DUTY OF CARE
Anns/Cooper Test
Recognized DOC? (Cooper v Hobart)
-
Doctor/Patient (Reibl v Hughes)
Commerical Hosts/Highway users (Stewart v Pettie)
Motorists to other uses of highway (referred to in Hill para 25)
Solicitor/client (referred to in Hill para 25)
Common carrier
Manufacturers to consumers re: products (Donoghue v Stevenson)
-
Analogous based on facts
Even if analogous do novel DOC just to be safe!
If not recognized DOC, is there analogous duty? (Cooper v Hobart)
If not recognized & not sure if sufficiently analogous, apply novel DOC test “
STAGE 1:
Is it Misfeasance or Nonfeasance?
MISFEASANCE
Negligent conduct (Crocker, para 17)
Overt positive act
*doing something should not have done
What kind of harm is it?
a. Physical harm: foreseeability only
b. Other harm (such as psych and pure economic
loss – fact sheets): foreseeability & proximity
A. Damage Foreseeabe?
a. Has to be reasonable at the time, given the
context ; Be rational
b. Don’t have to foresee particular individual –
must belong to class foreseeably harmed
(Osborne) – fact specific
B. Sufficient Proximate relationship btwn parties?
Flexible, broad, conceptual analysis
a. Close & direct nature of relationship
i. “expectations, representations,
reliance” (Cooper, para 34)
ii. Osborne, examine: physical closeness,
social closeness, circumstantial
closeness, closeness created by
representations, an assumption of
responsibility, reliance & reasonable
expectations
b. Micro-policy
i. Look at whether DOC for this
particular relationship is fair & just
(Cooper)
NONFEASANCE
Failure to take positive steps to protect others from
harm (Crocker, para 17) – failure to act
* doing nothing when should have done something
A. Damage Foreseeable?
a. Has to be reasonable at the time, given the
context ; Be rational
b. Don’t have to foresee particular individual –
must belong to class foreseeably harmed
(Osborne) – fact specific
B. Sufficient Proximate relationship btwn parties
Flexible, broad, conceptual analysis
a. Recognized Categories (Childs)
i. Invite to inherent risk ∆ creates
ii. Paternalistic relationship
iii. Public function/commercial enterprise
w/ implied public responsibilities
iv. Catch all: ∆’s material implication in
creating or controlling risk (para 38)
b. Close & direct nature of relationship
i. “expectations, representations,
reliance” (Cooper, para 34)
ii. reasonable reliance (Childs)
c. Micro-policy
i. Look at whether DOC for this
particular relationship is fair & just
(Cooper)
ii. Don’t check autonomy at the door! “law does not impose duty to eliminate
risk” (Childs)
If foreseeability & proximity established at the first stage there is a prima facie DOC
STAGE 2:
BROADER POLICY CONSIDERATIONS THAT NEGATE DUTY
∆ must raise residual policy considerations that might “negative the imposition of a DOC”
CONSIDER: “effect of recognizing DOC on other legal obligations, the legal system and society
more generally” (Cooper, 37)



does the law already provide a remedy?
would recognition of DOC create unlimited liability to an unlimited class?
Other reasons of broad policy that suggest DOC should not be recognized?
RECOGNIZING DOC FOR PSYCHIATRIC HARM
Can it be defined at psychiatric harm?
No liability for any psychiatric injury unless it satisfies the legal concept of nervous shock
“severe emotional trauma that manifests itself in a physical disorder or recognizable psychiatric
illness such as clinical depression or PTSD, DSM IV, expert evidence” (Osborne)
What type of psychiatric harm?
1. Consequential psychiatric harm: π suffers physical injury and psychiatric injury flows
from it (Hussack – somatoform disorder after field hockey concussion)
a. Courts do not usually have a problem compensating for psychiatric injuries in these
cases
b. Hussack: child playing field hockey wasn’t trained properly, suffered a physical injury and
psychiatric injury flowed from it
2. Relational pure psychiatric harm: π suffers pure psychiatric harm as a result of their
relationaship with a 3rd party injured by ∆ (Alcock v South Yorkshire Police)
a. Π witness to injury or its aftermath
b. Alcock v South Yorkshire Police: lost b/c unable to show sufficient proximate
relationship/connection
3. Pure psychiatric harm: π suffers pure psychiatric injury as a direct result of π’s
negligence (Mustapha – dead flies in water bottle – not person of ordinary fort.)
No 3rd party
ANNS/COOPER TEST – STAGE 1
CONSEQUENTIAL PSYCHIATRIC HARM
OR
PURE PSYCHIATRIC HARM
A. Damage Reasonably Foreseeable?
a. To produce nervous shock for a reasonable
person of ordinary fortitude but if knew π’s
vulnerabilities then don’t have to use objective
standard
b. “no recovery is permitted if the injury is
triggered by an abnormal sensitivity (similar to
no thin skull)
c. foreseeability of nervous shock increases in
relation to the nature and intensity of horrifying
event that caused harm (Osborne, 91)
B. Sufficient Proximate relationship btwn parties?
Flexible, broad, conceptual analysis
a. Close & direct nature of relationship
i. Consider “expectations, representations,
reliance ” (Cooper)
ii. Osborne, examine: physical closeness,
social closeness, circumstantial
closeness, closeness created by
representations, an assumption of
responsibility, reliance & reasonable
expectations
b. Micro-policy
i. Look at whether DOC for this particular
relationship is fair & just (Cooper)
If foreseeability & proximity
established at the first stage there is a
prima facie DOC
STAGE 2:
3rd party
RELATIONAL PURE PSYCHIATRIC HARM
A. Damage Reasonably Foreseeable?
a. To produce nervous shock for a reasonable
person of ordinary fortitude but if knew π’s
vulnerabilities then no objective standard
b. no recovery if the injury is triggered by
abnormal sensitivity (no thin skull)
c. foreseeability increases in relation to the
nature and intensity of horrifying event that
caused harm (Osborne, 91)
B. Sufficient Proximate relationship btwn parties
Π must establish 3 types of proximity (if relational &
locational, usually enough)
a. Relational
i. Close relationship, close family members,
rescuer in severe disaster
ii. Bystanders, friends usually not sufficient
b. Locational
i. at the scene or immediate aftermath –
experience it “sensorially”
ii. Ppl informed of accident or witness
through media usually not sufficient
iii. Possible exception: even if not in stadium
seeing loved one killed on live TV (Alcock)
c. Temporal
i. Short time span btwn witnessing and
onset of illness, immediate impact
ii. Beecham v Hughes: no temporal
proximity; ∆ not liable b/c didn’t arise from
accident (i.e. depression from wife’s
condition not witnessing injury)
d. Micro-policy
i. Look at whether DOC for this particular
relationship is fair & just (Cooper)
ii. Don’t check autonomy at door! - “law does
not impose duty to eliminate risk” (Childs)
BROADER POLICY CONSIDERATIONS THAT NEGATE DUTY
∆ must raise residual policy considerations that might “negative the imposition of a DOC”
CONSIDER: “effect of recognizing DOC on other legal obligations, the legal system and society
more generally” (Cooper, 37)
 does the law already provide a remedy?
 would recognition of DOC create unlimited liability to an unlimited class?
 Other reasons of broad policy that suggest DOC should not be recognized?
RECOGNIZING DOC FOR ECONOMIC LOSS
It is not normally recoverable, there are 5 recognized exceptions, very hard to get new DOC
recognized unless it is similar to the existing 5 categories
Recognized DOC? (Cooper v Hobart)
-
-
-
-
Negligent misrepresentation
o 5 requirements for neg. misrep (Cognos)
 1. duty based on special relationship btwn parties (maps onto DOC)
 2. Statement = “untrue, inaccurate or misleading” (maps onto SOC)
 3. Negligent in making misrep (maps onto SOC)
 4. Reasonable reliance on misrep (maps onto remoteness)
 5. Reliance caused a financial detriment (maps onto causation/damages)
o Recognized types of Neg Misrep:
 auditor & shareholder (Hercules Management)
Negligent performance of services
o Negligence done by act, not a misrep (proximity focus on reasonable reliance)
o Won’t apply if:
 1. Negligent performance of free service
 2. Negligence performance of K affects 3rd party
o Ex: Wilhem, neg prep of will
Defective products & buildings
o Mere defect v real and substantial danger (Hasegowa – cant recover if not dangerous; could
have protected self in K)
o Recognized types of Defective products/buildings:
 Ex. Winnipeg Condo (contractors negligently planned and constructed building and it
is poses real and substantial danger so able to recover for latent defect to put it in
non-dangerous state; not responsible for cosmetic changes to make it better)
Relational economic loss (not testable)
Public authority liability (see govt liability fact sheet)
If not recognized DOC, is there analogous duty? (Cooper v Hobart)
-
Analogous based on facts
If new duty looks like negligent misrep but it is just different specific parties, use structure set out in
Hercules Management
If not recognized & not sure if sufficiently analogous, apply novel DOC test (Design Services)
ANALOGOUS DUTY – i.e. like Negligent Misrepresentation, Key case: Hercules Management
(proximity connotes reliance - indicators of reasonable reliance – direct/indirect interest in
transaction; ∆ has special knowledge/expertise, advise of info provided through course of
business knowing it would be relied on)
NOVEL DUTY! Key Case: Design Services
STAGE 1:
A. Damage Foreseeable?
a. Has to be reasonable at the time, given the context; Be rational
b. Don’t have to foresee particular individual – must belong to class foreseeably harmed
(Osborne) – Fact specific
B. Sufficient Proximate relationship btwn parties?
Flexible, broad, conceptual analysis
a. Close & direct nature of relationship – special relationship
i. Consider “expectations, representations, reliance and the property or other
interests involved” (Cooper, para 34)
ii. Osborne, examine: physical closeness, social closeness, circumstantial closeness,
closeness created by representations, an assumption of resp oubvonsibility,
reliance & reasonable expectations
b. Micro-policy
i. Look at whether DOC for this particular relationship is fair & just (Cooper)
ii. Don’t check autonomy at the door! - “law does not impose duty to eliminate risk”
(Childs)
iii. Did they have an opportunity to protect self and failed to do so (i.e. protect self
in K – Design Services)
If foreseeability & proximity established at the first stage there is a prima facie DOC
STAGE 2:
BROADER POLICY CONSIDERATIONS THAT NEGATE DUTY
∆ must raise residual policy considerations that might “negative the imposition of a DOC”
CONSIDER: “effect of recognizing DOC on other legal obligations, the legal system and society more
generally” (Cooper, 37)




does the law already provide a remedy?
would recognition of DOC create unlimited liability to an unlimited class?
Indeterminate liability*** very reluctant (esp. when can protect self in K)
Other reasons of broad policy that suggest DOC should not be recognized?
RECOGNIZING DOC FOR GOVERNMENT LIABILITY:
Potential to Sue Govt
Challenges with Suing Govt
-
Procedural Issues
- legislation might impose special conditions to make it harder to sue
Crown even though have ability to sue them:
o narrow limitation dates
o require notice within a specific period of time
o specific statutory immunities
-
negligent
performance of
public duty
abuse of
power/nonfeasanc
e in public office
-
* can sue if operational,
can’t sue if policy
-
-
Recognized DOC:
Police owe DOC to
suspects in
investigations (Hill)
BC Local Government Act
o s. 285-6 month limitation period unless extended by municipality
o s. 286-P must notify municipality of action within 2 months of damage
occurring
Or legislation may limit or exclude liability for certain activities, BC Local
Government Act
o s. 288-immune from liability in nuisance arising from breakdown of sewage
system, water or drainage, road or dike
o s. 289-immunity from liability for failure to enforce by-laws
o s. 290-immunity from liability for issuing building permits that violate building
codes or other safety legislation
Substantive Issues
- courts reluctant to extend liability to political activity; floodgates!
- If problem with political decisions, vote them out – do not sue them
Ann’s/Cooper Test is the test for establishing whether DOC for government (Just)
o
o
o
o
o
Recognized DOC? (Cooper v Hobart)
***must be operational decision (not policy)
negligent performance of public duty
abuse of power/nonfeasance in public office
Police owe DOC to suspects in investigations (Hill)
Chief of police had private law duty to supervise (Odhavji)
If not recognized DOC, is there analogous duty (look to facts)? (Cooper v Hobart)
If not recognized & not sure if sufficiently analogous, apply novel DOC test “
A. Damage Foreseeable?
a. Has to be reasonable at the time, given the context; Be rational
b. Don’t have to foresee particular individual – must belong to class foreseeably harmed
(Osborne) = Fact Specific
B. Sufficient Proximate relationship btwn parties?
Flexible, broad, conceptual analysis
a. Close & direct nature of relationship
i. “expectations, representations, reliance (Cooper)
ii. Osborne, examine: physical closeness, social closeness, circumstantial closeness,
closeness created by representations, an assumption of responsibility, reliance &
reasonable expectations
b. Micro-policy
i. Look at whether DOC for this particular relationship is fair & just (Cooper)
ii. Don’t check autonomy at the door! - “law does not impose duty to eliminate risk” (Childs)
iii. Look to statute!!
If foreseeability & proximity established at the first stage there is a prima facie DOC
STAGE 2:
BROADER POLICY CONSIDERATIONS THAT NEGATE DUTY
∆ must raise residual policy considerations that might “negative the imposition of a DOC”
CONSIDER: “effect of recognizing DOC on other legal obligations, the legal system and society more
generally” (Cooper, 37)
-
Principle policy consideration: policy/operational distinction “no apparent pattern in the judgments or
any way to predict whether a court will decide that a specific governmental activity is a matter of policy or
operations,” Klar
o
-
Govt argues immune b/c policy decision:
 Policy is allocating funds, financial, social, political factors
 Good indicator is if they are a high up official
indeterminate liability; judicial competence to second-guess decisions of political authorities
STANDARD OF CARE  even if DOC found, often govt will be found to meet standard of care; if govt
inspections keep in mind budgetary restraints (Just)
CAUSATION
REMOTENESS