NEGLIGENCE
OVERVIEW
-Negligence arose because trespass on the case did not adequately cover the tortious actions occurring in
modern day: unintentional, foreseeable consequential damage caused by fault
-Before Donoghue there were only specific categories of negligence you could claim under (professionals, etc)
Core elements:
1. Negligent Act
2. Causation
3. Damage
Control devices:
1. Duty of care
2. Remoteness of damage
Defences:
1. Contributory Negligence
-Partial defence by apportioning liability according to contribution
2. Voluntary Assumption of Risk: Crocker
-Complete defence that protects individual autonomy to waive rights and partake in risk
-Hard to prove because requires both:
a. Agreement to the risk of physical injury
b. Agreement to waive legal rights so risk taker cannot seek compensation should injury occur
-The agreement may be express (ex. waiver) or implied (ex. accept ride from drunk driver)
3. Illegality
-Complete defense
-Public policy: the law will not provide remedy to someone who comes without clean hands
*Courts resist using illegality or VAR because they are complete defences; “age of apportionment”
ORIGINS OF DUTY OF CARE (DOC)
Palsgraf v. Long Island (1928) NYCA
-Palsgraf injured by firework explosion when standing on railway platform and guard dropped package while
trying to help a man jump onto the moving train
Majority (Cardozo):
-Was the harm reasonably foreseeable?
-Limits “orbit of danger” by saying she was standing far away
-Limits foreseeability by saying objective observer would not have known package was dangerous
Dissent (Andrews):
-Negligence can be committed without a DOC because the act can be unsafe, even if it does not cause harm
-Owe a general DOC to society at large: does the act unreasonably threaten the safety of others?
Donoghue v. Stevenson (1932) HL
-P drank from opaque bottle of ginger beer her friend bought her (no privity of K); alleged snail made her sick
Atkin Neighbour Principle: Owe a DOC not to cause harm to your neighbour that is reasonably foreseeable
Neighbour: Persons so closely and directly affected by my act that they should have been in reasonable
contemplation
NB: This abolished need for privity of contract between manufacturer and consumer
Home Office v. Dorset Yacht (1970) HL
-Junior prison inmates escape island via yacht while guards are sleeping and crash into other yacht
-Must limit Neighbour Principle; do not apply DOC too generally:
-Economic loss in commercial competition
-Good Samaritans
-Harm from shock (only cover physical harm)
-Can apply DOC to government officials if they have been negligent (acted contrary to instructions, or if
discretion has guidelines they must be followed)
NB: Court ignores public policy question (will guard liability result in restrictive policies and less rehabilitation
options?) because of “sterner stuff”
Kamloops v. Neilson (1984) SCC
-Son built structurally unsound house for his father, and city warned them multiple times but did not force
them to make changes—subsequent owner sued city for negligence: City=25%, prior owners=75%
Two stage Anns/Kamloops Test for DOC:
1. Was relationship sufficiently close that harm should have been reasonably foreseeable = prima facie DOC
2. Are there policy considerations that negate the DOC?
CURRENT APPROACH TO DOC (DOC)
Cooper v. Hobart (2001) SCC
-P trying to establish class action lawsuit and D asks for motion to strike.
-P invested in certified mortgage broking firm, and loses money when firm goes bankrupt because of fraud
-P sues Registrar of Mortgage Brokers because he knew about fraud for 1 year and did not decertify firm
-Court: Stage 1 of Anns (reasonable foreseeability and factual proximity) needs to be limited
-Court introduces policy into first stage of Anns: negating policy based on relational proximity?
-Enabling statute imposes DOC to general public, not individual investors
-Investors cannot use negligence as insurance (but money lost because of fraud, not bad investment)
-Government officials can be liable for operational decisions but not policy decisions
Anns/Kamloops Test:
1. Was relationship sufficiently close that harm should have been reasonably foreseeable = prima facie DOC
-Courts were unlikely to close PF DOC based on second step, so focus on foreseeability opened flood!
2. Are there policy considerations that negate the DOC?
-Used as a control for first step, but not strong enough
Anns/Cooper Test:
Is relationship in an already recognized category?
-YES then prima facie DOC
-NO then do Anns/Cooper Test
1. a. Foreseeability and factual proximity
b. Negating policy considerations arising out of relationship (relational proximity)
2. Residual policy considerations outside of relationship (broad policy effects)
PROXIMITY / DUTY TO PROVIDE A BENEFIT (DOC)
Odhavji v. Woodhouse (2003) SCC
-P is killed by police, so his family sues police for negligence through his estate
-Police ask for motion to strike: no DOC owed to family for harm and suffering for negligent investigation
Court must decide on DOC at low threshold (motion to strike):
-Reasonably foreseeable because harm and suffering they are complaining about would not have occurred if
investigation had been properly performed (close connection between act and harm)
-Relational proximity satisfied because the enabling statute says “Chief of Police SHALL ensure” (mandatory)
-Residual policy considerations align with enabling statute because there is a reasonable expectation that
public officials will be mindful of harm done to the public
Jordan House
-Pubs are required to take positive steps to ensure their patrons are not harmed from alcohol related accident
Crocker v. Sundance (1988) SCC
Policy considerations:
-Misfeasance: you contributed to creating the danger (liable)
-Nonfeasance: you failed to negate a danger you did not create (not liable)
-Individualism laissez faire VERSUS collectivism social obligations
1. Is there a novel DOC for commercial enterprises and risk taker?
Yes: Positive duty to take steps to prevent harm because:
-Sundance promoted inherently dangerous activity for commercial gain
-Sundance knew of his reduced capacity (intoxication, youth, incapacity) and partially created it
-Sundance was in control of the situation as the host
2. What was the requisite SOC?
-Balance probability and gravity of injury with burden on host
-Must take reasonable steps to prevent placing a person in a position where injury is foreseeable
3. Causation
-TJ found that sober people can control tube better
4. Voluntary Assumption of Risk
-No: plaintiff did not forfeit legal rights (did not know what he was signing) and assume physical risk (drunk)
5. Contributory Negligence
-Yes: we live in a time of apportionment
NB: Damages are the minimum award to compensate, so 25% contributory negligence is a lot
Stewart v. Pettie (1995) SCC
1. DOC from commercial host to 3rd parties injured by their patrons?
-Yes: natural extension of Jordan House (not novel duty)
-Reasonably be contemplated to come into contact with patron
2. What is the requisite SOC?
-“Reasonably prudent establishment”
-Overserving without reasonably foreseeable harm is not negligent (ex. two sober women)
3. Causation
-No: intervention by theater would not have made a difference because driving issue was addressed already
Childs v. Desormeaux (2006) SCC
1. Novel DOC from social hosts to 3rd parties injured by guests?
NOTE: Social host not the same as commercial host because:
-Monetary incentives and legal requirements to monitor alcohol consumption
-Regulated by legislature
-Contractual nature of relationship—because they profit, they should internalize costs
A. Foreseeability and factual proximity
-Host did not know he was intoxicated, and past history of intoxication does not make it foreseeable
B. Negating policy concerns arising out of relational proximity
Owe a DOC when:
1. Invited guest to a risk that host created and controlled
2. Paternalistic relationship of supervision and control (ex. parent-child, teacher-student)
3. Public/commercial enterprise that includes implied responsibilities to the public
FEATURES OF RELATIONSHIP THAT GIVE RISE TO FINDING OF PROXIMITY
-Invited guest to a risk that host created and controlled: Childs
-Paternalistic relationship of supervision and control (ex. parent-child, teacher-student): Childs
-Public/commercial enterprise that includes implied responsibilities to the public: Childs, Jordan House
FEATURES OF RELATIONSHIP THAT SUGGEST PROXIMITY
-Close connection between act/omission and harm: Odhavji
-Duty is consistent with enabling statute (mandatory or permissive?): Odhavji
-Reasonable expectation that public officials will be mindful of harm done to public: Odhavji
-Invited to inherently risky activity: Crocker
-Commercial gain: Crocker, Jordan House
-Host is aware of reduced capacity (incapacity, intoxication, youth): Crocker
-Host supplied alcohol: Jordan House, Crocker
-Probability of harm and seriousness of injury balanced against burden on defendant: Crocker
-Intentionally structuring environment to prevent knowing if harm is foreseeable is not a defence: Stewart
DUTY TO WARN (DOC)
INFORMED CONSENT WITH MEDICAL MALPRACTICE (DOC)
Lambert v. Lastoplex (1971) SCC
-Using lacquer to seal something in basement and pilot light caused explosion
Reibl v. Hughes [1980] SCC
-Patient had elective surgery to prevent headaches (unhelpful) and stroke (chance in 4 or 5 years)
-Patient lost pension when only 1 ½ years away
-Since risk of morbidity was 10%, if the patient was fully informed he would not have had surgery until pension
Hollis v. Dow Corning (1995) SCC
-Breast implants burst and caused her many surgeries
MANUFACTURERS ARE UNDER A DUTY TO WARN WHEN: Lastoplex
a) Product is marketed for use by general public
b) Product is dangerous when used for its intended purpose
c) Manufacturer knows or ought to know of the danger
d) The public does not have the same awareness of the danger as the manufacturer
WARNING:
-Must be specific enough to allow product to be used safely, but not so long that people won’t read: Lastoplex
-Must be very specific for products one ingests: Lastoplex, Hollis
-Duty to warn continues so long as product is on the market, not just once sold (if manufacturer discovers new
defects he must warn): Lastoplex
-Compliance with statutory standards does not preclude a finding of negligence: Lastoplex
DO NOT NEED TO WARN:
-Obvious dangers (knives, matches, etc): Lastoplex
-Dangers arising from abuse of product, unless manufacturer knows or ought to know of abuse: Lastoplex
-Less detailed warnings are necessary for products intended for very specific industries: Lastoplex
CAUSATION
-Plaintiff must still prove that he would have read and complied with warning: Lastoplex
-This is a subjective test, not ‘reasonable person’: Hollis
LEARNED INTERMEDIARY RULE
A. When product is highly technical and only intended to be used under supervision of an expert (ex.
prescription drugs), manufacturer can discharge his duty to warn the ultimate consumer: Hollis
B. When nature of the product is such that realistically the ultimate consumer will not receive a direct warning
from manufacturer before use: Hollis
-Learned intermediary must be fully informed (same level as manufacturer): Hollis
-Learned intermediary must be informed by manufacturer on continuing basis: Hollis
-If learned intermediary fails to pass on warning, manufacturer might still be liable (internalize risk): Hollis
-Policy problem: conflicts of interest with drug companies ‘courting’ doctors inhibits information: Hollis
Videto v. Kennedy (1981) OntCA
-Scarring is very important because getting secret sterilization and Catholic, but does not convey concerns
Brito v. Wolly (2003) BCCA
-Second twin has brain damage because of cord prolapsed during vaginal delivery
-No negligence claim for how delivery was handled, just for lack of informed consent about C-section option
-Determined on causation: all doctors said C-section posed greater risk, so she would not have changed choice
Van Mol v. Ashmore (1999) BCCA
-16 year old girl becomes paraplegic because doctor performs most simple and least safe heart surgery option
Therapeutic Surgery: Doctor must disclose all material risks (would it concern the reasonable patient?)
Elective Surgery: Doctor is under higher duty to disclose (has COI because he wants the work)
NB: Informed consent cases require you to sue in negligence (not battery because agreed to be battered)
INFORMED CONSENT REQUIRES DOCTOR TO DISCLOSE:
-All material risks: use “low risk—bad consequences” test and ask if reasonable patient would be concerned
with the risk: Reibl, Videto, Brito
-What surgeon knows is important to that specific patient: Videto
-Tailor warning to patient if he needs higher disclosure (ex. ESL patient): Reibl
-Answer specific questions by patient: Van Mol
-Alternatives: why this procedure, what other options are available, second opinion: Van Mol
DOES NOT HAVE TO DISCLOSE:
-Inherent risks that are expected and not unusual (ex. infection, anesthetics, small scarring): Videto
-Therapeutic Privilege: patients that are emotionally nervous but need surgery might not require complete
disclosure (this has never been used in Canada because it undermines autonomy): Videto
-Emergencies require lower informed consent: Reibl
-Professional standards are considered, but not determinative: Videto
CAUSATION:
-Use modified objective-subjective test: what would reasonable person in patients’ circumstances do: Brito
-Consider professional practice to see if reasonable person would have chosen differently: Van Mol, Brito
RESCUERS AND GOOD SAMARITANS (DOC)
Horsley v. MacLaren (1971) SCC
Majority (Ritchie):
-No general duty to rescue—requires special relationship (ex. boat owner invites passengers; risk he controls)
-Experts who have not been in rescue situation are discredited
-MacLaren not liable to Matthews because there was no causation (dead, regardless of rescue method)
-First rescuer only owes duty to second rescuer if you created situation of peril through negligence
Dissent (Laskin):
-Agrees with need for special relationship
-Expert evidence that proper “bow on” would have saved Matthews is accepted
-MacLaren is liable to Matthews because he had duty to rescue properly
-First rescuer owes duty to second rescuer if you created situation of peril, even if not negligent because
second rescuers’ actions are foreseeable
-Futility of second rescuers’ attempt is not a defence
-Contributory negligence not applicable because of excitement and emergency
-Horsley did not have a duty to rescue Matthews because there was no special relationship
-Matthews now owes Horsley a duty because he created the situation of peril (even though not negligent)
Good Samaritan Act, RSBC 1996
s. 1: Rescuer not liable unless grossly negligent or
s.2: a) employed for purpose of rescuing
b) rescued with a view to gain
DUTY TO RESCUE TODAY:
-Only owe duty to rescue people if:
a. Special relationship with them (ex. parent, owner of facility): Horsley
b. Exposed them to risk: Horsley
c. Employed for purpose of rescuing: Good Samaritan Act
d. Rescued with a view to gain: Good Samaritan Act
-First rescuer only owes duty to second rescuer if he created a situation of peril through negligence: Horsley
-Limited if the rescuer is grossly negligent: Horsley, GSA
Ex. Not liable to rescue drowning kid in swimming pool unless you are a lifeguard on duty, the parent, the
owner of the pool, or other special relationship
UNREASONABLE RISK (SOC)
*Reasonable risk also takes into account custom, statutory standards, and professional standards (see below)
Bolton v. Stone [1951] UK
-Cricket ball hits person on quiet residential street; hit out 6 times in last 30 years and never hit anyone
CUSTOMARY STANDARDS (SOC)
Paris v. Stepney Borough Council [1951] UK
-One eyed garage worker lost his last good eye because garage did not provide goggles
-Other garages did not provide goggles
NB: Workplace injuries are covered by no-fault liability insurance so this doesn’t arise
Rentway Canada v. Laidlaw Transportation [1989] OntCA
-Laidlaw truck crashes into Rentway truck
Laidlaw (owner) liability: tread separation (our fault) caused both headlights to die because they were on the
same circuit (manufacturer’s fault) which was immediate cause of the accident because driver could not see
Paccar (manufacturer) liability: the possibility of short circuiting was known, but likelihood was so remote
they had not taken precautions to eliminate risk. Not immediate cause of accident.
Court: Paccar should have taken precaution because although likelihood is small, risk is great, and precaution
is inexpensive. But, not liable because no causation proved
Watt v. Hertfordshire [1954] UK
-Jack carried to emergency in a truck not fitted to carry it. Sudden breaking caused injury to worker
GENERAL RULE: Do not expose people to unreasonable risks: Bolton
WHAT FACTORS DETERMINE IF RISK IS REASONABLE? Objective test!
1. Seriousness of the risk: Paris, Rentway
-Special risks of injury that don’t increase likelihood but do increase seriousness: Paris
-Does defendant know of special vulnerability of plaintiff: Paris
2. Likelihood of the risk:
-Need more than possibility of occurrence: need reasonably likely to happen: Bolton
-Does defendant acknowledge risk and do nothing about it? More trouble…: Bolton
-Incentive to make risk happen (cricket hit out) or to prevent risk (airplane crash): Bolton
-Likelihood of risk increases as more people are exposed to it: Bolton
3. Cost of precautions:
-If cost of precaution is very low, it is generally unreasonable not to take precautions, and industry
standard might not be acceptable: Paris
-Always compare cost/technology to what existed at the time of manufacture: Rentway
4. Utility of activity:
-Consider what is reasonable in the circumstances, so utility of activity might justify risk: Watt
-Normal commercial setting has higher standard than emergency setting: Watt
Learned Hand Formula: Seriousness of risk X Likelihood of injury > Cost of precaution = Unreasonable risk
Warren v. Camrose City [1989] Alberta CA
-Regular swimmer at pool hurt himself diving because lane markers had moved without warning
-Experts said standard is no longer blanket warnings, but rather individual warnings
Waldick v. Malcolm [1991] SCC
-P injured himself as guest on D’s icy driveway because D did not salt, as aligned with local custom
Brown v. Rolls Royce [1960] HL
-D’s medical experts say barrier cream does not prevent dermatitis, so they depart from custom and do not
provide cream
RELYING ON CUSTOM
-Customs are weighty, but not binding: Waldick, Rolls Royce
-Proving a custom exists requires more than saying so; requires expert evidence: Waldick
-Expert evidence about custom is not binding, but for court to overrule it, the standard to “offend logic and
common sense”: Warren
-NB: Compare how they treat expert evidence in Horsley
-Court will overrule custom if it is unreasonable: a large group of people acting unreasonably is still negligent:
Waldick
DEPARTING FROM CUSTOM
-Breach of custom creates inference of negligence that can be rebutted by providing evidence that departure
was not negligent: Rolls Royce
-Breach of custom does not create mandatory presumption of negligence: Rolls Royce
-Legal burden to prove negligence always remains on plaintiff: Rolls Royce
STATUTORY STANDARDS (SOC)
PROFESSIONAL STANDARDS (SOC)
Canada v. Saskatchewan Wheat Pool [1983] SCC
-D’s wheat had beetle infestation, but it was impossible to know this until after it had been shipped
-Shipping infested grain contravened Canada Grain Act, so P asks for damages for fumigation
-D and P both large, knowledgeable entities
Brenner v. Gregory [1973]
-Lawyer closed land transaction for client
-Client knew the property encroached on street, but said nothing, then called lawyer negligent for no survey
Gorris v. Scott [1874] UK
-Ship owner did not comply with statutory standards requiring sheep pens, so sheep washed overboard
-Purpose of statute was sanitation, not safety
Galaske v. O’Donnell [1994] SCC
-8 year old girl doesn’t wear seatbelt in car with her dad and his friend (friend’s car)
-Motor Vehicles Act: driver shall ensure passengers aged 6-16 are wearing seatbelts
Ryan v. Victoria [1999] SCC
-Motorcyclist injured when crossing railway on street
-City says not negligent because they complied with the statutory standard for width of flange ways
-Court disagrees—discretion within the statute was large, and not intended for public roadway, and several
accidents in last few years implied standards were unreasonable
ROLE OF STATUTORY STANDARDS
-SOC always determined by reasonableness: Ryan, Wheat Pool
-Breach of statutory standard may be evidence of negligence, but not determinative: Wheat Pool
-Canada does not impose strict liability (breach of statutory standard = negligence per se): Wheat Pool
-A statutory standard is only relevant if the purpose was to protect against the harm suffered: Gorris
-The more discretion left within the statute, the more important reasonableness is: Ryan
POLICY
-Legislative silence: do not impose civil penalty when legislature has already determined penalties: Wheat Pool
-Legislation not always in public’s best interests (lobby groups) so not good to rely on them too heavily: Wheat
Pool, Ryan
-Courts have forgotten that legislation trumps common law (reads down statute to point of being dismissive
“simply another factor which can be taken into account by the court”): Osbourne on Galaske
-Strict liability can align with safety and deterrence (ex. motor vehicle): Osbourne on Galaske
-Not always justification for loss shifting: Wheat Pool
Ter Neuzen v. Korn [1995] SCC
-P got HIV during AI transplant at D’s office
-The risk of getting HIV through AI was unknown at the time of the transplant, and there was no existence of a
test for HIV in semen
POLICY OF CANADIAN MEDICAL PROTECTIVE ASSOCIATION
“No settlement without negligence”
Pros:
-Keeps insurance rates down, so cheaper for patient
-Doctors don’t need to practice defensive medicine
Cons:
-Unbalanced resource disposal (paid more on experts than lawyers), and Sopinka says “Any medical
malpractice case is a battle of the experts”
-Only settle for small amounts ($20-$30 K)
RELYING ON PROFESSIONAL STANDARD
-Professionals are held to higher standard of care than non-professionals
-Professional SOC = objective standard of care of other professionals (“reasonable lawyer”): Korn
-Professional standard will usually exonerate liability, but can be overruled by court if “fraught with obvious
risks” (unreasonable): Korn, Brenner
-Judges and juries can only overrule experts on non-technical matters (obvious and reasonable precautions
are readily apparent: sponge in child’s mouth): Korn
-Only hold professional to standard at the time of the incident (don’t use perfect vision of hindsight): Korn
REASONABLE BEHAVIOUR (SOC)
Vaughan v. Menlove [1837]
-D knew risk of burning down barn and neighbour’s cottage, but still “chanced it”
-D asked court to use subjective test (he is stupid)
-Accepted subjective SOC test for children (A and B created a danger by letting S out to wander, so
created possibility of accident and possibility of PTSS, and their actions demonstrated they
understood seriousness of intoxication)
-A and B: liable because consequences of accident are foreseeable
-S: is negligent because he created the risk and consequences are foreseeable
NB: Dissent defined consequences very broadly so they would be foreseeable
General standard: ordinarily prudent person, regardless of personal incompetence (objective test): Vaughan
3. MENTALLY ILL
SPECIAL STANDARDS OF BEHAVIOUR (SOC)
1. CHILDREN (participating in child activities)
Children require 2 step test for negligence: Heisler
1. Subjective test:
-Was this particular child capable of being negligent (understanding, experience, intelligence)?
-Often use age 7 and up, but not a rule
2. Objective test of reasonable child in the circumstances:
-Was he negligent, and if so, to what degree?
2. CHILDREN (participating in adult activities)
-When participating in adult activities (golf, snowmobiling, driving) children will be held to an objective adult
standard (no special treatment for immaturity): Pope
-Only hold child to adult SOC if they are actually participating in the activity (ex. caring for a drunk person, but
not drunk themselves): Nespolon
-How broadly or narrowly you define the consequences makes a big difference to foreseeability: Nespolon
Nespolon v. Alford [1998] OntCA, appeal to SCC dismissed
S: got drunk and wandered onto highway to be killed by car
N: driver of car
A and B: acquaintances of S who were responsible for his care
Police Officer: imposed care of S onto A and B
Majority (Abella):
-Accepted imposed DOC
-Do not accept adult SOC (A and B had no experience with alcohol, what more could they do than
drop him off in neighborhood?)
-A and B: not liable b/c consequence of N getting PTSS was too remote and not reasonably
foreseeable
-S: not liable because consequences are not foreseeable
NB: Majority defined consequences very narrowly so they would not be foreseeable
Dissent (Brooke):
-Accepted imposed DOC
Fiala v. Chechmanek [2001] Alberta CA
-M has onset of bi-polar, and attacks C causing her to drive into intersection and hurt F
-Experts said M did not have signs severe enough to detect he was suffering from mental disorder
POLICY
Corrective justice approach: Mentally ill do not have to comply with objective SOC because unfair to hold
person accountable of something they are incapable of avoiding (unless drugs, alcohol, stupidity)
Compensatory approach: Primary purpose of tort is to compensate innocent victim, and C and F are most
innocent here because they were totally unable to detect mental illness (M had better chance)
Mentally ill is not analogous to strict liability of manufacturers because:
1. Mentally ill do not choose to have disability for profit
2. Mentally ill do not know about affliction (no cost-benefit analysis going on)
3. Mentally ill cannot pass cost onto consumers
4. No strict liability on physically disabled or children, so non on mentally disabled
Mentally ill is not analogous to children exception because:
-We can see when a person is a child, so are given a warning
-When child is participating in adult activity we hold them to objective adult standard
CHOSE CORRECTIVE JUSTICE APPROACH
To be relieved of tort liability when afflicted suddenly and without warning of mental illness, D must show on
balance of probabilities:
A. Because of mental illness, had no capacity to understand or appreciate DOC owed
OR
B. Because of mental illness, D was unable to discharge DOC owed because had no meaningful
control over actions
THE “BUT FOR TEST” AND THE “MATERIAL CONTRIBUTION TEST” (CAUSATION)
Athey v. Leonati [1996] SCC
-Athey suffered back injuries in 2 separate accidents, then disc hernia in stretching
-What is the causation when you combine pre-existing condition with accidents?
Snell v. Farrell [1990] SCC
-Snell was already blind in one eye, then cataract surgery caused hemorrhage and she became totally blind
-Experts cannot say with certainty what caused the problem because of other pre-existing medical conditions
Cook v. Lewis [1951] SCC
-Shots came from one of the two guns, but P cannot prove which (causation), so cannot win
BM v. BC (AG) [2004] BCCA
-BM complained to police about abusive spouse, and court order said police had DOC to protect her
-Police did nothing to protect her, and spouse came to house and had killing spree
-Time elapsed between her complaints and killing, and in between she had willing communication with him
-Police had few positive actions available: cannot deport or imprison him, cannot continually guard her house
Resurfice v. Hanke [2007] SCC
-Hanke was running ice resurfacing machine when he put water hose into gas tank and it exploded and burned
him. Sues manufacturer for negligence because tanks looked similar
Walker Estates v. Yorkton Hospital [2001] SCC
-CRCS screened with questionnaire, and did not highlight high risk groups
-ARS did identify high risk groups (active homosexuals)
-Three people were infected with blood from healthy, no longer active homosexual
CURRENT APPROACH:
1. The BFT is the primary rule: Resurfice
-Plaintiff must prove that injury would not have happened “but for” defendant’s negligence: Athey
2. Only use MCT if: Resurfice
A. It is impossible for P to prove causation with BF test because beyond P’s control (limits of science)
AND
B. P’s injury must fall in ambit of risk created by D’s breach
-Ex: We know one of the two caused damage, but cannot prove which: Cook
-MC must be above de minimis range: Athey
-MC does not need to be scientifically proven, but does require common sense evidence: BM
-Could any positive actions by defendant have prevented the harm?
-Elapsed time made danger too remote?
-EXCEPTION: Negligent blood donor screening test is MCT: Walker
3. Onus of proof
-Remains on plaintiff to prove causation on balance of probabilities: Athey, Snell, Walker
-Medical cases have asymmetric information and many unknowns, so very difficult to prove
scientifically, so can draw rebuttable inference of causation without scientific evidence: Snell, Walker
EXCEPTION: Can shift onus if both are fully culpable for negligence, but plaintiff cannot prove who
actually caused harm. Rationale: Defendants are in best position to exculpate: Cook
POLICY:
Compensation (BM dissent) VERSUS Corrective Justice (BM majority)
-In long line of causal events, it is impossible to prove which factor was ‘the cause’, so do not deprive plaintiff
from recovering: Snell
-Use tort law to support public policy (ex. police must take domestic violence seriously): BM
-Only use tort law for corrective justice: BM
INFORMED CONSENT AND LOSS OF A CHANCE IN MEDICAL MALPRACTICE (CAUSATION)
Martin v. Capital Health [2007] ABQB
-Martin retired from RCMP early to have active retirement: goals to dance at daughter’s wedding
-Had elective surgery to remove benign cyst in head, now paraplegic
CANADA
-Very few industrial torts because of no-fault compensation in workplace
-Much fewer class actions because of contingency fees and modest levels of damages (strict limits on punitive)
Chester v. Afshar [2004] UK
-Doctor performed back surgery on Chester and left her partially paralyzed
-The surgery itself was not negligently performed, but the Chester had not been fully informed of the risks (no
warning of nerve damage)
-Chester could not honestly say she would never have consented to surgery, even if fully informed of risks
UK (Asbestos cases)
-Injury is caused by combination of tortious (defendant’s fault) and non-tortious (plaintiff’s fault) actions
-Apportion liability according to the period that employer was responsible for, so he is not
responsible for risks created by others (smoothes out roughness of joint and several liability): Barker
-Parliament completely reversed Barker to make employers are jointly and severally liable, and they can go to
court to apportion liability between themselves: Compensation Act
-Reverse onus on employer (rebuttable presumption of causation) if they MC to risk: Fairchild
-Policy rationale: most employers are no longer in existence, so would be impossible for P to collect
damages, so force employer to internalize costs this way
INFORMED CONSENT REQUIRES: Martin
-Duty to disclose all material risks (“low risk—bad consequences”)
-Duty to answer patient’s questions
-Duty to explain risks in language that patient can understand
CAUSATION:
-Use modified objective-subjective BFT: would reasonable person in patients’ circumstances have consented?
-Plaintiff does not have to prove that she never would have consented, only that she would not have
consented at that time: Chester
USA (Miscarriage drug had latent defect giving daughters cancer): Sindell
-If plaintiff cannot prove which manufacturer sold them the drug, they can hold all manufacturers liable
according to their proportion of market share, unless they can disprove causation
-Manufacturers can cross-sue each other
-Policy based decision: do not leave patients without remedy because they cannot honestly say they
would never have consented to surgery, even though risk would remain the same: Chester
-Chester (Dissent): risk would never have gone away, regardless of informed consent, so BFT fails
DAMAGES:
-No temporal limit—cannot limit damages to the time he could no longer have postponed surgery: Martin
LOSS OF A CHANCE:
-Not compensable where doctor’s misdiagnosis prevented a potentially better medical outcome, because the
result of the ‘better outcome’ is uncertain: Lawson (Canada) and Scott (UK)
-EXCEPTION: if you can prove a likely better outcome (rather than just another chance at an equally poor
outcome): Lawson
INDUSTRIAL TORTS (CAUSATION)
REMOTENESS
Wagon Mound I [1961] UK **Not good law**
-D carelessly spilled oil throughout harbor and did not clean it up
-P worked as a welder at harbor, and after inquiring was told furnace oil was inflammable; cotton rag = fire
-Court decided it was not reasonably foreseeable (“probable”); no liability
Majority: Novus Actus Interveniens: a negligent act may be followed by an intervening act that is so
extraordinary that it actually breaks the causal chain (“overwhelming, supervening event”)
Dissent: Person responsible for original negligence should foresee subsequent intervening negligence (yelling
was a natural human reaction)
NB: today it is likely that dissent would prevail: if your negligence creates dangerous situation where it is
foreseeable that people will respond irrationally, you are responsible for the subsequent danger they create
Hughes v. Lord Advocate [1983] UK
-Crew leaves manhole open and unattended while at tea, an “allurement” to young boys
-Boy drops lamp in, creates huge explosion, and he falls in and badly burns himself
MANUFACTURERS, DISTRIBUTORS, CONTRACTORS (REMOTENESS)
Assiniboine School v. Hoffer [1971] Manitoba CA
-Father taught son how to start snowmobile without being in control of it, and child did it wrong, so got away
and blew up school
-What was reasonably foreseeable? Impact = yes, but fire = no? Court said explosion is reasonably foreseeable
Lauritzen v. Barstead [1965] Alberta SC
-P gets ride to town with D, but drives back because D is drunk
-Get in car crash when D wants to stop for more alcohol, and cannot get help for 2 days, so become frostbitten
and have to get amputation. Losses job and wife leaves him
Bishop v. Arts Club of TO [1978] OntHC
-P is hemophiliac, so when he opened new door too forcefully he fell, and he has had 4 years ongoing medical
problems directly related to the fall
REASONABLE FORESEEABILITY
-Second control device (weaker than DOC) to contain liability within fair and reasonable bounds
-Use “reasonable foreseeability” rather than “directness” because not consonant with corrective justice to
hold people liable for direct, yet completely unforeseeable, consequences: Wagon Mound I
-The type of harm is what must be foreseeable, not the “precise concatenation of events” or the degree of
harm suffered: Hughes
-Reasonable foreseeability of “possible” (not “probable”) events: Assiniboine
-Can segment each step into possibly reasonably foreseeable in order to overcome remoteness: Assiniboine
-Damages only extend to what was reasonably foreseeable (ex. loss of wages, not wife leaving): Barstead
EXCEPTION: Thin skull rule is an exception to reasonable foreseeability
-Thin skull rule: A plaintiff’s susceptibility to harm is no defence to a claim of negligence; must take
their victims as they find them: Bishop
-Crumbling skull rule: D is liable for all additional damage he caused, but not for pre-existing damage
because of pre-existing condition (D is required to compensate to equal, not better, condition): Athey
NOVUS ACTUS INTERVENIENS (REMOTENESS)
Bradford v. Kanellos [1974] SCC
-Gas fire in kitchen was put out quickly and safely, but idiot screamed of explosion, so stampede and P hurt
Smith v. Inglis [1978]
-P got electric shock when he touched oven and refrigerator because grounding prong cut off
Goodwear Treaders v. D and B Holdings [1979] NSCA
-Truck’s tire failed and highway users were killed
-Tire knew Truck was disregarding their safety warning, but sold them anyway
Stansbie v. Troman [1948]
-Decorator did not lock house, and thief robbed owner
-If manufacturer knows that customers commonly use their product in a dangerous way, the manufacturer is
responsible for providing extra safety mechanisms to prevent danger: Inglis
-Ex. Manufacturer knew that customers usually cut off the grounding prong (safety mechanism) on
refrigerators, so the risk of electric shock was foreseeable and they were liable
-Manufacturer is not liable to buyer if they warn them not to use product in an unsafe way: Goodwear
-Manufacturer is liable to third parties who have not been warned if they sell to buyer, knowing the buyer
intends to use product in an unsafe way, and the risk of harming third parties is foreseeable: Goodwear
-The manufacturer cannot escape liability because the buyer was also negligent: Goodwear
-The manufacturer cannot escape liability because the buyer created an “overwhelming, supervening
negligent event”; the event was made possible by the manufacturers’ negligence: Goodwear
-Even if there is another direct cause of damage, D is liable if his failure to guard against the very harm that
was expected allows the risk to mature into certainty: Stansbie
MULTIPLE MEDICAL ERRORS (REMOTENESS)
1. Medical complications / genuine medical errors are reasonably foreseeable consequences of the
defendant’s negligence: Mercer
2. Negligent medical treatment: There has been conflicting judicial treatment; the law is unclear:
a. Negligent medical treatment that aggravates the plaintiff’s original injuries is a novus actus
interveniens and the original defendant is not to be held liable for the additional injuries: Mercer
-Onus of proving that the medical treatment was negligent is on the original defendant: Mercer
b. If treatment was negligent, the doctor is liable for the aggravated damages only, and the original
defendant is liable for the damages that would have existed without negligent treatment: Katzman
PSYCHIATRIC HARM
Beecham BCCA 1988
Plaintiff and wife are in accident. Wife is brain damaged; plaintiff visits her constantly, and becomes
depressed; his life is devoid of enjoyment. No recovery; he is suffering from sorrow, not shock of the accident.
Sorrow is a novus actus interveniens – too remote
Rhodes BCCA 199
Mother hears of train accident; her child is onboard. Due to defendant’s negligence, doesn’t find out that child
is dead for days; lives in anxious suspense. No recovery – no shock
Devji BCCA 1999
-Family sees bandaged body of daughter after accident; no recovery, family had opportunity to steel
themselves. Experience must be shocking/horrifying/etc., not usual grief
-Use Anns/Kamloops, so requires foreseeability, proximity, negating policy considerations
Mustapha v. Cullingham (2008) SCC
-P claims PH for seeing dead flies in sealed water bottle
-CA: says no DOC to prevent liability
-SCC: says there was a DOC and there was a breach of SOC, but they say no legal causation because the
damages were too remote
-Court reverts to stricter remoteness standard from “possible” back to “probable”
-Any harm that has actually occurred is obviously possible, so that’s not a valid test: need probable
-Apply remoteness: was it probable that person of reasonable fortitude would incur PH?
Policy Concerns for Imposing PH
1. Floodgates
2. Fabrication/Indeterminacy
3. Cultural bias
Overall Control Devices
1. Only recognized psychiatric illnesses will be compensated at tort law
2. “Reasonable fortitude” is expected
SUMMARY OF PH TODAY
Successful claim for PH requires: Mustapha
1. A recognized psychiatric illness (serious, prolonged, and rise above ordinary annoyances/anxieties)
2. Must be foreseeable that psychiatric injury would result in a person of ordinary fortitude
3. Plaintiff must have shown “reasonable fortitude”
4. If defendant knew plaintiff was sensitive, the “reasonable fortitude” it would be more foreseeable
5. Only after person has shown reasonable fortitude, but PH still occurred, can Thin Skull Rule play a part in
damages (don’t jump over DOC)
Secondary Victims (psychological harm without breach of duty of care to victim): Devji
1. Relational Proximity: Close family member or love and affection for victim
2. Locational Proximity: Need to either be at the scene or experience the shock immediately afterwards
3. Temporal Proximity: The shock/horror must arise directly from the occasion, not from being told about it
later
-The above are just factors that must be weighed, not a strict test
*Most of the discussion arises at remoteness stage
PURE ECONOMIC LOSS
OVERVIEW
-Traditionally could only recover in tort for damage to property or personal injury
-No problem with awarding consequential economic loss when property or personal injury threshold has
already been crossed (ex. loss of income, cost of repair, etc)
-PEL is not consequential: the only loss is economic or financial
-Heavy policy considerations surround this area
Concern of PEL:
1. Floodgates: “indeterminate amount, class, time”
2. Purely financial loss not traditionally compensable area
3. In free market economy we are legally allowed to inflict economic loss on others
4. Infringing on contract law—already has built in systems of consideration, privity, etc
-Tort now allows for recovery for PEL in 5 recognized categories (below, plus independent liability of statutory
public authorities)
NEGLIGENT MISREPRESENTATION
Hedley Byrne v. Heller (1964) UK
-Bank gratuitously gave misrepresentation of their client’s credit record to plaintiff, who relied on record to
grant loans to client, and suffered loss when client defaulted on his loans
-Need more than just a negligent statement; defendant must have assumed responsibility for statement
BG Checo v. BC Hydro (1993) SCC
-P wins tender for power lines and because D is clearing trees on site, assumes D will finish clearing
-There is nothing in the contract that says BC will continue to clear the trees—interaction of contract and tort?
Hercules v. Ernst and Young (1997) SCC
-Shareholders claim for PEL from investing in company that defendants negligently audited
-Not liable because shareholders used audit for personal investment, not managing (specific purpose)
Avco Financial v. Norman (2003) OntCA
-Avco’s life insurance terms were ambiguous and they wouldn’t annually renew when wife had cancer, so
when she died Norman could no longer pay for house so defaulted. Wife’s life insurance would have covered
cost of house
A statement is a negligent misrepresentation when: Hedley
1. There is a duty of care based on special relationship
2. The representation is untrue or misleading
3. The misrepresentation is made negligently
4. The listener reasonably relied on the misrepresentation
5. The reliance was detrimental
Anns/Kamloops for establishing negligence in misrepresentation cases (same as all negligence cases): Hercules
1. Prima facie DOC from relational proximity and reasonable foreseeability?
-Proximity leading to “special relationship” of reasonable reliance when:
a. D should have reasonably foreseen that P will rely on misrepresentation
b. P’s reliance would have been reasonable
*NB: this test is different to other negligence cases because it is always reasonable for plaintiff to expect
defendant to take care with plaintiff’s personal property and body, but not so with verbal representations
*“Special relationship” characteristics which are indica of reasonable reliance: Hedley
a. Formal context in which the statement was made (conversational or commercial)
b. Payment (consideration) would definitely be an indicator
c. Plaintiff requested the information, rather than defendant just giving it voluntarily/conversationally
d. Comparative expertise between the parties
e. Reasonable and foreseeable reliance
*These are guidelines, not set criteriaplaintiff in Haskett did not fulfill request report or rely on it!
2. Negating policy considerations?
A. Indeterminate liability, class, time concern dealt with:
a. Is the class of plaintiffs defined and known to the defendant?
b. Was the representation used for the specific purpose for which it was made?
B. Other policy concerns include: auditor costs would rise and this would be passed onto consumer, free riding
parties who are not paying for advice would benefit from positive externality
Can have concurrent liabilities in contract and tort law: BG Checo
1. If contract stipulates more stringent obligations than general tort duty would impose
-Cannot recover in tort, because contract directly addresses the obligations
2. If contract stipulates a less stringent obligation than general tort duty would impose
-If the contract deals with the obligations expressly (EC), cannot recover in tort
-Want to protect individual autonomy to contract to waive legal rights
-If contract only partially deals with the obligation, can limit tort recovery but not bar it
3. If contract doesn’t mention obligation
-Tort and contract obligations are co-extensive, so can sue in whichever one gives better remedies
*Bottom line: the existence of a contract does not bar tort claim unless the contract explicitly deals with the
obligation, then must follow contract remedy
Contributory negligence can co-exist with negligent misrepresentation: Avco
-Test for CN focuses on conduct of plaintiff with respect to the circumstances surrounding the loss,
and NM focuses on conduct of defendant when making the misrepresentation
-Reliance might have been reasonable, but the plaintiff might have acted negligently in the events
that brought about the loss (plaintiff needs to account for the possibility of others being careless)
NEGLIGENT PROVISION OF A SERVICE
Haskett v. Equifax Canada (2003) OntCA
-Plaintiff is denied credit because of D’s bad credit ratings after his record should have been wiped clean
-There is a statutory standard disallowing D to report his prior bankruptcy, but D makes negligent report
-P cannot create a report by himself, he must go through D
-Does not fit into established “special relationship” because
a. No request by plaintiff for report
b. No reliance on report by plaintiff (3rd parties relied on report)
-Need to go to Anns/Kamloops to determine if novel DOC exists:
1. Proximity and reasonable foreseeability and relational policy concerns
-Plaintiff did not rely on credit report himself and he did not request it, but he had no power to stop it
either and D assumed responsibility for it
-There was a statute prohibiting reporting his bad credit
-Statute is not determinative of SOC, but does establish relational proximity
-Establishing the DOC would further the policy objectives in this statute (contrast with Cooper)
2. Negating policy concerns
a. Indeterminate issue: group is large but defined and known to D, and reports are made for specific purpose
at specific time
b. Recourse to legal alternatives: technically there is a way to dispute, but inadequate because:
-Cannot claim damages under the statute (can in BC)
-Cannot claim punitive damages
-Not very effective recourse (significant that court considers this)
-Don’t allow motion to strike before we have evidence about effectiveness of recourse
c. Encroaching on defamation: no, recognizing this in NPS is not like defamation because it concerns specific
facts about his finances rather than his general reputation
-No injustice in making lawyer liable
-Public relies and pays for professional role of lawyers
-Lawyer has assumed responsibility
Held: Lawyers are liable to disappointed 3rd party beneficiaries in negligent provision of a service
BDC v. Hofstrand Farms (1986) SCC
-Needed Crown Grant delivered to LTO in Prince George by end of the year
-PEL uses Anns Test
-Court is reluctant to expand DOC for negligent NPS because
a. Plaintiff was not directly relying on courier; Crown was in the contract with courier
b. Harm to 3rd party relying on document might be compensable, but courier would need to have actual
knowledge of importance of document and identity of 3rd party
-Problem: P was not allowed to deliver document himself, so his hands were tied!
Wilhelm v. Hickson (2000)
-Negligence of lawyer caused intended beneficiary under a will to lose out
Why court should not impose liability:
-Lawyer worked for testator, not beneficiary (privity of contract precludes 3 rd party liability)
-Loss of expectation, not existing right
-Indeterminate class of potential beneficiaries?
-Testator himself owed not duty to beneficiary
Why court does impost liability:
-Remedy a gap in the law: testator suffers no loss, so cannot claim, and intended beneficiary suffers
loss but can’t claim
-Recognize importance of rights of testators because they cannot represent themselves now
NEGLIGENT SUPPLY OF SHODDY / DANGEROUS PRODUCTS
Winnipeg Condo v. Bird Construction (1995) SCC
-Bird built condo for Tuxedo, who sold it to WCC. Outside of the condo was shoddy but a chunk fell off so also
dangerous
-Subsequent owners (WCC) successfully sue original contractors (Bird) for supplying dangerous product
Hasegawa v. Pepsi (2002) BCCA
-Mold spores in caps of water bottles are not dangerous, but Japan refuses to allow them into market
-Cannot sue Pepsi in tort after the fact for shoddy caps because could have made warranty with Pepsi
-Instead made warranty with Aqua (but only for $40,000) and sued them
DANGEROUS PRODUCTS
-Contractor is liable to subsequent owners for PEL if the product poses a “real and substantial danger”, and
only liable to remedy the danger, not to rectify quality concerns: Winnipeg Condo
-Subsequent owner does not need to have a contract with original contractor: Winnipeg Condo
-Can recover for mitigation costs as well as actual damage (policy of preventative action): Winnipeg Condo
-Cannot expect plaintiff to ‘discard defective product’ when it is a house (subsequent cases don’t seem to
expect plaintiff to have discarded dangerous product either): Winnipeg Condo, Pepsi
Negating Policy:
1. Indeterminacy
-Class limited to inhabitants
-Amount limited to cost of repairing to safe state
-Time limited to useful lifetime of building (will be harder to prove as building ages)
2. Overlap between tort and contract duties
-Tort duty is independent of contract because it arises out of the creation of the dangerous product—he is
purporting structure is sound for people’s uses.
-Tort liability only extends as far as reasonable SOC, not to cover terms of contract
3. Caveat Emptor
-Dismissed doctrine saying builder is in best position to bear the risk
SHODDY PRODUCTS
-No such thing as “complex structure” claim under property (one shoddy part damaged other parts); if the
property itself was defective, cannot just say it damages other parts: Winnipeg Condo,Pepsi
-Need to try Anns/Cooper test because this is a novel duty (not recognized): Pepsi
-No novel duty established: manufacturers have duty not to supply dangerous goods, but no duty not to
supply shoddy goods: no DOC because no “real or substantial danger” (expert evidence cannot support): Pepsi
Negating Policy:
-Do not allow after-the-fact insurance when plaintiff should have purchased a warranty
-Do not interfere with contract law where they could have made warranty
-Indeterminacy issues
RELATIONAL ECONOMIC LOSS
-Negligent damage of property of a 3rd party that causes the plaintiff to suffer PEL because of his relationship
with the 3rd party (not well recognized in Can) *Always need real damage to property to ensure proximity
CNR v. Norsk (1992) SCC
-Tugboat hits bridge and renders it unusable; CNR has no proprietary interest in bridge but has agreement to
use it, and cannot run
-Court split evenly, so no good precedents
-LaForest group: generally exclude PEL from tort law unless in five categories
-McLachlin group: bring PEL into general tort law and use Anns/Kamloops and proximity (abolish distinction
between economic and physical harm)
Bow Valley v. Saint John Shipbuilding (1997) SCC
-P wants to claim PEL for damages to property of a 3rd party that they are using (oil rig)
-No clear rule from Norsk, so test novel category with Anns/Kamloops:
1. DOC based on proximity
-Yes to owners (property damage)
-Yes to people leasing rig because defendant had constructive knowledge they were leasing it /harm
2. Negating policy
-Yes, negated because of indeterminacy of damages ‘people using the property’ is too great
-McLachlin holds out the promise of relational economic loss, but basically just defeats it with property rules
anyway, so not much different than UK result which refuses to ever give recovery for pure economic loss
-Relational economic loss is basically only recoverable under existing categories (although McLachlin says
these can expand):
-Plaintiff has a proprietary interest
-Joint venture
Why does CL dislike PEL (no recovery in UK ever)?
1. Less worthy than body or personal property
2. Indeterminate liability
3. More efficient to place loss on victim because better able to avoid loss
4. Discourages lawsuits
NEW DUTIES RELATING TO ECONOMIC LOSS
-If PEL claim does not fit into existing five categories, do Anns/Cooper to determine novel duty: Design Service
-Canada holds out possibility of recovering liability outside of five categories, but never lets it happen because
of indeterminacy and contract law
1. a. Proximity leading to reasonably foreseeability?
-Yes, because named sub-contractor on bid so government had actual knowledge of identity / harm
1. b. Negating relational proximity?
-Yes, could of joined bid as joint venture but chose not to, so cannot use this as insurance after the
fact; court will not impose liability for things the parties were capable of contracting for
2. Negating residual policy concerns?
-Yes, indeterminacy (unnamed sub-contractors might also come forward)
TORT LIABILITY OF GOVERNMENT
HISTORICAL EVOLUTION
-“The King can do no wrong”  Petition of right (can sue the Crown  Crown Proceedings Act (treat Crown as
a person, although courts read in limits because of inherently unique role of government)
Just v. BC (1989) SCC
-Boulder fell onto Highway 99 to Whistler and killed his daughter and injured him—sues for negligent
maintenance of highway
-Liability was imposed because there was a policy to inspect, but operation of the policy was inadequate
(“drive by” inspections not adequate; needed to actually go onto side of road)
Kamloops v. Neilson (1984) SCC
-Son built structurally unsound house for his father, and city warned them multiple times but did not force
them to make changes—subsequent owner sued city for negligence: City=25%, prior owners=75%
Local Government Act
-After Kamloops, municipality brought in act to restrict its liability with respect to building codes
-Problem with holding municipality liable is they just legislate exemptions for themselves
Hill v. Hamilton Police (2007) SCC
-Claiming tort for negligent investigation of a suspect—do Anns because no existing duty (victim or family
relationship is not analogous to suspect relationship)
1. a. Proximity leading to reasonable foreseeability?
-Starting point is that government owes a DOC unless valid basis for its exemption: Just
1. b. Negating relational proximity?
1. Enabling statute: does statute impose or exempt a private DOC to individual: Just, Cooper,
-An individual with a "critical personal interest" in the government’s activity is likely to be in a
proximate relationship, even in the absence of representations or reliance: Hill
2. Policy v. operational:
POLICY (not liable): No duty of care for policy decisions unless can show the policy itself is
unreasonable in light of the balancing of interests (balancing economic, financial, social, political
factors): Just
-If there is a statutorily imposed duty to act (policy), failing to choose between policies is not a valid
policy choice: Kamloops
OPERATIONAL (liable): Once a policy decision has been made, the system implementing it must be
reasonable (manner) and carried out in a reasonable and non-negligent way (quality) (administrative
directions, opinion of experts or professional, technical skills, or general standard of reasonableness):
Just
- There can be a secondary policy decision within operational decision (policy of how to enforce duty
might include weighing benefits of injunction, prosecution, warning signs, etc), but choosing to do
nothing is not an acceptable policy: Kamloops
2. Residual policy concerns?: Hill
-Does imposing DOC align with policy interests, Charter rights?
-Does imposing DOC pose conflict of interest (chilling effect, defensive policing, etc)?
-Adequacy of existing remedies
-Indeterminate liability—class, amount, time
-Risk that plaintiff might recover unjustly due to mistake does not generally bar imposition of liability
SOC
-Appropriate SOC will be “reasonable government official” in like role (won’t compare judicial role to factgathering role of police): Hill
-Discretion will be compared to that of other “reasonable government officials”: Hill
-May not hold government to equally high SOC as individual because of limited resource problems and
availability of qualified personnel and equipment (“bureaucrat with a budget”): Just, Hill
CURRENT LAW
IMMUNITY OF MOTHERS
Do Anns/Cooper for novel duties:
DOC
Dobson v. Dobson (1999) SCC
-Child sues mother for negligent driving that resulted in car crash and premature C-section and mental and
physical disabilities.
DOC—this is a novel situation (not same as a 3rd party suing), do Anns/Kamloops
1. Sufficiently close relationship? Foreseeability?
-YES—Cory says we need to assume pregnant woman and fetus can be treated as separate legal entities.
*This causes problems with abortion…Major used born alive child as separate legal entity*
2. Negating policy?
A. Charter: it is a gender based tort that would affect women more than men, but because this is private law
and no one argued Charter, we won’t discuss it
B. Privacy and Autonomy rights of women
-Woman is not just a vehicle—she has rights too
-Unique relationship because everything she does will affect fetus because it is completely dependant, so her
entire lifestyle will come under scrutiny (no rational limit). (On the other hand, don’t forget about CAUSATION
and how difficult that would be to prove)
-Woman would bear the burden, and men share in social gains
-Devastating consequences on mother-child relationship, so not in best long-term interests of either. NB:
woman in this case said she’d be glad to accept liability because then they get insurance
-Would not compensate or deter: not true in cases of insurance fund, but court pretends this doesn’t matter
because they think insurance should be irrelevant to liability based on fault (driving, home insurance?). Also,
in many cases the interests of plaintiff and defendant will be aligned, so not true adversaries
C. Judicial SOC: “reasonable pregnant woman”
-Scrutinizing lifestyle choices on individual basis would lead to unfair application because of wealth, education,
etc, so purely objective tort standard would not work
-Too difficult to draw a line between general duties and duties peculiar to parenthood (ex. driving generally, or
driving to soccer)
-Using tort to limit liability to only driving would be unworkable—legislature can do it if they want because
they can be very clear cut so no floodgates problem
Dissent (Major)
1. DOC not owed to fetus because not a legal entity, only owed to born alive child
-Can sue 3rd parties for post-natal injuries arising from pre-natal events (cannot sue mother because
she had right to abort it while it was inside her, but no one else had right to abort it)
2. Autonomy rights of women
-Driving standard already restricted, so wouldn’t affect her behaviour, so why not owe duty to born
alive child if she already owes same standard of care to other road users?
Maternal Tort Liability Act (2005) Alberta
-Mothers now liable to children for negligent driving only if they are insured, and damages limited to
insurance coverage
Preston v. Chow (2002) MCA
-Mother had unprotected sex while pregnant, got herpes, didn’t tell doctors and had vaginal delivery where
infant contracted herpes and got brain damage
-Born alive child sues doctor, and doctor cannot counter-claim that mother is contributorily negligent because
she is not liable to her child, so doctor is 100% at fault
-Unless legislature acts, Dobson foreclosed all possibilities of holding mother liable to child
SUMMARY
-Mothers are immune to negligence claims against them for pre-natal harms resulting in post-natal injuries to
their children: Dobson
-Although they share a proximate relationship, there are overwhelming policy reasons rejecting a
duty of care: intrusion into women’s autonomy, unique relationship between mother and fetus
(everything the mother does could result in liability), institutional competence issues, and family
reasons (psychological blow to mother), no deterrence or compensatory benefit: Dobson
-Negligent mothers cannot be found to be contributorily at fault (and thus, doctors are 100% liable for injuries,
regardless of mothers' negligence): Preston