Intent = Desire to bring about consequences of an action
Limited Intent = intend to do act that results in the consequences (TURNER, results in breaching
property rights)
Imputed/Constructive Intent = did not desire for consequences to occur, but they were certain or
substantially certain to result from the act
Volition
Smith v Stone = dragged onto property
*volition not present if not in physical control over their actions/actions not directed by conscious mind
Duress/ Motive
Gilbert v Stone = threatened, had to go on land to take horse
*duress will negate neighter volition nor intent, but considered in Damages
*Motive not an element that needs to be proven, might be relevant to finding Intent
Provocation
Partial defence: intent still, but no volition (damages)
Time Componenent + Reasonableness Component
Miksa v Sivec = road altercation then shots fired from home
*Provocation must happen during or immediately before action occurred
*Sudden and uncontrolled passions
Immediate : causes D to lose self-control: enflaming sudden & uncontrolled passions
Must be a very strong temporal connection
Mistake and Accident
Mistake of Law (legal significance) = not a valid defence, want people to learn law (might impact
damages)
Mistake of Fact = relevant regarding Intent (didn’t know someone was behind me)
Accident = unintentionally and without negligence caused injury = NO INTENT
Hodgkinson v Martin = Mistake of Law, thought he had legal right to put P off premises
*Mistake of Law does not negate charges (might affect damages)
Assault = Intentional (subjective) creation of reasonable apprehension of imminent harmful
or offensive conduct
-has to be real apprehension (credibility)
-threat has to be imminent, but doesn’t necessarily have to be within a very short time frame
Defences:
-consent
-self-defence (reliability = mistaken beliefs, cirumstances, corroboration, credibility = not telling
truth, exaggerating)
-legal authority
1
Krawczyk v Peter Kiewit and Sons = truck driver, protestor
*must have intent to cause fear
*misbehaviour does not constitute consent to risk of assault
*lacks motive, evidence of no intent
*must have real apprehension of imminent harm/offensive conduct
Battery = Intentional interference with the physical integrity of another person that a reasonable
person would consider harmful or offensive (Bettel)
-Direct or indirect interference
Defences:
-Consent = 1. Actual or 2. Reasonable but mistaken belief in consent
-Legal authority
-Self-Defence:
1. Assaultive conduct on part of P (can reasonably anticipate you are about to be
assaulted)
2. No reasonable alternative but to use force
3. Force used is proportional (but doesn’t have to be measured with perfect nicety =
Wacket)
Bettel v Yim = intended shaking, didn’t intend to hit nose
*If you are guilty of intentional offensive contact you’re responsible for consequences that flow from
that
*if more serious harm befalls on plaintiff than was intended, D, not innocent P, must bear responsibility
for unintended result
*premium on autonomy
Non-Marine Underwriters v Scalera = sexual battery, plaintiff doesn’t have to prove lack of consent
*onus is on the defendant to raise consent as defence
*onus on P is unreasonable, as it’s easier to prove a positive rather than a negative
*floodgates argument about people making wild accusations, social stigma of being charged
*evidence of change in societal attitudes and under-reporting of sexual assault cases if they have to
show they didn’t consent
False Imprisonment = Intentional, complete restriction on an individuals liberty
-restraint can be implicit or explicit (Campbell)
Defences:
-Legal Authority:
-Full powers of Arrest = Reasonable and Probable Grounds person commited an offense
(subj and obj)
-Investigative Detention = Reasonable Suspicion of Illegal Activity (briefly detain)
*longer investigative detention goes, closer you get to arrest standard
-Consent (Herd v Weardale Steel)
False Arrest = category of false imprisonment, restraint imposed by assertion of legal authority
Bird v Jones = intentionally blocking person on highway, only partial obstruction of liberty
*only a partial obstruction of his will, needs to be complete restriction on liberty
2
*doesn’t mean you always shouldn’t be able to proceed the way you want, but if there are feasible
options and they don’t put you at a reasonable harm
Campbell v SS Kresge Co. = store security indirectly restrains when someone thinks they saw her put
something in purse
*went through same process he would have if she would have stolen something
*impairment of liberty doesn’t have to be direct, can be implied through threat (e.g. of embarrasement)
*confinement doesn’t have to go on for extended period of time (main issue is impairment of liberty)
Herd v Weardale Steel, Coal, Coke = prevented from using elevator, breached contract
*if you consent to being in the situation then you can not make a claim for damages
*consented to situation where liberties would be restrained
Ward v Vancouver = pie throw, investigative detention, temporary restraint (breach of peace), false
imprisonment
*need to have reasonable and probable grounds (obj and subj) that a crime has been committed for
arrest
*justified for arresting for breach of the peace, but only as long as the threat still exists (PM left)
*time limit for breach of peace and investigative detentions
*time limit for investigative detention is relevant to circumstances (courts reluctant to put limit)
*showed you can seek a remedy through charter not tort when rights are violated
Malicious Prosecution =
1. Proceedings initiated by D
2. Proceedings terminated in favour of P
3. Absence of Reasonable and Probable Cause
*Objective belief ONLY for Crown Prosecutor (Miazga)
“honest belief in guilt founded upon reasonable grounds of the existence of a
state of circumstances, which, assuming them to be true, would reasonably lead
any ordinary prudent cautious person, placed in the position of the accuser, to
the conclusion that the person was probably guilty”
4. Malice (limited immunity) = primary purpose other than carrying law into effect (Miazga)
-wider meaning than spite/ill-will
-not absolute immunity, but provides more immunity by adding to other elements
5. P must have suffered loss or damage
Nelles v Ontario = nurse charged w murdering children case dropped, rejection of full immunity of
Crown Prosecutor, but no malice
*requires malice and proof of damages
*rejects full immunity, undermines rule of law (unequal treatment of prosecutor)
*no floodgate argument, still need malice/improper purpose
*need to have remedies for malicious prosecution for the private wrong done to the plaintiff
Miazga = only objective test for reasonable and probable cause for Crown Prosecutor (based on their
professional opinion)
3
Invasion of Privacy =
BC Privacy Act
1(1) tort, actionable without proof of damages, where person wilfully (intentionally) and
without claim of right violates the privacy of another
-constructive intention = should have known it would violate privacy
-honest and reasonable mistake (due diligence) regarding claim of right is a defence
1(2) nature and degree of privacy entitled is that which is reasonable in the circumstances
1(3) regard must be given to nature, incidence, occasion of act and the relationship of parties
1(4) privacy may be violated by eavesdropping or surveillance whether or not accomplished by
trespass
Defences
1. Colour of right = mistaken belief you are acting lawfully = full defence
2. Ex turpi Causa = action cannot arise from a dishonourable cause = full defence
1. serious offence
2. connection btw loss and the offence
3. court must be satisfied offence is sufficiently reprehensible and its connection w the
injury sufficiently close that P should be disentitled to assistance from the court (Watts)
3. Consent: honest, but reasonable belief also (due diligence, Hollinsworth)
Motherwell v Motherwell = family member continues to call, creates new invasion of privacy by use of
telephone system rather than expanding private nuisance
*now covered by BC Privacy Act
*must be substantive and unreasonable interference on part of accused to constitute a tort
*can’t be trivial or short term, must be uncontrolled nuisance (unlike mail where you can just throw it
out, need to let telephone ring)
Hollinsworth v BCTV = hairpiece surgery, due diligence (no evidence they should have known it invaded
privacy), honest and reasonable belief in consent
*don’t have to prove damages
*need honest, but reasonable belief in consent (subjective and due diligence, reasonable person should
have known)
*wilfully violating privacy = intention to do act where person doing act knew or should have known it
would violate privacy of another
Watts v Klaemt = hacks telephone lines, volatile neighbour, but goes beyond and listens to mother’s
convo with daughter
*conversation might not meet criminal def of private communication, but tort has wider test for
situations where there’s reasonable expectation of privacy
*invasion of privacy must be wilful (or should have known, and he should have because he knew rules
about intercepting communications)
*no claim of right, might have had colour of right/honest belief that actions were lawful to protect
property against neighbour, but didn’t extend to mother and daughter convo
*ex turpi causa (action cannot arise from dishonourable cause) is full defence, but doesn’t apply because
court not satisfied that she should be disentitled to assistance from court of law, and also wasn’t trying
to sue for ill-gotten gains (not trying to profit)
*uses contribution and voluntary acceptance of risk when assessing damages
4
Trespass to Land = Entering onto someone else’s property with limited intent
-Limited Intent = intent to do act that results in you breaching someone’s property rights (even if
mistake)
-Damages presumed
Defences:
-Consent = can’t claim damages where you voluntarily consented to allowing someone to enter
-Legal Authority = P needs to show positive law empowered/excused (Entick)
Entick v Carrington = D’s broke into P’s house and took papers, claimed to have warrant, but state can’t
come in any time they want
*trespass = direct and physical intrusion onto land in the possession of another, and every invasion of
privacy is trespass without justification
*need to show positive law empowers/excuses you
*policy about balancing public good and personal rights
*today need judicial permission from independent judicial officer, must convince judge there’s
reasonable grounds for searching property
Turner v Thorne = delivery, dropped materials off in garage and P injures himself, indirect mistake
(thought he was dropping off in right place)
*mistake doesn’t relieve trespasser, need to be knowingly doing conduct tort prohibits, don’t need to
know it’s tortious
*liable for indirect injuries resulting from trespass, don’t personally have to be on land (something left
there)
*does not need to show damages
Harrison v Carswell = picketing in shopping mall, owner withdraws general right of entry, charges under
Manitoba trespass acts
*common law protects property rights unconditionally unless there’s an overriding statute
*owner who has granted general right of entry can still withdraw it from certain members
*common law can be modified slightly over time, major changes need to come from legislature
*policy argument about discrimination, says common law should protect societal values, charter values
Consent
Defence, not something that the P has to prove
 P must prove the elements of the tort on the basis of probabilities; but this is not the end,
o The defendant has the chance to make a defence based on elements of the defence
 Consent defence has a number of different elements and factors that may constitute it as not
really a consent
Factors Vitiating Consent: Fraud, Mistake (only where defendant was responsible for misunderstanding),
Duress, and Public Policy
Fraud:
1. Usually need to be known misrepresentation on part of D
2. Some causative blame (fraud caused them to consent)
3. Needs to go to the nature and quality of what was consented to
5
Duress or Using Superior Position (Norberg)
Competency to Consent - see C v Wren (Medical Consent Section) for more details
 Circumstances that make it so the person cannot appreciate the nature and consequences of
the act to which it applies
o e.g., age, physical or mental illness, intoxication, or other incapacitating factors
 Consent is invalid in these cases
 Issue of competency to consent addresses a person's ability to understand the information
relevant to the act in issue
Wright v McLean = snowball fight, consent and no malice
Facts:
 Kids throwing mud balls at each other
 P invited into the game by other kids
 P asks: do you "want a fight?"
 Hit in the eye with mud ball
Issues: Was there a valid consent? If there was a stone, was there an intent to throw the stone?
Decision: Dismiss the action
Reasoning:
 There was no malice or anger on the part of the D
 P consent to take the ordinary risks of sport which they engage: risk of being struck, kicked, etc.
o If these tacit conditions of fair play and good temper are not kept, consent is at an end,
and the parties are remitted to their rights
 D reasonably thought that he was throwing mud only - no stone (no ill will)
Ratio(s):
 Where it is agreed that there was no ill will and where the evidence shows that the D was
invited to join the game by the others, then no liability arises apart from culpable carelessness
 Where the is consent, and no ill will or malice, then there is no violation
Agar v Canning = exceeding consent, hockey retaliation, resolve to cause injury (even w provocation)
defeats consent
Facts:


Hockey game, P tripped D
D turns around and intentionally hits P with blade of his stick with both hands between the nose
and eye
Issues: Was consent exceeded?
Decision: Decision affirmed – did not consent
Legal Principles: Defence of consent to playing the game
Reasoning:
 Some limit must be placed on a player's immunity from liability
 Injuries inflicted in circumstance which show a definite resolve to cause serious injury to
another even when there is provocation, should not fall within the scope of implied consent
o Goes beyond the limit marking exemption from liability
 Need to look at conduct and cause behind an act - in this case - retaliation
6
Ratio(s):
 Injuries inflicted in circumstance which show definite resolve to cause serious injury to another
even w/ provocation and heat of the moment, should not fall within the scope of implied
consent
Norberg v Wynrib = Addicted patient, power imbalances, need genuine consent to sexual battery
Facts:




Doctor gave drugs to a chemically dependent woman patient in exchange for sexual contact
Drug dependence established
Doctor knew of drug dependence
No actual intercourse
Issues:

Whether the defence of consent can be raised against the intentional tort of battery in such
circumstances?
 Whether the action is barred by reason of illegality or morality?
 If the appellant was able to make a free choice?
Decision: Defence of consent cannot succeed in the circumstances of this case
Legal Principles:
 Criminal Code - assault committed when they apply force intentionally to that other person,
directly or indirectly
 Consent must be genuine
 The law will not always hold weaker parties to the bargains they make
 Coercion in essence that common thread is an illegitimate use of power or unlawful pressure
which vitiates a person's freedom of choice
 In certain circumstances, consent will be considered legally ineffective if it can be shown that
there was such a disparity in the relative positions of the parties that the weaker party was not
in a position to choose freely
Reasoning:
 The general notion of submission to an "authority" figure indicates and inequality of power
between the parties such that the existence of genuine consent is questionable
 Marked inequality in the respective powers of the parties
o Shown by the fact she was addicted to heavy use of tranquilizers
 Reluctance to do the act overruled by her dependence
 Used his power and expertise to his own advantage and to her detriment
 The unequal power between the parties and the exploitative nature of the relationship removed
the possibility of the appellant's providing meaningful consent to the sexual contact
 Doctor knew the issue and proper treatment and did not initiate it
Ratio(s):
 Autonomy (and your ability to control it) is a crucial factor in consent
 Power imbalances can be a factor that quash the defence of consent
 Hierarchy in the relationship -- imbalance of power (e.g., boss-employee, teacher-child, etc.) can
vitiate consent
7
Medical Consent






Not easy lawsuits to bring
Inherently brining in medical experts
o Thus, usually expensive lawsuits
Not going to get into negligence - i.e., doctor did the wrong thing, or did it in the wrong way
Branch of suing: battery
o Any level of direct or indirect force that someone would find objectionable (in medical
procedures, obviously there)
 What is critical, then, is was there consent?
 Issues with consent also come along with it
Implicit or explicit consent can be given for what is done in surgery, and also the follow up
Medical consent is different in the sense that it has to be HIGHLY INFORMED + Volunrary
(express or implied)
o So, medical experts will highlight several factors in the spirit of this need
Emergency Circumstances
 Impossible to obtain patient's consent, healthcare professional allowed to intervene
 Patients who have given a general consent to a course of counselling, a treatment program or
operation -- patient implicitly consenting
 Used to be therapeutic privilege to withhold information
Marshall v Curry = removed testicle without consent, unforeseen risk to life/health, unreasonable to
postpone
Facts:
 Hernia operation
 Doctor finds risk in patients testicle - removes testicle without patients consent
 P says that he did not consent to have it removed, so it constitutes a battery
Issues:


Whether or not doctor has the discretion to do a further procedure not consented to?
In what circumstances can a doctor operating in one context do another procedure?
Decision:
 Action dismissed - doctor was allowed to remove testicle
Legal Principles:
 Individual autonomy vs. public duty for doctors to save lives
Reasoning:
 After making incisions on P, discovered conditions which neither party anticipated, and which D
could not reasonably have foreseen, and that in removing the testicle he acted in the interest of
his patient and for the protection of his health and possibly his life
 Removal, therefore, necessary, and unreasonable to postpone
Ratio(s):
 Express consent not necessary when there are unforeseen risks that threaten the patient’s life
or health - has to be menace to the life of the patient
 Must be the case that it would be UNREASONABLE TO POSTPONE (objective standard)
o Must not have clear idea of what the wishes of the patient in the situation are
8
Malette v Shluman = Jehovah’s witness didn’t want blood transfusions, had card and daughter
informed, do not need informed refusal
Facts:
 Patient comes in needing blood transfusions
 Has card: "do not take blood transfusion under any circumstances, I am a Jehovah's witness"
 Doctor provides transfusion because it is necessary to save life - sued
o D claimed that card didn't apply in this circumstance: current times? Applied to life
threatening circumstances? Fully informed of the risks or refusing blood transfusions?
 Daughter comes and says that she is religiously not wanting blood
Issues: conflict between patient's right over her own body and society's interest in preserving life?
Decision: $20k in general damage for mental distress, D had no reason to doubt validity of instructions
Reasoning:
 Card was clear and direct - she did not want blood (PLAIN WORDING)
 The right to refuse treatment is an inherent component of the supremacy of the patient's right
over his own body. That right to refuse treatment is not premised on an understanding of the
risks of refusal
 Social values of religious freedom to refuse treatment on religious ground is a value that can be
considered more sacred than life itself
Ratio(s):
 The doctrine of informed consent does not extend to informed refusal (lower degree)
o The right to refuse treatment is not premised on an understanding of the risks of refusal
 Personal autonomy to refuse consent does not need as high a standard of informed consent as
agreement to allow a procedure
o Written cards constitute a valid restriction of right to treat patient - constitutes battery
C v Wren = minors and competency to give consent, need ability to understand nature of treatment and
its risks, not ability to make reasoned and prudent decision
Facts:


16 year old became pregnant by her boyfriend while she was living at home
Parents brought action against doctor
Issues: Whether the P was able to give informed consent?
Decision: Dismiss appealed - informed consent was obtained
Legal Principles:
 To be valid consent must be given by those who are deemed legally competent
o Common law test = ability to understand the nature of the proposed treatment and its
risk - not his/her ability to make a reasoned or prudent decision
o Dueck - 13 year old boy requested non-orthodox treatments --> found he was immature
and influenced by his parents (required to take regular treatment) Had he been found to
be a mature 13 year old, they would have found in his favour
Reasoning:
 Courts will exercise increasing restraint in that regard as a child grows to and through
adolescence
 Inferred from circumstances that the mother and parents fully discussed the ethical issues
involved, but disagreed
 She had sufficient intelligence and understanding to make up her own mind, at her age and level
of understanding, the law is that is that she is permitted to do so
Ratio(s):
9

On a case to case basis, the court will determine if the person understands the nature of the
decision, not whether or not they are able to make a good decision
Self Defence


Full defence - no liability of established (on balance of probabilities)
Judge will have to weight the stories against each-other - central aspect = testimony of the parties
o 2 things the judge will look at
1. Reliability - involves mistaken beliefs, circumstances, corroboration, etc.
2. Credibility - is there the potential that one is not telling the truth, exaggerating, etc.
o Does not require an absolute call (can believe parts of the testimony)
 Finding one version more credible is OK for civil suits - not high enough standard for
criminal law
Elements (established by D on balance of probabilities - subjective and objective standard)
1. Some kind of assaultive conduct on the part of the P
 Does not have to mean they were actually assaulting you, if you reasonably anticipate
you were going to be assaulted – Pollard v Simon
 A reasonable mistake of fact is permitted so long as it is reasonable
2. No reasonable alternative but to use force to repel the force being used against you
 e.g., if you can walk away from the scenario;
 Using force should NOT be a first option
3. The force you used is proportional
 Does not have to be measured with perfect nicety
 Life is in danger, you may be permitted to use lethal force
 Whether it is proportional is not based on the effect of the force
 What you reasonably perceived you were being assaulted and returned force
 e.g., could be that the guy fell and cracked his head - consequences not as
relevant
 All three elements must be met on the subjective and objective basis (i.e., honestly and
reasonably)
o Based on all the relevant circumstances
Vitiating Circumstances
1. Alternative to violence/force
2. Hors de combat - outside the fight - Latin maxim saying that a person was no longer able to be
fighting
 If they are no longer able to fight, cannot say you were defending yourself (Wackett v
Calder)
3. Excessive force out of proportion negates the defence
10
Wackett v Calder = fight outside bar, don’t need to measure repelling force with complete nicety
R v. Ogal (1928) - Principle that accused person when attacked not req. to "measure w/ complete
nicety" the force necessary to repel the attack or apprehend attack (affirmed in this case)
Facts:
 D appeals judgement for damages for an assault
 P challenges D to fight and throws first strike, D responds with punch, knocks him over
 P comes back swinging and the D responds with a second blow which breaks his cheek & wrist
 Trial Judge claims D could have walked away (should have walked away) and used force which is
too excessive to be self-defence under the circumstances
Issues: Whether the 2 blows by the D were more than reasonably necessary under the circumstances?
Decision: Appeal allowed - action dismissed
Legal Principles: Hors de combat: outside the fight - a person was no longer able to be fighting
Reasoning:
 Excessive force not supported by evidence
o Although intoxicated - no evidence P was not coordinated enough to cause serious injury
o D were turning away to re-enter the hotel when P attacked and struck the D a second time
and received a harder blow (Corroborated by witness evidence)
 D was entitled to reject force w/ force &, not bound to take a passive def, entitled to return blow
Ratio(s):
 Not required to measure exactly proper force is in response to an attack is
 Cannot have other options besides violence to be legitimate
Pollard v Simon = ferry fight, reasonable anticipation of force is sufficient, credibility of witnesses
important, excessive force vitiates defence
Facts:



D claims he anticipated a blow from P and hit him to deter it
Wrote apology letter to D afterwards, convicted of criminal assault - plead guilty
D's son corroborates fathers theory of P acting hostile and out of control
Issues: Whether defence of self-defence has been established?
Decision: Claim is dismissed - self-defence established
Legal Principles:
 D does not have to show that a claimant struck the first blow or was actually going to hit him… the
right to repel force with force is not confined to warding off a blow
o "self-defence means defence, not counter-attack"
Reasoning:
1. Evidence supports claim that P was in a state of anger based on both testimony
3. Corroborated testimony of D by his son (is some question of whether there is a bias here)
4. Evidence does not support a finding of more than one blow
5. Regret in apology is not inconsistent with a claim of self defence
Ratio(s):
 Do not need to actually respond to physical force for self-defence, reasonable anticipation of force
is sufficient
 Guilty plea in a criminal setting does not constitute an obvious basis for damages - burden of proof
higher in criminal setting
 Credibility of witnesses is of the utmost importance
 Excessive force vitiates the defence
11
Defamation = personal injury due to the words of another
1. what is said must be defamatory = would lower reputation of the plaintiff in the eyes of a
reasonable person (Sim)
-harmful in ordinary sense
-Legal or True Innuendo = facts/circumstances related to publication known to those
receiving the publication give rise to defamatory meaning (Sim)
-False or Popular Innuendo = P establishes ordinary person would infer something
defamatory from apparently innocent remarks (even without special knowledge, Sim)
2. reference to P
-can be indirect (Knuppfer)
3. has to be published to someone other than plaintiff
-must be intentionally communicated
-will be liable for repetition by others if you give express or implied authority for
remarks to be published, make remarks to someone who has a duty to publish,
republication is natural and probable consequence of original publication
Defences:
-Truth = full defence, sting not literal words (Williams)
-Absolute Privilege = full defence
-parliamentary privilege, judicial or quasi-judicial proceedings (Hung)
-Qualified Privilege = narrower definition, doesn’t defeat malice (Hill) or going outside scope of
privilege (Hill)
-where someone has legal, moral, social duty/interest to make communication and
recipient has reciprocal duty or interest to receive it (Hung)
-Fair Comment (Wic Radio)
1. comment must be recognizable as comment (not statement of fact)
-reasonable person would interpret as comment (Wic)
2. which any person could honestly believe
-Subjective or objective honest belief if subjective fails (Wic)
-subjective difficult to prove
3. based on facts that are true
4. pertains to matter of public interest
5. can be defeated by malice (Wic)
-Innocent Dissemination (Crookes) = protects those who play secondary role
-Responsible Communication on Matters of Public Interest (Grant)
Sim v Stretch = letter sent to send borrowed money and wages, not defamatory
*objective test for lowering reputation of P in eyes of reasonable person, and within context (who it’s
communicated to/ situation)
*how far publication reaches is relevant to if it is defamatory (e.g. might have possibly been seen by
post)
*if court can conclude one reasonable interpretation of those words as defamatory, must let it go to
trial
12
Knuppfer v London Express Newspaper = young Russia party alleged to be controlled by Nazi’s, no direct
reference to P, other branches of party exist in other countries/large group
*2 part test for indirect reference (Legal/ True Innuendo)
1. Legal Test = can article be regarded as being capable of referring to plaintiff
2. Factual Test = does article lead reasonable people who know the plaintiff, to the conclusion
that it refers to him
*if you don’t pass 1 you don’t move to 2
Williams v Reason = shamateur, sting through inferred meaning was being shamateur in general,
allowed to bring evidence to show truth in sting
*if “sting” /substance of statement was true then truth defence still applies
Hung v Gardiner = Absolute Privilege, accounting organization refers matter to Law Society and Institute
of Chartered Accountants, quasi-judicial bodies, no proceedings
*these disciplinary bodies were quasi-judicial (not strictly administrative)
-quasi-judicial powers = determine guilt or innocence, enforce sanctions
*reporting to professional oversight bodies covered by absolute privilege
*proceedings don’t need to follow, would create “chilling effect” as people would be afraid to raise
genuine concerns = public interest and protection of whistle-blowers
*balancing public and private interest
*you have certain professional burdens when you join a professional organization and
Hill v Church of Scientology = Qualified privilege, statements and on steps of Osgoode, allegations made
before trial, documents publicized not filed yet
*can be defeated by malice or at least recklessness with regard to the truth
*was outside the context of scope (didn’t have duty to communicate with public and to communicate to
such a large audience)
*duty to take steps to see if allegations are confirmed/wait for investigation
*does say that qualified privilege should be extended to give public access where papers not filed if
there’s every intention to initiate action = public interest
Wic Radio v Simpson = fair comment
Facts:
 Simpson was a leading public figure in the debate regarding positive portrayal of a gay lifestyle
o She is rampantly against it
 Rafe Mair - controversial commentator on matters of public interest, BC: "shock jock" radio show
 Tape of parents meeting night before appearance on show: Simpson scolded the crowd
 Argues: fair comment not avail. b/c no evid foundation that P would condone violence
 Mair did not testify that he had an honest belief that Simpson would condone violence
 Overall, implication that she would condone violence
Issues:
 Comment or fact? Public interest? Honest belief? Factual foundation? Malice?
Decision: Defence succeeds, trial judgement restored - no damages
Reasoning:
 Innuendo that Simpson was so "hostile toward gay people …she would condone violence towards
them is an inference "would condone violence", from factual premise she was so hostile to gays
 She was talking about democratic war, not violence - TRUTH DEFENCE FAILS
 FACTUAL FOUNDATION
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o
o
Mair is a radio personality with opinions on everything, not a reporter of facts
Every element of the factual foundation was either stated or publicly known –
 HONEST BELIEF
o Fails because he did not say that he honestly believed that Simpson condoned violence - he
said that she was not a violent person
 Simpson's uses violent imagery in speech, could cause some to believe she condoned violence
 PUBLIC INTEREST
o Homosexuality and education clearly engages public interest
o Macdonnell v. Robinson: if X seeks notoriety/invites pub attention  invites public criticism
 MALICE REQUIREMENT
o Onus on P, P concedes that no malice was present
Ratio(s): Fair comment defence
1. The comment must be on a matter of public interest
2. The comment must be based on fact
3. The comment, though it can include inferences of fact, must be recognisable as comment
i.
That is, a rational person would be able to form their own opinion
4. The comment must satisfy the following objective test: could any man honestly express that
opinion on the proved facts?
i.
Subjectively honest belief OR objectively honest belief - if subjective test fails
1. Objective test: could any person (no matter how opinionated or prejudiced)
make the comment based on the facts?
a. Still has to be honest, SCOPE - MUST BE RELEVANT
5. Even though the comment satisfies the objective test, the defence can be defeated if the P
proves that the D was actuated by express malice
i.
Onus is on P
ii.
Indirect or improper motive not connected w/ purpose for which the defence exists
 If factual foundation of comment unstated/unknown, or false, fair comment def. not applicable
 Have to consider whether any person honestly could express that opinion on the proved facts?
 Defendant must prove the elements of the fair comment defence BEFORE the onus switches back
to the P to defeat the defence by establishing, if it can, malice on the part of the D(s)
Crookes v Newton = hyperlink not publication but reference
INNOCENT DISSEMINATION
Reporting in a Secondary Manner
Facts: D put up hyperlinks to defamatory content on another website
Issues: Whether hyperlinks that connect to allegedly defamatory material "publish" that material?
Decision: Appeal dismissed ; hyperlinks do not express an opinion
Legal Principles:
 Published is where the idea was "communicated to at least one person other than the plaintiff"
 Innocent dissemination defence - protects those who play a secondary role in the distribution
system, such as news agents, book sellers, and libraries
 Publications are things that would lead reasonable persons to understand that it was the P to
whom the D referred that would tend to lower a person in the estimation of right-thinking
members of society.
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Reasoning:
 There was no real commentary on the comment itself
o Clearly though, the intention was for someone else to read it
 A hyperlink itself should never be seen as a "publication" of the content to which it refers
 To prove the publication element of defamation, a P must establish that the D has, by any act,
conveyed defamatory meaning to a single third party who has received it
 Technology like Twitter and Facebook have made this almost impossible to viably have as a
grounds for a lawsuit
 When a person follows a link they are leaving one source and moving to another…. It is the actual
creator or poster of the defamatory words in the secondary who is publishing the libel when a
person follows a hyperlink to that content
 The internet cannot provide access to information without hyperlinks
Ratio(s):
 Innocent dissemination defence - protects those who play a secondary role in the distribution
system, such as news agents, book sellers, and libraries
 References are not publications
 Hyperlinks are not publications, they are references
o Also like fair comment - give them source, let people decide for themselves
o LIMIT: not exactly defined, but, if the hyperlink itself conveys some sense of the defamatory
comment (e.g., click here to see how lame X is) then you're in trouble….
 Also, the more induction to click the link (e.g., for my views of X "click here") the more
trouble you can get into
Grant v Torstart = Responsible Communication on Matters of Public Interest
*Responsible communication fills gap when defendant publishes STATEMENT OF FACT on matter of
public interest that defamed plaintiff
Facts: Grant suing Toronto Star on defamatory article about using his political influence for personal
business interest
Decision: says only defences are Justification and Qualified Privilege
-journalists might have checked sources, but can’t prove truth in future in court (justification),
no duty to communicate to public at large (qualified privilege)
-Policy: Charter values of free expression, democratic discourse and truth finding, needs to be
balanced with reputation interest
RATIO: RCOMPI available to ANYONE who publishes material of pub interest on ANY MEDIUM
1. Publication Must be Matter of Public Interest
-not all things public finds interesting, but not confined to politics (can range from science to
environement)
*Must be shown to be one inviting public attention, affects welfare of citizens, considerable
notoriety or controversy attached
-segment of community has genuine interest in receiving info on the subject
2. Publication was RESPONSIBLE, consider…
-balanced with seriousness of allegation (proportionality)
-public importance of matter
-urgency of the matter
-status and reliability of source
*was plaintiff’s side of story sought and accurately reported?
-whether inclusion of defamatory statement was justifiable
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-REPORTAGE: did the public interest lay in the fact that the statement was made rather than
that the statement was true? (must attribute statement to a person, must indicate report isn’t
verified, must set out both sides fairly, must provide contect statement was made)
-other considerations: doesn’t require stylistic blandness, best reports take a certain stance
Burden of Proof
FH v McDougal = W(D) concept not relevant in tort, only standard is balance of probabilities, should be
mindful of inherent probabilities or improbabilities or seriousness of the allegations, but it doesn’t
change the standard of proof
-P claims to have been abused by D in residential school in the 60s (brought action in 2000)
-Inconsistencies in testimony
-TJ found him credible
-CA supported TJ – said she took into account and still found him credible to BoP
W(D) concept (BRD)– concept of giving assistance to trier of fact and giving them some root to assess
credibility
1. first look at accused if you believe evidence of accused, you acquit because he has raised reasonable
doubt
2. if you don’t believe testimony of accused, but are left in reasonable doubt by it, you acquit
3. even if you are not left in doubt by evidence of the accused, you must ask yourself whether, on the
basis of the evidence you DO accept, you are convinced BARD that evidence of the guilt of the accused
*but in civil, finding evidence of one party credible may well be conclusive of the result b/c that
evidence is inconclusive with that of the other party
counter-intuitive to adopt this into civil law since it is a lower standard of proof than criminal (WD
concept was created to AVOID a more civil analysis in which is it appropriate to use BoP)
Ratio: There is only one standard of proof at common law and that is BALANCE OF PROBABILITIES
-judges should still be mindful of inherent probabilities or improbabilities or seriousness, but
doesn’t change the standard of proof
Negligence
*P must prove all elements on BOP (Hill)
1. Duty of care: legal obligation to exercise care and nature and scope
-policy considerations (issues with imposing duties of care, need legislature to enact)
2. Standard of Care and Breach: what would be exercise by reasonable person (Donoghue), dif for
professionals = standard of colleagues
3. Causation: conduct cause of plaintiffs loss, cause-in-fact
4. Remoteness of Damages: liability limited to reasonably foreseeable consequences
5. Actual Loss: legally-recognized injuries/losses, grief/death, etc. weren’t recoverable at common law,
but through legislation
6. Defences *DEFENDANT: contributory negligence, voluntary assumption of risk, illegality, inevitable
accident, or general like lapse of limitation period
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Ann’s/Kamloops Test:
1. Proximity: Is there close enough proximity btw P and D that there should be reasonable
foreseeability of harm = Prima Facie Duty established
2. Are there considerations that should negative/limit scope of duty, class to which its owed, the
damages that breach gives rise to (*on Defendant)
Dunsmore v Desheld = glasses breaking, no wrong if injury would have happened anyways (causality),
reasonable foreseeability, can establish causality on BOP
Facts:
-Glasses broke, supposed to be Hardex
Ratio:
-defendant must establish contributory negligence on BOP
-must be a causal relationship, defendant’s wrong cannot be cause of injury if it would have
happened without the wrong, plaintiff need only prove causation on BOP not certainty
-consequences must be reasonably foreseeable
DUTY OF CARE
Donoghue v Stevenson = Proximity for DOC, reasonable care, reasonable foreseeability
Facts: drank decomposed snail in ginger-beer
Analysis:
-for manufacturing, might be excluded if there’s possibility of goods having condition altered by
lapse of time, if there was means of observing defect by person using or intermediate
(proximity)
Ratio:
-reasonable care to avoid acts or omissions which you could reasonably foresee to injury
neighbour
-neighbour = proximity, person closely and directly affected by act that you should have them in
contemplation when directing your mind to
-not all morally wrong acts/omissions give right to demand relief
-important to be intended for immediate use (no intermediary examination)
-goods known to be for common household use create duty to people other than purchaser
Cooper v Hobart = Ann’s test: 1. Reasonable Foreseeability + Proximity = prima facie duty, Policy
Considerations outside relationship
Facts:
-P invested in mortgage company, claimed D took too long to suspend brokers license, loss
resulted
Ratio:
*Ann’s Test
1. was harm that occurred the reasonably foreseeable consequence of D’s act (must be
supplemented by proximity = close and direct relationship) = prima facie DOC
2. are there policy considerations outside relationship that negative imposition of duty
*shows that reasonable foreseeability and proximity are two separate things
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-courts are hesitant to impose a large, indeterminate liability
-Established proximity categories:
1. D’s act foreseeably causes physical harm to P or P’s property
2. Negligent Misstatement
3. Misfeasance in public office (gov not liable for policy decisions, but operational
decision)
4. Duty to warn of risk of danger
5. Relational Economic Loss (related to contract performance)
Hill v Hamilton Wentworth Police (1-89) = police duty of care, standard of care of reasonable officer in
circumstances, no breach of standard found
Facts:
-wrongfully convicted, spent 20 months in jail for crime he didn’t commit
-tips came in about Hispanic robbers, similar robberies while Hill in custody
Analysis:
-police have duty to investigate crime
-Distinguished from Cooper on proximity because this is a closer relationship to a singled-out
suspect
-person interest in step 1 enhanced by public interest against wrongful convictions and
consistent with charter
*looks at floodgate argument against police (limited class of particularized suspects, also need
to show injury, no evidence in other jurisdictions) and chilling effects on criminal investigation
(not a bad thing for them to be more careful)
-says it provides remedy for wrongful convictions
-regarding reinvestigation, says investigations are not never-ending and says they may act
reasonably to close a case = discretion
Ratio:
-police owe duty of care to suspects being investigated
-standard of care over investigation is that of reasonable officer in the circumstances (much like
standard of care for other professionals), can exercise discretion, but not unreasonably
-where the defendant has special skills and experience, must live up to the standards possessed
by persons of reasonable skill and experience in that calling
-standard of care must consider likelihood of foreseeable harm, gravity of harm
-doesn’t require perfectionism, policy argument you don’t want to constrain the police in their
investigations (fear of lawsuit)
-tort of negligent investigation exists in Canada
1. Must be reasonable foreseeability of harm AND proximity (actions have close and direct
relationship, appropriate to impose duty)
-proximity considers expectations, representations, reliance, seriousness of interests
-not necessarily personal relationship
2. Do residual policy considerations outside of relationship negate the duty
-public conflict with duty of care must pose real potential for negative policy
consequences (duty should not be denied on speculative grounds)
Special Duties of Care:
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Affirmative Action 327-346
Affirmative Action = duties of care applicable in cases of OMMISSION, generally not imposed
1. Duty to Rescue
2. Duty to Control Conduct of Others
Policy Considerations for duty to act:
-more intrusive (limits ability to do other things), hard to define scope of positive obligations,
risk to parties
Duty to Rescue:
Osterlind v Hill = Duty to Rescue, no duty to act where P is capable of exercising care for his own safety
Facts: D rented canoes, P’s drunk when rented canoes Boat flips over, P calling for help which D ignored
Issues: Whether the D is liable for not acting? Whether the D had a duty not to rent the boat to drunks?
Reasoning:
-The P was not in a helpless condition when he rented the canoe, he held on for half an hour
-He was able to take steps to protect himself - no duty to rescue, no sign the canoe was unsafe, no
legal right was infringed upon
Ratios:
-There can be obligation if D places helpless man in a dangerous position
-Otherwise, there is no legal duty to take positive action
Matthews v Maclaren
Facts: Guests invited onto a boat, one ends up falling overboard – doesn’t seem that his falling
overboard was not due to improper conduct of the captain
-note: if you are responsible for it, e.g. negligent driving caused it, there is duty to
rescue
Unsuccessful rescue attempt: second person jumps in to save him, both die
Issues: whether there was a duty of care placed on the captain to attempt a rescue?
Legal Principles: Canada Shipping Act s.526(1) – person who is in control of a ship shall render assistance
to a person if it is not a risk to their boat or crew
Decision: there was a duty of care owed for nonfeasance, but there was a problem with causation
Reasoning:
-Court brings experts to see if ppl who knew what they were doing on boat would do the same
-Found that the captain did not have the proper skills in this situation
-Not a causal connection to the loss, captain not liable
-Burden of proof on plaintiff to show causation
Ratios: court uses the statute as a justification for expanding the common law
-Quasi-Contractual relationship: duty of captain to passenger in peril, seems that there is a
relation btw guest & master of ship to aid/rescue when it won’t put ppl/boat in peril
-If rescue started duty to perform it as a reasonable person in the circumstances would
Good Samaritan Act
Protection from Liability:
2(1) Despite the rules of common law, a person described in subsection (2) who voluntarily and
without reasonable expectation of compensation or reward provides the services described in
that subsection is not liable for damages that result from the person’s negligence in acting or
failing to act while providing the services, unless it is established that the damages were caused
by the gross negligence of the person. 2001, c. 2, s. 2 (1).
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Persons covered
(2) Subsection (1) applies to,
(a) a health care professional who provides emergency health care services or first aid assistance
to a person who is ill, injured or unconscious as a result of an accident or other emergency, if
the health care professional does not provide the services or assistance at a hospital or other
place having appropriate health care facilities and equipment for that purpose; and
(b) an individual, other than a health care professional described in clause (a), who provides
emergency first aid assistance to a person who is ill, injured or unconscious as a result of an
accident or other emergency, if the individual provides the assistance at the immediate scene of
the accident or emergency. 2001, c. 2, s. 2 (2).
Duty to Control Conduct of Others:
Crocker v Sundance Northwest Resorts = Liability for the Intoxicated
Facts:
-Tubing competition promotional event
-manager and owner were aware of intoxication, had purchased drinks at resort
-had signed waiver releasing liability but hadn’t read it
Reasoning:
-Sundance set up a dangerous operation to promote its future, and must accept its
responsibility to prevent a reasonably intoxicated person to participate
-Can bring in the fact that a sober person might have the exact same thing happen to them
Legal Principles:
-in general, when someone injured in a sporting accident law doesn’t hold anyone else responsible
- Jordan House Ltd. v Menow (1973) – duty of a licenced tavern owes duty of care to intoxicated patron
was liable when the patron was ejected and struck by a motor vehicle stumbling on the highway
(*invitor, invitee relationship)
-see that they get home safely by taking patron under their charge, charge of responsible
person, or seeing he isn’t turned out alone until reasonbly fit to look after himself
-Breach of Standard of Care, might be acceptable to allow or encourage sober able-bodied individuals to
participate in dangerous activities, but not the obviously incapacitated
-Questions Causation = would it be no more risky to participate sober (declines this)
Car owners who have instructed drunk persons to operate their vehicles have been found liable
Ratios:
-Common thread is duty not to place another person in position where it is foreseeable that
the person could suffer injury
-youth, intoxication and incapacity determine how foreseeable injury is
-Wilson noted that common law generally has limited exceptions for nonfeasance (faiure to act,
rather than misfeasance = negligent conduct) where a special relationship arises (parent and
child) or where the D had a statutory or contractual obligation to intervene, but now expanding
scope
*Voluntary Assumption of risk = plaintiff must assume physical risks (maybe by participating, but
mind can’t be clouded by alcohol) and legal risks involved (need knowledge of waiver)
-Running event for profit that is dangerous, owes a duty of care to visibly intoxicated
participants
*must take all reasonable steps to prevent them from entering comp
-courts will consider whether it is a social vs business setting when considering duty
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Childs v Desormeaux = Liability for intoxicated
Facts:
-A person hosts a party. Guests drink alcohol. An inebriated guest drives away and causes an
accident in which another person is injured.
-Consuming a massive amount of alcohol which came to the attention to the host
-To the point where the host asked: “are you OK”
-This line of reasoning was influential in the Crocker case
-BYOB party: may be a context worth considering as a difference
Issues: Is the host liable to the person injured? – No, a social host does not owe a DoC to third party
Legal Principles:
-Liquor Control Act; Occupiers Liability Act – requirements of hosts on consumers of alcohol
Reasoning:
Factors of a house party are different than commercial context because:
a. Purpose of a house party isn’t to sell alcohol and intend to get drunk – it is a social gathering
(profit plays a big role in this situation), you have certain incentive to sell in bar (duty regulates
the commercial incentive)
b. Bar is able to monitor the intake of alcohol by patrons – can’t bring any outside beverages
into the bar for example (not so at a house party)
c. Proximity involves an analysis of expectations and Reasonable Reliance on the relationship
-E.g., rules in a bar to be cut off
d. No required training at a house party (e.g., bouncers)
e. Commercial settings subject to many outside regulations and statutes (e.g., # of patrons)
-lower expectation of privacy and autonomy in a commercial setting
*DIFFERENT RELATIONSHIP BTW COMMERCIAL AND SOCIAL PATRONS – NO ANALOGY
Ann’s:
1. Proximity (no duty to act positively) + Foreseeability (not reasonably foreseeable) =
no prima facie duty
2. Policy considerations (from defendant) that negate duty
Ratios:
-Social hosts do NOT have a special DoC to ppl on the road that could be harmed by a patron at
their party (NB: this changes when we consider commercial context)
-FORESEEABILITY ANALYSIS IS ON A GENERAL LEVEL – would a person in the position of D in a
general category (i.e., social host) reasonably foresee that a certain person would pose a threat
of injury to someone on the road if I was careless in how I hosted my party?
-History of drunk driving and alcoholism does not attach to foreseeability
-Relationships giving rise to DoC with foreseeability
1. attracting/inviting party to inherent and obvious risk that they created or control
2. Paternalistic relationships with supervision and control (parent, teach-student)
3. defendant exercises public dunction or engages in commercial enterprise including
responsibilities to public at large
-If a host cannot see that his guests are impaired it cannot be foreseeable they will cause injury
due to their intoxication (unless the drinking is being monitored)
-Proximity analysis for nonfeasance: was it a failure to have taken all reasonable steps?
-for overt act (misfeasance), foreseeability without more may establish duty, but for
nonfeasance (would have required interference with autonomy, must examine nature
of relationship
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-“PROXIMITY PLUS” – must be particularly close relationship
-Unless social hosts are actively implicated in creating the risk that gives rise to the
accident
STANDARD OF CARE
Arland v Taylor = reasonable person test
Facts: car accident in certain driving conditions
Ratio:
-Reasonable Person Standard (OBJECTIVE)= person of normal intelligence, does all prudent
person would do in like circumstances
-extra credentials/numerous personal factors do not considered, but only the standard that’s
required in the circumstance
-acts in accordance with general and approved practice
-somewhat subjective only in it’s application (i.e. would the reasonable person have done this)
*legal standard of care remains the same, but factual standard changes from place to place,
time to time
*Factors Determining Breach of Standard of Care
Bolton v Stone = Factors determining breach: 1. Probability of injury 2. Potential severity of injury
Facts: person hit by cricket ball while crossing the road
Reasoning:
-very remote probability of injury
-here is was readily foreseeable accident might happen, but chance of happening was so small
Ratio:
-as risk and potential severity of injury increase, so does Standard of Care
-true test is not based on foreseeability of damage alone, but on likelihood of damage
-Note: Balance probability and severity against private and social costs associated w avoiding
risk and social utility of defendants conduct
Matharu v Nam = Occupiers Liability Act
Facts:
-Mr. Nam mishit ball on hole veering right, bounced off tree and hit P in eye
-negligence action against Nam and Course
Issues:
-was Mr. Nam negligent for striking ball in direction of 10th tee OR failing to call fore
-did golf course take reasonable steps to ensure safety of players
Legal Principles:
-Occupiers Liability Act  STATUTORY DUTY OF CARE s.3(3)
-Statutes create a duty of care and then the rest of the duty is filled in by common law
-Statutes also set out duty of care and standard required
Reasoning:
-Court determined Mr. Nam’s shot was one that a reasonable and prudent golfer would take
and was therefore not negligent, this was based on a number of considerations:
-Mr. Nam was a competent golfer (looked at his handicap); He had made the same shot
on previous occasions; no reason to wouldn’t make it again; He was aiming towards his
own hole, not the hole where P was struck; Not reasonably foreseeable the ball would
ricochet off the tree towards another hole
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-Court doesn’t think Nams shot required him to call fore (didn’t veer off
intended course)
-NB: very customary practice, ppl know it, in most situations, required to do it
-NO DUTY WITH RESPECT OF RISKS WILLINGLY ASSUMED – Occupiers Liability Act
-Court interprets this as people assume a risk, but since the risk is obvious, there is a
duty of care, because the patrons are not consenting to be hit by all golf balls
-So, interpret that section as “in the relevant circumstances”, adds common law policies
to statute
-B/c of the nature of the hole and the way it veered, they had sought some advice on how to
protect players at the hole where P was hit - planted some trees and a dense hedge, court found
these were reasonable steps and the golf course had not been negligent
Ratios:
-Awareness of risk on course does not vitiate all liability: must still act like a reasonable X in
circumstances
-Existing Duty of Care = 3(1) Occupiers Liability Act to ensure that in all the circumstances, a
person will be reasonably safe in using the premises
-s. 3(2) above applies to condition of premises, activities on premises, conduct of 3rd
parties on premises
-s.3(3) No duty of care for risks willingly assumed, other than duty not to create danger
with intent to harm/damage property or act with reckless disregard to safety of
person/property
-SoC for golfer is what would a reasonable and prudent person, in his place, do or not do
-skills, tendencies, place where game is played are FACTORS to be considered with
regards to “acting as a reasonable and prudent person”
-custom, like calling fore, can form SoC (but not found here, would also need to consider
causation, i.e. if “fore” would make a difference)
-Ask: Are there any risks in making this a standard of care? (e.g., ppl not taking warning serious)
-With the incorporation of the inherent risks, the steps were reasonable enough (getting
architect, pro golfers, etc.) given the level of risk, and the degree of risk
CAUSATION
-General test = but-for
-Cause-in-fact test = can P prove on BOP that breach of SoC was what caused loss
-doesn’t have to be sole cause, doesn’t have to be proven to scientific certainty (Clements) or
BARD, just on BOP
*Not the same as remoteness of damages (which governs extent of liability for losses negligently causes,
where loss is too remote a consequence of the actions of D; causation = more of a factual connection,
but some legal/fairness aspect in Clements, remoteness of D = legal liability)
*Only held liable to foreseeable injuries that are caused
-Important to isolate loss and specific breach of SoC
-Divisible Loss = attributable to a single tortfeasor
-Indivisible Loss = loss is attributable to conduct of more than one tortfeasor (e.g. series of
distinct injuries occurring in rapid succession like in chain reaction crash, will be invisible loss
attributable to all at-fault drivers)
Factual Causation: simply being a part of the sequence of events that were necessary to cause a certain
result, “causally effective” (dominoes, part of a necessary chain of events for the last thing to happen)
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-Factual causation is something that needs to be assessed, but not actual test for legal causation
-But-For Test (Kauffman), Scientific precision not required (Clements)
Legal Causation: must be a significant contributing cause to the risk, death/damage/etc (Clements).
-Not necessarily held to factual causation, question of what fairness and justice demand
(Clements)
-Take the negligence out of the equation and see if the event still would have happened
Kauffman v Toronto Transit Commission
Facts:
-Kids pushing on escalator, causes people to fall; injures P; P sues company for handrail design
(belief that had the handrail been in the proper place – accident wouldn’t have been caused)
Analysis:
-no attempt to grab out for the handrail, so you cannot blame the placement of it, with proper
handrail placement person could still be injured in the exact same way
Ratio:
-But-For test: the causal link between the alleged negligence and the loss must be established
on the evidence
-Must be a substantial contribution (Resurfice)
Barnett v Chelsea & Kensington Hospital
Facts: diagnosis, sent home, patient dies
Reasoning: there is an absence of causation because even if the men had been examined it would have
been too late
Ratio:
-causation is based on what would happen in a “reasonable case scenario” (in this case, no
reasonable prospect of survival had he been treated properly (borrows from standard of care)
-Would P have died/been injured anyway in reasonable case?
Walker Estate v York Finch General Hospital (Material contribution, minimal contributing cause
outside de-minimis range)
Facts:
-tainted blood into system, massive damages, people dying, infections in large numbers
-at the time of this case, there was less technology/awareness for screening, self-screening, sues
Red Cross for negligence
Issue:
-What was the standard of care at this time?
Reasoning:
-three pamphlets distributed at the time, American Red Cross pamphlet = most informative. So,
the American pamphlet = standard of care at the time
Ratios: Test:
-but-for test is unworkable in some situations where multiple independent causes bring about
single harm
-whether D’s negligence “materially contributed” to occurrence of injury (if it falls outside the
de minimis range) = Minimal contributing cause, legally responsible
-E.g., if better info was given to the tainted donor might not have donated)
NB: Prof thinks that it is hard to say what the blood donor would have done with different information
in this case, hard to say this is “factual causation”
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NB: but-for test useful because we have a standard we can apply to balance of probabilities
Clements v Clements = MATERIAL CONTRIBUTION TEST
Facts:
- D driving motorbike with P on back, Driver has duties to a passenger, Weight limit on
motorcycles exceeded + speeding, Punctured tire – accident, Computer re-enactment
Issue:
-is D’s negligence causative of bike breaking down
Ratio:
-But-For Test: don’t have to be the only cause; it is a logical inference of causation, not
exactness, scientific evidence not required to use but-for, factual inquiry that needs to be
proven on BOP
-Material Contribution Test: Substitutes proof of material contribution to risk for but-for, act
contributed to risk that injury would occur = legal causation, but not factual
-NB: this test gets you out of strict factual causation since you don’t know exactly what
caused incident, In this case: the speeding and overload contributed to the risk that
injury would occur to P
-It is sufficient to say you had a material contribution to the risk that gave rise to the injury
-When to Apply Material Contribution:
1. When the “But-For” test is impossible (that is, cannot specify which specific actor is
responsible)
-Problem is that you don’t need any factual connection to make it possible
-so, limit is that there is an impossibility of proving factual causation
2. Must be multiple tortfeasors
-Need to prove: but-for negligence of the collective to the injury, “but for”
causation of the group
3. Where there would be an element of unfairness in not applying #1 and #2
-D escaping liability b/c can’t prove causation with but-for
Note: Will likely only apply to mass toxic tort litigation or cases of multiple shooters, not in
single defendant case
Negligent Misrepresentation Causing Pure Economic Loss
-Based around statements and communications
-false statement need not be intentional
-Must prove
-DoC owed
-Statement is Negligent
-Reasonable Proximity
-Proof of Damage
*public policy concerns (Hercules)
-Limiting Speech: Charter concerns like defamation
-Indeterminate Liability: Nature of reach of speech, courts unwilling to find indeterminate
liability
-Business costs/efficiency, Indeterminate Litigation
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Hercules Management v Ernst and Young
Facts:
-accountants providing audited statements for 2 companies (required by statute)
-report says that things are in good shape, shareholders rely on statements, increase stock in
company
Analysis:
-Proximity (Reasonable Reliance) = yes
-Policy Check: might be broad liability (numerous other parties that could access and rely on the
report, proximity would be found in most negligent misrep cases against auditors), need to
consider
1. Identity of class of persons and
2. Whether used for specific purpose
*purpose here was general, allowed shareholders as a group to oversee
corporations affairs, not for individual shareholder investments (negates DOC,
too broad)
Ratio:
-prima facie DoC exists when
1. Proximity and Reasonable Foresseability: relationship based on reliance by P on D’s
statements
a. D reasonably foresees P reliance on his representation
b. P’s reliance on statement is reasonable in the circumstances
*Alters Ann’s test to show reasonable reliance from both perspectives, because in
regular negligence Ann’s w physical damage, it’s always assumed reasonable for P to
expect reasonable care from D (absent voluntary assumption of risk), while in reliance o
a statement/representation might not always be reasonable
*Factors helping determine reasonable reliance (indicia, but not strict):
1. D has direct or indirect financial interest in transaction
2. D is professional OR someone with special skill/judgment/knowledge
3. Info/advice provided in course of D’s business context
4. Info/advice given deliberately, not in social occasion
5. Statement given in response to a specific inquiry/request
Note: do not have to show reasonable foreseeability of precise harm, just foresee that
negligent misrepresentation would result in harm of some sort
2. Policy Check: do concerns negate DoC (indeterminate liability)?
a. That D knew the identity of P or class of P’s (not direct person, but class of plaintiffs)
who rely on advice
e.g. talking on the radio rather than having an intimate business conversation
with a business owner in an office
b. P used statements for precisely the purpose for which they were prepared?
e.g. if audit report prepared for attracting $10,000 investment and was used to
attract $1 million, it wouldn’t have been used for specific purpose
3. Causation: Losses stem from particular negligent statement
*Then need to consider whether statement was negligent (need to show breach of SoC) and
damages
Liability of Public Authorities
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-3 Main functionsof public authorities: Legislative, Judicial/Quasi, Administrative
*Generally not liable for Legislative or Judicial/Quasi-Judicial Functions, tort liability arises
mostly in Administrative Actions
Direct Liability:
1. Policy: should be able to hold government directly liable in certain cases
2. Crown Proceedings Act: allows government to be held liable as if it were a person
-applies to tort committed by servant of the Crown or breach of duty attaching to ownership,
occupation, possession or control of property
-Crown Agents = only those which crown has significant degree of actual/potential control over:
executive gov of Canada and provs, ministries, departments, corporations and boards and their
respective “servants and agents” (not municipalities)
*Note: vicarious torts committed by servants or agents more frequent than direct
3. Judiciary/quasi-judicial bodies are not open to liability (Bradley)
-Cannot sue government for purely political reasons
4. Exercising statutory duty: not open to liability UNLESS performed carelessly or not at all
-court more willing to impose liability when duty owed to an identifiable person rather than
public at large
5. For discretionary powers – distinguish between policy and operational (Just)
a. If policy: social, economic, and political considerations (at high level), not irrational or in
bad faith (R v. Imperial Tobacco)
b. If operational: proceed with regular DoC analysis as per Cooper
6. SoC of government may differ from that of individuals (Just)
*Note: when suing pub authority, limitation periods might be shorter than normal, might have special
procedures
Vicarious Liability:
-Instead of suing in negligence, government can be sued in vicarious liability (KLB)
-Limitation periods do not then apply
-Based on three large factors: 1. Close relationship btw gov and tortfeasor, 2. Connection btw tort
and assigned task, tort is materialization of risk of enterprise, 3. Degree of control over tortfeasor
(KLB)
*Crown Proceedings Act: vicarious liability for Crown relating to servants and agents
Bradley v Fisher (judiciary exempt from civil)
Ratio:
-judiciary (judges of courts of superior or general authority)exempted from civil action
-purity of motives can’t be subject of judicial inquiry
-Policy: if judge was compelled to answer in civil action for judicial acts it would degrade his
office, require extreme diligence and fact checking, offends constitutional concept of judicial
independence
Just v British Columbia (Direct Liability for Negligence, Discretionary Powers)
Facts:
-Boulder falls onto car, kills daughter, P sues Govt for negligently failing to maintain highway
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Issues: Was the decision of the Rockwork section as to the quality and quantity of inspections a “policy”
decision exempting the Government from liability?
Ratios:
-Court breaks up legislative authority (discretionary, not stat duty):
1. Policy/Political decisions: generally excluded from liability
-usually made at high level of govt but not always, often budget allocation
-must be a Bona Fide Decision, and if not, it might be challenged and CAN SUE
Minimum requirements for legislation, ensuring compliance with s.7 of the Charter (life, liberty,
security of person):
i. Cannot be too vague
ii. Cannot be arbitrary (objective and means must match)
iii. Cannot be too broad (could narrower means have achieved the same objective?)
2. Operational decisions: concerned w/ the negligence in implementation of the policy decision.
Must be “reasonable and reasonably carried out in light of the circumstances”
-Will take into account availability of funds
-Broader the program = more likely a duty of care
-First consider proximity, then see if it’s Pure Policy Decision or Statute Barred from finding DOC
-Duty of Care will be the same if not exempt by statute or b/c it’s true policy consideration, but SoC will
be different than a person would owe to another person b/c there’s much more responsibility: SoC will
balance against nature/quantity of risk, look at all circumstances, budgetary and resource constratinst
KLB v British Columbia (Vicarious Liability)
Facts: children placed in foster home w/ families who assaulted them, reports and repeated warnings
that these places were problematic and had a history of abuse, children visited infrequently
*finds foster parents were acting independently, no vicarious liability
Legal Principles:
-Protection of Children Act, duty of care established for government (direct liability) – high
standard of care ( > reasonable duty of care) “as will best meet the needs of the child” - Careful
parent test
Ratios:
-3 step test for vicarious liability: Functional Test (search for total relationship of parties, not
their formal identities)
1. Sufficiently close relationship between the tortfeasor and the liable person
-Like an employee or more like independent contractor? Is person in position to reduce
accident or intentional wrongs of the tortfeasor (creating a deterrent effect if you hold
them liable)
2. Sufficient connection between (tort + tortfeasor) and the assigned task, and tort is
materialization of the risks created by the enterprise
-again, is there a deterrent effect (would there be reduce risks if you hold them liable)
*3? But Also Degree of control over the tortfeasor, whether worker uses their own
“equipment”, whether they hire their own helpers, whether they have managerial
responsibilities
*Consider if they hold themselves out to be agents of gov or if they’re perceived to be?
*Central Question: is tortfeasor performing services as a person on his own account
(independently) or acting on behalf of the gov
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British Columbia v Imperial Tobacco 2005, SCC 49 (1-15, 44-68)
Facts:
- Govt brings aggregate action on behalf of affected individuals to a) recoup costs of tobaccorelated illness, b) change rule of onus (policy concern), c) makes bringing this many lawsuits
feasible Tobacco Health Care Costs and Recovery Act: created specific rules for this particular
lawsuit: allowed government to bring an aggregate lawsuit on behalf of all the affected
individuals
-alleging Tobacco Co’s breached DOC to individuals, suppressed health information and b/c
they suppressed it, more people smoked than wouldn’t have
-Reverses key onus of proof on causation: company must show they did not suppress info
and people wouldn’t be exposed to disease had it not been for suppression.
Analysis:
-Do the special rules that favour the government undermine judicial independence or rule of
law? – No
Ratios:
-“Policy” = approach applied to a specific situation: social, economic & political considerations
-Course of action was adopted at the highest level of government
-Involved social and economic considerations (hard to win against tobacco companies as
an individual)
-Court has a limited role in legislation (interpretation) – legislature, not court does law
reform
-To be struck, law must interfere with court’s adjudicate role or essential conditions
-Security of tenure, financial security, administrative independence
-Judicial Independence: “The critical question is whether the court is free, and reasonably
seen to be free, to perform its adjudicative role without interference, including interferences
from the executive and legislature”
-Rule of law states that 1. Law is supreme over all (precludes arbitrary power), 2. Requires
creation and maintenance of positive law that preserves/embodies more general principles
of normative order, 3. Relationship btw state and individual be regulated by law
-True that unwritten principles such as rule of law might limit gov action, but legislature
is only constrained in the sense that they must comply with legislated requirements as
to manner and form; many other principles are in favour of upholding the law
Third Parties and Motions to Strike
R. v. Imperial Tobacco 2011 SCC 42, paras. 1-102
Facts:
- Low tar/light cigs – scientifically, no health benefit but said there was – govt partially
responsible because they also said it was low tar, negligent misrepresentation on part of govt?
Analysis:
- are the feds liable for negligent misrepresentation? No, through promoting light cigarettes,
government was implementing policy (social, political and economic criteria led the govt to do
something in the cigarette arena b/c it has huge health effects)
-motion to strike for failure to disclose reasonable cause of action is not about evidence, but
pleadings
1. facts pleaded are taken as true (unless manifestly incapable of being proven)
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2. consider whether they disclose reasonable cause of action with “some chance of
success)
-must be generous permitting novel but arguable claims so law can develop; promotes
1. litigation efficiency and 2. correct results by focusing more on serious claims
-Negligence Act 19(24)(a) = P can add D’s believed to be responsible/shared responsibility
-statutes gave rise only to public duties, not private duties to consumers, but there is a duty
owed to the tobacco companies
-prima facie duty of care to tobacco company (Hercules test), but it was a Policy decision to
encourage low-tar cigarettes and there would also be indeterminate liability
Ratio:
-Third party may only be liable for contribution under Negligence Act if it is directly liable to the
Plaintiff
-Negligent Misrepresentation – must show
1. Proximity + Reasonable Foreseeability = Prima Facie Duty of Care (use Hercules Test)
a. Defendant ought reasonably to foresee that plaintiff would rely on his representation
b. Reliance from plaintiff would be reasonable in the circumstances
Note: foreseeability must be grounded in a relationship of sufficient closeness; 1. If
alleged duty is said to arise from statutory scheme, proximity might not exist since its
hard to show legislature intended to create duty, 2. Where proximity is said to arise from
specific interactions with claimant, governing statutes might still negate prima facie duty
if finding of proximity would conflict with states public duty established by the statute
(also could be claim where proximity is based both on interactions btw parties and gov
statutory duties)
Do not need to foresee precise vehicle that would result in harm, just foresee that
negligent misrepresentation would result in a harm of some sort
2. Conflicting Policy Considerations:
-Policy v Operational, Intederminate Liability, etc.
-Use Just test regarding if it’s a policy decision = does it consider political and social
factors, economic factors; (is it done at a high level by officer who’s official responsibility
involves assessment of political, social, and economic factors)?
-Rationality Aspect: People at operational level are usually not implementing
policy decisions, even though policy considerations might be relevant to his/her
actions
-Immune if policy decision unless bad faith and irrational when carrying out
position
Note: for motion to strike, must be plain and obvious it was a policy decision
Abuse of Public Office
-Intentional tort, can only be claimed against public offices (use more specific if available like negligence)
-Applies to broad range of misconduct, not restricted to abuse of statutory power (Roncarelli, Odhavji
Estate)
-Applies to misfeasance and omission
Roncarelli v Duplessis, 1959 (Misfeasance in Public Office)
Facts:
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Jehovah’s witness, liquor licence; provided bail for many witnesses (no other objectionable
behavior); D revokes P’s liquor licence because of his political views
Decision:D liable, breach of implied public statutory duty toward P (even if no duty as in negligence?)
Ratios: Misfeasance in public office is a recognized as an intentional tort
1. The tort is not restricted to the abuse of a statutory or prerogative power actually held
2. Legislative acts, unless expressly stated, do not give arbitrary power
3. Malice = acting for reason or purpose knowingly foreign to the office
4. Discretion necessarily implies Good faith, acting within the scope that the statute is meant to
operate (carrying out the statute for its intent and purpose; NO improper or alien purpose)
Odhavji Estate v Woodhouse, 2003 (Redefined elements of MOPO)
Facts:
-P’s son shot by police who were required to report findings to Ministry; police chief failed to
abide by the boundaries of the statute (segregation of offices, reports in a timely manner, etc.)
and the police did not comply with their duties; family sues
Reasoning:
although he allegation that the D’s knew that a failure to cooperate w/ the investigation would
injure the P’s satisfies the requirement that the alleged misconduct was likely to injure the P’s
NB: P’s will be successful if they could prove a recognizable psychiatric illness (not just being
upset) – so acknowledges that it’s possible, but not given in this case
Ratios: Outlines the elements of the modern tort
2 categories of the tort
Category A: vindictive conduct that is specifically intended to injure a person or class of person
-Once you establish this category you’ve met element of tort; could NOT have been in good
faith, public officer doesn’t have authority to exercise powers for improper purpose
(deliberately harming)
Category B: public officer acts with knowledge that he has no power to do the act and that the
act is likely to injure P
-Must prove each element separately
-More difficult because you have not found motive to injure
-Can show reckless, but also must prove subjective foresight of harm
Elements of the tort of Misfeasance of Public Office (common to both categories):
1. Public officer must have engaged in deliberate and unlawful conduct in their capacity as
officer
a. Intentional Illegal Act
-can apply to omission if there’s legal duty to act
b. Intent to harm an individual or class of individuals
2. Public officer must know that the conduct was unlawful and likely to harm the P
a. Subjective awareness that harm to P is likely consequence; suggests at the least D
must be subjectively reckless or wilfully blind to possibility that harm was likely
consequence
Note: likely to harm the P creates a nexus btw the parties, as unlawful exercise
of public functions would be a public, not private wrong
b. Subjective knowledge of unlawfulness reflects the “bad faith” or “dishonesty”
component
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-Purpose of the Tort: protect citizens’ reasonable expectation not to be injured by a public officer
through deliberate and unlawful conduct, so need not be related to statutory duties actually posessed
-You can bring the tort if there is an abuse of power, or if they use their power excessively, or
use it for ulterior/improper purposes
Defences to Misfeasance of Public Office:
a. Cannot direct tort at officer who inadvertently or negligently fails to adequately discharge
obligations of office
a. Cannot bring if public officer unable to discharge obligations due to factors outside their control
(e.g., budgetary constraints), because this would not be deliberately disregarding duties, must
wilfully choose not to discharge obligations
b. If misfeasance in a public office comes about b/c of a conflict with the officer’s statutory
obligations and his/her constitutionally protected rights (e.g., right against self-incrimination); an
obligation inconsistent with the officer’s constitutional rights is itself unlawful
Nuisance Law
-Nuisance is not an intentional tort; does not require negligence
-Matter of balancing use and enjoyment btw two parties
Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13
Facts:
-Highway construction significantly and permanently interfered w access to appellant’s land
Analysis:
-How to decide whether interference w private use/enjoyment of land is unreasonable when it
results from construction serving public purpose
-Board’s finding that individual shouldn’t be expected to bear loss for public good where there’s
significant and permanent interference
-Injurious Affection: defendant’s activities interfere w claimant’s use/enjoyment of land, where
i) portion of land expropriated w negative effects on the value of the remaining property or ii)
no land expropriated, but lawful activities of a statutory authority on one piece of land interfere
with use/enjoyment of another property
-case here deals with ii. b/c no land taken away, but access impeded
-Ontario Expropriations Act: right to compensation for injurious affection on certain conditions
i) statutory authority: damage results from action taken under statutory authority
ii) actionability: action would give rise to liability but for stat authority
iii) construction not use: damage from the construction, not the use of the works
*where met, claimant compensated for amount affected lands value was reduced, and
for personal and business damages
Ratio:
-reasonable interference is determined by balancing the competing interests for both public and
private nuisance
*whether, in all of the circumstances, the individual claimant has shouldered a greater
share of the burden than would be reasonable to expect individuals to bear without
compensation
-question of reasonableness is relevant to both material/physical damage and other types of
interference like loss of amenities (smell, noise, etc.); however, when there is significant and
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permanent physical/material damage the reasonableness analysis might be very brief (e.g.
reducing property value by 40%)
-Elements of Private Nuisance
Interference w owner’s use or enjoyment is…
1. Substantial: must be non-trivial screening step to get rid of trivial claims
-substantially alter nature of property, interfere to a significant extent with the
actual use
-may be physical damage to land, interference with health, comfort,
convenience of the occupier
2. Unreasonable: balancing exercise btw gravity of harm and utility of D’s conduct; is
interference suffered by claimant unreasonable in all of the circumstances, focusing on
would it be unreasonable in all the circumstances to require claimant suffer negative
effects without compensation; must consider certain factors (not exhaustive, not
required)
Gravity of Harm
-Consider (entire list not essential or exhaustive):
-severity of interference (to business profits, physical damage)
-character of neighborhood: e.g. must account for possible exposure to
interference when choosing to live in close urban neihgbourhood
-sensitivity of the plaintiff
-frequency and duration of interference: more likely to permit a remedy
if prolonged
Utility of D’s conduct
a. concerns utility of conduct (focusing on purpose, e.g. constructing highway)
not the nature of the conduct (how purpose is carried out)
-nature of D’s conduct will be relevant to reasonableness analyses…
i) if conduct is malicious or careless
ii) *particularly in cases where D is public authority, where D establishes
conduct was reasonable, public work carried out with “all reasonable
regard and care” for citizens, might help establish that the harm is just
the claimants fair share of the costs associated w providing public
benefit (everyone must put up with some disruption from essential
construction)
-but, finding of reasonable conduct doesn’t preclude finding of liability
b. when involving public authorities, must consider ultility in light of
circumstances, do not weigh severity of harm and utility equally b/c important
public purpose would almost always override harm caused if it were a question
of balancing the two
*real question is whether interference is greater than individual should
be expected to bear in the public interest without compensation
-should cost of interference be borne by the public generally as a cost of
“running the system” or borne by the individual as a cost of living in
organized society
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Product Liability
1. Duty of Care - easily established in products liability cases
a. Relationship of reliance with customers (Donohuge v. Stevens)
b. Go through analysis: Reasonable foreseeability & Proximity; Policy (Cooper)
b. Discharging through learned intermediary (Hollis) – knowledge must approximate
manufacturers; product highly technical intended to be used under expert supervision or
consumer won’t realistically receive warning from manufacturer before using (Hollis)
-Note: usually will be a reasonable foreseeability (of use, etc.) and reasonable reliance from
customer
-Note: unnecessarily dangerous design?
2. Standard of Care there is a continuing duty to warn (Hollis)
a. probability and severity of possible harm will affect SoC required (Hollis, Bolton)
3. Causation
a. subjective test for manufacturer - would P have used the product anyways (Hollis)
b. but-for is the presumed test
c. material contribution - for special cases only (Resurfice)
-Failure to warn about a dangerous condition
-Cannot look at this area without looking at the area of class action
Hollis v Dow Corning Corp
Facts:
- Breast implant; D manufactured product – implant ruptured after surgery; warning regarding
rupture during, but not after surgery. Sued surgeon (not found liable b/c he was unaware of
risks) and D
Analysis:
-Reasoning: had over 50 reports of implants rupturing before surgery was performed – key to
case
-finds Dow didn’t discharge DoC on learned intermediary
Ratio:
1. Duty of Care for product liability
-DoC easily established, manufacturers create a relationship of reliance w consumers,
have much more knowledge than them and duty corrects knowledge imbalance
-Continuing duty to warn about dangers inherent in its product of which it has
knowledge or ought to have knowledge before and after sale; warnings must be
reasonably communicated and describe dangers from ordinary use; cannot ignore new
evidence of dangerousness because you don’t find it convincing
-Learned Intermediary to discharge duty: exception to general duty to warn; applies
where i) product highly technical, intended use under expert supervision or ii) nature of
product is such that consumer won’t receive direct warning from manufacturer
*cases where intermediary inspection is anticipated and consumer is placing
primary reliance on intermediary not manufacturer; for manufacturer to
discharge duty intermediary’s knowledge must approximate that of the
manufacturer
2. Standard of care will vary with the level of danger entailed by ordinary use of product
-higher detail in warning for medical, things ingested
-Knowledge level of the LI must be approximate to that of the manufacturer
3. Causation for product liability
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-Subjective test for manufacturer: that P would use product anyway (trier of fact
determines if credible); subjective test b/c with manufacturer the value of product might
be overemphasized and risk underemphasized since self-interested; when looking at
surgeon/intermediary use modified objective test, would reasonable person in
circumstances go ahead anyways
-Would learned intermediary not have passed on information anyways?
-Policy Concern: P should not have to prove hypothetical situation to show
causation; runs risk of P not being able to recover (since Doc can’t be liable for
hypothetical situation and there’s hypothetically no causation with regards to
manufacturer even though they failed in their duty to warn)
Reid v Ford Motor Co., 2003 BCSC 1632
Facts:
-product problem of car engine – stalling (dangerous); P said Ford knew about this; class action
suit
Issues:
-can P be the representative of the plaintiff class – yes, case should proceed as class action
Ratios:
-manufacturers who distribute products that fall below acceptable standards & where
negligence is established, should account to ALL of their customers for resulting damage (even if
minimal amount)
-Class action certification requirements (Class Proceedings Act):
1. Pleadings must identify the cause of action
-is it plain and obvious pleadings cannot sustain a cause of action? Doesn’t
consider evidence or merits, assumes facts alleged in pleadings are true
2. Must be an identifiable class of 2 or more
-simple reference to objective criteria
-not everyone in class has to share same interest in resolution of the common
issue, but shouldn’t be unnecessarily broad
3. Claims must raise common issues; whether or not those issues predominate over
issues affecting individual members
-must have common issues of fact or law
-will proceeding as class action avoid duplication of fact finding or legal analysis?
a) is the resolution of the issue necessary to resolution of each class
members claim?
b) is issue a substantial ingredient of each class members claim?;
satisfied if resolution of common issue will move litigation forward,
needn’t be determinative of liability
-e.g. negligence issues: showing product is defective/dangerous, showing duty
and breach, standard of care (even if varied), punitive damages issues b/c it
focuses on conduct of defendants
*not whether answer is common, but whether question is common
4. Class proceedings is the preferable route for fair and efficient resolution of common
issues
-consider extent to which proposed proceeding achieves goals of Class
Proceeding Act: access to justice, judicial efficiency, behaviour modification
-are there available alternatives to class proceedings?
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-consider if it will permit individual issues to proceed more efficiently, will
resolution of common issues encourage settlements, access to justice
5. Representative P i) would fairly and adequately represent the class ii) has produced a
plan for the proceedings on behalf of class and of notifying class of proceedings, iii) and
no conflict with interests of the other members on the common issues, can be
difference in non-common issues
-Class Action Proceedings Act should be construed generously especially at certification stage
(not a test of whether claim will succeed, i.e. not a test of merits and turns on the facts)
-Benefits of Class actions: 1. Judicial economy/ from unnecessary duplication, good for class and
courts 2. Improved access to justice, allows P’s to share cost of litigation, 3. Modifies behaviour
of wrongdoers, social value as deterrent for companies
Defences in Negligence
*BoP is on the defendant
Contributory Negligence
First perform standard negligence analysis. Relevant party must owe a DOC to be contributory negligent.
1. Did P fail to take precaution that a reasonable person in circumstances would have taken (Gagnon)?
2. Did the failure to take the precaution contribute to the damage incurred (Gagnon)?
-D must prove that a reasonable person in P’s position would not have acted as P did in the
situation, accounting for the stress of an emergency (Walls).
-Consequences of the contributory negligence must have been reasonably foreseeable (Mortimer).
Walls v Mussens = contributory negligence
Facts:
-fire broke out; P tried to help put it out by shovelling snow; D claims this made the damage
worse and therefore P should be held contributorily negligent
Ratio:
-to find a P contributorily negligent you need to find negligence
-Agony of the Moment: rebut for P for contributory negligence (reasonable in circumstances) –
broad; In the face of a sudden emergency, test is what an ordinary person in similar
circumstances would do
Gagnon v Beaulieu = contributory negligence test
Facts:
-riding car w/out a seatbelt in car driven by a negligent D, was hit. Is the P contributorily
negligent?
Ratios
2 step analyses for contributory negligence: DUTY OF CARE FOR ONESELF
1. Was the Person negligent?
-Fail to take steps a person knew/ought to have known were reasonably necessary for OWN
safety
-Objective test: doesn’t matter what that person thought of the safety precaution (e.g. wearing
a seatbelt is now recognized as something a reasonable person knows or ought to know is
reasonably necessary for his own safety) = take steps an ordinary prudent man would = like a
DOC to oneself plus breach
2. Was the harm caused by the person’s negligence?
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-Show that the injury would not have occurred, or severity lessened had it not been for the
negligence
-Onus on the D to do this
Negligence Act = -Where negligence caused/contributed to by two or more and apportion liability by
degree of fault (not causation), held jointly and severally liable (P can go after one then they sort it out);
Where P is guilty of contrib neg will apportion damages in proportion to degree of fault found against
the parties respectively; if degrees can’t be predicted, court will be deemed equally at fault; Person may
be added as a party defendant where they appear to be partly responsible for damages
Mortimer v Cameron = reasonable foreseeability of damages in negligence, remoteness of damages
Facts:
-two kids rough housing near stairs,fall, one becomes a paraplegic because wall collapses,
making his injuries much more severe. Sues both other boy and building manager for negligence
Issues: was the accident within the realm of reasonable foreseeability?
Analysis:
-causative impact: the injuries would not exist without the rough housing, BUT the court
introduces a new concept and says you may not be responsible for all injuries caused;
reasonable foreseeability of what injuries would/could result from the rough housing. It was
reasonable to expect the wall would hold, but did have a duty of care for self, overall, building
manager more liable
-find great portion of damages should be born by landlord not city; landlord has a ongoing duty
to inspect
Ratios:
-Negligence and Contributory Negligence (regarding DOC to yourself and to others) actionable
only with respect to harm within “scope of risk” that makes offending conduct actionable, must
be a proximate cause of the injury; even if harm would not have occurred “but for” the
negligence
-The consequences of the contributory negligence must have been reasonably foreseeable
-“primary burden” on manager to check the wall ensuring it’s in safe condition; failure to check
the wall was safe resulted in the “continuance of the hazardous condition”
Cempel v Harrison Hot Springs (Apportionment based on fault in contrib neg)
Facts:
-Teenagers trespass (aware they were not allowed there); P fell into hot springs; severely
burned; D responsible for keeping people out of the water; no lit sign or even a sign saying it
was closed; concrete blocks and wire mesh around it
-P says damages from contrib neg are too remote, should only be responsible for damages a
reasonable person could have contemplated (Mortimer)
Legal Principles:
-Occupiers Liability Act, occupier owes DoC to those on premises, standard to take reasonable
care and se that persons on premises will be reasonably safe in using premises; no DoC in
respect of risks willingly accepted by that person as his own risks
Analysis:
-2 breaches: reasonable steps not taken to prevent entry, what was there was not maintained;
HHS knew more of the danger than the P
-Court of appeal rejects argument on reasonably foreseeable damages contemplated by P
-Damages won’t be too remote simply because P doesn’t foresee them with perfect clarity
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Ratios:
-unusual danger requires a HIGH standard of care
-Framework for apportioning liability - Negligence Act
-Court apportions liability based on relative degrees of FAULT, NOT CAUSALITY= blameworthiness
1. Assessment of degree of risk created by each party; control over the danger
2. Reasonable foreseeability of harm, general scope don’t need to foresee w perfect clarity
*Important Question: To what degree did each party depart from their respective standard of
care in the circumstances
*BUT still will not make a person liable for damage/loss to which their fault didn’t contribute
-Active vs. Passive fault does not impact assessment of degree of relative fault
Aberdeen v Langley
Facts:
-Cyclists go off road, caused by both Negligence of City and Driver that caused him to veer
Ratio:
-If P is found to be contributorily negligent, he will be able to recover from each defendant only
to the extent that particular defendant was at fault. If P is not contributorily negligent, then D’s
are jointly and severably liable, so that P can recover entire amount from one D, leaving that D
to claim their money back from other D
-Negligence Act: apportions liability to the degree each party was at fault, not the degree to
which each party’s fault caused the plaintiff’s loss (= weight of fault/blameworthiness, not
weight of causation)
-court says degree of fault = degree of risk created by each party, apportion on the nature and
extent of departure from the respective SoC of each of the parties
-if can’t establish dif degrees of fault, liability apportioned equally
-BUT still not liable for loss your fault hasn’t contributed
-Factors affecting degrees of fault:
1. Nature of duty owed to injured person
2. Number of acts of fault or negligence committed by person at fault
3. Timing of the various negligent acts (i.e. party who first commits a negligent
act will usually be more at fault than party whose negligence comes as a result
of the initial fault
4. Nature of conduct held to amount to fault, indifference to result of conduct
might be more blameworthy, deliberate departure from safety rules more
blameworthy than imperfect reaction to crisis
5. Extent to which conduct breaches statutory requirements
6. Gravity of risk created
7. Extent of opportunity to prevent accident/damage
8. Whether conduct in question was deliberate, or unusual, or unexpected
9. Knowledge one person had or should have had of conduct of another person
at fault
-City owes DoC for those who travel on roads to ensure that the roadways are reasonably safe
for the purpose of travel
-Drivers owe DoC to other users of the road, includes duty not to stray into path of oncoming
traffic
Voluntary Assumption of Risk
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Complete defence; courts reluctant to apply b/c it precludes recovery notwithstanding D’s negligence
caused P’s injury
Dube v Labar = Voluntary Assumption of Risk Test
Facts:
- The P and the D were drinking, accident occurred, voluntary assumption of risk?
Analysis:
-on a policy level prefer apportion liability, will be VAoR will be rare
Ratio:
-volenti non fit injura = VAoR = “to the one who is willing, no harm is done”; Will only arise when
clear P knew the virtually certain risk of harm, but bargained away right to sue for damages incurred
as result of D’s negligence; must be understanding of both parties that D assumed no responsibility
to take care and plaintiff didn’t expect it
-P (expressly or impliedly) agreed to exempt D from liability for damages without compensation,
even if by D’s negligence; whole risk voluntarily incurred by the P
*Burden on D
Inevitable Accident
Rintoul v X Ray
Facts:
-D driving a car whose brakes failed; credibility issues, expert evidence say system working fine
Ratios:
-practical presumption that an accident was not caused by inevitable accident
-Inevitable Accident: No negligence involved, No breach of SoC
-Accident was something D had no control over; no reasonable care could have prevented;
Could not have been avoided with “the greatest care and skill” (e.g., swerving to avoid)
-Onus on D to show all elements of the defence and prove unusual circumstances to displace
presumption
Waiver
Loychuk v Cougar Mountain
Facts:
-zipline tours; collided, and was due to negligence of employees (miscommunication)
-waived liability for negligence (D not taking reasonable steps to protect P from risks)
-waiver said to read carefully; could get refund if you didn’t want to sign waiver; P understood
the release would prevent her for suing for certain things, but didn’t realize it granted D
immunity for their own failures no matter how severe
Analysis:
-D took steps to bring contents of release to P’s attention and make sure they had time to read
it
-waiver of liability isn’t limited to hazardous activities where participant has some measure of
control over the risks they are assuming
-must consider unconscionability, there’s a legal point where it’s so contrary to interests of
society that waiver is unenforceable
-note: Misrepresentations must be used/relied upon by supplier in connection w the consumer
transaction, Consideration for signing waiver was ability to participate/carry on with the venture
(new consideration)
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- waivers are generally not unconscionable in recreational activities and doesn’t matter whether
operator does or does not have some degree of control over risk:
-no power imbalance in either case, no pressure to participate
-not unreasonable to require release for D to protect themselves so no public policy issue
Ratio:
-Enforceability of Waiver (measured at formation):
1. Is it applicable to the circumstances; look at intention expressed in K
2, Unconcionability (measured at formation)
i) proof of inequality of bargaining power, arising from ignorance need or
distress of the weaker that left them in power of the stronger
ii) proof of substantial unfairness of the bargain obtained by the stronger;
consideration issue
*Important Question: is transaction sufficiently divergent from community
standards of commercial reality
2. Overriding Public Policy
-Note: strong public policy to enforce K’s
-strong line of authority that comprehensive releases in recreational activities
aren’t contrary to public policy or unconcionable; doesn’t matter whether
degree of control is exercised over risks, this is a matter for the legislature to
make the distinction
*rarely exercised, but might be appropriate to override waiver for conduct
approaching serious criminality or egregious fraud; where party seeking to rely
on exclusion clause knew it was putting public in danger by providing
substandard service/product or was reckless in doing so
-Policy: does confidence in the waiver create too much danger
Damages
Basic Principles
1) Must fall into recognized heads of damage, proof of suffering loss and quantum of damages have to
be established by the P
-Pre-trial Losses = must prove existence and quantum on BoP, then get 100% of damages, if not
get nothing
-Post-trial Losses = must establish reasonable or substantial possibility of injury to recover, but
quantum based on likelihood; if P establishes 35% of suffering blindness, entitled to 35% of
damages blindness would cause
2) There is a general duty to act reasonably to mitigate loss on behalf of the P, but D has burden of
proving P failed to do so; P must take all reasonable steps to mitigate, can recover losses incurred by
mitigating, P cannot recover losses that have been avoided even if not required to avoid them
3) D is allowed to set-off any expenditure the P would have incurred if tort wasn’t committed; must be
truly parallel
4) Generally awarded in a lump-sum payment; no means of re-assessment; issues with inflation,
increase in cost of care, change in P’s condition
5) Trier of fact’s responsibility to assess; more of an issue w general damages rather than special
damages that are straight forward and have to be proven on BoP
6) No appellate court entitled to alter damages; not entitled to substitute assessment, unless error of
law or “shock to conscience” (Hill)
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1) Compensatory Damages: Aim is to put P would’ve been in had tort not been committed
Note: Special Damages = pre-trial pecuniary loss like lost income, have to be proven on BoP; General
Damages = pre-trial non-pecuniary loss and all post-trial losses (loss of future income, pain and
suffering)
a. Pecuniary Loss: tangible financial losses flowing from injury
-Future Care (Andrews):
-An estimate of what care will be needed and for how long is made.
-There is a reasonableness aspect; but D’s ability to pay not relevant
-Social costs are considered in choosing between reasonable alternatives, more when
cost differences are stark; However, costs cannot require the choice of an unreasonable
alternative
-Life expectancy after the accident is used; Contingencies of life can adjust awards up or
down, but very speculative
-Include costs of necessities here, might be more expensive in injured state
-Lost Earning Capacity (Andrews):
-Life expectancy before the accident is used.
-Deduct costs attributable to necessities of person in normal health
-Level of earnings and length of working life is considered; Contingencies need some
sort of evidence, society usually cushions individuals against earnings contingencies
b. Non-Pecuniary Loss (Andrews): compensation for pain and suffering
-Functional approach: awarded to make life more enjoyable by compensating for pain and
suffering. Aimed at making life, as much as possible, like it was before the accident.
-The award must be fair and reasonable; not extravagant, consider social costs here
-Non-pecuniary losses are currently capped at $300,000.
2) Punitive Damages (Hill): not to compensate; awarded for punishment, deterrence, denunciation and
to relieve a wrongdoer of profits made from wrong
-where D acted with arrogant, high-handed or blatant disregard for P’s safety/interests
-Takes into account how large compensatory (general and aggravated) damages are.
-If extra measures are desired, punitive damages can be awarded.
-Rational purpose; D’s misconduct so outrageous that punitive damages rationally required to
act as deterrence?
3) Nominal Damages (no injuries, vindicate P’s rights, not in negligence claims)
Apportioning Damages
-It is based on the degree of fault and blameworthiness NOT of the degree of causation (Cempel).
-Who is more responsible on a moral/practical level? Who departed more from SOC?
-The apportionment is based on responsibility. A party with an ongoing duty will have a greater
responsibility so will be held liable for a greater share of damages (Mortimer).
Andrews v Grand and Toy Alberta
Facts:
-young man left quadriplegic after car accident; before Andrews, damages not assessed
separately
Analysis:
-court says change to assessing damages should come through legislation
-policy arguments: how long do you wait? Process of litigation, fees, etc. takes a toll on
individuals; dmgs should be subject to periodic review in light of continuing needs and
changes in condition
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Ratio:
- sets framework for quantifying general damages
1. PECUNIARY LOSS
a. Future Loss / Care
-Compensatory; put the P back in the position had the tortious conduct not
occurred
Award must be reasonable and fair to both parties; perfect compensation is not
possible
Life expectancy can be an important factor here, younger P’s will have higher
future costs
-Contingencies of life - award can be adjusted up or down, negative and positive
-Note: loss of income considers life expectancy pre-accident, care post-accident
b. Lost Earning Capacity
-Challenging to assess with a young person; can be one of the largest heads of
damage
-Level of earnings; length of working life; contingencies
-Cannot duplicate compensation - w/out accident expenses would’ve been paid
for w/ earnings
2. NON-PECUNIARY LOSS (UPPER LIMIT of $300,000 in these cases, save exceptional
circumstances)
-Damages for pain and suffering, loss of amenities, loss of expectation of life
-Monetary evaluation is a “philosophical and policy exercise”
-Award must be fair & reasonable - with reference to previous decisions; shouldn’t be
extravagant; area where social burden of large awards deserves considerable weight;
paramount concern should be adequate future care in pecuniary
-“Functional approach”: money is used to provide solace (physical arrangements that
can make life more endurable); makes up loss for only what is possible, justification for
moderation here, cannot replace these things in a direct way; will consider individual
situation of victim regarding utility of certain amenities, etc; goes beyond losses having
monetary value, providing general arrangements above and beyond those directly
related to injuries
Hill v Church of Scientology
Ratios:
-Deference should be shown to the trier of fact in finding of damages
-JURIES / TJ are uniquely qualified to assess damages; not based on a legal rule, it’s quite
discretionary
-Appellate courts not entitled to substitute assessment, unless error of law or “shock to
conscience”
1) Compensatory Damages
a. General Damages: presumed in defamation cases from publication of false statement
-NO DAMAGE CAP for non-pecuniary loss in Defamation: the bulk of damages lies in
non-pecuniary damages; defamation is an intentional tort, malice presumed, and cap
might be seen as cost of a license to defame; might be difficult to prove/quantify special
damages for pecuniary losses in defamation; less claims and concern about social costs
like insurance rates in defamation
-if reputation is particularly important to a person (lawyer) it can justify higher damages;
consider the breadth of the publication
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-all persons involved in joint tort are jointly and severally liable for general and special
damages; BUT aggravated damages will consider the particular malice of each joint
tortfeasor
-Factors to consider in general damages for defamation: conduct of P, his position and
standing, nature of defamation, mode and extent of publication, whole conduct of D
from time of defamation to the very moment of verdict
b. Aggravated Damages: D’ conduct is particularly high-handed and oppressive, thereby
increasing harm to the plaintiff’s feelings (humiliation and anxiety) resulting from the tortious
act; must be actual malice established by intrinsic evidence in statement and circumstances of
publication or extrinsic evidence from surrounding circumstances showing D was motivated by
intention to injure P
-factors: conduct of D during trial, D’s state of mind and motives, was there an apology;
breadth of publication
2) Punitive Damages: D’s misconduct so malicious, oppressive and high-handed that it offends
courts sense of decency; no relation to compensating P; only awarded where general and
aggravated damages (compensatory damages) are insufficient to punish/deter
-4 purposes: Punishment, Deterrence, Denunciation, Relieve wrongdoer of profits from
wrong
-punitive damages not at large, no proof of damages required, courts given large
jurisdiction
-must serve rational purpose; rationally required to act as deterrence (e.g. large
company needs to be deterred with large fine)
Remoteness of Damages
1. Tort must be a cause of harm / injury, factual causation not enough, legal causation/proximate
causation needed (Mustapha, unlike causation but-for); remoteness is a rule of fairness; causation
based on hard facts and logic, remoteness is practical politics, cuts off logic inquiry at some point like
imposing DoC
2. Damage must be the type or kind a reasonable person could foresee (Assiniboine, Wagon #2)
-Not only that damages were “possible” consequence, requires a degree of PROBABILITY = “real
risk” and “one which would occur to the mind of a reasonable man in position of D” (Mustapha)
3. Precise manner of harm need not be foreseeable, only general sense (Assiniboine, Hughes)
4. The thin-skull rule applies (Smith, Marconato)
5. Psych injury: law expects a “reasonable fortitude”, will not impose liability for frailty (Mustapha);
Thin-skull will apply to psych harm if show a reasonable person will suffer injury even if extent of harm is
greater (Mustapha)
*NOTE ON REASONABLE FORESEEABILITY:
1. for DOC proximity = D and P are placed in relation to each other that it’s reasonably
foreseeable careless conduct of any kind may result in damage of some kind to person/property
of another
2. for breach of SOC = it was reasonably foreseeable that the kind of carelessness might cause
damage of some kind to P
3. for remoteness test = the kind of damage suffered was foreseeable as an outcome of the kind
of carelessness charged against the D (Assiniboine)
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Re Polemis = Directness test; direct connection btw D’s breach and P’s loss (close temporal and spatial
connection btw the two), even if not reasonably foreseeable
WM #1= Reasonable Foreseeability test, D liable for reasonably foreseeable AND probable
consequences of actions
-Narrow application of Reasonable Foreseeability Test
-considers concepts of justice and morality to override “directness” test, since trivial negligence
could lead to liability
Hughes v Lord Advocate = liable for damages that are the kind/nature that a reasonable person could
have foreseen, even if exact event or extent of those injuries isn’t reasonably foreseeable
Smith v Leech Brain = “thin skull”; tortfeasor takes victim as he finds him; question is still whether D
could reasonably foresee carelessness would cause some injury of the type/kind, but extent of damages
suffered as a result of that injury depend on characteristics of the victim and D will be liable for those
-lip burned, developed cancer, pre-disposed b/c of exposure to toxins
Marcanto = “thin skull” for physical injury leading to great psychological injury; wrongdoer takes victim
with all peculiar vulnerabilities, including psychological in case of physical injury
WM #2 = Test for reasonable foreseeability shifts from probable to “Possible” consequences of actions =
broad test that’s more P friendly; fire was a real risk
Assiniboine School = extent/particulars of damage need not be foreseeable, enough to fix liability if one
could foresee in a general way the sort of thing that happened, damage was type/kind reasonable
person might foresee; test is what’s possible, not probable
-broad scope of foreseeability
Mustafa v Culligan = limits thin skull rule for purely psychological injury, reasonable D would have
reasonably foreseen that person of ordinary fortitude would have potentially developed this mental
injury; P considered objectively for mental injury; foreseeability requires degree of PROBABILITY, must
be “real risk” and “one which would occur to mind of reasonable man in position of D” and wouldn’t
brush off as “far fetched”
-law won’t protect against psychological frailties, need to impose a result fair to P and D and
can’t expect strangers to take care to avoid unusual harm
-thin-skull still applies: if person of ordinary fortitude would have potentially developed and
damage inflicted is more serious than expected, liable for those; also liable if you knew of P’s
less than ordinary fortitude
-Established that manufacturer of consumer goods owes DoC to consumer
-Psychological injury (serious, prolonged, above ordinary anxieties/fears, not minor or transient)
= damages, not psychological upset
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