Contents
4. NEGLIGENCE ........................................................................................................................................................................ 4
4.1 Introduction .................................................................................................................................................................. 4
Osborne, pp. 25-27 ......................................................................................................................................................... 4
Kodar January 10th .......................................................................................................................................................... 4
4.2 Duty of Care .................................................................................................................................................................. 5
Kodar January 15, 2013 ................................................................................................................................................... 5
4.2.1 Origins of Duty of Care ........................................................................................................................................... 5
4.2.2 Supreme Court of Canada’s Duty Analysis ............................................................................................................. 7
4.2.3 Duty and Nonfeasance ........................................................................................................................................... 9
Rescuer’s Duty............................................................................................................................................................... 13
4.3 Standard of Care ......................................................................................................................................................... 14
4.3.1 Unreasonable Risk................................................................................................................................................ 14
4.3.2 Cost of Preventative Measures ............................................................................................................................ 15
4.3.3 Utility of the Defendant’s Conduct ...................................................................................................................... 16
4.3.4 Standard of Comparison ...................................................................................................................................... 16
Special Standards .......................................................................................................................................................... 17
Other Indices of Standard ............................................................................................................................................. 20
4.4 Causation .................................................................................................................................................................... 23
Kodar February 26th ...................................................................................................................................................... 23
4.4.1 The “But For” Test ................................................................................................................................................ 23
4.4.2
Alternatives to the “But For” Test ................................................................................................................ 24
4.4.3
Divisible and Indivisible Harm ....................................................................................................................... 25
4.5
Remoteness........................................................................................................................................................... 26
General Rule .................................................................................................................................................................. 26
What needs to be reasonably foreseeable? ................................................................................................................. 26
4.5.1
Limiting Factors: Pre-existing conditions ...................................................................................................... 27
4.5.2
Limiting Factors: Novus Actus Interveniens .................................................................................................. 28
4.5.3
Manufacturers, Distributors, Contractors and Remoteness ......................................................................... 28
4.6
Defences to Negligence Actions............................................................................................................................ 29
Note, CPII 215 ............................................................................................................................................................... 29
5.
Duty to Warn................................................................................................................................................................. 30
Manufacturers .................................................................................................................................................................. 30
1
Osborne, pp. 142-47 [section 2)] .................................................................................................................................. 30
Hollis v Dow Corning, CPII 216-225 ............................................................................................................................... 30
Medical Professionals ....................................................................................................................................................... 31
Osborne, pp. 148-50 [section C1)] ................................................................................................................................ 31
Duty to warn of all material risks: ................................................................................................................................. 31
6.
Liability for Psychiatric Harm (Nervous Shock) ............................................................................................................. 33
6.1 Policy ........................................................................................................................................................................... 33
Kodar March 14th .......................................................................................................................................................... 33
Osborne pg 85-93.......................................................................................................................................................... 33
6.2 Pure Psychiatric Harm ................................................................................................................................................. 33
Relational ...................................................................................................................................................................... 33
Direct ............................................................................................................................................................................. 34
6.3 Consequential Psychiatric Harm ................................................................................................................................. 35
Hussack v. Chilliwack School District No 33, CPII 272-278 ............................................................................................ 35
7.
Liability for Pure Economic Loss.................................................................................................................................... 36
7.1
General .................................................................................................................................................................. 36
Recognized Categories ...................................................................................................................................................... 36
7.2
Negligent Misrepresentation ............................................................................................................................ 36
7.3
Negligent Misrepresentation and Negligent Provision of a Service ................................................................. 37
7.4
Negligent Supply of Shoddy / Dangerous Products .......................................................................................... 38
7.6
New Duties Relating to Economic Loss ................................................................................................................. 39
Design Services v. Canada, CPII 339-347....................................................................................................................... 39
8.
Government Liability in Negligence .............................................................................................................................. 40
When is Government Liable? ............................................................................................................................................ 40
Just v. British Columbia, CPII 353-360 ........................................................................................................................... 40
Kodar March 26, 2013 ................................................................................................................................................... 40
Finding a duty of care........................................................................................................................................................ 40
Kodar March 26th 2013 ................................................................................................................................................. 40
Hill v. Hamilton-Wentworth, CPII 361-371 ................................................................................................................... 40
Fullowka v. Pinkerton’s of Canada, CPII 372-376.......................................................................................................... 41
9.
Children as Litigants ...................................................................................................................................................... 42
Consent to Medical Treatment ......................................................................................................................................... 42
Common-Law Position: Kodar March 28th .................................................................................................................... 42
Infants Act, RSBC 1996, c 223, s 17, CPII 391 ................................................................................................................ 42
2
Refusal of Medical Treatment........................................................................................................................................... 42
Common-law position: Kodar March 28th ..................................................................................................................... 42
Child, Family and Community Service Act, RSBC 1996, c 46, s 29, CPII 392 ................................................................. 42
S.J.B. (Litigation Guardian of) v. B.C. (Director of Child, Family and Community Services), CPII 399-405 ................... 42
Childhood Injuries / Abuse................................................................................................................................................ 43
MK v. MH, CPII 406-421 .................................................................................................................................................... 43
Limitation Act, RSBC 1996, c 266, ss 3(2), (4)(k),(l), 6(3)-(6), & 8(1)(c), CPII 422-423....................................................... 44
Bill 34 – Limitation Act, ss 1, 3(1)(i)-(k), 6(1), 8, 10, 18(a), (b), 21(1), (2)(d), CPII 424-426 ............................................... 44
3
4. NEGLIGENCE
4.1 Introduction
Osborne, pp. 25-27
There are three core elements (#) to negligence and two control devices (AB) that must be established by the plaintiff:
1) Negligent Act
A) Duty of Care Owed
2) Causation
3) Damage
B) Remoteness
Defendant has four defences:
1) Contributory Negligence: this can lead to a reduction in damages. Not complete.
2) Voluntary Assumption of Risk: complete defence, i.e. plaintiff consented
3) Illegality: denies a claim that would subvert the integrity of the justice system, i.e. a claim for $ from illegal
activity.
4) Inevitable Accident: complete defence, not the defendant’s fault but rather inevitable.
Tension btwn theoretical fault-based system that assigns personal liability to wrong-doers vs. practical effect of creating
an insurance system that spreads or distributes losses to a larger part of society (i.e. via vicariously liability/insurance).
Kodar January 10th
 Tort law is concerned with conduct that falls below a collectively understood reasonable standard, NOT the
defendant’s state of mind.
 Purely objective standard when assessing what is reasonable.
 Negligent conduct can be an act or an omission.
 Courts balance the utility of the act with the risk it entails
Five Elements of Negligence:
1) Duty of Care  that is legally recognized
2) Breach of the standard of care  conduct falls below what is reasonable
3) Causation causal connection btwn conduct and loss. Also called “factual cause”.
4) Remoteness  damage cannot be too remote. Also called “proximate cause”.
4
4.2 Duty of Care
Kodar January 15, 2013
 Consists of 2 parts: (1) a relationship with a class of persons (2) that you could cause harm through carelessness
to this class of persons.
4.2.1 Origins of Duty of Care
Palsgraf v. The Long Island Railroad Co., CPII 1-7
American Case: said to be influential in Donoghue v. Stevenson.
KEY
o Ptf is standing on train platform. Man rushes to catch train, railway employee pushes him onto the train,
FACTS
man drops package—package contains fireworks, fireworks explode, scales fall over and injure ptf.
ISSUE
Did the Railway owe Mrs. Palsgraf a duty of care?
HELD
No
RSNS
o A duty of care is only owed to those who are within the range of apprehension of risk.
o It doesn’t need to be the exact accident that is foreseeable, but rather just a reasonable possibility of
accident.
o Some acts are so inherently dangerous that almost all accidents resulting are to people within the scope
of reasonable apprehension and therefore a duty is owed: i.e. shooting a gun.
o In this case Mrs. Palsgraff was too far away for her to be within this range of reasonable apprehension
and therefore they did not owe her a duty.
RATIO
A duty of care is owed to anyone who is foreseeably within the scope of risk of the action.
DISSENT o The dissent held that “duty” was too narrow of a concept.
o We owe a duty to all society to ensure our conduct meets a certain standard.
o If someone is injured due to your carelessness, the injury itself creates the requisite relationship, no
need to prove some type of relationship beforehand.
o Then the right to recover damages can be limited by causation and remoteness instead.
o Proximate cause is sufficiently arbitrary that courts would be able to impose no liability for policy
reasons if they so choose.
Donoghue v. Stevenson, CPII 8-13
KEY FACTS
Woman buy pop, drinks it, discovers dead snail in the bottom of the bottle.
ISSUE
Does the manufacturer of the pop owe her a duty of care?
HELD
yes
RSNS
o The court attempts to draw a general concept of the relationship that gives rise to a duty of care as
previously a duty had only been recognized in many different specific situations.
o In this case because there is no opportunity for inspection before consumption, the manufacturer
would reasonably have it in their contemplation that if they didn’t take care during the
manufacture process they could harm members of the public.
o Proximate relationship therefore does not have to be physical.
o A duty is essentially owed when : there is a sufficiently close relationship and foreseeable harm
could come to people within the class of persons of that relationship if care is not taken.
RATIO (Atkin)
RATIO
(MacMillan)
“Persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions which are
called into question”.
The categories of negligence are not closed. Duty is not linked to status any longer.
5
Home Office v. Dorset Yacht Ltd., CPII 14-16
KEY
o Boys under supervision of state officials sneak out
FACTS
o Steal a yacht, crash it into another yacht and then trash this second yacht.
ISSUE
Do the guards owe a duty of care to the yacht owners?
HELD
Yes
RSNS
o Officers were careless with their duty, went to bed and left boys to their own devices.
o But for this, the boys would never have escaped.
o Boys had records of criminal activity and of escape—reasonably foreseeable that they would do so
and take a boat as they were staying in a harbor with lots of boats.
o Not bad public policy to hold state liable b/c it will not dissuade prisons from attempting low-risk out
of prison work detail.
o Also not fair for innocent to bear the cost.
o Irrelevant that damages caused by third party (not agent of the state) b/c it was the state agents job
to control the actions of the 3rd party. They did their job carelessly.
RATIO
A duty should be presumed when harm was reasonably foreseeable unless there is a policy argument for
not finding a duty of care.
Anns (UK)
Takes the ratio from Dorset and turns it into a two stage test.
TEST:
1) Is there a sufficient proximate relationship between the parties that it would be reasonable for the defendant to
know that careless action would harm the plaintiff?
If yes, then prima facie duty is established. BUT
2) Are there any consideration which ought to negative or limit (a) the scope of the duty (b) the class of persons to
whom it is owed (c) the damages to which a breach of it may give rise?
Kamloops (CAN)
Adopts the Anns Test in Canada for duty of care analysis.
Application of this test led to an expansion of negligence—applied to many situations.
DIDN’T READ was just mentioned in class.
6
4.2.2 Supreme Court of Canada’s Duty Analysis
Osborne, pp. 67-74 [up to section 5)]
 Need “proximity” (close and direct relationship) AND foreseeability of damage to the plaintiff’s class.
Cooper v. Hobart, CPII 17-22
KEY
o Investors allege the registrar of mortgage brokers (Gov) is liable in negligence for failing to warn the public
FACTS
that they were investigating a mortgage broker.
o If they had informed the public as soon as the investigation started, the plaintiff’s argued that their
damages would have been greatly reduced as they would have stopped investing before it was too late.
o Mortgage broker misused Ptf’s funds.
ISSUE
Does the Registrat owe the investors a duty of care in private law?
HELD
No
RSNS
o Regulator is a quasi-judicial body that must act fairly and impartially, do a full and careful review of suspect
individuals, so can’t indicate the public the minute they start investigating, only if they find them guilty.
o Registrar just has a duty to the public as a whole, not to the private investors personally
o To find a duty would create unlimited liability to an unlimited class
o Ultimately it is the tax payers who would pay out—so it would be like creating a public insurance scheme
for private investors—bad policy
ANNS
 First: if the proposed duty falls within a recognized category or is closely analogous to a recognized
TEST:
category, a prima facie duty is owed. Cite the case and move on. If the duty is merely analogous, make
arguments as to WHY. No need to do stage one of the test, but can still consider stage two.
 STAGE ONE:
o Foreseeability: there must be reasonable foreseeability of damage to a person in the plaintiff’s
class.
o Proximity: Consider two elements: the FACTUAL closeness and POLICY
 Nature of the relationship: needs to be close and direct, be able to differentiate this
relationship from the one the defendant has ‘with all the world’. FACTORS: physical,
social, circumstantial, causal, ptf’s reliance on the def, ptf’s reasonable expectations, any
analogies to existing categories, def’s representations to the ptf, etc.
 Micro-policy: consider if it is fair and just for the defendant to owe a duty of care.
Considering policy within this relationship particularly—keep in mind that categories of
negligence should be developed and expanded slowly/incrementally.
o IF the answer to stage one is YES: i.e. there is foreseeability and proximity, then a prima facie duty
of care is owed. Go on to stage two.
 STAGE TWO: Residual policy considerations
o Does policy on a macro-level support a finding of duty of care?
o Consider the needs and interests of the community at large.
o Not looking at the specific relationship.
o Does the law already provide a remedy? If yes the ptf should seek that and not create a new
category.
o Would recognizing a duty create an unlimited liability to an unlimited class?? that is bad policy.
o This stage is only used for NOVEL situations. If there is already a recognized duty of care, you
should not be analyzing this. (although could go into it if it is merely analogous to make the
judgment appeal-proof).
RATIO It is now much more difficult to create a duty of care, as emphasis has been added (or re-emphasized merely)
on proximity, whereas before you just had to prove reasonably foreseeable harm to get a prima facie duty of
care. Although the court insists they are not changing the law, adding the policy considerations into stage one
has a ‘cooling’ effect on the expansion of categories for negligence.
7
Odhavji Estate v. Woodhouse, CPII 23-27
KEY FACTS
o Police shot and killed young man of colour after bank robbery in Toronto.
o Police didn’t cooperate with the body that is mandated to investigate police shootings.
o Family brought several actions.
o We are concerned with an action against the police chief for negligence in failing to supervise his
police officers and ensure that they cooperated.
ISSUE
Does the Police Chief owe a (private law) duty of care to the family of individual’s shot by
HELD YES
police? (note—there already is a public law duty so we are focusing on a private law duty)
ANNS/
STAGE ONE
COOPER
A. Foreseeability:
TEST
- Reasonably foreseeable that the officer’s failure to cooperate would cause harm to family
members of those killed by police.
- Therefore reasonably foreseeable therefore the Police Chief’s failure to ensure the officers
cooperated would cause harm. ****but remember, foreseeability on its own not enough!
B. Proximity:
- There is a relatively clear causal connection, which is strengthened by public expectations.
- The public places reliance on the police chief to be mindful of the harm officer misconduct
can cause.
- Further policy indicates that finding a duty here is CONSISTANT with the duty already created
by statute (which is the opposite of cooper which found that finding a duty was inconsistent
with the statutory mandate)
Therefore, a prima facie duty exists.
STAGE TWO
C. Residual Policy:
- Usually this is the place where defendants try to argue there should be no duty of care.
- In this case, the def’s argued that the statute already provides a complaint mechanism which
then can punish the officers, so a remedy already exists.
- However the Court holds that the complaint system doesn’t award damages and therefore is
not really an alternative remedy.
- The def’s also argued that imposing a duty on the chief would compromise the
independence of the board charged with investigating police shootings.
- Court held that this makes no sense—chief already has a public duty to ensure his officers
co-operate, it compromises nothing.
RATIO
The Anns/Cooper test makes it harder to find new duty of care relationship EXCEPT in the case of POLICE
so far. This is a good example of the application of duty of care analysis.
8
4.2.3 Duty and Nonfeasance
Osborne, pp. 74-82 [section 5a: Affirmative Action Duties]
 There are three categories: (1) Affirmative Action (2) Owed to rescuers (3) avoid causing psychiatric harm.
 Tort law essentially requires people “to not expose people to risk” BUT there is no general duty to help people
who are in dangerous situations that you did not create (or are unrelated to).
 Misfeasance= dangerous conduct
 Nonfeasance= omission to confer benefit, failure to protect someone from danger etc.
 Therefore, if someone has committed a ‘nonfeasance’ the court must find that the defendant had a positive
legal duty to act---or in other words a duty of ‘affirmative action’.
Affirmative Action
 Historically, Courts left this to the realm of morality and religion. No legal duty to act to help people.
 Old cases of ship worker falling overboard and drowning—ship captain had no duty to save him.
 Policy has shifted in the latter half of the 20th century.
 However still no general duty to help, unless of course the def. is the one who created the dangerous situation.
 Duties of affirmative action are the exception to the general rule and require a ‘special relationship’
 By requiring a special relationship it allows for greater judicial control over the expansion of negligence.
 There are 3 categories of affirmative action duties
1. Where the defendant intentionally invites others to an inherent or obvious risk they have created.
o Commercial host/patron
o Where defendant is benefiting monetarily from relationship with ptf.
2. Paternalistic relationship of supervision and control with imbalance of power and vulnerability of ptf.
o Parent/child
o Doctor/patient
o Teacher/pupil
o Custodian/prisoner
3. Defendant offers services to the general public which come with responsibility to act with care.
o Firefighter/police/EMT with a person in danger.
 There are 2 other categories that are more rare
1. Undertake to rescue when no legal duty exists
o Very little direct Canadian authority on this
o Good Samaritan legislation restricts liability of volunteers to situations of gross negligence.
2. Defendant creates a dangerous situation without fault
o Must take steps to abate it, warn others, or alert authorities where necessary.
o i.e. car breaks down on highway, leave it there in the middle of the road could hurt someone.
Jordan House (not assigned reading)
KEY
o ptf was known to def hotel as a poor drinker.
FACTS
o Started drinking early, was drinking all night and was kicked out.
o Ptf was very drunk, wearing dark clothing and it was a dark rainy night.
o Def knew where ptf lived and that he would have to walk on a highway to get home.
o Ptf is hit by car on the walk home.
ISSUE
Does a commercial host owe a duty of care to their patrons?
HELD
Yes
RSNS
o Because of the nature of their relationship: the def ‘invites’ patrons to come drink at their bar. Therefore
special relationship is created and commercial host has affirmative duty to take all reasonable steps to
avoid endangering their patrons.
o Also because they PROFIT from the relationship they should have a duty.
o Many options to hotel to get him home safely: call a cab, give him a room for the night, call his employer
to come back and pick him up etc.
RATIO
A commercial host owes a duty of care to their patrons to take all reasonable steps to ensure an intoxicated
person gets home safely.
9
Crocker v. Sundance Northwest Resorts, CPII 28-38
KEY FACTS: Sundance (def) held a tubing competition at their ski hill. Crocker (ptf) decided to enterhe signed a waiver
but did not read it. On morning of the race, ptf drank lots of his own alcohol. Bought drinks at resort bar while wearing
his competitor ‘bib’. Won his first heat. In between heats, drank more at resort bar. Owner saw him btwn heats and
noticed he was drunk. Another staff member noticed he was drunk. He dropped his tube and fell down on the way up
the hill, but the staff just provided him with a new tube. Ptf fell off tube during second heat and became quadriplegic.
ISSUE: Is the defendant liable? Six sub-issues:
ISSUE
HELD
1. Does the resort owe a duty
Yes
of care to intoxicated
patrons?
RSNS







2. Did the resort meet the
standard of care?
No




3. Did the failure to meet the
standard (if so) cause the
harm?
Yes
4. Did the ptf voluntarily
assume the risk?
No












5. Is the waiver a defence?
6. Was the ptf contributory
negligent?
No
Yes25%


Because this is a nonfeasance situation, there must be a special
relationship.
In this case: dangerous competition was set up by def.
Def invited ptf to participate
Def’s employee’s served him alcohol although they knew he
was competing
Def knew his intoxicated state heightened the chance of injury.
Therefore necessarily close relationship.
Duty of care is owed to drunk people by those who get them
drunk (in a commercial sense)
The duty of care standard owed by commercial host to patron
is to take reasonable steps to prevent foreseeable harm
coming to the patron.
Therefore Sundance had duty to take all reasonable steps to
prevent Crocker from competing.
In this case there were many reasonable steps that could have
been taken
Could have disqualified him for being drunk, not replaced his
tube when he dropped it, not served him alcohol, told him no.
None of these steps would have put a heavy burden on the ptf.
Evidence that the only way to slow/steer the tubes was by
dragging feet.
Drunk person is likely to not be able to do that very well
Therefore drunk person has a greater risk of injury
By allowing drunk person to compete, they caused the injury.
Voluntary Assumption of Risk is a complete defence
Ptf has to voluntarily assume both (1) physical (2) legal risk.
Physical risk=the risk of actual injury
Legal risk= give up your right to sue
In this cause ptf couldn’t voluntarily assume either b/c of his
intoxicated state: he couldn’t consent.
Couldn’t understand the real risks
Didn’t read waiver so did not understand he was waiving his
legal rights and assuming the legal risk.
He didn’t read it and didn’t know what he was signing.
He was voluntarily intoxicated, so this contributed to the
accident.
RATIO: A commercial host owes a duty of care to patrons who are intoxicated. The standard of care is to take all
reasonable steps to avoid foreseeable harm to the patron.
10
Stewart v. Pettie, CPII 39-49
KEY FACTS: Ptf goes to dinner theatre (def) with her husband and her brother and his wife. Her brother drinks ~10-14
ounces over the evening, but is not visibly intoxicated. Wife and sister-in-law remain sober. They leave theatre, brother
drives—doesn’t speed. Hits patch of black ice and loses control of vehicle. Ptf was not wearing seatbelt—hits her head
and is now quadriplegic.
Was the Theatre negligent?  NO
Issue
Does a commercial host owe a duty to a
3rd person? (i.e. not the patron they
served alcohol to)
Held Rsns
Yes




Did the theatre meet the standard of
care?
Yes






Did the theatre cause the harm?
No



The commercial host already owes a duty to the intoxicated
patron
Logical to extend this duty to anyone who would reasonably
be in contact with the patron
Risk to 3rd parties reasonably foreseeable
Duty is therefore owed to class of persons who are on the
highway
Passenger is included in this class of persons
Over-serving itself is not a breach of the standard of care
owed to a 3rd party.
Must be some type of affirmative action owed though—b/c it
is a situation of nonfeasance.
Standard is to take all reasonable steps to prevent the
intoxicated person from driving
In this case, it was reasonable for the theatre to assume that
the intoxicated person wasn’t driving as he was accompanied
by two sober people.
Therefore they didn’t have to do anything b/c it was not
reasonably foreseeable that he would be driving.
Had the theatre intervened, would the result have been
different?
Unlikely b/c the women were aware of how much the
brother had been drinking and still decided that he should
drive.
No evidence that the theatre’s intervention would have
changed this decision.
RATIO: A commercial host owes a duty of care to 3rd parties on the highway (including passengers) to take all
reasonable steps to ensure that their intoxicated patrons do not drive.
Childs v. Desormeaux, CPII 50-60
KEY
o Man gets drunk at a house party which is BYOB
FACTS
o Drives and injuries someone on the highway (remember highway actually refers to ALL roads)
o Def. goes to jail.
o Ptf sues the def, but also the social hosts—looking for even a little bit of liability b/c the def is judgment
proof (uninsured). Joint and Several would make social hosts 100% liable.
o In this case, they separated the issue of liability from the issue of damages—because for damages they call
a lot of expensive experts.
ISSUE
Does a social host have a duty to those on highway who may be injured by drunk guest? HELD
No
11
RSNS
RATIO
RATIO
2
NOTE
 The posited duty in this case is novel: NOT analogous to commercial host b/c social host can monitor their
patrons and the public/patrons rely on this monitoring. Also alcohol is strictly regulated for commercial
hosts. Commercial hosts profit, esp. when patron’s over consume. Commercial host has contractual
relationship with the patron as well.
 Therefore must go through Anns/Cooper
 STAGE ONE: The ONUS is on the PTF to prove there should be a duty
o Forseeability: history of drinking and driving does not make the incident reasonably foreseeable, that
is too weak to support the legal conclusion of reasonable foreseeability. The finding of fact indicates
that the hosts did NOT know he was drunk (distinguished from Jordan House) therefore couldn’t infer
from past behaviour that he might drive drunk.
- HOWEVER there may be SOME situations in which foreseeability on its own will be sufficient
to establish a duty. This is for MISFEASANCE where the action has directly caused forseeable
physical harm—then you can skip proximity. Obviously this case is about NONFEASANCE so
foreseeability is not enough.
o Proximity: Not sufficient proximity between the ptf and the social hosts. Grounds it’s reasoning in the
distinction between misfeasance and nonfeasance. This is a nonfeasance case, b/c the defendants
‘failed’ to act. Needs to be something more in the relationship—needs to have the characteristics of
relationships that require affirmative action duties.
- 3 kinds of relationships create sufficiently proximate relationship for affirmative duties
which have already established that policy supports.
(1) Intentionally attract people to an inherently dangerous situation that the def creates
or controls.
- Hosting party is not inherently risky and shouldn’t attract an affirmative duty.
(2) Paternalistic .
- If the hosts were in a paternalistic relationship with their guest, then this liability could
be extended to 3rd parties but this is NOT the case. (because if there is a duty to the guest,
then it could be extended to 3rd parties on the road Stewart)
(3) Exercise of a public function. Clearly not the case here.
(4) CATCH ALL: Paragraph 38…. Running through all three categories is the defendant’s
material implication in the creation of the risk or his or her control of the situation. If you
can’t fit it into one of the three categories can you can try to argue it fits into here.
o Also, when you go to a party you are responsible for your actions. A social host is entitled to respect
the autonomy of the guests.
o No evidence that anyone was relying on the social hosts to prevent drunk driving.
o NO duty on the social host to monitor the guests drinking or to prevent them from driving without
more, such as serving the booze or turning a blind eye.
 STAGE TWO: ONUS is on the DEF to prove policy reasons negating the duty
o Insurance companies argue that house insurance will have to go way up if social hosts are found to
have a duty of care.
o Court holds that creating a duty would create an unlimited duty for the social host and for insurance
companies which would be unacceptable.
o Society is not ready for a social host duty.
A social host does not owe a duty of care to the class of persons who may be on the highways and may be
injured by intoxicated guests, UNLESS the social host has done something with implicates them in the
creation or exacerbation of the risk.
The Anns/Cooper test is slightly modified. For misfeasance with physical harm, there is no need to do the
proximity analysis as reasonable foreseeability is enough to satisfy stage one. However if it is nonfeasance
(with or without physical harm) then you MUST do the proximity analysis as well as the foreseeability. In the
proximity analysis consider the three categories of affirmative action duty relationships.
o This case seems to say that it is very based in the facts—the court is leaving the door open for future
litigation where the social hosts have acted in a way that made the situation worse
12
o
o
i.e. If a social host continues to serve alcohol to someone visibly intoxicated, knowing they are driving this
might satisfy the first stage of the test
HOWEVER they say that it still might fail on the second stage residual policy considerations.
Rescuer’s Duty
Osborne, pp. 82-84[section 5b)]
 Rescuers are protected from virtually all losses arising from rescue attempt
 Rescuer can recover damages from the person who created the dangerous situation… including if it is the person
who needed to be rescued that created the situation through their own negligence.
 However the duty to rescuers is independent of the imperiled person, so the defendant (who created the
dangerous situation through their negligence) does NOT need to owe a duty of care the person who was imperiled.
 Futility of the rescue is NOT a defencethe court is considered with the rescuer’s reasonable perception that they
could help, NOT with a hindsight likelihood of success.
Horsley (Next friend of) v. MacLaren, CPII 61-71
KEY
o Matthews falls overboard into water on Lake Ontario
FACTS o MacLaren (owner and captain of the boat) tries to maneuver the boat closer to Matthews by going
backwards. However the correct procedure is to turn the boat around and approach from the bow.
o The backing-up doesn’t work, they can’t really get close.
o They throw life jackets at Matthews, he doesn’t grab them.
o Horsley then dives into the water to try and save Matthews.
o Both Horsley and Matthews drown, likely had heart attack from how cold the water was.
ISSUE
Is MacLaren (the 1st rescuer) liable to Horsley (the 2nd rescuer)?
HELD
No, not on these facts.
RSNS
o Disagreement in the Court on whether MacLaren was actually negligent or not.
o A rescuer can only collect damages from a person who CREATES a dangerous situation through negligence,
if the imperiled person just requires rescuing because of an accident and no one is at fault, the rescuer
can’t collect.
o Therefore, for a rescuer to be liable to a second rescuer, they must have acted negligently and caused the
2nd rescuer to intervene.
RATIO A captain of a boat owes a duty of care to try to rescue anyone who falls overboard (exception to general
rule of no duties of nonfeasance). (Commercial or Recreational and even if they fall in b/c of their own
negligencebut captain must act in regards to their own safety and the safety of any others on the boat also
A duty of care could be owed by a rescuer to a 2nd rescuer, if the 1st rescuer’s negligent attempts to rescue
caused the 2nd rescuer to intervene.
A defendant may be liable to a rescuer who is injured where the defendant’s negligence caused the rescuer to
intervene.
Good Samaritan Act, RSBC 1996, c 172, CPII 72
 Because the common-law does not recognize a general duty to assist, BC created this statute to encourage
people to offer assistance to one another.
 Basically: If your assistance worsens the situation or even causes the person to die, the statute will protect you
EXCEPT in cases of gross negligence.
 This statute does not apply to anyone who is working i.e. an EMT or Doctor at a hospital who is working.
 The standard of gross negligence is personalthere will be a lower standard for an off-duty medical
professional than for a lay person.
13
4.3 Standard of Care
4.3.1 Unreasonable Risk
Osborne, pp. 27-33 [up to section 1c)]
 The standard of care is the reasonably prudent person
 It is an objective community standard (always contextual)
 “reasonably careful person in the defendant’s circumstances”
 The plaintiff must prove the defendant departed from the standard (called ‘proving fault’)
 Excludes any personal characteristics of the defendant which may have caused them to act in a certain way.
 However sometimes the ‘circumstances’ of the defendant refers to a characteristic of the defendant, like if they
are a doctor they will be held to a different standard than someone in that situation who isn’t.
 The defendant must have created an “unreasonable risk”. Consider:
1. The likelihood of Damage: probability of harm, if the chances are low, the risk is not unreasonable.
2. The seriousness of the threatened harm: more care required if the possible damages are very serious,
even if the likelihood of the risk materializing is very low.
3. Costs of Remedial Measures: would it be easy to eliminate the risk?
4. Purpose or Utility of the Activity: low utility affords less risk.
Bolton and Others v. Stone, CPII 73-78
KEY
o During cricket match, the batsman hits the ball over the fence which goes onto a nearby roadway and hits
FACTS
the plaintiff, causing them injury.
o The cricket pitch had been there for 90yrs. Only 6 times in the last 30yrs had the ball been hit over—and
this was not as far as the plaintiff was standing but towards a much closer by house.
o Defendants are the owners of the cricket club.
o Ptf argues that the fact the ball went over one time, provided warning to the def’s of the danger and they
should have done something about it.
ISSUE
Did the defendant’s meet the standard of care?
HELD
Yes
RSNS
 It was not reasonably foreseeable that this injury would happen.
 Foreseeability on its own is not enough to determine if the standard has been met.
 Don’t have to try and protect against every possible risk to avoid negligence.
 Only have to guard against reasonable possibilities
 Thus the DEGREE or LIKELIHOOD of risk must be sufficient:
o TEST: is the likelihood of risk so small that a reasonable person wouldn’t take steps to prevent the
danger?
o OR was it such a nature and degree that a reasonable person would have taken steps to minimize
the risk?
 In this case, the degree of risk so small that the defendant’s met the standard of care—no need to move
the pitch or cease to have a cricket club just to avoid the chance of this happening.
RATIO
The degree of risk, or chances of the risk materializing is important when determining if the standard has
been met. The lower the degree of risk, the more difficult it will be for the plaintiff to prove that the
standard was not met.
14
Paris v. Stepney Borough Council, CPII 79-82
KEY
o Plaintiff had only one eye and worked as a fitter in the garage of the defendant borough council.
FACTS
o Plaintiff was using hammer to remove bolt (as was his job) and a piece of metal flied out, injures his good
eye and so now he is totally blind.
ISSUE
Did the employer’s breach the standard of care by not providing goggles to the plaintiff?
HELD
Yes
RSNS
o A reasonable person would take in the gravity of the risk should it materialize (i.e. the effect of the risk,
not the degree)
o If quite serious, more is expected to avoid the risk, even if it isn’t very likely to occur.
o Industry standards can be a useful guide (in this case no one in the industry used goggles) BUT the fact
that it isn’t a common practice does NOT rule out liability.
o Have to consider ability/frailty of the plaintiff.
o Goggles are necessary for a one eyed man because if he is injured he becomes totally blind—so more
serious.
o The standard of care owed to a disabled employee may be higher than the care that is owed to another
employee due to the increased seriousness of the risk.
o Must do an analysis of the degree of risk combined with the seriousness of the risk, collectively referred
to as the “Magnitude of Risk”.
RATIO
A risk which is more serious should it materialize imports a higher standard of care than a risk that would
only cause minor damages.
4.3.2 Cost of Preventative Measures
Osborne, pp. 33-34 [section 1d)]
 The magnitude of risk (the probability and seriousness) must be balanced with the costs needed to reduce or
neutralize the risk.
 It is not good policy to demand extravagant safety measures.
Note on Learned Hand Formula, CPII 83
 Risk is considered unreasonable where the seriousness of the risk multiplied by the likelihood of injury is greater
than the cost of avoiding the risk from materializing.
 Pure economic theory—from the USA.
Rentway Canada Ltd./Lte v. Laidlaw Transport Ltd, CPII 84-88
KEY
o Accident between laidlaw truck and rentway trailer
FACTS
o Both drivers killed.
o Suggestion that manufacturing defect caused both headlights to go out when the tire tread separated.
This is because both headlights were on the same circuit.
ISSUE
What is the standard of care for ‘defective products’?
HELD
Risk cannot outweigh utility/cost
RSNS
o Risk in this case far outweighs utility (very dangerous to have 2 headlights out on the highway)
o Considering the cost of the tractors--$50,000—fixing the defect is a very small cost.
o Defectiveness is determined in relation to safe alternatives.
RATIO
The more feasible the safer alternative, the more likely a product is defective. If the risk of harm outweighs
the utility, then the manufacturer has exposed the consumer to an unreasonable risk.
15
4.3.3 Utility of the Defendant’s Conduct
Osborne, pp. 34-36 [sections 1e & f)]
 Directly relevant to Government services which may have a very high utility for society, thus it is harder to say
the standard of care was not met.
 However Gov. does not have a free pass.
 General influence on all negligence cases in ‘social utility’
 It is important to facilitate the legitimate activities, needs and aspirations of citizens.
 Many foreseeable risks must be tolerated for society to function.
 Emergency Situations often allow for more leniency in the standard of care—when the defendant has not
created the risk.
 Just need to show that the defendant did their best in emergency circumstances ex. Horsley
 Allows someone to do something that wouldn’t be acceptable in a non-emergency situation.
4.3.4 Standard of Comparison
Vaughan v. Menlove, CPII 89-90
KEY
o Ptf owned two cottages, defendant owned land nearby
FACTS
o Def built haystack near land boundary
o Hay was in a condition that it was a fire hazard
o Def was repeatedly warned about the danger but said “he would chance it”
o Hay caught on fire, burnt ptf’s cottages to the ground.
ISSUE
Should the defendant’s low intelligence factor into the ‘standard’ analysis?
HELD
RSNS
o That would be a very uncertain standard—different for everyone.
o Reasonable person test is ptf friendly
o Promotes social safety
o Also include reasonable ptf in the foreseeability analysis
RATIO
Care taken by the prudent person is the common standard for all people, regardless of personal
intelligence or other personal characteristics.
16
No
Special Standards
Children
Osborne, pp. 45-46
 Children have a diminished capacity to foresee danger and act accordingly
 Thus a special standard used
 Objective/subjective test
 No fixed age for where no liability can be found but generally under the age of 5.
 Parents are not vicariously liable for their children’s torts
 However statutes have reversed this in some situations – i.e. property damage in BC.
Heisler et al. v. Moke et al., CPII 91-93
KEY FACTS o 9 year old with an injured leg is warned not to jump on it.
o However he re-injures his leg when he presses down on the clutch of a tractor.
ISSUE
What is the standard of care for children?
HELD
subjective/objective test
TEST
Step one: is it possible for the child to be liable? i.e. not too young.
Step two: what would a reasonable child of similar age, experience and intelligence have done?
Pope v. RGC Management Inc, CPII 94-97
KEY
o Ptf hit in mouth with wayward golf-ball, which was hit by a 12 year old defendant.
FACTS
ISSUE
Are there any exceptions to the child standard of care test?
HELD
Yes
RSNS
o When people see someone doing an adult activity, like driving a motorized vehicle, they do not expect the
person in control to be a child and therefore do not adjust their actions towards this lower standard of
care.
RATIO
When children are participating in an adult activity, they are held to the standard of care of an adult. Called
the “adult activities doctrine”
Nespolon v. Alford et al, CPII 98-105
KEY
o Kid killed by car when he is drunk.
FACTS o He was dropped off by friends in front of a house where he asked to be dropped off
ISSUE
Should his friends, those who dropped him off, be liable? Is “dropping someone off” an
HELD
No
adult activity?
RSNS
o Adult activities doctrine only applies to the specific action that caused the harm—NOT the general overall
action (driving in this case)
o The two friends had never been drunk themselves so wouldn’t be expected to know dropping him off
would lead to danger.
RATIO
The adult activities doctrine must be applied to the specific activity that allegedly gives rise to liability NOT
the overall activity. Ex. Dropping someone off is not an adult activity, while the overall activity of driving is.
17
Mental Illness
Osborne, pp. 42-44 [beginning at section 2)]
 Liability in Tort law requires the defendant to have acted with volition and with capacity to
understand/appreciate the duty and the consequences (not the same as criminal capacity though—don’t need
to show subjective knowledge of wrongful behaiviour)
 Thus Mental Disability can render the def’s not liable based on lack of volition or capacity.
 Both temporary and permanent disabilities can negate
 However people who have a disability that they know about are expected to avoid situations in which their
disability will create a danger to others. i.e. you have a stroke and then drive yourself to the hospital would
likely be liable.
 Ex. Slattery v. Haley: def. suffered heart attack while driving, lost control of vehicle and killed pedestrian. Not
liable b/c did not act with volition.
 Ex. Buckley v. Smith: mental illness prevented def from understanding duty of care and meeting the standard.
Not liable.
 Don’t want to distort the nature of the tort law system by pursuing the compensatory goals too vigourously—
remember that it is about corrective justice, about fault, thus mental incapacity ok to negate liability b/c no
fault.
Fiala v. Cechmanek, CPII 106-115
KEY
o Defendant suffers his first manic episode (later diagnosed as bipolar)
FACTS
o Goes crazy and chokes a driver, who then involuntarily steps on gas pedal and injures ptfs.
o Driver held not liable b/c no volition.
o No signs that def. was crazy before this episode.
o Expert evidence suggests he was not in control of his actions during manic episode.
ISSUE
Can a person with a mental illness be
HELD
The mentally ill cannot be held liable in certain
held liable?
circumstances.
RSNS
o Compensation is the consequence of tort liability not the goal.
o Placing blame where there is fault is the goal—public policy for deterrence and making society safer.
o Therefore cannot find liability where there is no fault.
TEST
The defendant must prove on a balance of probabilities that either:
A) As a result of mental illness they had no capacity to understand or appreciate the duty of care owed at
the relevant time.
OR
B) As a result of mental illness, they were unable to meet the standard of care because they had no
meaningful control over their actions at the time they fell below the objective standard
RATIO The onus rest on the defendant to prove that their mental illness has rendered them incapable of attracting
liability based on one of the above conditions. Otherwise a defendant will be held to the objective standard
of care. Thus the reasonable person standard has not been eroded, rather emphasis is maintained on the fault
requirement of negligence law.
18
Superior Skill & Knowledge
Osborne, pp. 47-49
o Reasonable person includes reasonable knowledge, skill and life experience.
o However a higher standard is applied to those with special skills or knowledge because public reasonably
expects them to utilize it.
o So “a reasonable person of the particular profession or vocation”.
o Doesn’t account for personal inexperience of the professional (i.e. a brand new doctor is treated the same as a
very experienced doctor)
o Applied uniformly across the country i.e. there is one reasonable doctor for all Canada.
o Reliance is placed on expert testimony for the ‘reasonable professional’.
o Used most in medical malpractice.
Ter Neuzen v. Korn, CPII 125-131
KEY
o Dr. inseminates Ptf with HIV infected sperm. Ptf contracts HIV.
FACTS
o But this was in Jan of 1985—first documented case of HIV from AI is in July 1985
o No test in Jan 1985 for HIV in semen.
o Dr’s practice was custom across Canada at time.
o Aware of possibility of infection via AI in Australia at time, but this info was not widely available in
Canada.
ISSUE
What is the standard of comparison for a Doctor?
HELD
A reasonable Doctor
RSNS
o Doctor must act as a reasonably prudent physician would act in their circumstances.
o Conduct in a procedure that may have been evolving at the time, is judged based on what the Doctor
knew or ought to have known at the time of the alleged negligence. NOT based upon what we know now
about the procedure.
o Court can hold that the Dr. should have adopted an evolving procedure if they find that the evolving
procedure is the reasonable one.
RATIO
A doctor must act as a reasonably prudent physician would act in their circumstances.
19
Other Indices of Standard
Custom & Professional Standards
Osborne, pp. 36-38 [section 1g)]
o Evidence that the defendant met or deviated from a custom practice can show that the standard was or was not
met.
o Often a custom practice is seen as acceptable and affordable.
o However using a custom doesn’t automatically mean the standard was met or not met.
o Depends upon the longevity of the custom, the universality, the status/reputation of the profession, degree of
technical difficulty, evidence of available additional precautions etc.
o Custom practice very influential in medical cases—esp. where very difficult/technical procedure.
o However if custom practice has obvious risks/defects, then will be held unreasonable risk.
Waldick v. Malcolm, CPII 116-119
KEY
o Def’s don’t sand or salt their icy driveway.
FACTS o Ptf slips and is injured.
o Def’s claim that it is a local custom not to sand or salt, but don’t provide any evidence of this besides their
word.
ISSUE
What is required to
HELD The party intending to rely on the custom practice – the def saying they
rely on a custom
followed it to prove they met the standard of care or the ptf claiming they
practice in a standard
deviated to prove they breached the standard—MUST provide evidence to
of care analysis?
support the claim that it is indeed a custom practice. Only in exceptional
circumstances will the court take judicial notice.
Is following a custom
HELD No
practice a complete
defence to standard
of care?
RSNS
o Just because it is customary, does not mean that it is necessarily reasonable.
o It is for the Court to decide what is reasonable and what isn’t.
RATIO Existence of customary practices which are unreasonable in themselves do not provide a defence that the
standard was met. The standard of care is what is reasonable in all the circumstances.
Brown v. Rolls Royce, CPII 120-121
KEY
o Company doesn’t supply barrier cream to Ptf.
FACTS
o Supplying barrier cream is an industry custom practice.
o However company consulted Drs and Drs said they don’t think barrier cream does anything.
o Ptf contracts dermatitis.
ISSUE
Is departing from a custom practice evidence of failing to meet the
HELD
Yes, but it is rebuttable.
standard?
RSNS
o Custom practice is just one indication
o Need to determine if the def’s actions were reasonable in all the circumstances.
o Don’t have to meet custom to meet standard—they are not co-extensive.
o Consulting Dr’s meant def’s met their due diligence. Cream not necessarily effective.
RATIO
Evidence of a departure from a custom practice as a breach of standard can be rebutted with evidence that
the practice is not effective or unnecessary.
NOTE
Also in this case, there was not a causal link between the skin condition and the failure to provide cream
20
Warren v. Camrose (City), CPII 122-124
KEY
o Ptf dived into pool which he had dived into before.
FACTS
o Hit lane barrier and was injured.
o All experts on both sides agree that it is not custom practice to put up warning signs about shallow
diving etc.
ISSUE
What is the weight of expert evidence in regards to a custom practice?
RSNS
o Expert evidence on what is safe does not absolutely bind the courts
o Old customs are irrelevant, it is what the custom at the time of the injury was that is relevant.
o The court can over-ride expert evidence ONLY IF it offends logic or common sense.
o Can’t just substitute your own view for expert opinion without reason.
RATIO
Expert evidence as to why a custom practice is reasonable is not absolutely binding on the Court, but
provides very strong evidence.
Ter Neuzen v. Korn, CPII 125-131
KEY
o Dr. inseminates Ptf with HIV infected sperm. Ptf contracts HIV.
FACTS
o But this was in Jan of 1985—first documented case of HIV from AI is in July 1985
o No test in Jan 1985 for HIV in semen.
o Dr’s practice was custom across Canada at time.
o Aware of possibility of infection via AI in Australia at time, but this info was not widely available in
Canada.
ISSUE
Can a Doctor be negligent despite following a standard
HELD
Generally no, but there is an
practice/custom/procedure?
exception.
RSNS
o Courts should not be involved in controversial questions of assessment of diagnosis or treatment
preference.
o Not up to the Courts to rule on questions of science.
o But matters outside the technical/scientific realm can be judged negligent by common-sense.
o Ex. obvious existing alternatives that could reduce risk—negligence could be found despite it being
custom practice.
RATIO
If a procedure involves difficult or uncertain questions of medical treatment or complex matters beyond
ordinary understanding then compliance with customary practice means the standard has been met.
BUT
If customary practice fails to adopt precautions that are obvious to a lay person, then compliance with
custom is NOT a bar to liability.
21
Statutory Standards
Canada v. Saskatchewan Wheat Pool, CPII 132-136
KEY FACTS:
o Grain discovered to be infested after loaded and taken on to ship.
o All proper tests were done, no one acted negligently, no one could have known grain was infested.
o Providing infested grain is contrary to s.86(c) of the Canada Grain Act.
o There is a strict liability penalty, but no mention of giving a private right of action for breach of this provision.
o Canada wheat pool brings an action for breach of a statutory duty. (NOT negligence)
Issue
Held
What are the civil consequences of a breach of statute?
The consequences are subsumed in negligence law.
Is there a tort of statutory breach?
No.
How can proof of a statutory breach be used?
Can be used as evidence of breach of standard.
Is a statutory breach conclusive of breach of standard?
No.
RSNS:
o Legislation is increasingly concerned with civil responsibility
o However shouldn’t be automatic because negligence is about placing fault.
o Therefore, need to determine if person is at fault before they are liable in negligence.
o Possible to breach statutes without being at fault.
o Legislature already imposes a strict liability penalty so private law shouldn’t just add to this.
o Statutory duty may simply provide useful evidence of standard of care.
o A few statutes provide for a civil action on their own—but this is rare.
RATIO: Breach of a statutory duty should be considered as an indicator of reasonableness in the context of a standard
of care analysis of negligence and NOT as an absolute civil liability.
Gorris v. Scott, CPII 137-138
KEY
o Ship with sheep on it, there are statutory rules about how the animals have to be transported… but this
FACTS
is all about disease.
o There is a storm and the sheep are swept overboard.
o Turns out the statutory requirements had not been met.
o However the legislation has nothing to do with storm safety… just about disease.
RATIO
Damage resulting from a breach of a statutory duty that is NOT what the statutory duty is designed to
protect against is cannot be used as evidence for an action in negligence.
Ryan v. Victoria (City), CPII 139-145
KEY
o Motorcyclist gets tire stuck in railway track and is injured.
FACTS
o Track is consistent with statutory regulations.
ISSUE
Does compliance with a statutory duty equate meeting the standard of care?
HELD
No
RSNS
o Legislative and common law standards are not co-extensive.
o Just relevant to assessing the reasonableness of the conduct.
o Exceptional circumstances may render the legislative duty inefficient.
o In situations where there are regulatory requirements, everyone must meet both the common law and
statutory standards of care (concurrent)
o Concurrent in terms of time, not in terms of how stringent they are
o Defendant must take all reasonable steps to minimize forseeable harm, even if this goes beyond statutory
requirements.
RATIO The weight of compliance with a statutory duty in a standard of care analysis depends on the facts. The
statute will be unlikely to exhaust the standard of care if it is very general or allows for discretion. However,
can be very relevant in “ordinary” or unexceptional cases, or where the regulation is very specific to the
incident. If the common law standard is met, but the statutory standard is not met you cannot sue in
negligence—but possibly under the statute.
22
4.4 Causation
Kodar February 26th
o A causation analysis is only concerned with factual causation and NOT the legal causation—that is remoteness.
o Factual causation is literally is there any connection between the def’s actions and the harm.
o Predominant approach is the ‘but for’ test, but there is no one single test.
o Courts are very flexible in causation, trying to adjust to what their sense of justice is—therefore causation is
often criticized as not being a factual and objective test but rather more subjective and policy driven.
o Ptf must prove on a balance of probabilities that the defendant was a probable cause – ‘possible’ is not enough.
o “in order to have caused the damage on the but for test the defendant must have been a substantial cause”
4.4.1 The “But For” Test
o Injury would not have occurred ‘but for’ the defendant’s actions = factual causation.
o Requires speculation, what would have happened had the defendant met the standard of care?
Athey v. Leonati, CPII 146-147
KEY
o Appellant suffered back injuries in 2 successive car accidents, which hurt his back.
FACTS
o Both the other 2 drivers were at fault in each accident.
o Later, while doing some mild stretching, he suffered a disc herniation
o However, he also had a pre-existing back condition before the car accidents
o Note in this case both drivers were represented by the same insurance company, so no arguments were
made about apportionment etc. Agreed to treat them like one defendant.
ISSUE
Did the car accidents cause the injury? i.e. How to prove causation.
HELD
Yes. The ‘but for’ test
RSNS
o Not a scientific or rigid test, but rather it is a test of common sense.
o Defendant does not have to be the sole cause
o Just has to have materially contributed, in the sense that it is beyond de minimis (Kodar likes to call this
‘substantial contributing cause) –don’t confuse this with the ‘material contribution test’ which is
examined in later cases.
o Presence of non-tortious causes do NOT reduce a defendant’s liability where the defendant is deemed
to have negligently substantially contributed to the harm.
o No reduction in liability because of existing preconditions.
RATIO
The ‘but for’ test is articulated as: ‘the harm would not have occurred but for the defendant’s act or omission’
Snell v. Farrell, CPII 148-156
KEY
o Lady blind in one eye—could have been caused by surgery or by chronic glaucoma or by diabetes/high
FACTS
blood pressure/stroke but there is no certain medical opinion of the cause.
o Lower courts applied the ‘material increase of risk test’ which basically says if you materially increase the
risk and it happens, you are liable and the burden shifts to the def. to prove that they didn’t cause.
o SCC rejects this and upholds the but for test.
ISSUE
Should causation test be changed—shift burden of proof— for malpractice suits
HELD
No. Stays on the
b/c the Dr. is in a much better position to know whether they caused the harm?
plaintiff.
RSNS
o There aren’t very many patients who don’t receive compensation they should b/c of causation issues.
o Don’t want to recreate malpractice crisis like in the USA in the 70s
o Could negatively affect the practice of medicine
o Causation test just needs to be applied less rigidly, don’t need scientific proof.
o Experts don’t need a firm opinion… 51% is good enough.
o Defendants are able to bring contrary evidence as well if they like.
RATIO The burden of proof is on the ptf for the test. However, the standard is relaxed slightly so that the ptf only
need bring as much evidence as necessary to reasonably allow the court to infer causation. The def is then free
to bring contrary evidence…the more persuasive the def, the more difficult it will be for the ptf to satisfy the
court that the causation inference is reasonable. This is NOT a shift in the burden, remains on the ptf.
23
4.4.2
Alternatives to the “But For” Test
Cook v. Lewis, CPII 147-150
KEY
o Two men shot at same time in general direction of the ptf.
FACTS
o Ptf injured by being hit in the face with one bullet
o Impossible to prove which of the two men’s bullet it was (at the time… no ballistics)
ISSUE
Should there be an alternative or relaxing of the ‘but for’ test in situations of dual action like HELD
Yes
this where causation is impossible?
RSNS
Cartwright J (Majority)
o General rule is that if cannot be shown which of 2 ppl is guilty, both must be innocent—even if it is
certain that one of them is guilty.
o However in tort this is unfair if it is completely certain one of two people caused the harm.
o Can’t prove on strict ‘but for’ test because it is equally possible for either to be guilty.
o Def’s can then escape liability by pointing the finger at each other.
RATIO
The ptf must prove that definitely one of two people (or group) caused the harm but doesn’t have to be
certain which. If it is uncertain which of the two caused the harm, then BOTH are held liable unless one can
prove that they didn’t do it.
NOTE
Borrows the idea of reverse onus from trespass law… i.e. ptf proves trespass happens and then reverse onus
def. proves consent. Defendant is in a better position or has the facts to prove that they didn’t do it. However
the majority does not expressly refer to this as a reverse onus… just seems like one.
RSNS
RSNS:
Rand J
o Barrier when Ptf cannot prove which of two defendants caused the injury when both were negligent.
o In this situation, not only has the def acted negligently but by acting in concert they have made it
impossible for ptf to get damages… violated ptf’s right to security AND remedial right to compensation.
RATIO
RATIO: In situations of dual action where the ptf has proven that one of two certainly cause the harm, there is
a reverse onus on the defendant’s to prove that they did not cause the harm. Otherwise both are liable.
Clements v. Clements, CPII 151-161
KEY
o Couple riding motorcycle on highway
FACTS
o Motorcycle is overloaded
o Driver was speeding
o Driver didn’t know there was a nail in one tire.
o When attempting to pass a semi, the nail came out and the tire deflated so the driver lost control of the
vehicle
o Passenger thrown from bike and suffered brain injury
o Sues for negligence
ISSUE
When is it appropriate to use the “material contribution HELD
In limited circumstances—most often ‘but
of risk” test rather than the “but for test”
for’ test will be used.
RSNS
o Usually in cases where the court says “material contribution” they are actually using the but for test (ex.
Athey)
o So the material contribution of risk test has actually NEVER been applied.
o Material contribution of risk test = defendant has breach their duty of care in a way that exposed the ptf
to an unreasonable risk of injury and the risk then materialized. Therefore, it departs from the normal
standards of fault and should be used sparingly.
o Often where there are multiple tortfeasors, the ‘but for’ test can be applied to each and then they are
just held joint and severally liable… so there is no problem.
o ‘but for’ test can easily accommodate multiple tortfeasors b/c there is NO requirement that the
tortfeasor be the SOLE cause… just have to have materially contributed to the HARM.
o However there does need to be a way for ptf’s to recover for POLICY reasons when they can’t meet the
‘but for’ test.
o This is NOT to be confused with the ptf simply being unable to meet the ‘but for’ causation test and
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therefore turns to this alternative test.
o ONLY to be used where it is IMPOSSIBLE for the plaintiff to satisfy the ‘but for’ test.
o It is impossible to use the ‘but for’ test when there are multiple tortfeasors who are all at fault and one
or more has caused the injury but it is impossible to say which b/c each points the finger at the other.
o It excludes situations where the ptf may have been injured by something else unconnected to the
tortfeasors (i.e. like the tire in the nail here)
o Therefore, you can say globally that ‘but for’ the tortfeasors as a group the ptf would not have been
injured. So it is fair to hold the whole group liable, they are all at fault, and you aren’t really departing
that far from the ‘but for’ test.
The ptf must show that ‘but for’ the def’s negligent actions injury would not have occurred.
The ‘but for’ test is robust and pragmatic—no scientific proof required.
EXCEPTION:
The ptf can succeed by showing that the def’s conduct materially contributed to the risk of injury which
materialized IF:
a) The ptf establishes that but for the actions of two or more tortfeasors injury would not have occurred
AND
b) The ptf cannot show which of the group factually caused the harm because the defendant’s each point
the finger at the other making it impossible to determine which caused the harm. (basically it can’t be
the plaintiff’s fault that they can’t prove which one did it)
RATIO
4.4.3
Divisible and Indivisible Harm
Bradley v. Groves, CPII 170-180
KEY FACTS:
o Ptf was injured in 2 separate accidents.
o Following the first, she had soft-tissue damage and missed one week of work
o She then commenced an action
o Was 80% recovered, but then got into a second accident and the injury was aggravated.
o Injuries persisted much more acutely and longer now.
RATIO:
Definition
Indivisible
Injuries produced by more than one cause that cannot be
separated or have liability assessed independently.
A tort injury which is made worse by another tort in
indivisible.
Liability
Several tortfeasors whose actions combine to one
indivisible injury are each 100% liable for the entire harm
(but then can seek indeminification from each other) EVEN
IF there are non-tortious causes for the harm as well.
Apportionment The burden of adjusting responsibility thus is shifted to the
tortfeasors, the court may apportion responsibility or it
may not. If the court does not apportion liability, then the
Negligence Act says that it is split equally.
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Divisible
Injuries that are capable of being
separated and having damages assessed
independently.
One tort injury made worse by another
tort is NOT divisible—that is an
indivisible injury.
Several tortfeasors whose conduct
causes different damage (i.e. divisible
injury) are only liable to the extent of
the damage they cause.
No apportionment is therefore
necessary.
4.5
Remoteness
General Rule
Osborne, pp. 94-100 [up to 3)]
o A Defendant is only liable for reasonably foreseeable consequences.
o Don’t need to foresee the manner or mechanics of the accident, rather just that the kind of harm.
o It only needs to be a reasonable possibility NOT probability: basically looking for a ‘real risk’ not far-fetched.
o Depending on how you define the harm can make it seem more or less reasonably foreseeable.
o Generally, foreseeability will be found if it seems fair to hold the def. liable.
Kodar February 28, 2013
o Remoteness is used to limit the scope of liability.
o Concerned with the extent of liability
o Compare: Duty: is the def obligated to take care? Remoteness: how far should the obligation extend?
o Are the ptf’s damages sufficiently proximate to the def’s conduct to justify liability?
Cameron v. Hamilton’s Auction Marts Ltd, CPII 181-185
KEY
o Def’s cow escaped, into busy street, went up some stairs, fell through the landing into the dairy below,
FACTS
turned on the water tap, which then wrecked the ptf’s dairy
ISSUE
Legal Causation
HELD
Not met
RSNS
o No person would have reasonably foreseen that a cow would go up some stairs, fall through, and turn
on a water tap and ruin the dairy.
o Unless there were some reason to believe that the cow had a propensity to act this way, it is not natural
or probable. No liability.
RATIO
The plaintiff must prove that the harm following the negligent act was a natural and probable result,
foreseeable by a reasonable person.
Wagon Mound No 1, CPII 186-190
KEY
o Defendant had oil-burning vessel at wharf, and oil spills into the bay through carelessness.
FACTS
o Ptf was repairing ships with welding.
o Believed that oil could not catch fire while spread over water.
o Keeps welding, spark falls into water sets it alight and the whole wharf burns down.
ISSUE
Is the def. liable for the fire for spilling the oil into the water?
HELD
No
RSNS
o Def enquired and no one thought that oil that was in water could catch fire
RATIO
Damage must be reasonably foreseeable to hold the defendant liable… they are NOT responsible for all direct
consequences—just those that are reasonably foreseeable.
What needs to be reasonably foreseeable?
Hughes v Lord Advocate, CPII 191-194
KEY FACTS o Boys find unattended tent with lamps, ladder over open manhole
o Boy drops lamp down manhole then falls himself in and was burned.
ISSUE
Was this reasonably foreseeable?
HELD
Yes
RSNS
o Burn from unattended lamp is clearly foreseeable.
RATIO
Only the type of harm needs to be reasonably foreseeable, not the way in which the harm came about.
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Assiniboine School Division v. Hoffer, CPII 195-198
KEY
o Owner of snowmobile has an improper starting technique for his 14 year old son to use.
FACTS
o Means there is a risk of the starter not being in control of the machine.
o Boy starts the machine, and it runs out of control by itself, hits a gas riser pipe serving a school.
o Fractured below the shut off valve, gas escapes and goes into boiler room of school—fresh air intake
vent is right above the pipe.
o Gas then explodes due to the pilot light or furnace flames.
o Damages the school.
ISSUE
Is this reasonably foreseeable?
HELD
Yes
RSNS
o Clear duty of care owed by owner of snowmobile to take care to ppl or property in the area that might
be harmed by improper use.
o Many kinds of damage are foreseeable when you let a snowmobile go without a rider.
o Lots of gas risers in the area.
o Foreseeable it could hit one and cause an explosion.
o Irrelevant how the explosion actually happened.
RATIO
Test of foreseeability is just what is reasonably possible NOT what is probable. The extent of damage and
manner of injury need not be foreseeable, just the kind or type of harm is what needs to be foreseeable.
4.5.1
Limiting Factors: Pre-existing conditions
Bishop v. Arts & Letters, CPII 199-201
KEY
o Door of club has lots of resistance to open.
FACTS
o It starts malfunctioning and club is aware of this for several days and doesn’t fix it.
o Ptf unaware of malfunction, hadn’t tested the door.
o So puts weight on door to open it and then falls, fracturing his femur and hurts his shoulder.
o The problem is, is he is a hemophiliac—so there are huge problems with the trauma.
o Can’t really recover because keep hemorrhaging at the hip whenever he tries physiotherapy.
ISSUE
How much of the damage is compensable?
HELD
All
RATIO The thin skull rule is essentially that the tortfeasor must accept their victim as they find them. If they are liable
to the victim for the negligence, then they are liable for all the harm the victim suffered regardless if this harm
is much greater than would usually occur due to a pre-existing condition of the Ptf.
Athey v. Leonati, CPII 202
Thin Skull Rule
Makes the tortfeasor liable for the ptf’s
injuries even if they are unexpectedly
severe due to a pre-existing condition.
Crumbling Skull Rule
The defendant need not put the ptf in a position better than their original
position. Def doesn’t need to compensate for any debiliting effects of a
pre-existing condition that would have happened regardless of the def’s
actions.
o The defendant is only liable for any additional damage they cause,
not damage already caused by a pre-existing condition.
o If there was a material risk the ptf would have suffered anyway,
(but not certain) then this can be considered and reduce the overall award.
If it causes the harm to occur earlier, i.e. condition would have led to this
result in 10years but it happens now due to the def’s negligence, THEN the
def. only need compensate for these 10years.
The defendant only need put the ptf in the position they would have been in without the negligence, not a better
position.
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4.5.2
Limiting Factors: Novus Actus Interveniens
Stansbie v. Troman, CPII 203
KEY
o Decorator leaves his client’s house while the home-owner is away for two hours to get supplies.
FACTS
o Doesn’t lock the door.
o While he is away, a thief comes and steals stuff from the house.
ISSUE
Is this an intervening act “novus actus” that negates the decorator’s liability?
HELD
No
RSNS
o The negligence consisted of failure to avoid the very thing that happened.
o Thief entering was the direct result of the negligence.
RATIO If the act is reasonably foreseeable it is not intervening and the def. will still be held liable because this act is
within the risk of the def’s negligence. It is only when an act is unforeseeable and interrupts the chain of
causation that it will be considered an intervening act and the def’s liability will end at that moment.
Bradford v. Kanellos, CPII 204-207
KEY
o Fire in restaurant, fire extinguisher used—the ‘best’ in the business.
FACTS
o However noise of fire extinguisher caused someone to yell “gas is escaping there will be an explosion”
o Ptf is injured in the panic.
ISSUE
Is this an intervening act “novus actus” that negates the decorator’s liability?
HELD
Yes
RSNS
o Negligence was the failure to guard against fire in keeping the grill clean.
o Point of the fire extinguisher is to help in duty to guard against fire.
o Fire extinguisher did its job and no one was injured.
o Injuries resulted completely from the actions of a hysterical person—not reasonably foreseeable.
RATIO
If an act is unforeseeable and is the cause of the harm, it will be regarded as an intervening act and the def’s
liability will end at the time that act occurred.
DISSENT
o Not intervening b/c the panic was reasonably foreseeable, due to lay out of restaurant where grill is
visible and the noise of the fire extinguisher etc.
o Shouting was not itself a negligent act.
o Intervening act must be something not expected in the normal course of events.
4.5.3
Manufacturers, Distributors, Contractors and Remoteness
Smith v. Inglis, CPII 208-209
KEY
o Man shocked when touching his refrigerator and oven at the same time
FACTS
o Part of the problem is that the 3rd prong had been removed, this was in combination with bad wiring.
ISSUE
Is a manufacturer liable for injuries sustained from their product which has been tampered
HELD Liable
with, or does the tampering constitute an intervening act?
TEST
A) Where consumers do not realize the importance or reason for the safety features
B) And it is common practice for people to alter said features.
Then it is reasonably foreseeable to manufacturer that this could happen and cannot be an intervening act.
RATIO
If the manufacturer is aware that consumers may reasonably improperly use of a safety feature, they cannot
rely on that safety feature to negate their liability and cannot call the improper use an intervening act.
Goodwear Treaders v D & B Holdings, CPII 210-214
KEY
o Good wear sells tire to defendant, knowing that the def. will use it for their gravel truck.
FACTS
o Good wear warns that the tire is not meant for such heavy weight, but still sells it knowing that this is
what it will be used for.
o Tire fails, gravel truck crashes and kills three people on the highway
ISSUE
Is goodwear liable to the ptf or did the intervening act of D & B using the tire on heavy
HELD
Liable
truck negate their liability?
RSNS
o Goodwear merely discharged their liability to D & B by warning them not to use the tires on a heavy
truck.
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o
o
o
o
RATIO
4.6
Third parties had no warning and no way to protect themselves from D&B’s improper use.
Goodwear owes a duty to the public who may be on the highway with their tires. (i.e. 3rd parties)
Good can become defective when improperly used.
Not an intervening act because accident flowed foreseeably from Good-wear’s negligence of selling the
tire knowing it would be improperly used.
o Nothing changed or blocked the causal flow.
A seller of goods may be liable to 3rd parties if he knows (or is deemed to have known) that the buyer will
disregard their warnings, improperly using the goods in a way that poses danger to a class of 3rd parties.
Defences to Negligence Actions
Note, CPII 215
After the ptf establishes duty, breach, causation, and proximate cause the Defendant can still negate liability via a valid
defence. There are 3 valid defences.
1. Contributory negligencenot complete
2. Voluntary assumption of riskcomplete
o Example: argued in Crocker v. Sundance
o By agreeing to assume the risk, the Ptf dissolves the def of liability.
o Ptf must agree to both the legal risk and the physical risk.
o The risk must be obvious and necessary part of the activity.
o Ptf must be fully informed.
o Can be express or implied.
3. Illegality/ ex turpi causa non oritor action Complete
o No compensation is given for a ptf who was involved in an illegal act.
o Example: Hall v. Herbert
- ONLY two ways in which this defence can be used:
- Defence is applicable to a person seeking to profit from an illegal act
- Or where the person seeks damages in order to evade criminal penalty
**The courts don’t like to apply 2 and 3 because they are complete defences***
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5.
Duty to Warn
Manufacturers
Osborne, pp. 142-47 [section 2)]
o Manufacturers have a duty to warn of dangers inherent in the use of their products.
o Ex. Lambert v. Lastoplex Chemicals
- Ptf using higly flammable lacquer on basement floor
- Warned not to use by open flame, but warning said nothing about pilot lights.
- There was an explosion
- Manufacturer liable—warning was insufficient and therefore breached duty to warn.
Duty exists when:
(a) The product is in market for use by the general public
(b) Dangerous when used for its intended purpose
(c) Manufacturers know or ought to know of the danger
(d) Public does not have the same awareness of the danger as the manufacturer.
Does NOT exist when:
(e) There is no duty to warn if the danger is well-known, i.e. knives can cut you.
(f) No need to warn for danger from abuse of products UNLESS the manufacturer knows
or ought to know that abuse may reasonably be anticipated.
Timing
(g) Duty does NOT end at the time of sale, but is continuing as new dangerous
consequences come to light
Standard:
Take reasonable steps to warn
Factors
(a) Nature of the product
(b) The marketing
(c) The commercial practice
(d) The habits of reasonable consumers
(e) Statutory compliance may not be enough.
Standard Exception: The
o Where the manufacturer’s product is highly technical, and the consumer has no
Learned Intermediary Rule
chance to see or inspect the product before its use and instead relies on the
judgment of a learned intermediary THEN:
o The standard may be satisfied by providing ALL the warnings to the L.I.
o This does not require the ptf prove an extra step of causation: no need to prove that
the learned intermediary would have passed on this information.
Causation
Ptf must prove that they would have read/complied with the warning had it been given.
Hollis v Dow Corning, CPII 216-225
Application of Learned intermediary rule and the manufacturer’s duty to warn.
Application
Standard
Causation
o Dealing with a technical or
o The warning given to the
o There is NO causation argument that the learned
medical product
learned intermediary must
intermediary would not pass on the information…
o Manufacturer has no way to
be sufficiently detailed.
the law presumes they would have.
communicate directly with
o Fully apprise learned
o A subjective test is adopted. Ptf just has to show
the consumer
intermediary of all the risks.
that they personally would not have consented had
o Professional judgment is
the risk been disclosed.
required before a consumer
o Not an unfair burden on the manufacturer b/c they
can get the product.
can easily discharge their duty by disclosing.
o Tougher for manufacturer than Dr. b/c
manufacturer is expected to be more selfinterested and a greater risk of minimizing the risk
of their products.
o Deal with hindsight problem by court simply
determining if the ptf is credible or not.
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Medical Professionals
Osborne, pp. 148-50 [section C1)]
o Physicians have a duty to treat with due care and skill AS WELL AS a duty to warn before they treat.
o They must answer both the patient’s questions and volunteer information. Answer in full, frank, honest manner
o (Reibl) failure to inform does NOT vitiate consent, therefore can only bring an action in negligence NOT battery.
Duty to warn of all material risks:
Case
Standard
Reibl v
Standard:
Hughes
o Answer any questions,
disclose nature of the
operation, its gravity,
material risks, special or
unusual risks.
o Even if the likelihood of the
risk is low, when the risk is
very serious there is STILL a
duty to disclose.
Case
Videto v. Kennedy
Case
Brito v. Woolley
What is Material Risk
o What is a material risk is a
question of fact and for
the Court to decide, not
medical experts.
Causation
o A modified objective test.
o Would a reasonable person in the
ptf’s situation consent to the medical
treatment had they been informed
of all the material risks?
Factors:
o the urgency of the surgery (more
likely to consent despite risk if
urgent),
o the possibility of waiting (if possible
to wait until after some other event
such as getting a pension, less likely
to consent).
o The gravity of the risk
What is Material Risk
1. Professional standards are not determinative
2. Disclose everything that is deemed relevant to the ptf. This is what the Dr. should
have objectively known was relevant to the patient, NOT what was subjectively
relevant to the ptf.
3. Mere possibility of a risk doesn’t need to be disclosed UNLESS it is very serious.
4. Explanation of the nature of procedure and gravity must be given.
5. Dangers inherent to operation need not be disclosed such as the risk from
anesthetic or the risk of infection.
6. Scope of the duty is based on all the circumstances.
7. Emotional condition of the ptf can negate duty to warn. (however there has never
been a successful argument on this point)
8. Material risk is a determination for the trier of fact.
Standard
o Must warn of all risks that are
serious, even if they are rare.
Causation
o Must prove that a reasonable person in the ptf’s
position would not have consented.
Factors:
o People are expected to defer to the physician’s
advice, especially if they trust them.
o History of similar procedure’s going well makes it
harder to find causation.
o Professionals are especially more likely to defer to
another professional’s advice.
o If risks of alternative procedures are even greater
or more likely, the ptf likely would have
consented.
31
Case
Van Mol v.
Ashmore
Standard
Notes
o Not only should risks be disclosed, but also alternative modes
o Question: Are procedures in other
of procedure.
jurisdictions or hospitals
o Without informing of alternatives, ptf can’t really selfconsidered alternatives? Or just
determine.
what the Dr. themselves can do?
o Must disclose of alternative procedures, why the Dr is
choosing the one they are, provide opportunity for second
opinion, give patient option to choose alternate in order to
fulfill the standard in their duty to warn.
Case
Standard
Hankins v Papillon Que SCC
Duty of disclosure is absolute in situations where the procedure is
elective.
White v. Turner
Need to disclose ALL POSSIBLE risks where the surgery is cosmetic.
Even if the risks are minimal.
Case
Standard
Causation
Martin v. Capital Health
o Must disclose all material
o The ptf only needs to prove they would not have
risks in a way that a
had the surgery at that particular time, NOT that
Ptf having elective surgery
reasonable person in the Ptf’s
they would never have had the surgery in the
to remove a benign tumor
circumstances would
future.
in his brain. Dr. tells him
understand. (trial court)
o No need to reduce damages to the “gap” to some
that there is a risk of
o Don’t need to disclose the
hypothetical future date that the surgery would
hearing loss and ‘bleeding
precise mechanics of the risk,
have happened.
on the brain’. The Ptf does
just the ultimate harm that
o NO temporal reduction of damages.
NOT understand this to
there is a risk of. (CA)
o If the PTF would not have had that surgery at
mean stroke. Looking
that time they are entitled to full recovery.
forward to his daughter’s
wedding, likes to dance,
FACTORS
some travel plans coming
o Surgery was ELECTIVE… not necessary to have.
up quickly. Has
o Timing issue… clear future plans, made this clear
surgeryrisk of stroke
to the Dr.
materializes.
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6.
Liability for Psychiatric Harm (Nervous Shock)
6.1 Policy
Kodar March 14th
o Psychiatric injury has a certain stigma.
o People should just ‘get over it’.
o Not as worthy of compensation.
Osborne pg 85-93
o Psychiatric injury greatly increases the potential pool of ptfs –think of mass disasters.
o Want to limit it to prevent this perceived floodgate.
o It is also hard to prove—the court is concerned with false claims or fraud.
6.2 Pure Psychiatric Harm
Relational
Where the Defendant has injured A, and B experiences a psychiatric injury from A’s injury—B is the ‘secondary’ victim.
Forseeability
There must be reasonable foreseeability of a psychiatric injury to a person of ordinary fortitude,
there is no duty owed where the ptf is unusually or uniquely sensitive (unless the def. is aware
of this) Kodar March 14, 2013
Proximity
Need ALL three to find a duty of care was owed. Osborne
A. Relational
There must be a close relationship between the ptf and the ‘primary’ victim.
- Rhodes v CNR the ptf was the mother of the primary victim so this was established.
- Looking for a relationship of love and affection family, spouse, close friend.
B. Locational
The ptf MUST have been either AT the scene of the accident or witnessed the immediate
aftermath before anyone has cleaned up, without any aid.
- Rhodes v. CNR the ptf arrived at the scene of the train crash 8 days after it happened, so the
duty analysis failed on this point.
- Alcock v Chief Constable those who saw the accident (a stampede in a stadium) and knew
there loved were there on TV or heard it on the radio failed at locational proximity.
- Although in Alcock the Court did leave the door open for situations where you actually saw
your loved one specifically being injured on TV… in this case they merely saw the general
accident not their loved ones specifically.
C. Temporal
The Ptf’s psychiatric injury MUST flow directly from the event, not from the consequences of
the event.
- Rhodes v CNR the temporal proximity was held to be weak, as the ptf’s distress arose from
the death of her child, not from seeing the train accident.
- Beecham v Hughes the Ptf’s shock came from dealing with his wife’s brain injury, NOT from
seeing her injured in the car accident.
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Direct
No reliance on a 3rd party’s physical injuries—Ptf just suffers psychiatric injury b/c of def’s negligence.
Mustapha v. Cullingham, CPII 267-271
KEY FACTS
o Ptf discovers fly in unopened Culligan bottle of water
o Develops anxiety, phobia, depression as a result.
DUTY
o Treat the psychiatric injury as if it is a physical injury: is there already a recognized duty of care
on the defendant not to cause the ptf physical injury? If yes, no need to do duty analysis as per
usual.
o Here there is an established duty of care of a manufacturer to the ultimate consumer
(Donoghue) so this step is satisfied.
STANDARD
o Normal analysis… the same as if it were a physical injury.
o Clear that a manufacturer must keep products which are intended for consumption
uncontaminated with flies.
o So failed to meet the standard.
HARM
o For a psychological injury to constitute harm for tort purposes it MUST be more than upset,
anxiety, fear etc.
o Must be serious, prolonged, beyond the usual negative emotions we all must accept in life.
o Must rise above ordinary annoyance, anxieties and fears
o Not necessarily a recognized psychiatric illness, but must be on the same level. (basically needs
to be a psychiatric illness)
o In this case, he had a recognizable psychiatric illness so there is demonstrated harm.
CAUSATION
o A finding of fact.
o But for the flies, the ptf would not have suffered this illness.
REMOTENESS
o Needs to be reasonably foreseeable, a ‘real risk’ would occur to a reasonable person in the def’s
circumstance, not something a reasonable person would dismiss as ‘far fetched’.
o Not helpful to talk of ‘possibility’ b/c of course if a harm has happened it is possible, looking
more for something ‘probable’.
o Also at this stage consider the ptf objectively as well: is it reasonably foreseeable that a person
of ordinary fortitude would suffer a psychiatric injury?
o There is no liability for exceptional frailty of individuals.
o Don’t confuse this with the thin skull rule though, that is still applicable: what we are asking
here is the threshold to see if the type of harm was reasonably foreseeable AT ALL.
o Once the harm is reasonably foreseeable, then the thin skull rule applies and the Def is liable for
all the harm even if it is unusually serious due to a precondition or susceptibility.
o EXCEPTION: if the def knows of the ptf’s sensitivities, then they are considered—would a
reasonable person, knowing of the ptf’s sensitivities, reasonably foresee that their actions
would cause the ptf psychiatric harm.
o In this case, it fails b/c the ptf’s reaction was highly unusual, individual and particular to his
history and culture. Wouldn’t have foreseeably harmed a person of ordinary fortitude.
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6.3 Consequential Psychiatric Harm
Where psychiatric harm flows from a physical injury… EASY to get compensation for, unlike the other two categories.
Hussack v. Chilliwack School District No 33, CPII 272-278
Key Facts
o 13 year old hit in the fact with field hockey stick while playing gym, has concussion
o Develops into ‘somatoform’ where he believes he has physical symptoms but actually it’s all in his
head.
o The school was held negligent for allowing him to play field hockey as he had missed the previous
training sessions and was jumping in on the very last session.
ISSUE
Is the school liable for the psychiatric injury as well as the physical?
HELD
Yes
Causation
In Fact:
- Medical evidence led trial judge to reasonably infer that ‘but for’ the accident, he would not have
suffered the somatoform illness.
Remoteness In Law:
- Proximate cause
- The precise injury or full extent need to be reasonably foreseeable,
- Just the kind of injury.
- Here it was reasonably foreseeable that he could get hit with a stick as he hadn’t had any training.
- EXCEPTION:
- Where psychiatric injury is consequential to a physical injury that the def is responsible for, then the
def is also responsible for psychiatric injury EVEN IF IT IS UNFORESEEABLE.
NOTE
There is UK law which states that if there is a risk of physical injury that the Def has created, but only
psychiatric injury materializes, the Def. is liable for that psychiatric injury.
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7.
Liability for Pure Economic Loss
7.1
General
Note, CPII 279
o Generally no problem for economic loss that
flows from personal injury or damage to
property “consequential”
o BUT when the loss is ‘pure’ i.e. not
connected to some other harm, there is a
general rule that you CANNOT recover, with
5 categories of exceptions:
1. Negligent Misrepresentation
2. Negligent performance of a service
3. Negligent supply of shoddy goods or
structures.
4. Relational economic loss (not looked
at in this course)
5. Independent liability of statutory
public authorities.
Osborne, pp. 174-76
o Policy for restricting
pure economic loss
recovery:
o Floodgates, too wide
a scope of liability
o Economic interests
are not valued as
highly as property
interests or bodily
integrity
o Acceptable to inflict
economic loss on
others in the free
market
Kodar, March 19th
o Difficult to insure yourself when
liability is indeterminate
o Don’t want to blur the tort/contract
boundaries
o Usually arises in business context so
should be able to protect yourself
with a contract, don’t want to award
compensation when a party has
simply failed to take prudent steps
to protect themselves.
Recognized Categories
7.2
Negligent Misrepresentation
Osborne, pp. 176-87
o Need a ‘special relationship’ to find the required duty of care (see Hedley)
o But otherwise just using the usual negligence tests and principles.
Duty
o Hercules modifies the Anns/Cooper test for negligent misrep
o Policy considerations include: indeterminate class of ptf with potential huge losses, don’t want
compensation to be disproportionate to the fault of the defendant.
Standard
o Def need not be 100% accurate
o Just needs to take reasonable care the info is accurate and not misleading (Cognos)
Causation o Easy when dealing with an express statement, much harder when the misrep was implied or failure to
volunteer info.
o Must show that the ptf did in fact rely on the representation
Hedley Byrne v Heller & Partners, CPII 280-285
KEY
o Def bank gives info on credit worthiness of company to the ptf
FACTS
o This turns out to be negligent—company isn’t credit worthy
o No fraud on bank’s part
o But the bank had a disclaimer with their info saying not to rely on it
ISSUE
Is there a tort for a negligent misrepresentation that only causes economic loss?
HELD
Yes
RSNS
o Do not want to extend duty to all situations in which ppl express opionions
o Wary of broad, undetermined class of persons who might receive the info
o So need something more than a misstatement.
RATIO
For a duty to exist in the context of a negligent misrepresentation
- Reasonably foreseeable that the ptf would rely on the representation (so the ptf must be
known/ascertainable to the defendant)
- The ptf’s reliance on the def’s statement must itself be reasonable  if there is a disclaimer stating
that the info is not to be relied upon, then reliance is NOT reasonable.
If these two elements are satisfied, it makes it clear that care is needed when giving the information.
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Hercules Management v. Ernst & Young, CPII 286-298
KEY
o Accountants negligently prepare audits of a company –which shareholders rely upon to make their
FACTS
investments.
o The company then goes into receivership and the shareholders lose money.
ISSUE
Did the accountants owe the shareholders a duty of care?
HELD
No
DUTY
Use the Anns/Cooper test
STEP ONE
a. The defendant needs to reasonably foresee the ptf’S reliance on their statement.
b. Proximity: the ptf’s reliance in the circumstances must be reasonable.
- Def. must know the identity of the ptf or the class of ptf’s that will rely on the statement
- The statement must also be used for the purpose it was given
FACTORS:
- Def has direct or indirect financial interest in the transaction that the statement concerns
- Def was a professional—special skill, judgment, knowledge
- Advice or info provided in course of def’s business
- Info given deliberately NOT on a social occasion
- Info given in response to specific request
STEP
- Do not want to create indeterminate liability
TWO
- Think of insurance consequences
- Business efficacy and timeliness issues
Cognos
Five points of analysis which must come up in any negligent misrepresentation case:
DUTY
Based on special relationship as outlined in Hercules
STANDARD
statement must be untrue, inaccurate, or misleading and the representor was negligent in making the
statement
CAUSATION
the reliance must be the cause of the economic loss.
REMOTENESS the representee reasonably relied on the information  what was the extent of the reliance or loss, was
that foreseeable
7.3
Negligent Misrepresentation and Negligent Provision of a Service
Wilhelm v Hickson, CPII 308-312
ISSUE: Is a lawyer who negligently draws up a will liable to the intended beneificiary? HELD: Yes
For
Against
Fits in to the normal duty analysis (as informed by
o Hard to compare to negligent misrep b/c the
negligent misrep)
beneficiary hasn’t relied upon the lawyer, the testator
**Will must have intended to benefit the ptf***
has
STEP ONE:
o Also doctrine of privity of K
1. Lawyer’s know they are in control of the beneficiaries o Indeterminate liability
well-being economically (foreseeable)
o Damages are expectation  this puts it into the realm
2. Lawyer assumes responsibility voluntarily (reliance
of contract
reasonable). Reasonable for beneficiary to rely.
o Illogical to impose duty on lawyer to beneficiary when
STEP TWO
testator owed no duty to provide for the beneficiary
o Deterrent effect: lawyers will be more careful
anyway
o The public in general places reliance on lawyers to do o The estate is unjustly enriched, b/c beneficiary gets
their work with care and attention
their share from the lawyer but the estate still gave out
o Beneficiary will be the only one who has suffered a
that property to someone else.
loss (not the testator nor estate) so if you block their
claim, they are left with no remedy.
o Usually number of beneficiaries are small so no issue
with indeterminate liability
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7.4
Negligent Supply of Shoddy / Dangerous Products
Winnipeg Condo Corp No. 36 v. Bird Construction, CPII 313-324
Facts
o Ptf buys a property, stone falls off 9th story from side and falls to ground
o Ptf has all stone worked replaced for 1.5million
o Should the Contractors who originally built the building be liable to the ptf’s, although they never
had a contract with them?
Duty
Contractors owe a duty of care to subsequent purchasers where it is reasonably foreseeable that a failure to
take care in construction would create defects that pose a substantial risk to the health and safety of the
occupants.
Policy
o When building a structure, you are sanctioning something for the use of others as safe
o Duty arises from the danger that buildings may pose if not well constructed, therefore arises
separately from the K and the k is not a bar to suing in tort
o Reasonably foreseeable that subsequent purchasers may suffer injury or damage if latent defect
manifests within the building’s useful life
o As a building gets older, it will be much harder to prove causation as more likely a building becomes
dangerous b/c it is old  therefore liability limited to useful life
o Should be liable b/c if someone was injured they would be—don’t need to wait for someone to get
hurt in order to recover
o Serves important preventative function
o If repairs are made before dangers manifest, contractors are liable for the cost.
o Claimants are limited to the owners/inhabitants of the building so not indeterminant.
o Can recover expenses incurred for making building safe, but not for improvements in quality
Standard
o Must take reasonable care to construct
o Build without dangerous defects
Test
o Building must constitute a ‘real and substantial danger’ in order for the standard to be breached
(however does leave the door open for non-dangerous defects)
Hasegawa v Pepsi, CPII 325-331
o Attempt to expand shoddy goods to situations where the goods are not ‘dangerous’
Facts
o Japanese company buys bottled water
o Mold found in 3%
o Can’t sell in Japan, try to sell elsewhere
o Japanese gov orders all bottles destroyed
Issue NonHeld
No
dangerous?
Rsns
o Must apply the normal Anns/Cooper test, but for negligent supply of shoddy goods, to
be proximate, must pose a ‘real and substantial danger’
o Also: policy consideration, could the ptf have protected themselves in another way?
o In this case, could have gotten a contract to insure quality, could have purchased
insurance.
o Therefore fails on the proximity portion of the duty analysis
Ratio
When analyzing a new duty in negligent supply of shoddy goods, for there to be the requisite
proximity the ‘shoddy goods’ must pose a ‘real and substantial danger’ to humans.
Notes
Sometimes this category has been found available for ‘non dangerous’ goods, but that is only in
cases of residential housing. (kodar March 26th)
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7.6
New Duties Relating to Economic Loss
Design Services v. Canada, CPII 339-347
KEY FACTS:
o Ptf’s are subcontractors under a bid by company X
o Company X places a bid in a call for tenders
o Company X was required to have team in place, couldn’t submit their bid w/o the ptf’s
o However ptf’s declined to go in on a joint venture which they could have
o Government awards contract B to a non-compliant bid
o Main company sues on the K, settles out of Court
o But what about the subcontracts?
ISSUE: does an owner who puts out a call for tenders owe a duty of care in tort to a subcontractor of a bidder?
HELD: No
Pre- Analagous
Can’t be independent liability of government b/c gov here was not inspecting, granting,
test
issuing, or enforcing anything mandated by law. Gov was simply a private actor.
1.
2.
Reasonable
Foreseeability
Proximity
Prima Facie:
Policy
Not relational economic loss b/c that must stem from property damage or injury of a 3rd
party here the 3rd party also suffered pure economic loss so it won’t work.
NEW DUTY ANALYSIS REQUIRED
Clearly foreseeable that awarding the K to non-compliant bidder would cause economic loss
to subcontractors under the bid that should have won.
Examine the closeness of the relationship to see if it is just and fair to a find a duty:
- Expectations/representations/reliance/interests involved
- Spent time and energy preparing the bid  so clearly relied on PW to treat fairly
- Process was formal, led them to expect PW to treat fairly
- Micro-Policy: did the ptf have the opportunity to protect themselves via a k?
- YES could have made it a joint venture and been in on the K, where they would then
have a contractual remedy
- KEY: Tort law is NOT ‘an after-the-fact insurer’
Fails to establish Prima Facie duty as policy in duty analysis negates proximity
In cases of economic loss, indeterminate liability is the biggest policy concern
- Not all subcontractors are included in the wording of the bid, seeps down through
lower levels of companies to subsidiaries etc.
- This is a common-process and would result in huge increase in tort litigation
- Consider also suppliers of contractors and subcontractors, would this extend the
duty to them to?
- Would make for a huge indeterminate class.
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8.
Government Liability in Negligence
When is Government Liable?
Just v. British Columbia, CPII 353-360
o Once government has decided to do something, the manner in which they do it can be examined by the Courts
and is open to a private law action = operational decision BUT No liability for “policy” government decisions.
o Example: Deciding to fund airports and not inspect light houses at all = policy decision and therefore no liability.
BUT inspecting lighthouses but doing it poorly = operational decision and therefore liable.
Kodar March 26, 2013
o Government is not an ordinary private actor, statutes now allow the crown to be sued like an ordinary person
o However there are still procedural issues that come up, the statute may have rules, immunity or limitations
o Sometimes the duty is in the statute itself which then defines the scope of the duty
Finding a duty of care
Kodar March 26th 2013
o The residual policy stage makes it difficult for gov duty of care to be established (exception of police)
o Policy: if you don’t like a political decision, the political process not the courts should deal with it.
o Decisions made in the public interest may sometimes hurt someone’s private interest
o Decisions are being made that require expertise and judges shouldn’t 2nd guess the government’s choices
o This is why the courts only allow for ‘operational’ and not ‘policy’ decisions to be the basis of recovery.
Hill v. Hamilton-Wentworth, CPII 361-371
Held
Police owe a duty of care to suspects being investigated
Stage
Foreseeability:
One
o Clearly will cause harm to the suspect if the police are negligent in their investigation
Proximity:
o Once singled out and investigated clearly is close and direct
o High interests at stake: freedom, reputation
Policy:
o The other remedies: tort of false imprisonment, arrest or malicious prosecution don’t cover a situation
like this, so to deny duty would leave ptf with no remedy
o Also of public interest: failing to uphold reasonable standards may cause wrongful convictions
o Recognizing a duty here enhances charter values
o There is no conflict with this duty and the duty to investigate a crime (mandated by statute) b/c that
duty is naturally constrained by law, so can be constrained by tort law as well.
Prima Facie Duty Established
Stage
o Real potential for negative consequences must exist to negate a prima facie duty
Two
o Police being more careful in investigation is not a bad thing
o No indeterminate liability concern only suspects that are singled out qualify so clear who the ptf’s are.
o The standard solves all problems about the ability of the police to investigate: just need to meet the
standard of a reasonable police officer at that time in those circumstances. No need to be perfect or
make a legal determination of guilt.  just can’t use discretion unreasonably, but can still use discretion.
o Possibility of error, of those guilty then recovering in tort NOT sufficient, there are many safeguards
against this as the ptf must prove every element of negligence AND there is always the possibility of
appealing any decision.
o Duty should be owed for ‘operational’ government decisions but not ‘policy’  police have mandate to
investigate and use discretion when investigating people and thus this is operational all about how
they should do something, not if they should do it.
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Fullowka v. Pinkerton’s of Canada, CPII 372-376
Facts
o Violent strike at mine in NWT
o Miner’s killed in bombing
o Their survivors sue the Gov for failing to close the mine under a statute which gives them power to do
so if it is ‘unsafe’ for the miners.
New Duty analysis  no analogous or existing duties
Stage
*No issue with foreseeability here so not mentioned, but you should always mention it*
One
Proximity:
- Look to the STATUTE… to establish proximity, the risk that materialized must be within the scope of
the statute
- Here ‘safety’ is the scope, argument about whether this includes criminal activity or just mining
accidents. Court decides it does include criminal activity
- Does duty of care from STATUTE (i.e. the public duty) conflict with the new proposed private law
duty?  No so proximity NOT negated.
- An immunity provision may also negate proximity, but not found here
- Relationship close and direct: inspectors at mine every day during the strike
- Clearly defined group to which proposed duty owed unlike Cooper where it was to the public at
large (or whoever decided to invest)
- Had the inspectors actually known about the bomb, they clearly would have an obligation to act.
- This is a bit analogous to how building inspectors owe a duty to subsequent occupants… b/c they
are ensuring safety operational government action not policy.
Stage
There are no policy reasons for not recognizing a duty
Two
Standard The standard in this case was met b/c the government relied upon competent, good faith, legal advice from
lawyer’s who told them they did not have the authority to close the mine. This was reasonable in the
circumstances.
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9.
Children as Litigants
Consent to Medical Treatment
Common-Law Position: Kodar March 28th
 Need consent for medical treatment or it is battery
 For children, a parent or guardian can consent
 UNLESS the child is capable of consenting on their own, referred to as a “mature minor”
 No specific age for mature minor’s at common-law
 Just need the capacity to appreciate the nature and the consequences of the procedure, the risk and the
benefits, and are mature enough to make the decision.
 Therefore, highly subjective and varies from procedure to procedure and child to child.
Infants Act, RSBC 1996, c 223, s 17, CPII 391
 s.17 –purportedly codifies the common law position (s.17(a))
 However tacks on (b) that the Dr. must also conclude the treatment is in the best interest of the minor for the
minor’s consent to be valid.
 What does this mean?
 Does this mean that the infants consent can be overridden by the parents?
 Has been interpreted to permit Dr’s to consult parents if they feel it is necessary and if parents are opposed to
treatment, may decide it is not in the child’s ‘best interest’ to have the procedure.
 If the Dr. went ahead in that scenario, the child’s consent could be considered invalid and the Dr. liable in
battery, so might not go ahead.
Refusal of Medical Treatment
Common-law position: Kodar March 28th
 If the parents want to refuse treatment for their child, they can.
 A mature minor can also refuse treatment
 Court can take the role of the parent and make the decision if they disagree “parens”
 However the Court at common-law cannot override a mature minor’s decision to refuse treatment.
Child, Family and Community Service Act, RSBC 1996, c 46, s 29, CPII 392
s.29  the director of child, family and community services may apply for a court-order to override a mature minor’s
decision or a child’s parent’s decision to refuse treatment.
S.J.B. (Litigation Guardian of) v. B.C. (Director of Child, Family and Community Services), CPII 399-405
Facts o 14 yr old has tumor in calf that will kill her if it goes untreated
o Needs chemo and surgery
o However whole family (including her) are JWs and refuse blood transfusions
o Her blood levels drop way beyond acceptably low, and she will die w/o so Dr. gets court order to have her
and her parent’s refusal overridden
Issue What is the effect of s.29 and how does it interact with the common law?
Held The Act forms a complete and exclusive code for dealing with the refusal of treatment and minors, and thus
supersedes the common-law mature minor principle that their refusal cannot be overridden.
Ratio A mature minor cannot be overruled by a parent, but s.29 of the Act can overrule the mature minor. Child
protection authorities have the legislative authority to act notwithstanding a mature minor’s refusal.
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Childhood Injuries / Abuse
MK v. MH, CPII 406-421
Rationale behind limitation dates:
1. Certainty
- A defendant should be secure in reasonable expectation that they will not be held accountable after a certain
amount of time.
- For business and insurance purposes this is important… don’t want to have indefinite liability.
2. Evidentiary
- Stale evidence after a long amount of time
- Shouldn’t have to hold on to documents forever.
3. Diligence
- Incentive for plaintiff’s to proceed with their claims in a timely manner
- Shouldn’t ‘sleep on their rights’
Why they don’t make sense in the context of incest:
1. No public benefit in protecting incest perpetraitors.
2. Not concern here b/c legally have to wait until child reaches adulthood anyway, and usually these cases just
involve direct evidence from the parties anyway
3. Damages often latent, and don’t appear until later in life. Even when damage does appear, casual connection
may be unknown victim blames themselves. Can’t provide incentive to ptf’s if they haven’t even realized the
extent or cause of the harm.
injustice of barring a claim before ptf is aware of its existence takes precedence over nay difficult of investigation
years after the incident Kamloops
KEY FACTS:
o Woman abused by her father when she was a child
o Becomes involved in self-help group and therapy in her twenties, made her realize that her father was to blame
for her present psychological problems.
o Sues her father when she is 28 for battery and assault as well as breach of fiduciary duty.
o Jury finds her allegations to be true on b of p and assessed damages, but the trial judge dismisses on the basis
that the limitation date had passed. (Ontario legislation stipulated action of assault or battery must be
commenced w/n 4 years)
HELD: Discovery rule means that limitation period doesn’t begin to run in cases of incest until the ptf becomes aware of
the connection between the harm that was suffered and the cause.
ISSUE: How should the discoverability rule apply in cases of childhood abuse?
remember she was not unaware of the conduct, just of the harm and its cause.
RATIO: ptf must have substantial awareness of the harm and its likely cause… this is when the cause of action crystalizes
and the limitation period starts. The court will presumes this happens when the ptf begins therapy, although this
presumption is rebuttable.
DISSENT:
Sopinka: this goes against the rules of presumptions, this usually happens when the info is in the hands of the
defendant not the ptf.
MchLachlin: people may need more than one therapy session in order to figure it out. Don’t want to presume that
they figure it out the very first time they go to therapy. This presumption is also not needed b/c the ptf can bring
evidence to show when they became aware.
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Issue: should it be different or more for fiduciary duty than battery?
HELD: result in equity and common-law should be the same unless there are different policy objectives
Here the jury clearly knew everything, so shouldn’t have been different as the policy would be the same underlying
both.
DISSENT:
- Wrong in breach of fiduciary duty is different from a battery and assault
- Therefore the compensation should be different
- Breach of Fiduciary is more concerned with deterrence and imposing damages to achieve that objective.
In Response to this case: many provinces changes their limitation date to encompass this principle. Many others
eliminated limitation dates of any kind for sexual abuse or assault cases. Manitoba does not differentiate between
childhood sexual and physical abuse—no limitation date for either.
Limitation Act, RSBC 1996, c 266, ss 3(2), (4)(k),(l), 6(3)-(6), & 8(1)(c), CPII 422-423
s.3(2)  two years for a tort action.
s.3(2)(5)  the clock starts ticking when the right to make the claim arises NOT DATE OF ACCIDENT necessarily
s.6(4)This is based on the discoverability rule. Identity of the defendant known, and a reasonable person would regard
known facts as showing an action available.
Facts include: that a breach of a duty caused injury or loss to a ptf.
Ultimate limitation date: 30 years from the date on which the date the right to do so arose.
s.3(4)(k): No limitation period for sexual misconduct—while victim is a minor.
s.3(4)(l): No limitation period for sexual misconduct—while victim is an adult.
Bill 34 – Limitation Act, ss 1, 3(1)(i)-(k), 6(1), 8, 10, 18(a), (b), 21(1), (2)(d), CPII 424-426
s.3(2)
Coming into force… June 1st 2013
Typo in course pack: pg 424 under s.3(1)(k)(i) there should be an ‘or’ after minor.
s.3(1)(k)(i): no limitation period for assault or battery when ptf was a minor OR if that person was living in an intimate
and personal relationship with, or was in a relationship of financial, emotional, physical or other dependency with a
person who performed contributed to consented to or acquiesced in the assault or battery.
this brings it in line with Manitoba legislation.
Note the sexual misconduct section remains, so above is all new….
Change: ultimate limitation date is now 15 years and not 30…. Also this now is from the date of the incident/ accident
RATHER THAN the old one which said it was from the date the right of the claim arose (i.e. discoverability principle).
44