Negligence:
5 elements:
1) Duty of Care: matter of law. Nature and scope. Does D have legal
oblig wrt P’s interest? (Cooper v Hobart)
2) Standard of care and its breach: reasonable person in all the
circumstances of the case. Diff for different kinds of skill levels,
positions, etc. Q for trier of fact (whether breach). (Arland v
Taylor)
3) Causation: even if there is a breach, P must prove D ‘caused’ harm.
Traditionally but-for test, but lower standard in certain
circumstances. (Clements v Clements)
4) Remoteness: If caused, Q of whether damages not too remote –
foreseeable consequence? *******
5) Actual Loss: unlike intentional torts, P needs actual damages
(Andrews)
6) Defences: switches to D… e.g. Contrib neg, voluntary assumption
of risk, illegality, limitation period, etc. (Langley)
Example case (first 3 ele): Dunsmore v Deshield –hardex
-Facts: player runs into P during football. Lens shatters.. some contact in
game, but not meant to be significant. P got special hardex lenses (adv as less likely
to break on impact). Really playing with non-hardex, breakage caused, and dmg.
Sues: optometrist + manufacturer. If not for fault lens, it wouldn’t have smashed and
no injury.
-Elements analysis: 1. Duty of care - relationship btwn manufact and
ultimate consumer = clearest example. Person who sells the product has duty too. 2.
Standard of care: reasonable manufacturer would’ve done testing (had equip), and
reasonable optometrist would’ve checked quality as well (should have machines). 3.
Causation: would hardex break anyways? Although expert evidence not produced,
the fact that it is stronger and that there was limited force lead to finding of causal
relationship. *Can not break, or break in a safer way – they go “not break” route
(other is speculative). Another issue: may not have participated (character) if he
knew it was not hardex.
Element 1: Duty of Care:
Is the relationship such that a duty between P and D is established?
Test:
First element: 1. Reasonable Forseeability: is it reasonably foreseeable that your
action/inaction could lead to the damage to the P?
2. Proximity: how close is the relationship? These two limit the scope of negligence.
(not every action/inaction is within foreseeability or proximity).
Second element: Onus on D: POLICY LIMITS – reason why there shouldn’t be a duty
of care: 1. Proximity (again); 2. Larger Policy considerations.
Donoghue: - duty of care – test – manufacturer liability
-Facts: woman in café drinks gingerbeer given to her by friend /w snail.
Severe distress (physical & emotional). No K btwn her and manufacturer.
-Analysis: Neighbour Principle: you must take reasonable care to avoid acts
or omissions wich you can reasonably foresee, which would be likely to injure
your neighbor (X in the position of the P). People in RF are “so closely and directly
affected by my act, that I ought to have them reasonably in my contemplation so that
I should direct my mind to the act/omission.
-Onus on P: 1. Reasonable foreseeability; 2. Proximity: doesn’t require
actual proximity – just direct connection, has to end somewhere though. POLICY Q
(first one).
-Onus on D: POLICY LIMITS – reason why there shouldn’t be a duty of care:
1. Proximity (again); 2. Larger Policy considerations.
Cooper v Hobart – main test for duty of care – negligent investment schemes – policy
– govt
-Facts: Money negligently lost in scheme, but Q of whether govt regulators
have duty of care based on not doing their job properly.
-Analysis – duty of care: (1st step) reasonable foreseeability might well be
established – they are supposed to protect/be aware of investment schemes. Fails:
at proximity.
-(1st step): Proximity: TOOLS: expectations, reliance, representation
(property interest): help in identifying the closeness of the relationship (e.g.
basketball game -> expectation: players only on court, Reps: signs saying “players
only”. Reliance: e.g. going to your optometrist (helps create prox)) – determine what
is JUST & FAIR to regard there being a DOC (POLICY). -- > close & direct?
-> application: statutory duties.. and the duty is not just to those who
lost money, but to the public as a whole. They also have various other duties &
interests (e.g. ensuring efficiency). Proximity fails.
-GENERAL policy analysis (2nd step): also fails here. Impact of duty on tax
payers, fairness + judiciary’s role, they already have a tribunal determining whether
rules broken (?).
Hill v Hamilton-Wentworth Police (SCC): est of negligent investigation tort, duty +
standard of care..
Facts: accused eventually not guilty, dropped charges. Crimes committed had
similar string. Accused is arrested as suspect. Problems: while in jail, other similar
events occur. Interviewing two witnesses together: memory + influence. Tainting of
identification. Photo lineup: was structurally biased (10 white men and 1 aboriginal).
Failure to investigate new robberies sufficiently (disconfirming evidence). Could
have delayed crown.
-Analysis: scope being limited to particularized suspect being
investigated. To establish proximity you can look to analogous cases, or use the
three criteria (expec, reli, rep) + whether just and fair to establish proximity.
Proximity policy (for closeness): existing remedies poor, liberties and reputation
significantly at stake.
-They find prox (prima facie) -> defendant: broader policy reasons against
finding duty of care: A) police = quasi-judicial function (immunity). Court: no..
mostly evidence gathering (not really judicial) – BC: no authority to lay charge. B)
limiting of discretion? Court: you can deal with this by a flexible standard of care.
C) Chilling effect on prosecuting criminals? Court: need evidence for this (some
studies showing opposite). D) Floodgates – litigation: need evidence. Examples of
other jurisdictions (Ont + Que) doing so, but no flood.
-Standard of Care: depends on the stage of investigation – reasonable
officer in the circumstances – standard of the day.
-Decision: did not fail the standards of the day.. but would today.
Element 1: Special Duties of Care – duty to act
Not likely to be required to do positive act by law, unless special relationship.
CL traditionally distinguished btwn misfeasance (positive acts) and nonfeasance
(failures to act). Courts more willing to impose for positive acts, than failures to act.
(Punishing action instead of inaction) – need special relationship to justify.
Osterlind v Hill: Example where no duty to act – rescue
-Defendant not liable for allowing the drunk defendant to rent canoe. No duty
to prevent the man from renting it out (no positive duty to act).
Matthews v MacLaren: Attempt to rescue – e.g. of duty to act – Operator of boat
-Facts: operator of boat sued, invited guests - didn’t do anything negligent
before one fell off.
-Analysis: Duty of care – special duty: relationship between operator &
passenger (heavy reliance). *Use Canada Shipping Act to help establish (giving
assistance at sea)/ employee/employer.
-Duty of care est, standard of care also breached (not reasonable)
-FAILS for causation (unable to prove they would’ve been killed but-for him
acting – shock).
-Common law**: you may have no duty to act, but if you do, you have a duty to
do it non-negligently -> many Good Samaritan Acts: only liable when you help and
it’s GROSS negligence.
Croker v Sundance: Duty to act (intervene/stop involvement in dangerous event) –
on COMMERCIAL party – tubing comp
-Facts: guy is visibly drunk, was warned.. was falling off, eventually last fall
made him a quad in dangerous tubing competition. Can characterize as positive act
(setting something up) attracting normal negligence standards, or as duty to act,
which requires special relationship.
-Analysis: special duty analogous to one placed on bars, hotels, restaurants > some positive duty to act where someone could be foreseeably hurt (element
intoxication). Financial benefit (common thread) – enticing people + setting up.
-Decision: for plainttif.
Childs v Desormeaux: No Duty to act on party host (social function – domestic)
-Facts: Hosts hold party, not providing drinks, sees party getting to car, asks
if okay (had 12 beers in 2.5h), didn’t really have reason to think he wasn’t fine.
Driver causes sig injury + dmg to other…now she sues hosts.
-Analysis: special duty between host and party-goer? No pre-existing
duty of care est in hosted party, therefore have to go through Ann’s Test, if
disanologous to existing areas. Fails analogy: others are commercial, highly
regulated, special monitoring/staff, etc.
-Ann’s test: 1. Reasonable Forseeability: *even though they know he was an
experienced drinker, they didn’t foresee that this guy would create such a harm (not
objective test in foreseeability.. but are relevant in standard of care) – normally
broader level -> if a careless host, would you forsee someone being injured? 2.
Proximity+ (key – POSITIVE duty): not an invitation to a risky environment
over which the have control. Not analogous to invitation to boat, paternalistic
relationships, student teacher, public functions, or commercial role. Party = common
occurrence, and person has autonomy and responsibility. **Left open: if you are
serving – maybe enhancing risk, thus, prima facie DOC.
-Decision: neg claim failed at duty of care (proximity).
Element 2: Standard of Care RP-test
After duty exists, looking to whether conduct falls below or meets standard.
Arland v Taylor: Setting the standard – RP TEST
-Rule: objective standard -> that of the reasonably prudent driver in the
circumstances. Judge/jury think of what they would have done. Not perfection
either, normal intelligence, adopted in a community of ordinary prudence. Context:
1. You don’t impute the persons characteristics, but the circumstances they were
in. 2. Relevant community – e.g. reasonably prudent knee-surgeon. Nature of the
risk: pushes standard higher or lower: 1. Potential SEVERITY of injury; 2. Likelihood
of inury.
-> case: even when the risk is slight, the severity of the damage may be
significant.
Matharu v Nam: Occupier’s liability, Standard of Care, Voluntary Assumption.
-Facts: people’s shots from the 18th are passing nearby the 10th tee-off (if it
slices). The course sets up hedges & trees, shows awareness of risk. Likely to stop
the ball. P in the 10th gets injured by D’s ball, whose shot cut (didn’t think it would).
Suit against: a) golf-course: designed something dangerous b) golfer: didn’t call
FORE, when saw it slice.
-{GOLFER} - Duty of care: easily est.. two players – basic duty to take normal
precautions not to HARM.
-Standard of care: informed by custom (e.g. yelling “FORE”) when slicing.
“Exercising reasonable prudence to the safety of other golfers” - sometimes fore is
required, sometimes not. D: not negligent -> RP may not have perceived it following
its path + testimony of practice (wife).
-{GOLF COURSE}: Duty of care est by Occupier’s Liability Act : to make
sure the property is reasonably safe -> BROAD duty of care (anything happening
on the premises, even third parties).  3(1) EXCEPTION: DOES NOT APPLY TO
VOLUNTARILY ASSUMED RISKS, unless things are intentional done to you, or
grossly negligent.
- Interpretation of exception: very narrow – leg intention = broad liability.
The consent aspect in negligence should be so as to acquire almost explicit consent
e.g. “I will not sue if you break my leg”. RARE circumstance.
-Finding: Standard of Care Golf course sufficiently mitigated risky exposure,
so not UNUSUALLY risky exposure. SOME risk -> encourage ppl to take risky shot
but they acted reasonably (took advice). Perfection unnecessary.
Element 3: Causation
Still have to establish that chain of events would be different, if the negligent
conduct had not occurred. Factual Causation = But-For (if not for) the nonnegligent conduct of the defendant, would the injury have occurred anyways?
(Contrasted /w crim – factual + legal… beyond de minimus). However, due to
unfairness in certain circumstances, material contribution test might be used.
Kauffmann v TTC: But-for Failed
-Could not establish ‘but-for’ the defendant’s installment of certain rails, the
P would not have fallen (no evidence – up to the P to prove)
Barnett v Chelsea & Kensington Hospital Management Committee: but-for failed
-F: deceased P had arsenic poisoning, but Dr. not negligent in getting him
treatment because he would not have been able to provide antidote in time
anyways.
Walker Estate v York Finch General Hospital: Attempts to modify causality test –
MATERIAL CONTRIB – flexibility in causation where difficult
-Facts: HIV contracted from tainted blood supplied by RC. Linked to actual
donor -> P: “if you engaged proper procedures, I would not have HIV”. Pamphlet
used was ’84.
-Three pamphlets used – standard of the time. ’82 (ARC – US) pamphlet
best (warned of particular symptoms, high-risk groups, and told to refrain/ask. 83’ > least warning, very general, no identification of risk groups, etc. “good health”.. 84’
medium -> some high risk categories, but doesn’t inform them that they may feel
healthy.
-Q: would the P have re frained if given the proper pamphlet?
-Analysis (SCC): material contribution can supplant the but-for test,
because particularly difficult here, since trying to answer, “what individual would’ve
done if provided more info in pamphlet” – speculative. MC -> contrib outside de
minimus range? (not insignificant). Scientific precision not necessary -> common
sense & logic suffice.
-Decision for P: the ARC pamphlet would have clearly made a material contrib
to refrain.
Clements v Clements: Clarification on use of material + but-for
-F: P on motor bike /w D. Several factors causing danger on behalf of D (e.g.
too much weight, speeing, etc.) and some outside (nail in the tire), causing damage
to P.
-Q: but-for neg of D, would accident happened anyways (nail)?
-Analysis: material contrib should be limited to multiple cause scenario,
where it is impossible to use BUT-for and extreme unfairness would result (policy);
you have global causation on but-for (e.g. two factories responsible together), but
not local. But-for is the MAIN test.. don’t require scientific precision -> common
sense & logic.. but for doesn’t have to be the only cause, just a cause (you can
apportion if more than one).
Tort of Negligent Misrepresentation
Premise underlying = relying on written or oral communications which were
negligently made, causing you to lose, particularly in financial sphere. Proximity
easily created (someone in position of expertise). Don’t want to regulate too heavily,
since speech involved. Potential indeterminate liability: too great of scope
(massive proportions).
Hercules Case: Est of Tort of Neg Misrep (accountant + statements)
-F: Accountants preparing audited financial statements for companies.
Required BY STATUTE. Shareholders look at them. Audit -> argued negligent.
Shareholders increase or decrease on the basis of statements. They may have tried
to sell, if done properly.
-Analysis: DUTY OF CARE: shareholder to accountant. Part of Ann’s test for
this area = Q if reasonable reliance (establishes 1st part of Ann’s test)
(1) whether defendant had direct/indirect interest in transaction; (2)
whether advice was given in the course of defendant’s business; (3) Advice given in
response to particular inquiry/request; (4) Not on social occasion; (5) defendant
was a professional.
-(2nd part of Ann’s test) Policy: whether the relationship established would
give too broad of a scope of liability (indeterminate).
-(3rd part of Ann’s) Narrowing liability: If you have significant policy
concerns, you can further limit liability b/c of circumstances.
(1) Whether defendants knew the identity of class of plaintiffs (2) P
used statements in question for the SPECIFIC purposes that were mentioned.
->Application: 1. Meets the factors (despite not 1-on-1). (Reasonable
reliance) 2. Some policy reasons to deter negligent auditing, but overwhelmed by
the possible indeterminate liability involved (driving costs up – litigation). 3. Were
not being used for the right purposes -> personal investment decisions.
Liability of Public Authorities
Crown Liability Act -> allows govt to be sued (acc & transparency).
Exceptions: 1. Cooper: you cannot sue the government pursuant to its adjudicative
role (immunity to judges for proper decision making). 2. Suing for purely
government or political decisions (generally, for operational you can -> when
implementing policy: “if you do something, you have to do it non-negligently). You
look to statutes first: if no bar from suing, you follow the above.
Just v BC: Policy decisions vs operational – when is govt liabile?
F: Boulder killed daughter, injured D. Govt carried out inspections with
settled plan (of highways and dangers to the road).
Q: Is the manner of inspection suable? Policy or operational?
Analysis: potholes case helped est that once you have made political decision
(can’t sue for how good policy is), the process/implementation would have to be
reasonable. True policy usually made on higher level, and people on ground likely
to be in operational area – implementing. Just b/c you decided policy of inspecting,
but allocated funds elsewhere, does not allow suit. Government can also make a
POLICY decision to limit inspections in a certain way (e.g. every 2 yrs). However,
you can challenge a non-bona fide policy decision by the govt (not easy). *Consider
budget.
Application: commitment to safety on broad level = policy, but particular
system of safety inspections characterized as operational “exercise of discretion”,
thus, had to be done reasonably (manner and quality), but wasn’t. Can be liable for
operational decisions.
*Can sue for something that is NOT a Bona fide policy decision? (hard to prove)
KLB v BC: Vicarious liability, negligence & foster care, difficulty in VL suit against govt
-F: children placed in few foster homes, reports on parents not read
adequately, suffered abuse. Various warnings ignored (relied mostly on interview),
and made infrequent visits. Argued either negligent, or vicariously liable (more
powerful).
-Analysis: VL = frequently employee-employer relationship, sufficiently
close that one is responsible for acts of another. Don’t need direct neg. Duty of Care
– direct neg: (govt – children) -> statutory duty (high duty of care -> must best
meet needs of child – careful parent test). Would govt’s action reasonably
foreseeably (as careful parent) expose kids to danger?
-> Application: Direct neg found: infrequent vists + ignored info.
-VL: Policy basis = closeness & control (e.g. emp has control over training
prog, equip, the policies). You can take steps to avoid emp’s conduct. Factors: 1.
Sufficient closeness btwn the bodies (like emp-emplyr relation or like hiring
independent contractor) – labels not everything. *Examples: More detailed
instructions from other body; whether own equipment provided; whether hired
own help; whether worker had managerial responsibilities. 2. Emp’s act inside
course of employment – related to job/task (can’t cover yourself by handing kids
off and “making clear that sexual abuse impressible” -> too detailed, has to be
broader.
-Application: Key (1st factor): closeness found by lower crt, but not
SCC -> the family-type atmo has huge discretion and independence, and used it
for abusive purposes. Govt’s ctrl limited. Distinguished Basley, where care provided
NOT in private home: overseen and controlled by govt – sufficient closeness. *Thus,
1st step fails.
BC v Imperial Tabaco: Product liability suit, tricky legislation to sue manufacturer
-F: very specific Act (affecting particular case) created by prov for damages in
health care. Argument -> IT breached duty of care to society and govt by hiding
harmful effects of prod, and knew or ought to have known they were harmful, but
suppressed this. If not suppressed, more people would’ve chosen not to smoke.
Aspects of leg: reverse burden of proof (once shown basic fact of withholding info),
court then presumes aggregate would not have engaged in smoking but-for the
breach (other side must rebut); retroactive application; limitation act doesn’t
apply; aggregate claim (broader stats used, no need for individual health records
/w names) – HUGE advtg. IT’s argument: contravenes two charter rights: 1. Judicial
Independence; 2. Rule of law.
-Analysis: Understanding of govt’s approach (sometimes necessary to
change playing field to combat discrimination/power imbalance) – deferential to
parliament and conscious of judiciary’s role (application/interpretation of law) –
law reform = parliament. S7 NOT engaged by being “bankrupt” by case. 1. Judicial
Indep: Act is not fundamentally altering judicial independence. No appearance of
unfairness – still confidence in system, given policy gof govt; 2. Rule of Law: interp
that law must be prospective, general in character, not conferring special priv unless
necessary, ensuring fair civ trial = only one characterization. Written constitution =
is supreme (not implicit con principles). Redundancy as well (“fair crim trials” in
Con). Also, this one end of the interpretation, don’t have to accept it.
R v Imperial Tabaco: Third Parties & Motions to Strike, negligent misrep
-F: Prov govt suing IT for health care damages + partly for misrep -> light
cigarettes actually do more harm but sold as “better alternative”. IT wants to being
in third party (Feds) as defendant -> if true, other party also responsible: 1) the feds
owed a DOC to the P’s (consumers) and 2) the feds owed DOC to IT, and helped put
them in this position by making negligent misreps to them (want indemnification
for loses to Prov).
-Feds bring motion to strike -> standard: no reasonable prospect of
success – you assume the facts, and keep in mind law is not static (open to new
imp).
-Analysis: Duty of Care in Neg Misrep wrt FEDS and PUBLIC (Ann’s b/c
novel area): to establish the special relationship of proximity/foreseeability, you look
first at 1. Federal Statute (Cooper) controlling HEALTH CANADA’s involvement /w
low-tar cigs; and 2. Specific interaction of govt – can create DOC. However, only
interaction = through statute, so not specific.
-> But statutory duty (1) created only WRT to public as a whole, not the tarsmoking P’s. Thus, Fed’s DOC wrt to public fails.
-DOC wrt to Tabaco manufacturer (NegMisrep): Canada assumed
“advisory” role based on advice given to manufact (on marketing light cigs). Some
basis for RR. Prima Facie negMRP.
-Policy reasons undoing NegMisRep?
-1. Just -> everything here is found to be policy not operational.
Making reps, they were acting for health concerns. HIGH level govt considerations of
social/eco/health – general to protect Canadians OR even that general policy to
promote safer cig, but individual things falling under = operational (court picks ALL
policy).
-FAILs at POLICY REASONS.
-Note: adv for govt lawyers in op vs pol characterization.
-Indeterminate liability -> IT also would’ve lost on it.
Roncarceli v Duplesi: Public official targeting individual – Misfeasance of Public
Office
-F: State took away right to hold liq license based on political/religious
vendetta. Referred to “any permits may be cancelled at discretion” in statute.
-Analysis: court reads-in that discretion must be tied to PURPOSE of
discretion given (licensing). Unless explicit arbitrary power for improper purposes
granted, governments should always be acting good faith.
O estate v Woodhouse: (Elements of) Misfeasance of Public Office – Police – Motion
to Strike
-F: SIU investigating police conduct of shooting someone. Required to
participate in investigation (giving account). Certain orders made which were not
complied with (not real acc), refusing to cooperate, and chief condoned this.
Allegation = deliberate misconduct by state officials. Dmg claim based on trauma.
-Analysis: *Tort is really the deliberate conduct that results in injury to
individual, acting in their official capacity, knowingly breaking the rules, aware of
resulting injury.
-Two categories: A) Conduct that specifically intended to injure a person
or class – deliberate unlawful conduct. Statutes have “good faith” read-into them. NO
NEED to talk about knowledge of how it would injure, because of specific intent. B)
Acting with knowledge (subj) that they weren’t allowed to act this way, and
knew it was likely to hurt them.
-Motion to dismiss: failures were unlawful. Good inference that officers
would know it’s unlawful.. some evidence of intentional + deliberate (selfpreservation). Has to be subjective recklessness or willful blindness (not “ought to”).
-Decision: motion denied.
Tort of Nuisance:
Doesn’t require neg or intent, protects use and enjoyment of property. Often
non-physical intrusion (by individual to company/govt)– purpose: to balance
competing interests.
Antrim Truck: Test for nuisance – govt interference /w business
-F: govt made changes to highway for safety purposes, and practical
impossibility of reaching P’s business caused, forcing him to close down. Statute still
allowed suits for nuisance.
-Analysis: Two part test: 1. Substantial interference: looks at severity (if
it’s trivial, will stop frivolous claims) – defined by non-trivial. Can be interference
/w health, comfort, or convenience. 2. Unreasonable Interference: FACTORS…
severity: duration and level of it throughout; frequency; character of neighborhood;
UTILITY of what’s creating the nuisance (e.g. job creation); *STATE OF MIND ->
malicious or careless conduct? + plaintiff’s sensitivity
-*(unreasonableness) - UTILITY: because govt involved in promoting
“greater good”, utility could always trump individual interest (safety of highway).
The question is, despite govt’s good reason, ultimate Q = whether it would be
reasonable without any payment to the victim, or whether society should split
the cost because cost on individual disproportionate (through fund).
-Decision: entitled to compensation through nuisance (his business entirely
run by the pre-existing conditions), even though better to have highway.
Product Liability:
Usually don’t need to establish duty of care – Donoghue already links prod
manufacturer to consumer. Close (direct, although non-physical) relationship +
foreseeability about hurting consumers. Kinds of suits:
1. Giving a product an unnecessarily dangerous design.
2. Negligence in manufacturing process: product is fine but process is
somehow dangerous.
3. Failure in duty to warn: dangerous you knew or ought to have known.
Have to inform consumer of product’s harm. (May be not recalling something
soon enough, Q of strength of warning).
Hollins v Dow: Duty of care brings DUTY TO WARN, Negligence, Manufacturer +
Dr. CONTINUOUS,
-F: post-surgery rupture of implants put toxins in her body. Allegation:
failure of duty to warn about risk of rupture from ORDINARY non-traumatic
impacts.
-Q: failure of duty to warn? (Manu + Dr.?)
-Analysis: Factors in Duty to Warn: high risk weighs heavily, number of
complaints, whether sufficiently detailed. Dow received MANY complaints
before procedure, not clearly explainable -> sufficient to trigger warning about
unexplained rupturing (negligent).
-Learned intermediary: who the info is supposed to be given to. Also
breached duty by failing to provide intermediary.
-Defence – learned intermediary + causation: tried to show even if DOW’s neg
did not occur, Dr. wasn’t type to give warnings anyways – no difference.
Technically legally correct, but ruled out on POLICY basis (leaves P with no one
to recover from, despite harm).
-Thus, if provided warning, she would have subjectively not partaken in
procedure.
Product Liability: class actions
Reid v Ford: Requirements to initiate class action
-F: car ignition shutting off (allegation: ignition switch = heat sensitive & goes
off when too much – placement), leading to expense + wasted time of dealing with it.
Not significant enough to litigate individual, (only few thousand at most) + costs of
experts prohibitive. Class Proceedings Act allows you to group individuals – rep
plaintiff: ruling for rest of cases.
-Analysis: CPA: adv = efficiency of judicial time/resources, reinforces/modifies
certain behavior (stopping problems) – so construe reqs fairly broadly (due to
policy), but not too broadly.
-Requirements:
1. Show that pleadings disclose a cause of action – reasonable prospect
2. Have to find an identifiable class: special group, even if don’t know them all –
the broader, the less identifiable.
3. The sharing of a number of common issues: don’t have to be exactly the same,
but key issues have to apply to all cases. On balance of convenience: whether it then
makes sense to tie them together. Sufficiently similar?
4. One representative plaintiff: on behalf of entire group.
-Application: 1. COA: negligent design, but also duty to warn. 2. ID Class:
people who purchased the vehicle during those years (people who suffered damage
from it). 3. Common issue: despite several tiny changes, undercutting issue =
common decision to mount distributor in the area (overall constant) -> req’d to
resolve each claim (most significant issue). Preferability analysis: even if some
differences, as long as minor, and issue significant across the cases, preferability for
bringing claims together. 4. Some differences in damages maybe, but still the P is
representative of the critical issue to all.
Contributory Negligence:
Avoiding all or nothing approach. Negligence Act allows for apportioning as
defence. First – does P need piece of liability apportioned? (breach of duty wrt to
self). If P is at all apportioned, all other defendants only take their share (e.g P-5%,
D1-80%, D2-15%). If P not responsible, all defendants are jointly and severally
responsible for damage: (Aberdeen v Langley) -> (if two of three can’t pay, third
bares whole cost).
Walls v Mussens: Contrib neg of P? P didn’t initiate conduct,
-F: Fire started, P alerted to this. Instead of using fire extinguishers throwing
snow, enraging fire. Dmg would’ve been less sig, but P didn’t ultimately start fire.
Alleged that P contributed to dmg.
-Analysis: role of agony of the moment. Prudent person in P’s position
would’ve been in shock as well…where P only adds to chain in shock, not initiates,
fairly broad standard will apply.
Gangon v Beaulieu: Contrib neg of P + car accident + seatbelts
-F: Passenger in car injured in accident, suing driver.
-Analysis: 1. Establish that P was neg in a duty to protect themselves from
harms (reasonable precautions). 2. Even if neg as a fact, need to est that in the
circumstances the wearing of the seatbelt would’ve lessened/prevented injuries, so
that neg in not wearing seatbelt taken to support contrib neg.
-App: 1. Found negligent in not wearing seat-belt; 2. Expert evidence
suggests injuries would’ve been lessened if not completely prevented (despite P’s
belief) – so they knew or should’ve known.
Mortimer v Cameron: Contrib Neg + Remoteness of dmgs
-F: P and D engaging in horseplay at top of stairs. The P ended a quad and M
was fine, because of falling down and hitting wall, which was designed poorly and
gave way (so they went through it). City and Owner sued.
-Analysis: Horseplay could’ve failed reasonable care, but despite causal
connection damages too remote -> reasonable person could not have contemplated
such damages (risk of horseplay fundamentally diff from risk of going through the
wall)
-> liability not apportioned to them
-> Apportionment btwm owner & city: landlords was actually less remote
(because of continuing duty) vs. city’s “signing off” once. Thus, greater degree of
fault (60% LL, 40% City).
Dube v Labar: Is the P so contrib neg that = full defence? Voluntary Assumption?
-Facts: P and D drinking and driving. P gets out, D hops in, says he’s ok to
drive, and P lets him. P sues due upon accident, but D argues VAR (beyond contrib ->
complete assumption of risk – implicitly).
-Analysis: this case = outlier – will be hard to est VAR: for neg driver to be
relieved, P has to express the waiving of possible damages (or implied bargain). This
state of mind RARELY present. Court does not like full defense, and prefer
apportionment.
-Result: did not give defence.
Rintoul v X-Ray And Radium Indust. Ltd: Inevitable Accident – Not really Defence
but onus of proof reminder
-F: Driver claiming breaks don’t work and smashed into someone. Claimed
accident was inevitable.
-Analysis: Logical presumption of negligence (of failure to apply breaks),
unless powerful evidence for extraordinary claim with expert evidence.
*ABERDEEN v LANGLEY
Trial Decision
Apportionment of Loss Under the BC Negligence Act:
• If P is found to be contributorily negligent, he will be able to recover from each
defendant only to the extent that particular defendant was at fault. If P is not
contributorily negligent, then D’s are jointly and severally liable, so that P can
recover entire amount from one D, leaving that D to claim their money back from
other D
Factors to Consider when Apportioning Liability:
(1) The number of negligent acts, (2) the timing of the negligent acts, (3) whether
there was a deliberate or reckless disregard, (4) the opportunities to prevent and
avoid
Cempel Hotsprings: Apportionment of Liability (P and D split) + Occupiers Liability
-F: hot pool= hazard, and duty of care exists through Occupier’s liability act
(hazard on property). Youth going to source pool, wired mesh fence, P climbs and
gets injured (falling in pool), has basic awareness of knowingly trespassing to some
extent (breaching duty to self). Quite careless setup for D.
-Analysis: Hotel should’ve: posted signs (about priv property + danger),
created better fence, acted on awareness of kids sneaking around, etc. (Can’t rely on
fact that it is prohibited).
-Initial split by T-judge = 75(her)/25(hotel) “author of own misfortune”
(single “greatest cause”)
-CA: her argument -> dmg too remote b/c falling maybe forseen, but not
scalding injuries. Rejected -> you don’t have to forsee with perfect clarity. (don’t
have to know the exact level of danger posed by pool).
-Apportionment: assessed on degrees to which each is at fault (not a
cause) -> blameworthiness. Hotel = grave shortcomings (severe ongoing nature of
danger, knowledge). Thus, 60(hotel)/40(her), even though more CAUSALLY
blameworthy.
Waiver of Liability:
Cougar Mountain: Waivers of liability + Negligence
-F: P goes to zipline event and tour. Two people sent into each other, out of
their control (by clear negligence of employees). Signed waiver on liability of
ANYTHING including death, releasing emps from neg. Website did point out they
would have to sign, and they were given sufficient time and notice, clear language,
etc. P’s challenge waiver on UNC + distinction in case law on sporting events.
-Analysis: 1. UNC argument -> so contrary to interest of society that we
need to attack the K – inequality of bargain power. Unequal positions based on
ignorance, distress, etc. -> actual bargain set up with (result). 2. Battling Authority:
lots of case law supporting use of waivers in dangerous sporting, but distinguished
on basis of CTRL (lack of here).
-Application: UNC failed -> not inequality of bargaining power (both on
equal playing fields)… waivers are generally not, and party here is informed +
clearly choosing. CONTROL irrelevant (not significantly different form other cases
where there isn’t) + waiver only repulsive to policy in RARE cases where party
seeking to rely on exclusion where it is putting public in danger recklessly.
Damages:
Necessary for neg claim onus on P to prove each area.
Compensatory (General): putting P back to position they were before:
1. Pecuniary: tangible losses in terms of cost (e.g. direct financial expenses)
2. Non-Pecuniary: “pain & suffering” + loss of enjoyment (technically
unquantifiable)
Punitive: solely for the purpose of deterring (punishment) of defendant (fairly
rare).
Andrews: Illustration dmg assessments + principles
-F: Vicarious liability -> suing company for his personal injuries.
-Analysis:
1. The courts are not going to use a ‘better’ system of updating damages in
future – for the legislators. (The litigation is sufficiently burdensome too).
2. Pecuniary Damages:
-Cost of FUTURE CARE. Life expectancy POST accident used. Ultimately has to have
reasonableness component (position he was ordinarily in = homecare, though
more expensive). *If severe mental impairment + no mobility, result may have been
different. (Cost usually absorbed by insurance + premiums).
-Loss of earning capacity: Life expectancy PRE-ACCIDENT. Looking for predictors
(e.g. character) – degree to which earning potential impacted by accident. P has
Duty to mitigate damages. Contingencies: for & against -> have to be careful about
detracting too much, because you can also benefit. **Deference: high threshold for
overturning -> has to be unreasonable finding of dmgs (fact).
3. Non-Pecuniary:
-Inherently guesswork (intangible). Model: providing SOLACE for pain and the
loss of certain activities. Must be fair & reasonable, but is ultimately arbitrary.
Beyond that which strictly required for loss, but acknowledges that the loss can’t be
directly replaced. CAP: 100,000 (grown to 300,000). With massive rewards, most
can come from pecuniary (read broadly if you need to).
Hill v Scientology: General + Punitive Dmgs, Defamation
-F: elements of malice going well beyond what was necessary in publication
(continuing when knowledge of falsity/incomplete investigations).
-Analysis: Award of general dmgs (pecuniary + non -> 800k) + punitive dmgs > 800k.
-Deference to finder of fact: test is quite discretionary + they have firsthand evidence before them. Standard of interference: 1. Wrong legal test 2. Dmgs
so grossly out of proportion that they would shock the conscience.
-Exceeding non-pecuniary cap: 800k -> because cap doesn’t apply to
defamation. No floodgates worry, plus malice & intentionality -> not really
negligence. Reputation is crucial to lawyer + breadth of publication (max
exposure, without investigation, and CONTINUING even after knowledge of falsity).
-Punitive damages: SHOULD be EXCEPTIONAL and only where combined
pecuniary + non would be insufficient. Here -> Scientology was malicious and
couldn’t be deterred by anything (continuing process + high-handed behavior).
Remoteness of Damages:
“was the damage in your reasonable contemplation?” – balancing unfairness
of dmgs too remote vs injury to P.
Wagon Mound #1: Defendant friendly – HIGH threshold
-F: ship negligently let oil spill into harbor. P was welding and fire broke out,
causing dmg. Causation est, but Q of remoteness.
-Analysis: Standard/Test -> did you have a reasonable expectation on a
matter of PROBABILITY. (Reasonable leaking ship wouldn’t have expected fire as
likely result).
Hughes v Lord Advocate: Lower threshold – TYPE of injures
-F: kid walking and hits lamp, falls into hole, lamp explodes and causes
injuries. People were obviously neg wrt leaveing the lamp, but explosion was
extraordinary.
-Analysis: it is not necessary to contemplate what EXACT injuries were likely,
but the general type of injures. Such injures the boy sustained from the unusual
explosion of lamp were within the general type that could be contemplated,
although the particular manner was unexpected.
Smith v Franklin: Thin Skull rule vs Remoteness
-F: Employee burned lip because of employer. Dies few years later, due to
predisposition + burn.
-Analysis: The burn was foreseeable, and the way the burn manifests
itself in one person or another is not something remoteness can affect. Thin
Skull Rule: if injury was forseeable, it doesn’t matter whether unusually prone to
damage. (the only unanticipated thing = severity of damages).
Marconato v Franklin: Thin Skull Rule vs Remoteness
-> Above rule applies even in psychological predisposition in car accident.
Wagon Mound #2: CHANGE FROM PROBABILITY TO POSSIBILITY
-F: similar facts, but P’s now = boats in harbor. 1# didn’t rule this out
(different).
-Analysis: here, dmg was forseeable – test: changed from probability to
POSSIBILITY – was it a reasonable possibility that damage would occur through the
spilling of oil? Yes. (Easier to sat than prob). *If something is technically possible,
but very unlikely, would the reasonable person neglect.
Assiniboine: SCC adopts WM#2 (probability)
-F: Auto-toboggan /w motor, drives off and hits pipe providing gas to school,
explosion in school.
-Analysis: Adopts contemplation of reasonable possibility -> doesn’t
have to be exact foresight of possibility of dmg, but generally. Type of damage:
when letting toboggan run at large, + possibility that gas-pipes are outside = under
foreseeability.
-Liability of installation CO: the CO negligently placing the pipes
should’ve forseen the type of dmg (possibility = pretty high). Standard of care: even
though cheaper outside, so dangerous it will raise the standard.
Mustapha: Pulls back from generosity to P in WM#2/Assiniboine – towards
PROBABILITY.
-F: P suffered serious psychiatric injury due to something he saw based no
negligence of D. P awarded 250k at trial.
Analysis: DOC -> manfact-consumer; SOC -> reasonable bottle manufact
(clearly breached). Causation -> must be serious psychological stress (beyond minor
and transient annoyance).. major depressive disorder here. Casual element found:
D’s breach of duty of care caused it.
-Remoteness: Possibility alone does not provide a meaningful standard for the
application of reasonable foreseeability. Has to involve the degree of probability
there is a real risk that would occur to the mind of the reasonable defendant. (Very
low threshold – far from Assiniboine).
-Applying in psychological case: requirement of long and serious
nature of disorder… law expects reasonable fortitude – would ordinary person
potentially develop disorder?  if est, you take victim as you find them.
*Note: may distinguish this case based on no physical ailment.