pea-hen and was shot.

- 32 Ratio: The spring guns show malice. If there had been notice, this could be seen as an attempt to deter tresspassers, but with no notice its intent to injure tresspassers. Where the trespasser is peaceful, the occupier must first ask the entrant to leave, and only use force if the intruder refuses. In a forceful trespass, you can use force right away. The force cannot be deadly and must be responable. 7. Defence of Recapture of Chattels In a limited context, the law recognized this remedy. The chattel holder as the aggressor in an attempt to regain possession. This can only be invoked by someone who has an immediate right to repossession, someone who has better rights and someone who has asked for the chattel back first. With unlawfully taken chattel, you dont have to ask for it back someone stealing your bike, you dont know them so you cant sue them, so you have the immediate right to recapture. You cant invoke the defence if there has been some time since dispossession. There is some authority that some physical force, such as battery, is unlawful in any circumstance. You can also invoke this defence if you must trespass on someones land in order to recapture your property, so long as the object was there accidentally or put there by a wrongdoer. 8. Necessity Defendant may be excused if they are acting under necessity. This differs from the defence of third parties in the sense that there is an external source of danger the plaintiff is generally an innocent party whose interests are being harmed for the public or private good. Recognition that there is a social interest in preserving property and life, and hence it may be necessary to destroy someones property to save others. The defence is narrower than self-defence. The defence is only applicable in moments of imminent peril. If not, we would have lawlessness. It only applies to personal injury if the injury is slight. It is uncertain as to whether this is a full defence you may be liable for some, or all, losses and not the technical trespass. Examples, snow covered road, highways blocked, if you use someones personal land and limit the damage then the defence will apply. a) Public Surrocco v. Geary, (1853) (Cal. SC) Facts: The defendant destroyed his neighbours house to prevent a fire from spreading. Issue: Can the person who destroys anothers house under apparent necessity for the purpose of saving adjacent buildings be held personally liable? Ratio: The court has to decide whether the destruction was reasonable or not. It does not apply to those who cause or contribute to the disaster in the first place. There are some situations that give agencies broad rights to violate property rights in order to avoid disasters. Fire departments or police, for example. R v. Dudley v. Stevens, (1884) (Eng.) Facts: Three men were shipwrecked. They were increasingly becoming weaker over a long time. Two killed the third member and ate him. They soon got rescued. The defence pled was necessity. The House of Lords says no, that it will not excuse you of murder. They subsequently were pardoned. Issue: Can you take anothers life and plead necessity? Ratio: Necessity can not be used as a defence for murder. b) Private Pled when the defendant acts to preserve his/her private interest. There is no greater good operating here.

- 33 It is permissible to intrude on someones property to preserve your life, health or property. However, if there is actual damage done to the property, you are liable for that actual damage. Vincent v. Lake Erie Tpt. Co., (1910) (Minn. SC) Facts: There was a Steamship moored at a dock, a serious storm ensued. The seas were so rough the ship caused damage to the dock to the amount of $500. The owners of the ship went and got stronger cables to attach the ship to the dock. If they hadnt the cables probably would have snapped, causing the ship to drift and no damage to the dock. Ratio: Where one makes a decision to try to preserve their own property at the expense of that of another, this is direct and intentional interference with the others property, and you are liable for it. Dissent: The plaintiffs ran a dockyard, and it would be reasonable to assume that ships would dock there in the course of a storm. Hence they were taking a risk of damages. Also, if they hadnt reattached with stronger cables, the boat would have broken free and possibly caused more damage. 9. Apportionment of Fault Historically, if the plaintiff negligently contributed to his/her own injuries, this provided the defendant with a complete defence. This now has been changed to a partial defence, which seeks to mitigate/reduce the damages the defendant has to pay. There are statutes dealing with this, such as the Negligence Act. 7. Intentional Interference with Economic Interests They involve unfair competition. Sometimes we force rivals out of business with legitimate means, but other times the law deems them unfair practices. Two categories: 1) Deceptive Market Practices. Consumer protection laws are under this category. The torts of Deceit and Passing Off belong here. You cannot advance your business by lying, etc. 2) Improper Market Practices. Competition by unlawful means, they may be legislated under Property Law, Trademarks, etc. The torts of Conspiracy, etc. 1. Deceit (Fraud) The Tort of Deceit: Misrepresentation, Fraud, Reliance and Damage have to all be proved. Fraud: Deals with lies directed at the plaintiff. If a person has said something that causes someone else to rely on it to their detriment. Graham v. Seville (Woman married a polygamist sued him for battery and deceit. She recovered for deceit, but not battery). Misrepresentation - A statement, may be verbal or may be in writing. The general rule is that there must be some positive conduct. Sometimes half-truths or a failure to correct could be sufficient to satisfy this requirement. Fraud: False representation has been made: 1. Knowing it was false 2. Without belief in the truth of the statement (I dont know if its false, but I dont think its true). 3. Recklessly (a sub-set of #2) Hedley Byrne Negligent misrepresentation is now recoverable. Reliance establishes causation. The plaintiff must have really relied on the defendants statement. If they knew the statement was false but didnt rely on it, no damages. Danger plaintiff must prove damages (not actionable per se). Damages put the plaintiff back in the position they were in before the misrepresentation was made. An unsubstantiated fraud allegation may cause costs to be awarded against the plaintiff. Contract law has also evolved to cover false statements. Derry v. Peek, (1889) (HL) Facts: The company set up a tramline, and advertised that they had the permit to use mechanical means (rather than horse). They were acting on the belief that they will very shortly get the permit to use mechanical means. The permit was denied and the company folded. The shareholders sued. It was held that since there was no fraud (it was their

- 34 honest belief), there can be no damages. Perhaps they should have exercised greater care, but it wasnt fraudulent. Subjective component. Ratio: There are four elements that must be proven to prove fraud. 1. Misrepresentation The defendant must have made a false statement. 2. Motive Must have known the statement was false. 3. Reliance Must have made the statement with the intention of misleading the plaintiff. 4. The plaintiff must have suffered a loss while reasonably relying on the statement. 2. Injurious Falsehoods Designed to regulate the marketplace. Where someone engaged in trade uses false representation, deceit, to defeat competitors. Where the defendant has acted deceitfully to cause economic loss to a rival. Comes from action on the case for words.

Slander of title (like defamation) False statement made by the defendant regarding the plaintiff or the plaintiffs property(title). Eg. a false statement that a person does not own their land, preventing them from selling it. False statement made knowing it was untrue, with malice, causing loss.

Slander of Goods False statements with regard to quality of goods or ownership. Slander of quality

These developed into an action for words, false or written words that cause damage to the plaintiff These in turn developed into the tort of injurious falsehood, false statements about trade, property, land or business causing loss. Must be injurious, malicious, known to be untrue. Requires proof of damage. Ratcliffe v. Evan Facts: Evan claimed Ratcliffes business had closed. He knew it had not. Issue: How do we award damages? Ratio: There is no need to prove special damages in certain actions, general damages are enough. Proctor v. United Steelworkers Ratio: Serious disruption of business, loss of time are considered damages. s.17 of the Libel and Slander Act Special damages are not necessary. If the statement is calculated to cause pecuniary damage and is published in permanent form, or calculated to cause pecuniary damage to the plaintiff in respect of an office, trade or business carried on by the plaintiff at the time of the publication. s.52 of the Competition Act creates a criminal offence for deceptive or misleading advertising. Wilts v. United Dairies Facts: A company sold old milk (only good for livestock) as new milk. They formed an agreement with the government where the government said they would only sell the milk for making candy, feed or export. They sold the milk to grocery stores. Government is selling class B (inferior) milk as class A (superior) milk. Its yellow and gelling, United Dairies says this will damage their reputation and the goodwill of their customers. Ratio: Elements of the tort of injurious falsehood:

- 35 1. 2. 3. 4. 5. Falsehood made concerning anothers property. Defendant made the statement. Made without just cause or excuse (malice). Made with the intention to cause pecuniary loss. General damages must be proven.

3. Passing Off Protects the good will of consumers to a brand. Elements: 1. Existence of goodwill toward the plaintiff. 2. Misrepresentation to the public. 3. Actual or threatened damages to the plaintiff or the plaintiffs reputation. You would proceed under a passing-off action if the trademark was not registered under the Trademark Act. (Tort=Provincial Jurisdiction, Trademark Act=federal) Ciba-Geigy Canada Ltd. v. Apotex Inc., (1992) (SCC) Issue: Who is the relevant public? Who would be confused by the similar product? Ratio: Passsing off has five conditions which must be met (Diplock) 1. Misrepresentation 2. By a trader in the course of trade 3. To prospective customers of his or ultimate customers of goods or services supplied to him 4. Which is calculated to injure the business or goodwill of another trader. 5. Which causes actual damage to the business or goodwill of the plaintiff. No man may pass off his goods as those of another. (Reckitt Test) 3 elements: 1. There must be goodwill for the plaintiff 2. He must misrepresent his services as those of another. 3. Damage to the plaintiff caused by the misrepresentation. 4. Intimidation Occurs if 1. The defendant threatens to commit an unlawful act (crime, tort, breach of contract) 2. The threat caused someone to act in a particular way, intent to injure the party. 3. The plaintiff consequentially suffered a loss. The threat need not be carried out. If it is carried out, this may be grounds for another cause of action. 2 forms: 1. Two party intimidation threat directed at plaintiff. 2. Three party intimidation threat directed at third party. For intimidation to occur, the plaintiff, A, must be the person who either B(in two party) or C(in three party) intended to injure. If there is no evidence the defendant wanted to injure the plaintiff, there is no cause of action. Asserting a contractual right is not intimidation, even if that right turns out to be invalid. Defences: Justification the threat was to achieve a beneficial social purpose. This doesnt usually stand because the act has to be unlawful in the first place. Central Can. Potash v. Govt of Sask., (1979) (SCC) Facts: A deputy minister sent a letter to a Potash producer asking them to cut down their production or he would have the Minister exercise his powers against them. He did this because he was charged with enforcing compliance with the Mineral Resources Act, which the plaintiffs were violating. The plaintiffs sued the government for intimidation. Ratio: A government official cannot be charged with intimidation for enforcing the laws of the country.

- 36 Rookes v. Barnard, (HL) Ratio: Other remedies may be available. This factors in. The threat of breach of contract is sufficient in third party intimidation. This is not sufficient in 2 party intimidation because you could just sue in contract law. 5. Conspiracy It is not tortuous to deliberately destroy someones business using lawful means, as long as you do it alone. If two or more people act together, it could be conspiracy. There are 2 types of conspiracy: 1. If the act the conspirators agreed to execute was legal, the plaintiff must prove the predominant purpose was to harm him. (Canada Cement LaFarge Ltd. v. B.C. Lightweight Aggregate Ltd.; Daishowa Inc. v. Friends of the Lubicon) 2. If the act the conspirators agreed to perform was unlawful, (a tort, a crime, breach of contract), the plaintiff only has to prove the conspirators should have known their acts would hurt him. Must prove damages The Supreme Court says the Tort only extends to the commercial context. 4 main situations: 1. Conspiracy to commit an unlawful act the defendant knows or ought to know the plaintiff will be harmed 2. Unlawful act with the primary purpose to injure. 3. Lawful act by unlawful means. (illegal strike) 4. Lawful act with primary purpose to injure (simple conspiracy) Posluns v. Toronto Stock Exchange, (1964) (Ont. HC) Facts: Employees of firms in the TSE need TSE approval to do certain things. Posluns did these things without approval. He TSE told Posluns employer that it was withdrawing his right to act as a shareholder, officer, director, or employee of any member firm. Daly Co. fired Posluns. He sued the TSE for conspiracy. Ratio: Where there is no prior agreement to injure or harm the plaintiff, there was no malice or improper motive. Voting for the same proposition doesnt mean people are agreeing to conspire. Unless they made a pact before the voting. 6. Interference with Contractual Relations Only applies to existing contracts. 5 elements: A valid contract must exist. The defendant must have known about the contract between the plaintiff and the third party (Though not all the details) The defendant must have intended the third party to break its agreement with the plaintiff, with or without malice. The defendant must have actually caused the 3rd party to break the contract. The plaintiff must have suffered a loss because of the breach. The tort has 3 varieties: Direct interference with contractual relations (actionable even if the act is lawful)(direct=wrongful). Indirect interference (only if the act is unlawful). Interference by unlawful means without causing breach.

i) ii)

iii)

iv)
v) i) ii) iii)

Posluns v. Toronto Stock Exchange, (1964) (Ont. HC) Issue: Was there unlawful interference on the part of the TSE? Ratio: Interference must be unlawful in order to be actionable. Direct interference is unlawful unless it is justified. Issue: Was the interference justified? Ratio: If a party acts under its correlative obligations, it is justified. Where the plaintiff agreed to certain conditions when entering into a contractual relationship, holding them to those conditions cannot be unlawful.

- 37 7. Intentional Interference by Unlawful Means This tort has yet to be ruled on by the Supreme Court, but is used in lower courts. Requires proof of 4 elements: 1. The defendants interference with the plaintiffs business interests. 2. By unlawful means. 3. With an intent to injure. 4. Actual loss in the absence of justification. (Barrets & Baird (Wholesale) Ltd. v. Institution of Professional Civil Servants) Possible problems with this tort: 1. Which economic interests are protected? Trade, business, livelihood. 2. Which acts are considered unlawful? 3. To what extent must the defendant intend to harm the plaintiff? Is constructive intent enough? 4. What defences apply? Gershman v. Man. Vegetable Producers Marketing Bd., (1976) (Man. CA) Facts: The marketing board induced the Stella Co. to fire the Gershmans by refusing to advance Stella Credit if they dealt with the Gershmans. The Board not only induced a breach of contract, they alienated the plaintiff and froze them out of the fruit and veggie business, restricting their ability to make a living. Liability was also found in the board for 3rd party intimidation. Ratio: Blacklisting people is unlawful interference. Doing this is bad faith and exceeds the authority of a statutorily appointed to the board. 8. Strict and Vicarious Liability 1. Escape of Dangerous Substances

First set out in Rylands v. Fletcher. If you engage in unusually risky activities, you are liable for injuries or damage those activities cause regardless of fault. Defective Products May have to prove it was defective when it left the manufacturer, that it caused an injury. Vicarious Liability Employers are liable for the acts of their employees when they are acting for the company. o Liability: Proof that the defendants actions caused the damage, with or without fault. o As negligence law has expanded, strict liability torts have decreased. Rylands v. Fletcher, (1868) (HL) Ratio: Elements of the Tort: 1. Land must be put to non-natural uses. 2. Something must escape from the land. 3. The escaped substance must cause damage. Where these things are present, the defendant is liable under strict liability for the damage caused. Blackburn L.J. says this extends to anything likely to do mischief. Granworth L.J. says anything at all. Read v. J. Lyons & Co., [1947] (HL) Facts: The plaintiff worked in a shell factory. There was an explosion, she was injured. Negligence on behalf of the government could not be proven. Issue: Was there escape of a mischievous thing? Ratio: Escape deals with the mutual duties of adjoining land-holders. For escape to occur, the mischievous substance must leave the premises of the defendant.

- 38 Gertsen v. Metro Toronto, (1973) (Ont. HC) Facts: Toronto had a deal with York to dump their garbage in a dump in York. The waste created methane gas. The gas seeped from the landfill into the plaintiffs garage and exploded when he started his car. The plaintiff sued both municipalities in nuisance, negligence and strict liability. Ratio: Non-natural use must be some special use bringing with it increased danger to others not merely the ordinary use of the land or such a use as is proper for the general benefit of the community. (Rickards v. Lothian) Defences to Rylands v. Fletcher 1. Consent If the defendant can show that the plaintiff implicitly or explicitly consented to the presence of the danger. 2. Common Benefit If the source of danger is maintained for the common benefit of the plaintiff and the defendant, the defendant cannot be held liable under Rylands. 3. Default of the Plaintiff If the plaintiff voluntarily and unreasonably encounters a known danger, or if their wanton, wilful or reckless misconduct materially increased the probability of injury or if the damages are caused by an abnormal sensitivity by the plaintiffs property, the plaintiff cannot recover. 4. Act of God The plaintiff cant recover if a natural force arising without human intervention occurs and could not have been reasonably foreseen or prevented. 5. Act of a Stranger The plaintiff cant recover if the escape of the dangerous substance was caused by the deliberate unforeseeable act of a stranger. The defendant must show no negligence. The person must be a true stranger. 6. Statutory Authority If the defendant can prove his conduct was authorized by the state, he is not liable. Like public utilities operating within their statutory authority. 2. Liability for Animals a) Dangerous Animals o A keeper of wild animals is strictly liable for damage they cause. o Domesticated animals require proof of scienter for liability. Richard v. Hoban, (1970) (NB CA) Facts: German shepherd tied up behind a trailer attacks a little girl. Issue: What is the liability for injuries caused by a dog? Rule: Liability for injuries caused by a dog only goes to the owner if there is proof of scienter, a knowledge of the animals vicious propensity. (Under the dog owners liability act, no knowledge of scienter is needed, strict liability). b) Cattle Tresspass Acker v. Kerr, (1973) (Ont. Co.Ct.) Facts: The cattle of the defendants strayed onto the property of the plaintiff, causing crop damage.

- 39 Ratio: The owner of domestic animals is liable if they escape and cause damage. This is absolute liability independent if negligence, subject to defences to Rylands. Escape is necessary. 3. Vicarious Liability o Not a discrete tort, depends on the relationship between people. o Dont have to establish fault, but the plaintiff has to establish a tort and a relationship. o The party that did the act may be personally liable on top of someone who is vicariously liable for their acts. o Employers may be personally liable if they themselves committed a wrong, negligent in hiring the person, trained improperly, etc. They would also be vicariously liable for the acts of their employees. The employee would also be personally liable. This provides an extra avenue for compensation for the plaintiff. The employer usually has the deep pockets. o Doesnt usually apply to independent contractors, just to employees or agents. o First the employee must be liable for the tort. After this is proven, you can go after the employer. o The employer, if held vicariously liable for the torts of an employee, can bring actions in contribution and indemnity to recover from the employee. Principal-Agent Relationship

o Partners share equal liability for each others acts (Blyth v. Fladgate)
T.G. Bright & Co. v. Kerr, [1939] (SCC) Facts: A wine dealer was not held liable for the acts of his motorcycle delivery man. The delivery man was held to be an agent of the wine dealer, but not his servant because the dealer had no control over the way the agent did his job. Ratio: Where the principal has no control over the way the agent performs his duties, the principal is not vicariously liable for his actions. Dissent: Anyone who expects to derive an advantage from an act done by another for him must answer for any injury any third person may sustain from it. Master-Servant Relationships o Is what the employee did connected to their employment, or something outside the scope of their employment? Was the act specifically prohibited? o Was the tortfeasor doing something she was authorized to do when she committed the tort? Or unauthorised acts so connected with unauthorised acts that they may be regarded as modes of committing an authorized act, even if the mode is an unlawful one. B.(P.A.) v. Curry, (1999) (SCC) Facts: The plaintiff was sexually assaulted as a young child in a care facility for emotionally disturbed children. The foundation had done a background check on Curry, the perpetrator, before hiring him. As soon as they found out he was doing this, they fired him. Issue: Can the employer be held vicariously liable? Ratio: Courts should take a 2 step approach 1. Look at authorities. 2. Look at policy Salmond test: Employers are vicariously liable for: 1. Employee acts authorized by the employer. 2. Unauthorised acts so connected with the authorized acts that they may be regarder as modes of doing an authorized act.

- 40 Independent Contractors 671122 Ontario Ltd. v. Sagaz, (2001) (SCC) Facts: The marketing company the defendant had hired bribed the head of the automotive department of Canadian tire to carry his seat covers instead of the plaintiffs. The plaintiff lost the business and sued the defendant for vicarious liability for the torts of conspiracy and unlawful interference with economic relations committed by the marketing company. Issue: Was AIM marketing an employee of the defendant, or an independent contractor? Ratio: There is no universal test to determine whether a person is an employee or an independent contractor. The central question is whether the person hired has a business on their own account. This is an indication they are independent contractors. 9. Negligence 1. Terms, Themes and History

Has multiple meanings, the tort of negligence is an action on the case. Negligence is also a breach of a duty of care. Fault based, but the fault stems from carelessness where there is a standard of care. Based on a legal duty to take care Are the consequences within the risk? Categorizes people to create a duty of care Narrow Definition. 1932 - Donoghue v. Stevenson Creation of a general duty of care. o First case recognizing product liability. o We must take reasonable care to avoid acts or omissions that could be reasonably foreseen to harm our neighbours. There are a number of statutes that impose duties. (Negligence Act, Highway Traffic Act, etc.)

2. Elements of Negligence 1. Duty of Care 2. Standard of Care 3. Causation Cause in Fact But for, subjective/objective (Reibl) 4. Remoteness Cause in Law 5. Damages Reasonably Foreseeable Must be Actual Loss 6. Defences a) Duty of Care i) General Duty of Care Test MAlister (or Donoghue) v. Stevenson (1932)(HL) Facts: The plaintiff was given an opaque bottle of ginger beer by a friend. She drank some, then found a partially decomposed snail in the bottle. She sued the manufacturer for nervous shock and gastroenteritis. Issue: Does the manufacturer owe a duty of care to the consumer? Ratio: Yes. Even though the consumer may not be the purchaser, the manufacturer owes a duty of care to the consumer to avoid defects in workmanship that could harm the person or their property. Public health concerns, you could kill people. Policy concerns: 1. Enterprise Risk He who makes the profit bears the risk. 2. Loss Allocation Deep pockets at the company.

- 41 3. Loss Distribution Companies can pass on the costs to consumers.

Dissent: Floodgates concerns. If we are going to accept duty, it should be created by statute. Ratio: You must not injure your neighbour. There is a duty of care not to do so through any act or omission. Who is my neighbour? Those in proximity. The test: Reasonably foreseeable harm and/or proximity. A. Note on Products Liability

According to Donoghue v. Stevenson, a consumer injured by a product must sue the manufacturer in negligence. In Quebec and the US, there is strict liability. You must only prove the defect, and that the defect caused the injury. ii) Modern Law of Duty Origins Anns/Kamloops

There is a trilogy of cases outlining the development of the modern law of duty. They are: Donoghue v. Stevenson Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. Home Office v. Dorset Yacht Co. Ltd. They establish that to determine whether duty of care exists, there are two stages in Anns v. Merton London Borough Council, [1977] 2 All ER, 492 at 498 (HL) 1. Ask whether there is sufficient proximity between the wrongdoer and the injured party that the wrongdoing could have reasonably contemplated that carelessness. 2. If the answer to the first question is yes, then consider whether there is any policy reason why the duty should not exist. 1. 2. 3. Kamloops (City) v. Nielsen (1984), 10 DLR (4th) 641, 1984 (SCC). Ratio: The Supreme Court restated the Anns rule. The test: 1. Is there a close enough relationship between the parties so that the defendant would have reasonably contemplated that carelessness on his part could cause damage to the plaintiff. 2. Are there any considerations that could negate or limit: a. The scope of the duty b. The class of person to whom it is owed c. The damages to which a breach of it would give rise Foreseeability is defined by proximity. Cooper v. Hobart (2001) 206 DLR (4th) 193 (SCC). Issue: How far should the principles of liability for negligence be extended? Ratio: Where there is no proximity sufficiently close to put the plaintiffs welfare in the reasonable contemplation of the defendant, he cannot be liable to the plaintiff for negligence. Where there are policy reasons against imposing a duty of care, this is doubly true. Used the Anns/Kamloops test. The recognition of a duty of care has a number of steps. If a case falls within an established duty of care, that duty stands. If it doesnt you do the Anns test, which has 2 branches: 1.a) Reasonable Foreseeability Foreseeable Risk, Foreseeable Plaintiff. Establishes a b) Proximity Relationship between these litigants prima facie 2. Residual Policy reasons negating the creation of a duty. duty of care Hindsight Bias: Things seem more foreseeable after theyve happened. This can affect the foreseeability standard. A. Foreseeable Risk

- 42 Moule v. N.B. Elec. Power Comm. (1960), 24 DLR (2d) 305 (SCC) Facts: A ten year old climbed a tree that was near power lines and was electrocuted. The trial judge found that there was negligence in not removing a tree growing so close to power lines. He awarded $8000. This was set-aside on appeal. Issue: Was the injury foreseeable? Analysis: It is foreseeable that kids will climb trees. Ratio: While power companies have a duty to prevent foreseeable injuries, this does not extend to every injury. Where there is no foreseeability, there is no duty of care. This occurs where one creates danger. Foreseeability also factors in at the remoteness stage. Amos v. N.B. Elec. Power Comm. (1976), 70 DLR (3d) 741 (SCC) Facts: Three boys were climbing a tree on the side of a highway. The tree was in full leaf and concealed high-tension wires. A nine-year-old caused the tree to bend and touch one of the wires, electrocuting himself. A neighbour had to cut down the tree to free him, further injuring the child. Ratio: Where there is a foreseeable risk of injury, the defendant can be held liable in negligence for breaching the duty created by this foreseeable risk. B. Foreseeable Plaintiff Palsgraf v. Long Island Ry. Co. (1928), 248 NY 339 (CA) Facts: A man running for a train was pushed by a guard and pulled by another to help him on. While this happened, the dropped a box on the track. He box was full of fireworks, which exploded and knocked down some scales at the other end of the platform. The scales landed on the plaintiff, injuring her. Issue: Was the plaintiff at foreseeable risk of harm? Ratio: Negligence is not a tort unless it results in the commission of a wrong. This requires the violation of a persons right. This means the causer of the harm must have had a duty to that person. Where there is no duty, there is no negligence. Dissent: Negligence is a breach of a general duty not to harm anyone. Those actually injured have as much right to complain of negligence as those likely to be injured. Causation = Foreseeability. iii) Affirmative Duties

The law does not traditionally impose positive duties.

A. Rescue Osterlind v. Hill (1928), 160 NE 301 (Mass. SC) Facts: The defendant rented a faulty canoe to two drunk men. The canoe overturned, and one of the men held onto it for half an hour, calling for help. The defendant heard him calling and ignored him. The man drowned. Issue: Is there a legal duty to rescue? Ratio: There is no general duty to rescue. Renting a canoe to someone doesnt create a relationship of duty. There is no legal duty not to rent a canoe to a drunk person, as long as he is not incapable of seeing to his own safety. There is a duty not to rent to a helpless person, but this person wasnt helpless.

- 43 Oke v. Weide Transport (1963), 41 DLR (2d) 53, (Man. CA) Ratio: The defendant has an obligation to intervene if he innocently or negligently caused the danger. Mattews v. MacLaren; Horsley v. MacLaren (1969), 4 DLR (3d) 557 (Ont. HC) Facts: Matthews fell off his friends yacht into very cold water. Horsley jumped in to try to save him. Another woman jumped in to help and was rescued. Horsely died and the body was pulled out. Mattews body was never found. Issue: Was there a legal duty to rescue a passenger who had fallen overboard? Analysis: It cant be proven that the negligence caused the death. There was a breach of the standard, but causation was not established. Standard of care = objective test. The reasonable boat operator is ordinary, prudent and reasonable. Ratio: If the defendant undertakes to rescue someone, he is voluntarily entering into a relation of responsibility and hence assuming a duty. Thereafter he is responsible for any failure of reasonable care in dealing with him until the emergency is over, especially if he abandons him in a position of danger. Otherwise there is no duty of rescue. Once an undertaking begins, the rescuer must exercise the reasonable care that the ordinary, prudent person in his situation would show. Otherwise, he is guilty if his negligence caused the danger in the first place. Horsley v. MacLaren (1971), 22 DLR (3d) 545 (SCC) Ratio: There is a common law duty to rescue between a boat captain and gratuitous passengers. Canadian Criminal Code s.129(b) An individual must comply with an officers request to make an arrest or preserve the peace, except in exceptional circumstances. Canadian Criminal Code s.252 A driver in an accident must stop, give her name and offer assistance if someone if injured. Good Samaritan Legislation If you undertake a rescue, the standard is gross negligence. Lowns v. Woods (1996) (Australia) A doctor was held to have a duty of care to help people suffering a seizure several hundred metres away. Kent v. Griffiths, [2000] 2 WLR 1158 (Eng. CA) An ambulance was held to be negligent for the unreasonable delay in providing help when the plaintiff called having an asthma attack. They took 40 minutes and she suffered respiratory arrest as a result. This is because the ambulance service was a health service. B. Control of Others Conduct Crocker v. Sundance Northwest Resorts Ltd. (1988), 51 DLR (4th) 321 (SCC) - Liability for the Intoxicated Issue: Does the ski resort owe a duty of care to keep clients from engaging in dangerous activities when they are drunk? Analysis: 1. Duty of Care Sundance had authority and control over the event. Sundance must accept responsibility as a promoter of a dangerous sport for taking all reasonable steps to prevent an obviously drunk person from participating.

- 44 2. 3. 4. Standard of Care Did the resort take enough steps to discharge this duty? No. There were many preventive measures available to the resort that would not have been a burden to them. They made nothing but mild suggestions. They failed to meet the standard of care. Causation The injury was caused because Crocker was competing while drunk. There was evidence that a similar incident had occurred that day. Voluntary Assumption of Risk Crocker voluntarily competed. He signed a waiver two days before the contest. But he was drunk. He assumed the physical risk, but could not have known he was assuming the legal risk. He did not know that the waiver was a release, and could not agree to something he didnt know about. You cant contract out of the law by waiving legal liability.

Held: The resort was 75% liable, Crocker was 25% liable. Picka v. Porter [1980](CA), Schmidt v. Sharpe (1983)(Ont.HC) - Liability for the Intoxicated An alcohol provider is liable for the conduct of a drunk person even if thay dont know theyre drunk. Hague v. Billings, (1989)(Ont. HC) - Liability for the Intoxicated The bar and drinking buddies were held liable for a mans driving while drunk. Baumeister v. Drake (1986)(SC) - Liability for the Intoxicated Liability also applies to social hosts if they provide alcohol to the driver. Childs v. Desormeaux (2002) (Ont. SCJ) - Liability for the Intoxicated At a New Years Party where guests supplied their own alcohol, Desormeaux got drunk. The hosts knew he was an alcoholic with previous DUIs. He caused an accident that left Childs paraplegic. There is a duty of care in the hosts at stage 1 of the Anns test, but the court found policy reasons not to impose it. Hunt (Litigation Guardian of) v. Sutton Group Incentive Realty Inc. (2001) (Ont. SCJ) - Liability for the Intoxicated The plaintiff got drunk at an office Christmas party. She drove away from the party, went to a pub and had two more drinks. She lost control of her car and was severely injured. Her employer was found 25% liable in negligence. John v. Flynn(Ont.CA) - Liability for the Intoxicated An alcoholic enrolled in an Employee Assistance Program for drinking. He drank before and during work, then drove himself home, drank more, drove again and caused an accident. The Court of Appeal held that the company did not owe a duty of care to people injured by employees after company time. Stewart v. Pettie (1995) (SCC) - Liability for the Intoxicated An alcohol provider has a duty to prevent foreseeable risks of injury posed by intoxicated persons, but serving them past the point of intoxication is not enough. You need over service plus another risk factor. Liquor License Act, R.S.O. 1990 c.L.19.s.39 Creates a statutory cause of action against people that sell alcohol to intoxicated persons. Similar legislation exists in Manitoba, Nova Scotia, and NWT. Hempler v. Todd (1970) (Man.QB) , Betts v. Sanderson Estate (1988) (BC CA), Hall v. Hebert(1993) (SCC) Liability for the Intoxicated The owner of a vehicle has a common law duty not to let an intoxicated person drive. Other Duty to Control Situations a) Parents Only liable for the torts of their children if they fail to supervise them properly. This fails to fulfill a duty of care owed to the victims of the childrens misconduct. b) Guards and Prisoners Williams v. New Brunswick, Funk Estate v. Clapp, Smith v. B.C., Home Office v. Dorset Yacht Co., guards owe a duty of care to prisoners, to others for damage and injury caused by prisoners in their care.

- 45 c)
Lepine Doctors/Staff and Mental Patients University Hospital Board v. Lepine; Monckton v.

d)

Employers and Employees Waters v. Commissioner of Police for the Metropolis, employers have a duty to prevent abuse or harassment in the workplace. e) Coaches/Supervisors and Students Schultz v. Leeside Dev. Ltd., Michalak v. Governors of Dalhousie College and University, coaches, instructors and supervisors must control participants and provide adequate warning, instruction and equipment. Jane Doe v. Metropolitan Toronto (Municipality) Commissioner of Police (1998) (Ont.Gen.Div.) Duty to prevent Crime and Protect Others Facts: The plaintiff sued the police after she was raped by a serial rapist. The man had raped four other women, all white, all living in second or third floor apartments, entering through the balcony door in each case. She sued the police for failure to warn. Ratio: There is a private law duty of care for the police to warn the public of potential threats where it is foreseeable that harm may be caused, that there is a risk to a particular group. There must be foreseeable harm and a relationship of proximity. (Anns Test Misfeasance) Hill v. Chief Constable of West Yorkshire (1988) (UK HL) Duty to prevent Crime and Protect Others The police owe a duty to victims of crime unless the crime is committed while the offender is in police custody or after escaping police custody. (No foreseeable plaintiff Non-feasance) Thorne v. Dees (1809) (N.Y.) Gratuitous Undertakings Facts: The defendant told the plaintiff twice that he would insure a boat they owned together. The plaintiffs relied on this promise and did not pursue it themselves. The boat was wrecked and had not been insured. The plaintiffs sued the defendant. Ratio: One who undertakes to do an act without reward is not liable for failing to do that act, but is liable if they make the situation worse. Courts can get around this by saying the defendants conduct is misfeasance rather than omission. Promissory Estoppel can be used in contractual situations. Fraudulent Misrepresentations, negligent or innocent misrepresentations made in a fiduciary relationship and negligent misrepresentations such as Hedley Byrne can result in liability. Negligent statements creating a foreseeable risk cause liability. Other cases have held people liable for failure to get insurance; Baxter & Co. v. Jones, Menna v. Guglietti, because of misfeasance. Smith v. Rae (1919), 51 DLR 323 (Ont. C.A.) Gratuitous Undertakings Facts: A man made a contract with a doctor to attend at the birth of his child. The baby was supposed to be born in mid-November, the wife didnt go into labour until December 2. The doctor didnt come. The baby died. The court found there was no negligence in the doctor, and the wife could not sue in contract because the agreement was with her husband. Ratio: There can be liability for misfeasance, but not for failure to do anything where there is no positive duty. Zelenko v. Gimbel Bros., Inc. (1936), 287 N.Y.S. 134 (SC) Gratuitous Undertakings Facts: Someone took ill in the defendants store. The defendant put them in an infirmary for six hours without medical care. The person died.

- 46 Ratio: Where there is no duty, failure to act is not negligence. If the defendant undertakes a task, they undertake a duty to do what a reasonable person would do in performing the task. Doing it badly is subject to negligence. Soulsby v. Toronto (1907), 15 OLR 13 (Ont. HC) Gratuitous Undertakings Facts: The City of Toronto had put up gates on either side of a railway crossing. They had a watchman to open the gates when it was safe to cross and close them when it wasnt. A bakery wagon driver relied on this and didnt check when he found the gates open. He was hit by a train. There was no gatekeeper that day. Issue: Did the city have a duty to maintain the guard because they had previously done so? Ratio: If someone undertakes to perform a voluntary act, they are liable of they perform the act improperly, but not if they dont do it at all. iv) Special Duties of Care A. Owed to Rescuers Horsley v. Maclaren (1972), 22 DLR (3d) 545 (SCC) Facts: Horsley fell overboard while on a pleasure trip on his friends yacht. When another man, Mattews, fell overboard, Horsley dove in to save him. They both died. Maclaren was found to be negligent in using improper procedures in rescuing Matthews, prompting Horsley to jump in to try to save him. Issue: Did the owner of the boat owe a special duty to a second rescuer of his overboard passenger? Ratio:From Videan v. British Transport Commission, [1963] 2 QB 65. If a person creates a situation of peril by his fault, he is responsible to any other person who tries to rescue the person in danger. As long as it isnt wanton interference, if the rescuer is killed or injured in the attempt, she can recover damages from the person whose fault was the cause of it. Dissent: The common law should not saddle a non-negligent first rescuer with liability to a second rescuer. This is too heavy a burden to impose for the goal of encouraging rescue. Wagner v. Int. Ry. Co. (1921) 133 NE 437 (HL) Danger invites rescue. If you create danger, it is foreseeable that there will be a rescuer. Sayers v. Harlow Urban Dist. Council, [1958] (HC); Corothers v. Slobodian, [1975] (SCC); Toy v. Argenti, (1980) (BC SC); Cleary v. Hansen, (1981) (On. CT) Rescuers in an emergency arent held to the same standard of care as those acting in less extreme circumstances. Chapman v. Hearse (1961) (HCA) ; Corothers v. Slobodian [1975] (SCC) ; Roberts v. Morana (1997) (Ont.Gen.Div.); Bridge v. Jo, (1998) (BC SC) A rescuer may recover for injuries sustained in assisting a person who has negligently imperilled herself. Zervobeakos v. Zervobeakos, (1969) (NS CA) The principles for rescuers also apply when the plaintiff is injured trying to save herself or her property. But Saccone v. Fandrakis says this is not true if she is protecting a purely economic interest. East Suffolk Rivers Catchment Bd. V. Kent, [1941] (HL) Once an individual has voluntarily begun a rescue, she has no duty to continue it unless she has made the situation worse. B. Owed to the Unborn

- 47 i) Pre-Conception Wrongs

Occurs when the defendant carelessly causes a parent to suffer an injury that detrimentally affects a subsequently-conceived child. Eg. Exposure to hazardous chemicals or x-rays causing later birth defects Problems of causation, how to prove it. Policy issues as to scope of liability. How much should people be liable for? ii) Wrongful Birth (Brought by Mother)/Wrongful Life (Brought by Child)

Where a doctor fails to warn a pregnant woman that she has a high risk of having a disabled child, and she would have had an abortion had she known. o Can be brought by the mother or child or both. The mothers claim is based on the physicians duty to inform a patient of medical risks. The childs claim is more problematic, as it seems to rest on the argument that the child would have been better off not having been born. Becker v. Schwartz, (1978) (NY SC) A wrongful life action against a doctor who failed to warn a pregnant woman of an increased risk of downs syndrome in women over 35, and didnt tell her about a test that would have determined whether the child was affected. The court said the child hadnt suffered any injury at common law, but allowed the parents to recover the cost of caring for a disabled child. McKay v. Essex Area Health Authority, [1982] (Eng. CA) The plaintiff contracted German measles earlier in her pregnancy and was not advised of the desirability of an abortion. Mother and child sued in wrongful life. The court denied the childs claim saying that a child cannot claim the right not to be born as this violates public policy as a violation of the sanctity of human life. Arndt v. Smith (1994) (B.C. S.C.) The court commented favourably on the dropping of a childs claim in wrongful life, stating that no viable suit could be brought on that ground in B.C. H.(R.) v. Hunter, (1996) (Ont. Gen. Div.) Doctors were held negligent in the birth of two disabled children for failing to refer the mother for genetic counselling. The parents were awarded damages for child care. Jones (Guardian ad litem of) v. Rostvig (B.C. S.C.) The court dismissed a wrongful life suit by a child on the basis that there was no cause of action. While a physician owes a duty of care to a foetus regarding pre-natal injuries, she does not have to tell its mother about information that would lead to an abortion. Davey v. Victoria General Hospital, (1995) (Man. QB) Damages are not awarded for the death of a foetus. The child must be born alive. iii) Wrongful Pregnancy

Based on the general principles of medical negligence. If a doctor performs an abortion or sterilization improperly and a child is born, the mother can claim economic loss, pain and suffering. She can claim for having to make a second abortion, or even if the child is born. Courts are reluctant to award damages if the child is healthy, but are more likely to award damages if the child is disabled. Cataford v. Moreau, (1978) (Que. SC)

- 48 The mother is entitled to damages flowing from the failed termination of a pregnancy and the cost and inconvenience of having a second sterilization procedure, but not the cost of raising the child. iv) Pre-Natal Injuries

A child can sue for injuries sustained in utero. Unless the child is subsequently born with an injury, there can be no action. A person may owe a duty of care to avoid careless actions before birth that may result in a loss upon birth. Duval v. Seguin; Montreal Tramways Co. v. Leveille; Dobson Dobson (Litigation Guardian of) v. Dobson (1999) 174 DLR (4th) (SCC). Facts: A woman who was 27 weeks pregnant carelessly caused a car accident, inflicting damage on her foetus. The child was delivered by caesarean later that day with severe and permanent disabilities. He later sued his mother in negligence. Issue: Does a mother owe a duty of care to her child prior to its birth? Ratio: For policy reasons, the court will not impose a duty of care on a pregnant woman toward a subsequently born child. To impose a burden would place an unacceptable intrusion on the bodily integrity, privacy and autonomy rights of women. Dissent: A general duty of care would place too much of a burden on women, but a limited duty imposed on a woman as regards her foetus only where she owed a similar duty to others. Family Law Act, R.S.O. 1990, c.F3,s.66. No person is disentitled from recovering damages simply because the injuries were incurred before birth. Oliver (Guardian ad litem of) v. Ellison, [2001] (BC CA) ; Pozdzik (Next Friend of) v. Wilson, (2002) (Alta. QB) People other than the mother can be held liable for pre-natal injuries in negligence. Winnipeg Child & Family Services (Northwest Area) v. G.(D.F.), (1997) (SCC) ; St. Georges Healthcare NHS Trust v. S., [1998] (CA) There is no common law authority to impose restraint or treatment on a pregnant woman for the benefit of the foetus. C. Nervous Shock (Witnesses)

Does not encompass day-to-day emotional upset or grief and anger at loss or injury. Must usually be a recognized psychiatric illness for the purposes of liability. Hard to determine harm, may be easy to fake, hard to prove. Floodgates arguments.

Victoria Railways v. Coultas (1888) (Privy Council) Nervous Shock at Common Law Facts: The plaintiff fainted and suffered shock when she was nearly hit by a train because of the defendants carelessness in raising a gate. Ratio: Damages for nervous or mental shock without physical injury are not recoverable, as it would be difficult to tell whether they resulted from negligence and could give rise to imaginary claims. Dulieu v. White & Sons, [1901] (In Rhodes v. CNR, 1990, BC CA) Nervous Shock at Common Law Liability was imposed without physical injury because the nervous shock was caused by a reasonable fear of immediate injury to herself. She thought she was about to be hit by a carriage.

- 49 Hambrook v. Stokes Brothers (1924) (Eng. CA) Nervous Shock at Common Law The plaintiff suffered nervous shock when she saw a driverless vehicle heading toward where her children were playing. The court held that liability could be imposed if a psychiatric illness was caused by a reasonable fear of immediate personal injury to herself or her children. McLoughlin v. OBrian, [1983] (HL) Nervous Shock at Common Law The defendant carelessly caused a traffic accident which killed one of the plaintiffs children and injured the other two. She heard about the accident two hours later at the hospital. Liability was imposed because her psychiatric injury was reasonably foreseeable. Alcock v. Chief Constable of South Yorkshire Police (1991) (U.K. H.L.) Nervous Shock at Common Law Facts: An overcrowded soccer stadium at Hillbrough caused 90 fans to be crushed to death and many more injured. The disaster was broadcast on television and radio. 16 plaintiffs representing 150 others sued for nervous shock after fearing for friends and relatives. Some were in the stands, others saw it on TV or heard reports. Ratio: The existence of a duty of care depends on a 3 part test: i) Proximity of relationship ii) Proximity of time and space iii) Hearing or seeing the immediate aftermath of the event with unaided senses. (Seeing it on TV or hearing it on the radio is not enough). White v. Chief Constable of South Yorkshire Police (1999) (HL) Nervous Shock at Common Law Facts: Police officers who witnessed the Hillbrough tragedy subsequently developed psychiatric problems. Ratio: The court applied the Alcock test and denied liability because the police didnt have a close relationship with the victims (proximity). Chadwick v. British Railways Commission, [1967] (Eng. QB) Nervous Shock at Common Law A rescuer may be entitled to damages even if he was not personally exposed to danger or closely connected to the victims. Page v. Smith, [1996] (U.K. H.L.) Nervous Shock at Common Law Facts: The defendant carelessly caused a traffic accident. No-one was physically injured, but the plaintiff relapsed into chronic fatigue syndrome, which he had had before. Ratio: There are two types of victims, primary and secondary. 1. Primary victims are those placed in physical danger. Psychiatric injury is recoverable as long as it is reasonably foreseeable that the plaintiff could have been physically injured by the defendants actions. 2. Secondary victims are those not placed in physical danger. They can only recover if the psychiatric injury itself was foreseeable. W. v. Essex County Council, [2000] (HL) Nervous Shock at Common Law The plaintiffs had four young children and also took in foster children. They stipulated that they would not accept a foster child with a risk of sexual abuse. The local authority knowingly disregarded the request and placed a 15-tear old boy in their home who had been accused of sexual abuse before. The boy allegedly assaulted the plaintiffs children. As a result, the plaintiffs suffered psychiatric illnesses. Ratio: The House of Lords expanded the definition of immediate aftermath in the Page v. Smith test to include the period of four weeks it took the parents to find out. Hay or Bourhill v. Young. [1943] (HL) Nervous Shock at Common Law

- 50 Ratio: There is a duty of care to avoid nervous shock where the defendants conduct created a foreseeable risk of shock to the plaintiff. The plaintiff is a foreseeable plaintiff if the shock results from: a) Physical injury or fear for personal safety. b) Witnessing some aspect of a serious accident involving a relative or c) The trauma of rescuing victims of a serious accident. There is no redress for: a) Bystanders or witnesses to an accident b) Relatives of accident victims who did not see or hear the accident or its aftermath with their own unaided senses. Vanek v. Great Atlantic & Pacific Co. of Canada (1999) (On. C.A.) Nervous Shock at Common Law Claimants must be reasonably strong and robust. Hypersensitive individuals are not foreseeable. Greatorex v. Greatorex, [2000] (QB) Nervous Shock at Common Law The victim of a self-inflicted injury does not owe a duty of care not to cause nervous shock to a third party. Rhodes v. Canadian National Railway Co. (1990), 75 DLR (4th) 248 (B.C. C.A.) The Canadian Position Facts: The plaintiffs 23-year-old son was killed in a train wreck negligently caused by the defendant. The plaintiff went to the site of the crash the next day. She realized after several days that her son must be dead. She did not see the body because it had been consumed by fire. The defendants employers denied her access to the site for 8 days and misdirected her so she missed the official memorial for the victims. She sued for nervous shock. Issue: Did the defendants owe a duty of care to the plaintiff, if so, did they cause her psychiatric injury? Ratio: For damages to be awardable, the plaintiff must establish a duty of care to her. This duty of care turns on whether psychiatric illness was a reasonably foreseeable consequence of the defendants negligence. Vegron v. Bosley (No.1) [1997] (C.A.) The plaintiff recovered for nervous shock after witnessing police trying to pull a vehicle containing his two drowned children from a fast-flowing river. Grzywacz v. Vanderheide, (1992)(Gen.Div.) , Cox v. Fleming, (1995) (CA) , Yu v. Yu, (1999) (BC SC) Plaintiffs recovered for nervous shock caused by seeing their loved ones dead in the hospital. Devji v. Burnaby, (1999) (BC SC) Parents and siblings of the deceased could not recover after they saw her body in the hospital four hours after the accident. Nespolon v. Alford A grossly intoxicated youth was run over by the plaintiff. The plaintiff sued in nervous shock. The deceased was found not to have reasonably foreseen being run over. The deceaseds friends did not owe a duty of care to the plaintiff. He was not foreseeable. D. Health Professionals Duty Reibl v. Hughes (1980) 114 DLR (3d) 1 (SCC) Ratio: Once a patient is aware of the general nature of a treatment and consents to it, a doctor cannot be held liable in battery for failure to inform. The doctor may instead be held liable in negligence for breaching an affirmative duty to disclose the risks of treatment. Material risks must be disclosed, including a low percentage risk of a serious consequence (a 4% risk of death), or a minor consequence of high probability.

- 51
They must also disclose non-material risks they know, or ought to know would be of particular concern to the patient. A patient can choose not to be fully informed, but must communicate her wish to the doctor. The patient must also prove that the failure to inform caused a loss, that had she been fully informed she would not have proceeded with the treatment. The test: Subjective/Objective: The plaintiff must prove that a reasonable person in her position would have refused the procedure if properly informed. (This now applies to all caregivers, health care contexts). Haughian v. Paine (1987), 37 DLR (4th) 624 (Sask. C.A.) Facts: The plaintiff underwent disc surgery, leaving him paralysed. A second operation alleviated the paralysis partially. The plaintiff sued the surgeon for failing to obtain an informed consent because there were other treatments available to him which were not disclosed to him. Ratio: A doctor must fully advise the patient of alternative treatments to the one recommended, as well as the consequences of no treatment. She must also advise the patients of risks of serious consequences, even as unlikely as 1 in 500. Pittman Estate v. Bain (1994), 112 DLR (4th) (Ont.Gen.Div.) There exists a limited therapeutic privilege to withhold information if its disclosure would unduly heighten or deter the patient, but it is very narrowly defined. Meyer Estate v. Rogers (1991), 2 OR (3d) 356 (Gen.Div.) The scope of what constitutes a material risk has been progressively broadened since Reibl. In this case a 1 in 40,000 to 1 in 100,000 risk of death as a result of a severe reaction to diagnostic dye was held to be a material risk. Tremblay v. McLaughlan (2001) (B.C. C.A.) Disclosing some material risks but not others is not enough. Halkyard v. Mathew (1998) 43 CCLT (2d) 171 (Alta. QB) Practitioners need not disclose personal medical conditions that do not affect their capacity to provide treatment. Arndt v. Smith (1997) (SCC) 3 or 9 justices rejected the objective/subjective test of causation in informed consent cases in favour of the subjective test of causation that usually applies in negligence cases. Chappel v. Hart (1998) (HC Aust.) The subjective test will be applied in duty to inform cases. Health Care Consent Act, 1996 For consent to be valid it must be informed, defining informed in terms similar to common law principles. The act does not mention civil liability. E. Manufacturers or Suppliers Duty to Warn Hollis v. Dow Corning Corp. (1995) 129 DLR (4th) 609 (SCC) Facts: A womans breast implants ruptured from normal activity. The literature on the implants warned that they could rupture during surgery, but not after with only normal activity. She required several surgeries. She sued both the surgeon and the manufacturer. The case against the surgeon was dismissed because the risk was not well known to surgeons at that time. Dow was held liable for negligently manufacturing the implant. The Court of Appeal in B.C.

- 52 held Dow liable on the basis that they had failed to warn of the risks of post-surgery rupture, although they had had 50 reports of ruptures by 1983. Dow appealed to the Supreme Court. Issues: Was the warning Dow gave to the surgeon enough to satisfy its duty to the plaintiff? Was a breach of this duty the proximate cause of the plaintiffs injuries? Ratio: Where a product is highly technical in nature and intended to be used only under the supervision of experts, or where by its nature the consumer will not receive a warning about the product from the manufacturer may satisfy its duty to warn the consumer byt providing the warning to a learned intermediary. In this case, the surgeaon. The duty to warn is a continuing one and manufacturers of potentially hazardous products have an obligation to keep doctors abreast of developments even if they do not consider those developments to be conclusive. Causation: 1. Would the plaintiff have consented if properly warned of the risk? What is the test? The appropriate test is a subjective one, as in Buchan. The plaintiff testified that she would not have had the surgery. 2. Would the doctor have warned the plaintiff if he had been properly informed?

The plaintiff does not have to prove hypotheticals of this type, especially where they are brought about by the defendants failure to perform a duty. This would run the risk of leaving the plaintiff with no compensation for her injuries. Dissent: Sopinka & McLachlin The test for causation should be a reasonableness, or objective standard. The plaintiff should have to show that a reasonable person would not have had the surgery. Austin v. 3M Canada Ltd. (1974) (Ont.Co.Ct.) No warning on a product is needed where a reasonably competent user would know there is a danger. Amin (Litigation guardian of) v. Kliromonos, [1996] (Gen. Div.) The duty to warn is specific to the primary user of the product. Manufacturers must be careful not to assume a risk is obvious where a child or young person is likely to be the primary user. Cominco Ltd. v. Westinghouse Can. Ltd. (1981) (B.C. S.C.) A manufacturer who hears of a new risk after their product is disturbed has a duty to warn users as soon as possible. Objective standard The manufacturer is liable if they should have known about the risk. Beshada v. John-Manville Products Corp. (1982) (N.S. S.C.) An asbestos manufacturer was held liable for injury caused by its product even though there was no negligence. This was to distribute the cost of injury to the manufacturer who profits from the product. Lapierre v. A.G. Que. (1985) (SCC) The Supreme Court of Canada has refused to impose liability on manufacturers where there is no negligence. Allard v. Manahan (1974), (B.C. S.C.); Lem v. Borotto Sports Ltd. (1976), (Alta. C.A.) Suppliers have a duty to warn of risks which they ought to know. Lambert v. Lastoplex Chemicals Co. (1971) (SCC) A manufacturer has a duty to warn consumers of dangers inherent in the use of its product by which it has knowledge or ought to have knowledge. Good-Wear Treaders v. D&B Holdings Ltd. (1979) (NS CA)

- 53 A supplier has a duty to warn the purchaser of potential risks, and also a duty to third parties not to sell a potentially dangerous item to a party he knows will misuse it. F. Barristers Duty of Care

A lawyer owes a general duty to a client to act competently. A lawyer may also be held liable in negligence to third parties. Under the Anns/Cooper test, it is reasonably foreseeable that careless litigation may expose a client to loss. Demarco v. Ungaro (1979), 95 DLR (3d) 385 (Ont. HC) Issue: Is a lawyer immune from a suit in negligence in Ontario? Ratio: There is no immunity from suit for barristers in Ontario. An attorney must exercise reasonable care, skill and knowledge in the conduct of litigation and must be properly diligent in the prosecution of the case Karpenko v. Paroian, Courey, Cohen & Houston (1980) (Ont. HC) A lawyer can only be held liable in negligence for recommending a settlement prior to trial if she made an egregious error. It is in the public interest to discourage litigation, and lawyers should not be unduly inhibited from doing so. Wechel v. Stutz (1980) (Ont.Co.Ct.) A lawyer cannot be held liable for her method of cross-examination. Gorman v. Major (1985) (Alta. CA) A prosecutor does not owe the accused any duty of care in negligence except maybe in cases of bad faith. Milgaard v. Kajawa, [1994] (Sask CA) A plaintiff had served 22 years of a life sentence when it was revealed that the prosecutor had failed to disclose information that could incriminate someone else. The court held that the allegation, if true, was a form of abuse that should not be protected by prosecutorial immunity. Calvert v. Law Society of Upper Canada (1981) (Ont. HC) The law society cannot be held liable for negligently admitting or failing to disbar a lawyer. Such decisions cannot be reviewed by a court unless they are malicious. b) Standard of Care i) Reasonable Person Test Arland v. Taylor, [1955] 3 DLR 358 (Ont. C.A.) Facts: The plaintiff was injured in a car accident. At trial, a jury found that the defendant had not breached the requisite standard of care and held for the defendant. The plaintiff objected to the trial judges charge to the jury and appealed. Issue: Is the standard of care what the jury would have done in the circumstances? Ratio: The legal standard of care is what a reasonably prudent person would have done in the circumstances, not what the judge or jury would have done. Held: There was a misdirection, but it did not cause substantial harm. The appeal was dismissed. ii) Factors Considered for Breach

There are a number of factors considered in determining whether a defendant breached the standard of care. The 2 most important are:

- 54 1. 2. Probability of injury Potential severity of injury These are balanced against the private and social costs of accident prevention and the social utility of the defendants conduct. These considerations must be assessed at the time of the breach, not in hindsight. Roe v. Minister of Health, [1954] (Eng. C.A.) Facts: The defendant ran a hospital where standard procedure was to sterilise ampoules of spinal anaesthetic in liquid phenol. The plaintiff was paralysed by phenol contamination of the anaesthetic. The risk of this was known in 1954 when the case went to trial, but not in 1947 when the accident occurred. Ratio: We must consider what was reasonably foreseeable at the time the accident occurred. Bolton v. Stone, [1951] (HL) Probability and Severity of Harm Facts: The plaintiff was walking on a road beside a cricket ground. She was hit by a ball from the ground and injured. Issue: What is the nature and extent of the duty of a person who promotes on his land operations which may cause damage to persons on an adjoining highway? Ratio: Is the risk so small that a reasonable person in the position of the defendant would have thought it right to refrain from taking steps to prevent the danger, there will be no liability. The standard of care extends only to risks which are substantial. Paris v. Stepney Borough Council, [1951] (HL) Probability and Severity of Harm Ratio: The duty of an employer towards his servant is to take reasonable care for the particular servants safety in all the circumstances of the case. Should consider the severity of possible harm. A risk may be reasonably foreseeable even if it is not probable, or more likely than not. The defendant need not guard against dangers that are fanciful or far fetched. The more likely the harm, the higher the standard. The more grave the harm, the higher the standard. Dissent: The standard of care must be the same for all employees performing a particular task. It should not increase because of the particular vulnerability of one person. Melnychuk v. Ronaghan, [1999] (Alta CA) Probability and Severity of Harm Where the risk of injury is patently obvious, there is no need to issue a warning. Vaughn v. Halifax Dartmouth Bridge Comm. (1961) (N.S. S.C.) Cost of Risk Avoidance Facts: A bridge operated and maintained by the defendant was painted. Flecks of paint blew onto nearby cars. The plaintiff owned one of the cars and sued in negligence. The defendant argued it had taken all necessary and proper measures to prevent or minimize injury to the plaintiff from paint drippings from the bridge, they were not negligent. Ratio: Where precautions could be taken with minimal expense to prevent an accident, the defendant must take them. The defendant must take reasonable measures to prevent or minimize the damages. Law Estate v. Simice (1994) (B.C. S.C.) Cost of Risk Avoidance Facts: The plaintiff sued in negligence for the death of her husband. She claimed that he died because the defendant doctors failed to provide timely, appropriate and skilful emergency care, including not giving him an expensive CT scan.

- 55 Ratio: Where a life is at stake and a treatment is available but very expensive, the patient should be given the treatment. The doctors duty is to the patient, then to the budget. The plaintiff must prove there is a reasonably practicable pprecaution that the defendant failed to adopt. Neill v. New South Wales Fresh Food and Ice Pty. Ltd. (1963) (HC Aust.) Cost of Risk Avoidance Where the plaintiff does not establish sufficient evidence of a practical solution, there is no breach of the standard of care. Watt v. Herrtfordshire County Council, [1954] (CA) Social Utility Facts: The plaintiff, a fireman, responded to an emergency call requiring the use of a jack that has not been used in 15 years. The truck fitted to carry the jack was unavailable, so they put it in the back of another vehicle. When the driver braked suddenly, the plaintiff was injured by the jack becoming dislodged. Ratio: In balancing due care you must balance risk against the measures necessary to eliminate the risk. You must also balance the risk against the end to be achieved. The saving of life or limb justifies taking considerable risk. There is a lower standard of care. Priestman v. Colangelo (1959) (SCC) Social Utility Facts: While chasing a car thief at high speed, a police officer leaned out the window and shot at the thiefs car. The bullet rendered the thief unconscious, causing the car to go out of control, mount the curb, hit a hydro pole and kill two pedestrians. Ratio: Police officers are under an affirmative duty to apprehend suspects and are justified under s.25(4) of the criminal code to use as much force as is necessary to prevent escape. Social utility is usually only considered where the defendant is a public officer or employed by a public authority. A. Economic Analysis U.S. v. Carroll Towing Inc. (1947) (2nd Circuit) Ratio: The duty to prevent against injury has three aspects: 1. Probability of an accident 2. Gravity of the resulting injury 3. Burden of adequate precautions Liability depends on whether the burden is less than the gravity multiplied by the probability, or whether is greater. If the burden is more than the gravity x probability, it is too great. Where the measures necessary to avert the accident would have consumed excessive resources, there is no occasion to condemn the defendant for not having taken them. This approach has been criticized as favouring broader social interests over the individual. Tort law is supposed to focus on interpersonal equity. How do you compare health, life and freedom to money? McCarty v. Pheasant Run Inc. (1987)(England) The economic analysis has a greater operational that analytic significance. It is much more difficult to calculate the cost of acudents than the cost of prevention. iii) Special Standards of Care A. Persons with Disabilities

- 56 Fiala v. Cechmanek (2001), 201 DLR (4th) 680 (Alta. CA) Facts: A man experienced a sudden severe manic episode while jogging and caused a car accident and other damage. Ratio: Where a defendant is suddenly and without warning struck with a mental illness, they are absolved of liability if they can show, on the balance of probabilities: a) As a result of the mental illness, the defendant had no capacity to understand or appreciate the duty of care owed at the relevant time, OR b) As a result of mental illness, the defendant was unable to discharge their duty of care as they had no meaningful control over their actions at the time the relevant conduct fell below the objective standard of care. Carroll and Carroll v. Chicken Palace Ltd., [1955] (Ont. C.A.) The physically disabled are required to meet only the standard of care of a reasonable person with the same disability. B. Children Joyal v. Barsby (1965), 55 DLR (2d) 38 (Man. CA) Facts: A little girl ran out on the highway and ran into the rear door of a car. She was severely injured. The defence admitted that the driver was negligent, but argued that the six-year-old was contributorily negligent. Issue: Can a child be contributorily negligent? Ratio: Where the age doesnt make the question absurd, the jury must decide in each case whether the infant exercised the care to be expected of a child of like age, intelligence and experience in the context of the facts. Pope v. RGC Management Inc., [2002] (QB) When a child engages in an adult activity like driving or golfing or hunting, they are held to the adult standard of care. Thomas v. Hamilton (City) Board of Education (1994), (B.C. C.A.) Parents arent liable for the torts of their children but they can be held liable for carelessly failing to supervise or control them. C. Professionals White v. Turner (1981), 31 OR (2d) 773 (HC) Affd (1982) (Ont. C.A.) Facts: The defendant plastic surgeon performed a breast reduction on the plaintiff. She suffered several post-operative complications and her breasts were scarred and poorly shaped. She sued, claiming he was negligent in performing the operation. Ratio: Negligence in a professional is judged by the standard of care of his profession. A bad result is not enough. The conduct must be substandard by the standards of his profession. Layden v. Cope (1984), (Alta. QB) General practitioners are required to exercise the standard of care of a reasonable, competent general practitioner, including knowing when a patient needs a specialist. Killips Television Services Ltd. v. Sony Plain (Town), (2000) (Alta. Q.B.) Volunteers Non-professionals are not held to professional standards of care but are expected to have proper training for the situation. (Volunteer Firefighter) Shakoor v. Sity, [2000] (QB)

- 57 A practitioner of Chinese medicine who did not hold himself out to be an orthodox physician was only required to meet the standard of care appropriate to his art. iv) Degrees of Negligence

Some statutes require gross negligence. These are usually confined to two types of statute: 1. Municipal Act s.44 Municipalities are not liable for injuries caused by ice and snow on sidewalks except in
cases of gross negligence.

2. Good Samaritain Act s.2 Medical professionals who provide medical assistance in emergencies and people
who provide first aid are liable except in cases of gross negligence. Gross negligence is worse than negligence but not as bad as criminal negligence The ordinary standard of care requires the defendant to act as a reasonable person would in similar circumstances. Sudden Peril Doctrine Conduct that would normally be considered careless is exempted from liability if it is reasonable in the context of an emergency. v) Custom Ter Neuzen v. Korn (1995), (SCC) Facts: The plaintiff contracted HIV as a result of artificial insemination in 1985. At the time, the risk of infection was not widely known in North America. The defendant was responsible for screening semen donors, and used standard medical practices to do so. The jury found him liable. Issue: Can the jury decide that the standard of care itself is higher than the industry standard? Ratio: Usually, adhering to the standard of a profession is enough to prove no negligence, but where standard practice is itself negligent in that it fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary trier of fact, the standard practice is no excuse for a negligent practice. Heeney v. Best (1979) (Ont. C.A.) The party relying on either either compliance or breach of custom exists. The practice has to be a well-established one that has been widely accepted in a trade, industry or profession. c) Causation i) The Cause-in-Fact A. But-for Test

But for the defendants breach, would the plaintiff have suffered the same loss? If the plaintiff would have suffered the same loss in any event, the defendant is not usually held liable because they are not seen as a cause of harm. Barnett v. Chelsea & Kensington Hospital Management Committee, [1969] 1 QB 428 Facts: The plaintiffs husband drank a cup of tea and got very sick. He went to the hospital and was told to go home to bed. He went home and died shortly after. His tea had been poisoned with arsenic. Issue: Did the hospitals carelessness cause the death, or would he have died in either case? Ratio: Where the deceased would have died even with medical attention, a hospital would not be held liable for failing to provide care as they did not cause the death. B. Material Contribution Test

- 58
Used when there are several causes and no one cause can be isolated as the sole cause.

Walker Estate v. York-Finch General Hospital (2001), 198 DLR (4th) (SCC) Facts: Three plaintiffs sued the Canadian Red Cross because they got blood tainted with HIV. Walker was one of these plaintiffs. He got blood donated by Robert M in 1983, when there was no test for HIV. The CRCS used pamphlets to screen donors, but these pamphlets were inadequate compared to those used by the American Red Cross. The Supreme Court held that the CRCS owed a duty of care to the plaintiffs, and that they breached the standard of care. Robert M. made 5 donations in Montreal after an adequate pamphlet was released. He said he had never seen the pamphlet, but he had known he was in a high risk group he would have asked a nurse whether he should donate blood. The trial judge found that even if CRCS had met the proper standard of care, Robert M. would have donated blood. The Ontario Court of Appeal reversed the decision on the grounds that the trial judge used the wrong test for causation. Issue: Did CRCSs inadequate screening cause Walkers loss? Ratio: The material contribution test: Did the defendants negligence materially contribute to the occurrence of the injury? Used in negligent donor screening cases. The contributing factor must be outside the de minimis range. C. Materially Increased Risk McGhee v. National Coal Board, [1972] 3 All ER 1008 (U.K. H.C.) Ratio: Where working conditions materially increased the risk of a condition, liability was imposed even though medical evidence could not say that the working conditions more likely than not caused the condition. The burden shifts to the defence to prove that there is no causation. There must be proof of negligence and proof of the harm that the negligence caused the risk of. Snell v. Farrell (1990), 72 DLR (4th) 298 (SCC) Issue: Does the plaintiff in a malpractice case have to prove causation in accordance with traditional principles, or does the McGhee rule apply? Ratio: The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn, although scientific proof of causation has not been adduced. ii) Multiple Causes A. Independently Insufficient

Several factors combine to cause the plaintiffs loss. No one factor would have been enough to cause the loss.

Athey v. Leonati (1996), 140 DLR (4th) 235 (SCC) Tortious + Non-tortious Facts: The plaintiff had a pre-existing back problem. He injured his back and neck in a car accident caused by the defendants negligence. On advice from his doctor, he undertook an exercise program, during which he herniated a disc. The trial judge found that the car accident causally contributed to the disability, but reduced the damages 75% to reflect that the herniation was mainly caused by the pre-existing back condition. Issue: Where a loss is created by both tortuous and non-tortious causes, can loss be apportioned to the degree of causation?

- 59 Ratio: If a defendants conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of the defendants liability, where the defendants negligence constitutes a material contribution to the loss outside the de minimis range. Nowlan v. Brunswick Const. Ltee. (1974) (SCC) Two Tortious Acts Facts: The defendant contractor was negligent in building the plaintiffs house. The house rotted due to several leaks. The defendant argued that there wouldnt have been any damage but for the architects failure to include proper ventilation in the design. Issue: Where does the liability lie when an indivisible loss is caused by two separate tortuous acts? Ratio: Where there are concurrent torts, breaches of contract and a concurrent tort both contributing to the same damage, whether or not the damages would have occurred in the absence of either cause, the liability is joint and several and either party causing or contributing to the damage is liable for the whole damage to the person aggrieved. Joint and several Liability: The plaintiff can recover the full amount from either tortfeasor. The tortfeasor then has the option to go after the other tortfeasor to recover their portion of the damages. Negligence Act

Where tortfeasors are both negligent in causing the same damage, they arte joint and severally liable. The plaintiff can recover the whole amount. The tortfeasors can then recover from each other to the degree to which they caused the damage. (Apportionment of Damage) Economy Foods & Hardware Ltd. v. Klassen (2001) (Man. C.A.) Ratio: It is important to distinguish between independent tortfeasors and those where two or more tortfeasors are held joint and severally liable as joint tortfeasors. Independent tortfeasors act on their own, but are liable together because of the causal role that their carelessness played. The liability of joint tortfeasors stems from their legal relationships: a) Where an agent commits a tort while acting for his principal b) When an employee commits a tort while acting on behalf of his employer c) Where 2 or more parties agree to act in concert to bring about a common end which is illegal, dangerous and where negligence is foreseeable. All joint tortfeasors are held jointly and severally liable for all injuries, even if a particular joint tortfeasor did not materially contribute to the plaintiffs injuries. Newcastle (Town) v. Mattathall (1987), (N.B. Q.B.) Three drunk youths broke into a town rink to steal. One of them started a fire. All three were held to be joint tortfeasors and equally liable because the fire was caused in pursuit of a common wrongful intention of all three youths. Part c) of Economy Foods, acting in concert for an illegal end. B. Independently Sufficient

Where the plaintiff is subjected to several causal factors, each of which independently is sufficient to cause certain injury. Penner v. Mitchell (1978) (Alta. CA) - One cause is non-culpable Facts: The plaintiff had an accident which caused her to lose income for 13 months. She would have been off work for 3 months anyway because she had a heart condition. Issue: Is the plaintiff entitled to damages for the time she would have been off work anyway?

- 60 Ratio: Where there is more than one cause and they are all torts, the second tort will not be taken into account when assessing damages (Baker). Where some of the causes are non-culpable, those can be considered to reduce the damages where they are independently sufficient to cause the loss. Sunrise Co. v. The Ship Lake Winnipeg, [1991] (SCC) - One cause is non-culpable Facts: The defendants ship negligently caused the plaintiffs ship to run aground, requiring 27 days of repairs. The plaintiffs ship also sustained other unrelated damage requiring 14 days of repairs. The repairs were carried out concurrently over the first 27 days. Held: The defendant is liable for the full 27 days of repairs. Dissent: The defendant should only be liable for 13 days of repairs. Dillon v. Twin State Gas and Elec. Co. (1932) (New Hampshire SC) One cause is non-culpable Facts: he defendant maintained wires to carry electric current over a public bridge in Berlin. No power usually ran through the wires during the day. A boy who often played at climbing the bridge grabbed a wire to catch himself. He was electrocuted. Ratio: The future of the victim but for the tort of the defendant fears on the defendants liability as well as damages. If the victim would have died anyway, the defendant is not liable. The but for test applies. d) Remoteness of Damages

Even if the defendant breached the standard of care, liability will be denied if the connection between the loss and the breach was too remote. Remoteness in time, space, foreseeability, kind of harm. i) Directness vs. Foreseeability Re: Polemis and Furness, Withy & Co., [1921] (England) Directness Test - Not good Law Ratio: Liability is imposed based on whether there is a direct connection between the defendants breach and the plaintiffs loss. Foreseeability was rejected as a test. Wagon Mound No.1; Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] (Privy Council) Facts: Wagon mound carelessly allowed oil to spill into Sydney Harbour. The oil was carried to the respondents wharf by wind and tide. The respondents employees were welding, and the oil caught fire, damaging the respondents wharf. The trial level decision said the damage was foreseeable. Ratio: A person must only be considered responsible for the probable consequences of his act. To demand more is too harsh a rule. Foreseeability is the effective test. The type of damage must be foreseeable, not the extent of damage. ii) Foreseeability Test Modified A. Kinds of Injury Hughes v. Lord Advocate [1963] (HL) Facts: The defendants employees left a lit paraffin lamp near an open manhole. An eight-year-old boy knocked the lamp into the manhole and fell in. The lamp caused an explosion, badly buring the boy. Issue: Can the plaintiff recover for damage that was not foreseeable?

- 61 Ratio: The defendant is liable even though the damage may be greater in extent than was foreseeable if it is similar in kind to what was foreseeable. She can only escape liability if the damage is different in kind from what is foreseeable. Doughty v. Turner Mfg. Co., [1964] (CA) Facts: An employee in a metal plant was injured when an asbestos cover fell into a treatment vat. The cover reacted with the metal, causing the employee to be burned. This reaction had never been seen in 20 years of using the covers. Held: The injury was caused by a chemical reaction that was unforeseeable. The court held for the defendants. Tremain v. Pike, [1969] (Eng. Assizes) The defendant had an out of control rat problem on his farm. The plaintiff, a farm hand, contracted a disease from rat urine. The court held that injury caused by rats was foreseeable, but disease by rat urine was not foreseeable. Jolley v. Sutton London B.C. [1998] (C.A.) When considering the foreseeability of risk to children, it is necessary to bear in mind that play can take the form of mimicking adult behaviour Lauritzan v. Barstead (1965) (Alta. SC) Loss of consortium is not a foreseeable kind of injury resulting from a negligently caused accident causing a car to get stuck in the snow. Trevison v. Springman [1996] (BC SC) Losses due to fire were too remote from a negligent failure to supervise and control their frequently delinquent son. The defendants were only held liable for damages due to theft. B. Thin Skulled Plaintiff Rule Smith v. Leech Brain & Co., [1962] (QB) Facts: The deceased was injured by molten metal, which struck him in the lip and caused cancer, which he died of. The court found that the defendants were negligent, that there had been no contributory negligence, and that the burn promoted the cancer. Issue: Was the cancer too remote to award damages? Ratio: The test is not whether the effect of the injury was foreseeable. Where the injury is foreseeable, all damages that flow from it are the responsibility of the defendant, who must take his victim as he finds him. Marconato v. Franklin, [1974] (BC SC) Facts: The female plaintiff was slightly injured in a car accident negligently caused by the defendant. After the accident, she became stiff and anxious, suffered inexplicable pain, and became paranoid and hostile. Psychiatric evidence indicated that she had paranoid tendencies before the accident, but she was basically fine. The accident triggered a major personality change. Ratio: Where physical injury is reasonably foreseeable, the defendant is responsible for all damages that flow from that injury. A wrongdoer must take his victim as he finds her. If it was reasonably foreseeable that the defendants carelessness would cause some injury of a particular type, then the plaintiff can recover if full even if, because of a special vulnerability, he suffered to a greater extent than could have been reasonably foreseen. The plaintiff is expected to mitigate her loss. If she cannot, the court will take that into account.

- 62 Swami v. Lo, [1980] (BC SC) Suicide as a result of a debilitating injury is too remote to award damages. Gray v. Cotic (1983) (SCC) The plaintiff recovered for her husbands suicide after a car accident because he had a pre-existing mental condition. Dredger Lisebosch v. Steamship Edison, [1933] (HL) The defendant suffered a greater loss because he didnt have enough money to mitigate his damages. The court held that there is no thin wallet rule, the defendant was not liable for extra damages because of the plaintiffs impecuniosity. Alcoa Minerals of Jamaica v. Broderick, [2000] (PC) The court held that where it is reasonably foreseeable that the plaintiffs impecuniosity will cause costs to be higher, the defendant is liable for the higher costs. C. Wagon Mound Two Possibility of Injury The Wagon Mound (No.2) Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] (Privy Council) Facts: Wagon Mound let oil run into a harbour. Debris in the harbour caught fire, causing the oil to burn and damaged two ships. At trial, the plaintiffs succeeded in nuisance, but their action in negligence was dismissed because their damages were not foreseeable and thus too remote. The defendant appealed and the plaintiffs cross-appealed. Issue: Was the damage from the fire reasonably foreseeable? Ratio: It is justifiable not to take steps to eliminate a real risk if it is small and if a reasonable man would think it right to neglect it. Would a reasonale man with the defendants knowledge and experience have known there was a real risk? If so, the damage was foreseeable. If it is clear that the reasonable man would have prevented the risk, the defendant is liable for the damages. Assiniboine South School Division, No.3 v. Greater Winnipeg Gas Co. (1971) (SCC) Facts: A snowmobile went out of control and hit a gas pipe, breaking it. The gas collected in the boiler room of a school, causing an explosion. The school recovered damages from the driver of the snowmobile (50%) and the gas company (50%). All defendants appealed. Ratio: The liability depends on whether the damage is of such a kind as a reasonable man should have foreseen. Where a state of affairs has already occurred at the time of the wrongful act, that act is regarded as the cause of the harm if there have been no subsequent intervening factors. (The harm would not have occurred but for the act. The duty to take protective measures increases in direct proportion to the severity of the risk, with the effort and expense of averting the risk subtracted. iii) Intervening Causes

Where the plaintiffs losses were caused by the defendants breach and a subsequent intervening act. 3 categories of intervening acts: a) Where the intervening act was non-culpable The intervening act does not break the chain of causation b) Where the intervening act is caused by the negligence of another person Breaks the chain of causation, absolves the first tort feasor of liability (usually) c) Where the intervening act was deliberately wrongful or illegal

- 63
Always breaks the chain of causation unless the first tortfeasor had a specific duty to prevent the act

Bradford v. Kanellos (1973) (SCC)- Negligence of Another Person Facts: There was a grease fire in a restaurant. The automatic fire extinguisher put it out. The sound caused people to think there was going to be an explosion, and they panicked. The appellants wife was pushed or fell out of her seat and was injured. The trial judge found that there had been negligence in the start of the fire, and that the extinguisher had caused the panic. Issue: Is the restaurant liable for the injuries even though there was an intervening cause in the negligent customer causing panic? Ratio: Where the intervening cause is the negligence of another person, and it was not reasonably foreseeable by the first tortfeasor, they are not liable. Dissent: The person guilty of the first negligence should have reasonably foreseen subsequent intervening negligence and to have foreseen that if this occurred there would be damage. Oke v. Weide Tot. Ltd. (1963) (Man CA) Facts: The defendant hit a road sign and left the post projecting upwards on the median. He told a garage attendant about it, but did not call the police. The next day, a driver tried to pass on the median and the post came up through the floor and pierced his chest. Held: Even if the defendant was careless in not reporting the accident, he could not have foreseen the deceaseds intervening act of driving on the median. Dissent: The defendant was negligent and an accident of some kind was foreseeable from his failure to report the dangerous situation he created. Price v. Milawski (1977) (Ont. CA) Facts: The plaintiff injured his ankle and went to the emergency room. Even though he said it was his ankle, the doctor x-rayed his foot. The ankle was not diagnosed as broken. He went to an orthopaedic surgeon, who relied on the first xrays. The plaintiff then found another surgeon, who did new x-rays and found the fracture. As a result of the delays in treatment, the plaintiff suffered permanent disability. At trial, the emergency room doctor and the first surgeon were both held liable for the plaintiffs injury. Both appealed. Issue: Is the first doctor liable in negligence even though the surgeon was negligent after him? Ratio: Where the original tort and the intervening cause are both negligence, damages can only be recovered from the first tortfeasor if the second tort was reasonably foreseeable from the actions of the first tortfeasor. Held: The defendants were held joint and severally liable. Papp v. Leclerc (1977) (CA) Ratio: The defendant must prove that a new act rendering another person liable has broken the chain of causation to escape liability. Block v. Martin [1951] (Alta SC) Facts: The defendants negligently ran over the plaintiff, causing a slight fracture of his leg. He followed his doctors orders and kept walking, then slipped while fishing six months later and severely fractured the leg.

- 64 Held: The original injury was a contributing cause of the second fracture. The plaintiffs fishing was not a new intervening cause. The defendant is liable for the plaintiffs whole loss. Hewson v. Red Deer (1976) (Alta. Trial Division) Facts: A tractor owned by the city crashed into the plaintiffs house. Someone had taken and started the tractor. The keys had been left in it. Issue: Did the persons stealing the tractor constitute a new cause on top of the tractor drivers negligence? Ratio: Where the defendant failed to guard against the very thing that was likely to occur, the intervening cause will not be considered. Tong v. Bedwell [2002] (Alta QB) Facts: The defendant was stopped at an intersection. A vandal smashed his windshield. He chased him, leafing the keys in the car. Someone stole the car and crashed it into the plaintiffs car. Held: While it was reasonably foreseeable that the car would be stolen, it was not reasonably foreseeable that the thief would cause damage. e) Assessment of Damages i) Introduction A. The Purpose of Damage Awards in Negligence Nominal Damages Awarded to vindicate the plaintiffs right when she has not actually been injured. Not available in negligence suits. Compensatory Damages Damages to put the plaintiff in the same position he would have been in if the tort had not occurred. Pecuniary and Non-Pecuniary. Punitive Damages Can be awarded in any situation where the defendants malicious, outrageous, vicious, highhanded or otherwise socially unacceptable conduct warrants punishment or deterrence. Rarely appropriate in negligence cases. Fisher v. Knibbe, [1992] (Alta. CA) The plaintiff was awarded $100 in nominal damages because the defendant lawyer missed a limitation period. The damages were only nominal because the action would have failed anyway. Robitaille v. Vancouver Hockey Club Ltd. (1979) (SCC) Medical staff had ignored the plaintiffs complaints about a serious injury. The plaintiff was permanently disabled as a result of being forced to play while injured, and was branded lazy and whiny. The judge awarded punitive damages because of the defendants high-handedness and disregard for the plaintiffs rights. (Approved by the Supreme Court in Vorvis). Kraft v. Oshawa General Hospital, [1986] (HL) Facts: An anaesthesiologist failed to properly anaesthetize and monitor her vital signs, causing brain damage. He was doing a crossword puzzle instead. The judge denied punitive damages. Ratio: Where there is no maliciousness, intent to harm, or disregard for the principles of justice, punitive damages will not be awarded.

- 65 Ulchek v. Koshel, (1988) (B.C. S.C.) A child was seriously injured when she was thrown from an ATV. He sued the manufacturer for failing to recall or redesign the vehicle in light of similar incidents. The court awarded punitive damages even though the manufacturers act was not directed at the plaintiff, as long as it was malicious or reckless enough to indicate a complete indifference for safety or values. Nelson v. Welsh and Snow, (1985) (SCC); Wilson v. Lind (1985) (Ont. HC) Punitive damages were denied against defendants who habitually drove drunk because the criminal law has a mechanism to punish drunk drivers, even though there was no evidence either driver had been criminally prosecuted. B. Preliminary Issues i. The Burden and Standard of Proof in Damages

The plaintiff has the burden of proving her loss and the quantum of damages. These must be proved on the balance of probabilities. If the plaintiff meets this standard, she recovers 100%. If not, she gets nothing. Post-trial losses: 2 approaches a) Balance of Probabilities Test If the plaintiff could show on the balance of probabilities that a future loss would occur, she would get the full amount. If she could not, the claim was denied. (Older Test). b) Reasonable or Substantial Probability Test The plaintiff must establish that there is a substantial or reasonable probability of future loss. She can recover, but only subject to the likelihood of the loss occurring. (A 35% chance of going behind results in 35% of the damages the plaintiff would recover if he went blind). ii. Mitigation of Damages

1. 2. 3.

The plaintiff must take all reasonable steps to mitigate her damages. The defendant must prove she has failed to do so. 3 related principles of mitigation: The plaintiff must take all reasonable steps to avoid or minimize her loss. The plaintiff may recover for losses incurred in taking such reasonable steps. The plaintiff cannot recover for losses that she had successfully avoided, even if she didnt have to avoid them under rule 1.

iii) The Set-Off of Parallel Expenditures

A defendant is allowed to set-off against the plaintiffs damage claim any parallel expenditures that the plaintiff would have incurred had the tort not been committed. Set-off is only allowed if the defendant can establish that the two items in issue are truly parallel in nature, and that their values can be calculated. S.11 of the Court of Justice Act. iv) The Use of Lump Sum Payments

One lump sum is used to compensate the plaintiff for losses suffered and likely future losses. If a loss turns out to be more than that calculated at trial, there is no means of re-assessment.

v) The Roles of Juries, Judges and Appellate Courts In a jury trial, the jury must assess damages without much help from counsel or the judge. Special damages (pre-trial pecuniary losses and all post-trial losses). Counsel and judges are traditionally not allowed to suggest appropriate amounts. This is now changing and courts are increasingly willing to suggest suitable ranges and rough upper limits. Appellate courts are not to interfere with the jurys assessment of damages unless there is a clear error in law or the amount is so grossly out of line that it must be a wholly erroneous estimate of the damages. Monahan v. Nelson (2000) (B.C. C.A.)

- 66 The plaintiff died after the trial but before the judgment was delivered. The judge awarded all the damages anyway. The B.C. Court of Appeal reduced the damages, insisting that recovery should as much as possible reflect actual losses. Janiak v. Ippolito (1985) (SCC)

The defendant negligently caused the plaintiffs serious back injury. The plaintiff was informed that if he had corrective surgery, there was a 70 to 75% chance of complete recovery. The chance of a poor result was 10%, including a 1% risk of quadriplegia and a 0.1% risk of death. He refused to have the operation. The Supreme Court held that the issue of whether this was a failure to mitigate damages was for the trier of fact to determine. They agreed with the trial judge that the plaintiff unreasonably failed to mitigate his loss by having the surgery. ii) Personal Injury

The courts require separate assessment of each head of recovery that has been proved by the plaintiff. The trilogy of cases: Andrews v. Grand & Toy Alberta Ltd. (1978)(SCC); Arnold v. Teno (1978) (SCC); Thornton v. Prince George Board of Education (1978) (SCC), establish a framework for quantifying general damages under the following headings: 1. Pecuniary Loss a. Future Loss b. Lost Earning Capacity c. Considerations Relevant to Both Heads of Pecuniary Loss 2. Non-Pecuniary Loss Principles Underlying Damages The Restitutionary Principle

Property and fatality claims are more difficult in the assessment of damages. o With real property loss, people tend to go to their first party insurer, which starts a tort action. The insurer may not start a tort action if the claim is small because its cheaper just to pay out. o The first insurer pays the plaintiff, then contacts the other partys insurer for the money back. The second insurer may pay out if its cheaper, or fight it in court if its a large amount.

s.116 of the Courts of Justice Act

Allows periodic payments and review of damages for personal injury under part 5 of the Family Law Act if all affected parties consent. The court should consider the best interests of all parties in deciding whether to award a structured settlement or not.

The majority of claims are settled out of court. Cases can take up to 7 years to resolve, the plaintiff can be under surveillance for this whole time. Not all damages are compensable. General damages are harder to prove. Future losses are to be proved on a test of reasonable and substantial probability. If a harm is 35% likely to occur, the plaintiff is entitled to recover 35% of what they would get if it had occurred. Plaintiffs must mitigate their damages. You can claim for losses you have successfully averted through mitigation. Refusal of medical treatment can be grounds to reduce damages because of failure to mitigate. Andrews v. Grand & Toy Alta. Ltd. (1978) (SCC) Facts: A young man was rendered quadriplegic in a traffic accident. Anderson and Grand & Toy were each held partially liable in negligence. The case was appealed on the question of whether there was an error in law as to the assessment of damages. The trial judge awarded $1,022,477.48. This was reduced to $516,544.48 at the appellate level.

- 67 Issue: What is the appropriate method of awarding general damages? Ratio: The method of assessing damages in separate amounts is sound. It is the only way to reasonably review an award, and shows the litigants that each head of damages has been considered and evaluated. Pecuniary damages must be broken down by heads. Non pecuniary damages dont have to be broken down in this way. No appellate court is justified in substituting a figure of its own for that awarded at trial simply because it would have awarded a different amount if it had tried the case at first instance. It must be satisfied that a wrong principle of law was applied, or that the overall amount is a wholly erroneous estimate of the damages. The court criticized the system of lump sum payments, and called for legislative reform to collect this problem. Structured Settlements

A main advantage of structured settlements is that payments are not taxable. A lump sum payment is not taxable either, but it must be invested, and the investment income is taxable. Yepremian v. Scarborough General Hospital (1981) (Ont. HC) The court approved a structured settlement. Watkins v. Olafson (1989) (SCC) Held that courts lack jurisdiction to impose structured judgments. No Canadian legislature had authorized structured judgments. Types of Damages Pre-Trial Special Pecuniary All pre-trial pecuniary losses Cost of care, therapy, etc. Loss of income Out of pocket expenses General Post-Trial General Pecuniary Post trial losses Cost of future care Loss of future earnings/Earning capacity Dependants claims Management fees Non-Pecuniary Pain and suffering Loss of amenity Loss of consortium Loss of life expectancy Loss of guidance/care/companionship Loss of pportunity for remarriage

Pre-trial non-pecuniary Pain & suffering Loss of amenity Loss of consortium Loss of enjoyment

Pecuniary Loss Future Care Andrews v. Grand & Toy Alta. Ltd. (1978) (SCC) Issue: Is the failure to live in an institution, which is cheaper than home care, a failure to mitigate damages? Ratio: The plaintiff doesnt have to choose the cheapest option for care. He only has to choose a reasonable option. Home care is the most reasonable option for this plaintiff, so he is entitled to damages to pay for this. Family members are not expected to provide home care for free. Rayner v. Knickle (1988) (PEI SC) The victims stated preference for home care is not sufficient to justify an award.

- 68 Krangle (Guardian ad litem of) v. Brisco (1997) (SCC) Facts: A child was born with down syndrome, which the defendant physician was negligent in failing to detect in time for the mother to abort. The defendant was liable for the cost of the childs future care. The evidence showed that the child would leave his home at 19 years old to live in an institution. The government would bear this cost. There was a 5% chance that the legislation that provides this care would no longer be in effect when he actually turned 19. Held: The court awarded $80,000 for the care of the child after he turned 19, 5% of the total estimated cost of care from age 19 to the end of his life. (This was either $80,000 too much if the institution is still there when he turns 19, or 95% too little if it does not). Watkins v. Olafson (1989) (SCC) A lump-sum payment is quantified on the assumption that the plaintiff will invest this well enough to meet future care costs. Interest earned on a lump sum award invested is taxable, so the future care award will be grossed up by the estimated future tax liability to ensure that the fund would generate sufficient after-tax income to meet the cost of care. Ins. Corp. of B.C. v. Mandzuk, [1988] (SCC) An award may include a sum to enable the plaintiff to hire a financial manager if the plaintiffs level of intelligence is such that he is either unable to manage his affairs or lacks the acumen to invest funds awarded for future care so as to produce the requisite rate of return. Life Expectancy

Insurance companies use a table of impaired life expectancy for particular injuries to estimate the life expectancy of claimants. Courts tend to make longer estimates of life expectancy. Pecuniary Loss: Lost Earning Capacity Andrews v. Grand & Toy Alta. Ltd. (1978) (SCC) Ratio: Plaintiffs are compensated for loss of future earnings and loss of earning capacity. The Calculation: Salary at the job the plaintiff had at the date of the accident x the number of years to pre-accident retirement date x a percentage allowed for salary increases (positive contingency) deduction for contingencies (negative contingencies) at a 20% cap. Award = salary x # of years to retirement x (% of positive contingency - % of negative contingency) Set-off of parallel expenditures such as food and housing now covered under cost of future care should be deducted from future earnings, not future care. These things would have been paid for out of salary anyway. Future care is paramount in these cases. Arnold v. Teno (1978) (SCC) A four-year-old girl was totally disabled. The judge arbitrarily selected $7,500 as an equitable yearly income for calculating the childs lost earning capacity. The girls mother earned $10,000 per year, and the poverty line was $5,000. The judge said that the girl would probably not aspire to the career level of her mother (a secretary). Kroeker v. Jansen (1995) (B.C. C.A.) Earning capacity is difficult to estimate where the plaintiff is a student or a homemaker. Many believe homemaking services are grossly undervalued by the courts. Considerations Relevant to Both Heads of Pecuniary Loss Andrews v. Grand & Toy Alta. Ltd. (1978) (SCC)

- 69 Issue: What rate of return should the Court assume the appellant will be able to obtain on his investment of the award? How should the court recognize inflation? These considerations combined to determine the discount rate to use in actuarily calculating the lump-sum award. Ratio: The rate of return on investment can be calculated using present interest rates, then factoring in an allowance for the long-term expected rate of inflation and reducing the expected interest percentage by the percentage of expected inflation. Ex: 8% interest 3% inflation = 5% return on investment. Issue: What should the allowance for tax be? Ratio: There should be no allowance made in damage awards for taxes payable under loss of earning capacity. Awards for loss of earnings would have an allowance for taxes. So would awards to dependants. Ontario Rules of Civil Procedure, R.53.09 Fixed legislative interest rates are between 2.5% and 3.5%. Non-Pecuniary Loss Andrews v. Grand & Toy Alta. Ltd. (1978) (SCC) Ratio: Assessment of non-pecuniary damages requires a conceptual approach. The court tries to consider the nature of the loss and place a value on it for the particular plaintiff. The court takes a functional approach and tries to provide a reasonable solace for the misfortune. $100,000 should be regarded as an upper limit for non-pecuniary loss in cases of this nature. ($270,000 in todays dollars) iii) Survivor and Dependent Claims A. Survival Actions

At common law, when a person dies, all actions they could have brought were extinguished.

Trustee Act, s.38 (Ontario); Survival of Action Act, RSA 2000,c.S.27 (Alberta) A cause of action survives the person Damages go to the estate of the deceased You cannot claim loss of life expectancy or other claims personal to the deceased The limitation period is 2 years after the death of the deceased

B. Fatal Accidents Legislation At common law you could not bring an action for the death of another person.

Family Law Act, RSO 1990, c.F.3,s.61 Dependants of the deceased can sue in tort for pecuniary losses. Subject to apportionment of damages for pecuniary loss. Damages may include: a) Actual Expenses for the benefit of the person injured or deceased. b) Actual funeral costs c) Travel expenses during treatment or recovery for visiting d) Nursing, housekeeping or other services, a reasonable allowance for loss of income or value of services. e) Loss of guidance, care, companionship from the deceased or injured.

- 70 61(1) Children, grandchildren, parents, grandparents, brothers and sisters of the deceased or injured parties can make these claims. 61(2)(e) Does not allow recovery for grief and sorrow. C. Death of the Family Provider Keizer v. Hanna, [1978] (SCC) Facts: Mr. Keizer died as a result of injuries sustained in a car accident. The defendant admitted that the collision was due solely to his negligence. Issues: What is the quantum of damages for loss of the family provider? Ratio: For fatal accidents, determine the annual income of the deceased, multiply it by life expectancy, then determine how much of this would go to his dependants. (After tax income personal use personal support) x life expectancy Discount rate = Return on investment Inflation Discount for Contingencies Possibility of incapacity to earn Possibility of child not being dependant for the rest of the deceaseds life Possibility of widows death Possibility of remarriage The award must not be punitive, but must adequately compensate the dependants of the deceased. The court must not deduct for every contingency, but must consider them all. Income tax should be taken into account in calculating the value of the deceaseds support. D. Death of a Dependant Family Member

The claimant must usually show that they would have received a pecuniary benefit from the deceased.

Mason v. Peters (1980) (CA) The trial judge awarded $45,000 to a disabled single mother for the death of her 11-year-old son because he would have provided her emotional and financial support. Family Law Act,s.31

Parents have an obligation to support children under 16 who are unmarried and in school full time. Children must support parents who have cared for them.

Lai v. Gill, [1980] (SCC) Chinese traditions encouraging support of ones parents were accepted as justifying a pecuniary award of $25,000 for the parents of a deceased 14-year-old girl. Lian v. Money A similar pecuniary award, reversed on appeal because the trial judge failed to consider the contribution of the deceaseds older sister. iv) Property Loss

- 71 A. Assessment of Damages to the Property Itself

Is the property commonplace or unique? o If it is commonplace, the plaintiff usually receives the decrease in value, the cost or repair or replacement. (Whatevers Cheapest) o If it is unique, the court recognizes that the market value may be inadequate. The court may award cost of repair even though its far more expensive if it has sentimental value. It is not settled whether the defendants liability should be reduced if a repaired or replaced chattel is more valuable than the original. B. Assessment of the Economic Loss Consequent on the Damage to the Property

Recovery of consequential economic loss is governed by the same rules as in personal injury and property loss cases, but the rules are applied more strictly in claims of property loss. The defendant is not liable for damages caused by the plaintiffs impecuniosity. (Predger Liesbosch v. S.S. Edison (Owners) [1933] ) The Privy Council has now rejected a blanket rule denying recovery of losses attributable to the plaintiffs thin wallet. Instead, they stressed foreseeability and remoteness. (Alcoa Minerals of Jamaica v. Broderick, [2000] (PC)) C. Obligation to Mitigate

Mitigation is more strictly required in cases of property loss than cases of personal injury. The plaintiff must act reasonably in a business sense.

Darbishire v. Warren, [1963] (Eng. CA) The defendant negligently damaged the plaintiffs car. The car only had a market value of 85, but the plaintiff spent 192 repairing the car because he felt he couldnt get another reliable car for less than the cost of repairs. The court found that he did not act reasonably to mitigate his loss, and awarded only the market value of the car. NB Telephone Co. v. Wright (1982) (NB QB) The plaintiff was unable to replace the vehicle damaged by the defendant with its other vehicles it wasnt using. It was still able to recover the cost of renting another vehicle. Harbutts Plasticine v. Wayne Tank & Pump Co., [1970] (UK CA) The plaintiffs couldnt repair their factory, so they built another one. They were entitled to the entire cost of the new premises even though it was more than the decrease in value of the old building. Waterloo Warehousing & Storage Ltd. v. Swenco Mfg. Ltd. (1975) (Ont. HC) The plaintiffs building was destroyed in a fire caused by the defendants negligence. Since they had already entered into a contract to sell with someone who planned to demolish the building, and the sale price did not change, they were not entitled to damages to replace the building. Jens v. Mannix Co. Ltd. (1978) (BC SC) A house was destroyed by the negligence of the defendant. The property had been re-zoned for commercial use, increasing its re-sale value. Because the plaintiff reasonably planned to keep living there and received building approval, he was entitled to the cost of rebuilding his home. v) Collateral Benefits

Plaintiffs often also receive compensation from sources other than the defendant. (Government Health Insurance, Private Insurance, Employment Benefits, etc.) Unless there is a statutory or contractual reason, some types of collateral benefits dont have to be deducted from the plaintiffs damages. o Not Deducted: Private Insurance, Charitable or Benevolent Gifts, Pension, Welfare, or Unemployment Benefits. o Deduction Governed by Statute: Provincial Health Insurance, Workers Comp., Car Insurance

- 72 Ratych v. Bloomer (1990) (SCC) A police officer continued to be paid by his employer while he was injured. The defendant was able to deduct thise payments from the damages he had to pay. Cunningham v. Wheeler (1994) (SCC) A railway worker continued to be paid by his employer during convalescence. The Supreme Court said the defendant could NOT deduct those payments from the damages. Cunningham was able to show loss because hed gotten those sick benefits through labour negotiations in lieu of higher hourly wages. This made the disability benefits through the employer indistinguishable from private insurance, which cannot be deducted. A. The Doctrine of Subrogation

A party who has paid an indemnity to another is entitled to recover any excess compensation received by the other party for the same loss. Any party who honours a legal obligation to indemnify another has an equitable right to subrogation. Eg: If an insurance company pays the plaintiff $25,000 for a negligently caused fire in her home, and then the plaintiff recovers $25,000 from the tortfeasor, she has to give the second $25,000 back to the insurance company. If she was awarded $25,000 but only recovers $10,000, she only has to give the insurance company the $10,000. Subrogated claims can be too expensive to pursue. They are often abandoned. 3. Specific Categories of Negligence a) Negligent Misrepresentation

A duty of care may arise with respect to written or oral communications

i) Causing Pure Economic Loss Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] (HL) Ratio: A duty of care can arise with respect to careless statements that create pure economic loss. 1. There must be a special relationship between the parties (equivalent to a contract, but not a contract) In Canada, Anns/Cooper is used to determine whether there is a duty of care owed: 1. Foreseeability of Harm a. Foreseeability of Plaintiff b. Foreseeability of Injury 2. Proximity (Direct & Close) Special Relationship Policy Reasons 3. Policy Reasons Negating a Duty of Care Indeterminate liability to an indeterminate class for an indeterminate time. Was the use of the statement for its intended purpose? Was this class of plaintiff foreseeable? If yes, this is not an indeterminate class. Donoghue v. Stevenso, [1932] (HL) With respect to personal injury and property damage, no meaningful distinction is made between careless words and careless deeds. Kieth Plumbing & Heating Co. v. Newport City Club Ltd. (2000) (BC CA) Facts: The defendant bank carelessly gave the contractor in a development project two assurances that there were enough finances left to pay him. Once in a letter with a disclaimer, once over the phone. Analysis: The Court of Appeal held that the disclaimer did not apply because: 1. It was not well calculated to convey clear meaning to persons not well versed in banking. 2. The plaintiff had no other means by which to check the developers financial condition.

- 73 In the circumstances, including trade practice, it was reasonable for the contractor to rely on the bank statement. The disclaimer did not apply to the oral statement. Hercules Management Ltd. v. Ernst & Young (1997) (SCC) Facts: The respondent accountants prepared audited financial statements for the two companies, NGA and NGH. The appellants were shareholders in the two companies. They claimed that the respondents were carelessly prepared, causing them: a) Economic loss as a result of relying on the statements and deciding to make extra investments in the companies. b) Economic loss on existing shareholdings The respondents successfully brought an application for summary dismissal on the basis that the appellants were not owed a duty of care. The Manitoba CA affirmed that judgment. The appellants then appealed to the Supreme Court of Canada. Issue: Do the respondents owe the appellants a Duty of Care? Ratio: Anns/Cooper Test: a) Is there a prima facie duty of care owed? In negligent misrepresentation, the relationship arises through reliance by the plaintiff on the defendants words. Reliance will be determined by two criteria: i) The defendant ought reasonably to foresee that the plaintiff will rely on his representation. ii) Reliance by the plaintiff would, in the particular circumstances of the case, be reasonable. b) Is that duty negatived or limited by policy considerations? Allowing this kind of liability for auditors would increase costs for auditors, which they would pass on to consumers. Disgruntled clients could sue auditors into extinction. Indeterminate liability is a concern to negate the duty of care. In this case, a duty of care was owed to the plaintiffs shareholders. Reliance on the audited statement by the shareholders is foreseeable. Glanzer v. Shephard, (1922) (NY CA) The defendant is liable for losses which he knew or ought to have known were related to the end and aim of the transaction giving rise to the misrepresentation. Caparo Industries Plc. V. Dickman, (1990) (HL) Advice is tendered with a specific purpose in mind, and liability must be restricted to losses incurred in transactions related to that purpose. Beebe v. Robb, (1977) (BC SC) A marine surveyor evaluated a boat for its owner. Unknown to the surveyor, the owner showed the assessment to the plaintiff, who bought the boat. The plaintiff argued that the surveyor had been negligent. The court held that the relationship between the parties was insufficient to recognize a duty of care. Deraps v. Coia, (1999) (Ont. CA) A woman and her gravely ill husband sought advice from a benefits counsellor employed by her husbands union. The counsellor carelessly failed to tell her that if she signed a waiver, she would lose all her benefits when her husband died eight months later. The Ontario Court of Appeal held that failure to divulge information may be just as actionable as the provision of positively misleading advice. ii) Negligent Misrepresentation/Contract 3.

Concurrent liability: Can the defendant be liable in both contract and tort?

- 74 2 theories on concurrent liability: 1. If you have a contract, you should deal with your dispute under your contract. (Dissent in BG Checo) 2. You should be able to choose between tort and contract for the most advantageous remedy, unless you have
contracted out of your right to sue in tort. (Majority in BG Checo) You cant recover twice for the same wrong, but if you can characterise the bbreach of contract as a different harm from the heads of damage, you could get more damages by suing in both tort and contract. Does negligence apply to the pre-contract period?

A. Concurrent Liability in both Tort and Contract BG Checo International Ltd. v. C Hydro & Power Authority (1993) (SCC) Issue: Can a plaintiff who is in a contractual relationship with the defendant sue the defendant in tort if the duty relied upon in tort is also made a contractual duty by an express term of the contract? Ratio: The right to sue in tort is not taken away by a contract, but the terms of the contract may limit or waive tort liability. The tort duty will yield to the freedom of contract of the parties. To preclude a tort action, the contractual provision must clearly indicate the intention of the parties, and be valid. 3 Scenarios arise when both contract and tort are applied to the same wrong: 1. The contract stipulates a more stringent obligation than the law of tort. Parties are unlikely to sue in tort because they would get less, unless the limitation period for contract has expired. 2. The contract stipulates a lower duty than the law of tort. The tort duty can be nullified in clear terms. The plaintiff could sue in tort if the contract does not fully exclude tort liability. Not much point in suing in tort except to take advantage of a longer limitation period in tort. 3. The duties in contract and common law are co-extensive. The plaintiff can sue concurrently or alternatively in tort to secure some advantage peculiar to tort law, such as a longer limitation period. Dissent: Where there is a contract expressly imposing a duty on the parties, there should be no action allowed in tort law cased on that duty. B. Pre-Contractual Misrepresentations Queen v. Cognos Inc. (1993) (SCC) Facts: The defendant software company offered the plaintiff a job for which funding had not been secured. The plaintiff accepted the offer and moved his family from Calgary to Ottawa. Shortly thereafter, the defendant scaled back the project, and laid off the plaintiff eighteen months later. The plaintiff had been told the project would last 2 years, and there was a good chance hed be employed by the company after that time. He sued, alleging that the manager had made negligent misrepresentations to him during the job interview, and he suffered economic loss as a result. Ratio: The Hedley Byrne principle extends to representations an employer makes to prospective employee. Requirements: 1. There must be a duty of care based on a special relationship between the representor and the representee. (Foreseeability, Reasonableness, Proximity) 2. The representation must be untrue, inaccurate, and misleading. 3. The representor must have acted negligently in making said representation. 4. The representee must have reasonably relied on the negligent misrepresentation. 5. Damages must have resulted. 4. Defences

- 75
Burden of proof is on the defendant to establish. Can plead several defences in the alternative

a) Contributory Negligence i) Development of the Defence

Last clear chance or last opportunity rule, allowed the plaintiff to recover despite contributory negligence if the defendant had the last clear chance to avoid the accident and negligently failed to take it. Before this, contributory negligence was a complete defence. After the turn of the century, legislation was passed allowing liability to be divided according to the parties relative degrees of fault. ii) Conduct Constituting Contributory Negligence

Where the plaintiff contributes to the harm by entering a dangerous situation, contributes to the creation of an accident, or to the resulting harm. (Negligence Act, s.3). Range of 15-50%, usually 25% for the plaintiff. If its not possible to allocate the loss, it is split 50-50. Walls v. Mussens Ltd. (1969) (NB CA) Facts: A logging company employee started a fire while repairing a logging truck at a gas station. The gas station employees and owner shovelled snow onto the fire instead of using the available extinguishers, spreading the fire and causing further loss. Ratio: The agony of the moment rule, we assess people & their conduct based on the context in which it arises. We dont expect the same behaviour of a reasonably prudent person during an emergency as while he is calm. Was the plaintiff doing something an ordinarily prudent man might reasonably have done under the stress of the emergency? A.G. Ont. V. Keller, (1978) (Ont. CA) Facts: A police officer was injured when his car hit a pole during a high speed chase. He was driving at 85mph on icy roads. Held: The officer (plaintiff) was not contributorily negligent because his actions were reasonably necessary to carry out his statutory duty. Lewis v. Todd, (1980) (SCC) A police officer was killed by a driver while investigating an accident. He relied on warnings given by flashing lights and did not watch out for traffic. The Supreme Court of Canada rejected the argument that he was contributorily negligent for not keeping a proper lookout. It stated that the standard of care was of a police officer investigating an accident, not an ordinary pedestrian. Heeney v. Best, (1979) (Ont. CA) Facts: The plaintiffs chickens died after a neighbour negligently cut off power to his barn. An alarm system would have warned of a power failure, but the plaintiff didnt have his plugged in. Only 25 to 50% of local poultry farmers had this kind of alarm, so the plaintiff argued he should not be found contributorily negligent. Held: The plaintiff was held contributorily negligent for failing to take reasonable care of his own property. Gagnon v. Beaulieu, [1977] (BC SC)

- 76 Facts: The plaintiff was injured when the defendants car ran in to the back of a pickup truck. It is disputed whether the plaintiff was wearing a seatbelt, but he was injured in a manner consistent with hitting the dashboard. The defendant was found to be negligent. Issue: Is failure to wear a seatbelt considered contributory negligence in a traffic accident? Ratio: a) Failure to wear a seatbelt in a motor vehicle is failure to take a step which a person knows or ought to know to be reasonably necessary for his own safety. b) If he is injured as a result of not wearing a seatbelt, it is negligence which has contributed to the nature and extent of those injuries. c) The onus is on the defendant to prove that the injuries could have been prevented or lessened if the seatbelt had been worn. Galaske v. ODonnell, (1994)(SCC) The Supreme Court of Canada held that the defendant had a duty to make sure an eight-year-old passenger wore a seat belt. The fact that the boys father was also a passenger in the car and may have been negligent did not negate the defendants duty. iii) Apportionment of Loss Negligence Act, RSO 1990, c.N.1 1. The court will determine between two or more negligent persons, the degree to which each person is at fault. They are jointly and severally liable to the plaintiff, but each is liable to the plaintiff, but each is liable to the other in contribution and indemnity in the proportion to which they are guilty. 2. Tortfeasors can recover in contribution and indemnity from each other. 3. Where the plaintiff is found contributorily negligent, the court will apportion damages in proportion to the degree of fault or negligence found against each of the parties respectively. 4. Where it is not practicable to determine the respective degree of fault or negligence of the parties, they will be found equally negligent (50-50) 5. Where the person is not already a party to an action if found to be at fault, they may be added as a party defendant to the action upon such terms as are considered just or according to the rules of court. 6. In a jury trial, the degree of fault or negligence of the respective parties will be determined by the jury. 7. The plaintiff will be liable for some of the court costs if the circumstances render this just. Bell Canada v. Cope (Sarnia) Ltd., (1980) (ON CA) Fault in s.1 incorporates al intentional wrongdoing as well as other types of substandard conduct. Boma Manufacturing Ltd. v. CIBC, (1996) (SCC) Contributory negligence is not available in the context of strict liability torts. Mortimer v. Cameron, (1994) (SCC) Facts: Two students at a party were playing when they tripped over a raised threshold and fell backwards. They fell onto an exterior landing and hit the wall with minimal force. It gave way and they fell to the ground 10 feet below. One of the boys, Cameron, who had fallen first and pulled Mortimer with him, was unhurt. Mortimer was rendered quadriplegic. Issue: Was Mortimer contributorily negligent? Was Cameron negligent? Analysis: The trial judge found that Cameron breached his duty to himself. But, their horseplay was not a cause of Mortimers injuries. The accident was not reasonably foreseeable. They had no reason to think the wall would give way. (Too Remote). Issue: Was the apportionment between the city (80%) and the building owner (20%) proper?

- 77 Held: The builder had the primary responsibility for maintaining the stairway. will be apportioned 60% against the builder, and 40% against the city. The city just inspected it. The liability

Ryan v. Victoria (City), (1999) (SCC) Facts: The plaintiff was injured when the front tire of his motorcycle got caught in a railway track owned by the city. The trial judge found the city responsible in negligence. The BC Court of Appeal found the plaintiff contributorily negligent and reduced the damages by 50%. Ratio: Unless it can be established that the trial judge made some palpable error which affected his assessment of the facts, the Appeal Court should not substitute a new apportionment of damage. Held: The assessment of liability against the plaintiff for 50% was set aside. Chamberland v. Fleming, (1984) (Alta QB) The Court suggested a rough upper limit of 25% for contributorily negligence if the plaintiffs negligence did not cause the incident, but merely affected the extent of the loss. b) Voluntary Assumption of Risk

A complete defence goes to liability, not damages. Theoretically available in any negligence action, but usually confined to particular contexts, like participation in sports. Tends to be interpreted narrowly, courts are reluctant to apply this doctrine. They would rather apportion liability. Dube v. Labar, (1986) (SCC) Facts: Two men were drinking all day and night. The plaintiff was a passenger in a car that rolled. The defendant was legally impaired. The defences of voluntary assumption of risk (violenti non fit injuria) and contributory negligence were put to the jury. The jury found both and held for the defendant. Issue: Is the defence of voluntary assumption of risk applicable to cases involving negligence on the highway? Ratio: Voluntary assumption of risk will only be an acceptable defence in rare cases. This will arise only where it is clear that the plaintiff knew there was a virtually certain risk of harm and in essence bargained away his right to sue for injuries caused by the defendants negligence. The defendant must show this. The acceptance of the risk may be express or implied. Only rarely will the plaintiff genuinely consent to accept the risk of the defendants negligence. Their has to be an assumption of LEGAL risk, forefeiture of the right to sue. The courts usually use apportionment instead. See Crocker v. Sundance. Dyck v. Manitoba Snowmobile Assn., [1985] (SCC) Defence established by express agreement. The meaning or effect of waivers is subject to the law of contract. Allen v. Lucas, (1971) (Sask CA) The court may find the plaintiff assumed the risk if he encouraged the defendant to be careless. c) Ex Turpi Participation in a Criminal or Immoral Act

A full defence, usually narrowly interpreted.

Hall v. Hebert, (1993) (SCC)

- 78 Facts: Both the plaintiff and the defendant got drunk. The defendant stalled his car on a steep, unlit road. The plaintiff got in the drivers seat, attempted a rolling start, and flipped the car down the embankment. He was severely injured and sued the defendant for letting him drive while he was that drunk. Issue: Could the defendant raise the defence of ex turpi causa to negate the plaintiffs cause of action? Ratio: Ex turpi causa is a valid defence. The burden rests on the defendant to show that the plaintiff negated the duty of care owed to him by his bad act. The defence only applies where the integrity of the legal system would be threatened by allowing the claim. Cannot be raised if the plaintiff would profit from his bad act. Compensation is not considered profit. Damages will be reduced by the proportion by which the plaintiff contributed to his injuries. The defence could apply to punitive damages. These are considered profit. A tort action cannot be used to circumvent a criminal penalty. Seems to make the ex turpi defence unavailable for personal injury cases. Contributory negligence should be used instead. The plaintiff may be held to have contributed more than the usual 25-50%. John Bead Corp. v. Soni, (2002) (Ont. CA) Ratio: The defence of ex turpi causa does not apply merely because the plaintiff was engaged in an illegal activity unrelated to the facts of the plaintiffs claim. This is true even if both parties were separately engaged in similar forms of illegal activity. Damages will be refused in two circumstances: 1. Where one wrongdoer claims in tort against another for financial loss resulting from illegal activity. 2. Here the plaintiff claims loss of earnings from illegal activity as a head of damage. d) Inevitable Accident Rintoul v. X-Ray and Radium Indust. Ltd., [1956] (SCC) Facts: An x-ray trucks brakes failed and crashed into a car. The driver applied hand brakes, but they only slowed the truck. The brakes had worked all day, and x-ray had taken all reasonable steps to keep them in proper repair. How does the defence of inevitable accident operate? Ratio: The test for inevitable accident: 1) The harm could not have prevented by the exercise of reasonable care on the part of the defendant 2) If the harm occurred without the negligence of the defendant, they could not, by the exercise of reasonable care, have avoided the accident by other means. The defendant must show this on the balance of probabilities. e) Limitations

Special limitation periods can be found in the enabling legislation, or general legislation governing Crown agencies and public authorities. There may be other limiting provisions, such as a requirement that the public authority be notified prior to receiving a writ. Bannon v. Thunder Bay (City) (2002) (SCC) The plaintiff was injured after she slipped on an icy sidewalk. She was required under s.284(5) of the Municipal Act, RSO 1990.c.M.45, to give the municipality notice that she intended to sue within seven days. She failed to do so. She was not allowed to pursue the action because the delay was attributable to the narcotics she was prescribed following the accident.

- 79 The court instead applied s.47 of the Limitations Act RSO 190,c.L.15, which states that where a person entitled to bring an action gets a temporarily mind as a result of an accident, the limitation period will be calculated from the date when they become of full age and sound mind. 5. Proof of Negligence a) Burden of Proof

The burden of proof in a civil action is proof on a balance of probabilities. The plaintiff must prove all the elements of a negligence action. The defendant must prove any defences. The evidentiary burden may shift between the plaintiff and defendant depending on who is better able to adduce evidence. The plaintiff usually has this burden, but the defendant must rebut and explain. 2 stages of a trial: 1. Evidentiary - Plaintiff adduces evidence. This is cross-examined by the defence. May raise a motion for non-suit, dismissal. The plaintiff must raise a prima facie case to proceed. If not, non-suit. Must be sufficient to support probability. 2. Legal Arguments Wakelin v. London & South Western Ry. Co. (1886) (HL) Facts: A wife is bringing an action against the railway after her husband was struck and killed by a train on a footpath. No-one was there, there is no evidence as to what really happened. The defendants called no witnesses and brought a motion for non-suit. The jury found for the plaintiff. Ratio: Lord Halsbury If in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the reason that the plaintiff is bound to establish the affirmative of the proposition. Lord Watson: It lies on the plaintiff to establish that there was an act or omission on the part of the defendant which materially contributed to the injury. The defendant must show that there was contributory negligence on the part of the injured party. b) Exceptions i) Statutes and Shifting Burdens of Proof MacDonald v. Woodard, (1974) (Ont.Co.Ct.) Facts: The plaintiff gave the defendants car a boost from his own car. While he was standing in front of the defendants car, he was struck by it. Issue: What does the plaintiff have to establish to succeed against the defendant? Analysis: s.133 of the Highway Traffic Act, RSO 1970,c.202. reads: 133(1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner or driver of the motor vehicle is upon the owner or driver. (2) This does not apply in case of a collision between motor vehicles or between motor vehicles and cars of electric or steam railways or other motor vehicles running only on stationary rails on the highway nor to an action brought by a passenger in a motor vehicle in respect of any injuries sustained by him while a passenger.

- 80 Ratio: The statute creates a rebuttable presumption of negligence. Al of the evidence submitted at trial by the defendant must satisfy the jury that the accident was not in fact caused by his negligence. The onus placed on the defendant is not discharged unless he satisfies the court that there was no negligence. If any doubt remains, the plaintiff is entitled to succeed. AG Ont. v. Keller (1978) (Ont. CA) A police officer was seriously injured when his car hit a pole during a high speed chase. The fleeing driver knew he was being pursued and was trying to escape. The two vehicles never collided. The Court of Appeal held that the reverse onus provision applied to the escaping driver. ii) Directly Caused Injury: Unintended Tresspass Dahlberg v. Naydiuk, (1969) (Man. CA) Facts: The defendant fired at a deer and missed. The bullet carried 250 to 300 yards and struck the plaintiff who was working on his farm. The defendant had obtained consent from the land owner of the land where he was hunting, but did not have permission to shoot over or hunt on the farm. The plaintiff sued in both negligence and trespass. The burdens of proof are different in each action. In negligence, the plaintiff must prove that the defendant was negligent. In negligence, the onus is on the defendant to prove no negligence. The plaintiffs action would fail if it was framed in negligence (indirect), but succeed if it was framed in trespass (direct). Ratio: The onus of proving negligence where the trespass is unintentional, lies upon the pliaintiff, whether the action be framed in trespass or in negligence. iii) Multiple Negligent Defendants Cook v. Lewis, [1952] (SCC) Facts: The plaintiff, Lewis, was shot in the face when the defendants, Cook and Akenhead, fired simultaneously at birds in his direction. The jury found that he had been shot by one of the two hunters, but couldnt tell which one. It also found that neither defendant was negligent. The Court of Appeal set aside the jurys finding on the negligence issue and ordered a new trial. The Supreme Court upheld this judgment. Ratio: Where two defendants were both equally negligent and there is no way for the plaintiff to establish which one of them actually caused the injury, the onus of a prima facie transmission of responsibility attaches to both, and the question of the sole responsibility of one is a matter between them. Wotta v. HaliburtonOil Well Cementing Co., [1955] (SCC) Where the facts support an inference that both parties were careless, both parties are equally to blame and damages will be apportioned accordingly. Where either the defendant or the plaintiff is negligently responsible but the facts do not point to one or both parties as being the probable cause of the accident, neither party is able to recover any damages. c) Res Ipsa Loquitur

1. 2. 3.

1.

The thing speaks for itself. The following elements: The instrumentality of harm must have been under the sole management and control of the defendant or someone for whom the defendant was responsible. Otherwise, it would not be possible to draw the inference. The offence must be one that does not ordinarily occur without carelessness. There must not be any direct evidence as to how or why the harm occurred. Otherwise, the court would resolve the legal issues on the basis of that evidence instead of the inference. Three views of the effect: Successful invocation of the of the maxim reversed the legal burden of proof such that the defendant was required to prove on the balance of probabilities that his carelessness did not cause the plaintiffs injuries.

- 81 2. 3. While successful invocation of the maxim did not reverse the legal burden of proof, it did require the defendant to adduce evidence that was sufficient to raise an inference of innocence that was at least as strong as the inference of negligence that had been raised by the plaintiff. Successful invocation of the maxim merely provided a basis upon which some inference of negligence might be drawn. The trier of fact was entitled, but not required to draw an inference. Even if an inference was drawn, it might not be sufficient to tip the balance of probabilities in the plaintiffs favour.

Fontaine v. British Columbia (Official Administrator), (1997) (SCC) Facts: Two men went missing during a weekend hunting trip. Three months later, their truck was found in a river bed at the bottom of an embankment. Their bodies were found buckled into the drivers and passengers seats. There was no direct evidence regarding their deaths. The circumstantial evidence showed there had been torrential rains in that area at the time they died, there was a dip in the road where the truck might have left it, and evidence that the truck left the road with enough speed to cut a path through a patch of trees. The passengers widow brought an action under the Family Compensation Act and sought to prove her claim on the basis of the doctrine of res ipsa loquitur. She argued that her husbands death was attributable to the drivers carelessness. The judge disagreed on the basis that the widow had not shown that, in the ordinary course of events, the accident wouldnt have occurred without the negligence of the driver. The BC Court of Appeal agreed and the widow brought a further appeal to the Supreme Court. Ratio: Whatever use res ipsa loquitur may have once had is gone. Given its limited use, it is meaningless to refer to it as a doctrine of law. The maxim should be treated as expired. 10. Role of Statutes a) Introduction

A piece of legislation may create a statutory cause of action. This legislation will often also address specific aspects of the statutory claim, such as standard of care or quantum of damages. The judidicary has only to interpret the legislation. Legislation may affect the courts analysis of the common law. o Existence of a regulatory scheme may support finding a duty of care in negligence. o Statutory provisions may help in determining the standard of care. b) Express Statutory Causes of Action Tresspass to Property Act, RSO 1990, c.T.21 (casebook, p.608)

Most actions under s.(1) of this act will also give rise to an action in trespass to land.

Competitionn Act, RSC 1985,c.C-34 (casebook p.609) One purpose of s.36 of the Competition Act is to induce private citizens to participate in the enforcement of the Criminal Law in this field. This action is similar to the Common Law tort of conspiracy. Trachsler v. Halton, [1955] (HC) Analysis: The Municipal Act(now RSO 1990c.M.45,s.284(1) creates a duty in municipalities to keep highways in such condition that travellers using them with ordinary care may do so in safety. Ratio: When a highway is put out of repair without any fault of those whose duty it is to keep it in repair, then that duty is reasonably performed if the repair is made within a reasonable time after they are informed, know or should have acquired knowledge of the need to repair. c) The use of Statutes in Common Law Negligence R. in Right on Can. V. Sask. Wheat Pool, (1983) (SCC)

- 82 Facts: The Saskatchewan wheat pool delivered infested wheat to the Canadian Wheat board in violation of s.86(c) of the Canada Grain Act, SC 1970-71-72, c.7. The act made no reference to the issue of civil liability for breach of its provisions. The board made no claim in common law negligence, but sought damages based on the breach of s.86(c). Issue: Does breach of a statutory duty give rise to a civil action? If so, is the liability absolute, or does it require fault of the person who failed to perform the duty? Ratio: The breach of a statutory provision is prima facie evidence of negligence. This is not absolute liability. There is no nominate tort of statutory breach. 1. Civil consequences of breach of statute should be subsumed in the tort of negligence. 2. There is no nominate tort of statutory breach giving a right to recovery merely on proof of breach of damages. Unexcused breach does not constitute negligence giving rise to absolute liability. 3. Proof of statutory breach, causative of damages, may be evidence of negligence. 4. The statutory formulation of the duty may afford a specific and useful standard or reasonable conduct. Horsley v. MacLaren, (1972) (SC) Ratio: There is an independent basis of a common law duty of a carrier to a passenger, but the Canada Shipping Act s.561 is a fortifying element in the recognition of that duty. Rintoul v. X-Ray and Radium Indust., [1956] (SCC) Ratio: Failure to comply with a regulation is evidence of a breach of a common law duty on anyone who operated a car on the road to have it equipped with brakes. He regulations may be taken as the expression of the legislatures view as to what constitutes a reasonable breaking system. Bux. V. Slough Metals Ltd., [1973] (CA) Facts: An employee was injured in the eyes by molten metal. Regulations required that he be provided with eye protection by his employer, and that he use them and report any defect in them without delay. The employer provided the goggles. Ratio: Where a plaintiff alleges a breach of statutory duty, he is also entitled to allege negligence at common law and have it considered by the court. If the plaintiff fails to prove a breach of statutory duty, negligence can still be considered. Varcoe v. Sterling, (1992) (CA) An investor who had not relied on his broker and made all his own decisions sued his broker for his losses. The court held the broker liable in negligence under common law principles, referring at length to the brokers violation of statutory regulations and industry practice. London Passenger Tpt. Bd. V. Upson, [1949] (HL) A bus driver hit a pedestrian in a crosswalk. Even though the defendant had taken reasonable care, he was held liable for breach of a statutory provision that required a driver who was unable to see if the crosswalk was clear to proceed at a speed that would allow him to stop before he entered it. Compliance with the common law duty and standard does not operate as a defence to a statutory cause of action. 11. Tort Liability of Public Authorities See Handout