Torts Spring Summary
Table of Contents
INTRODUCTION TO NEGLIGENCE ..........................................................................................3
Dunsmore v Deshield (1977) – SK QB .......................................................................................... 4
Duty of Care ................................................................................................................................5
Donoghue v Stevenson [1932] – HL  General Duty of Care Test ...................................... 6
Anns v London Borough Council [1977] – HL ............................................................................... 7
Cooper v Hobart [2001] – SCC ....................................................................................................... 7
Modified Anns Test from Cooper .............................................................................................8
Syl Apps Secure Treatment Centre and Douglas Baptiste v BD [2007] – SCC ...................... 9
Palsgraf v Long Island Railroad Co [1928] – NYCA .................................................................. 10
Breach of Duty (Standard of Care) ........................................................................................ 11
Arland v Taylor [1955] – Ont CA  Reasonable Person Test ............................................... 11
Ryan v Victoria (City) [1999] – SCC  Reasonability factors ............................................... 12
Vaughan v Munlove (1837) ............................................................................................................ 12
Roe v Minister of Health [1954] – CA  Assessed at the time of the incident ................. 12
Bolton v Stone [1951] – HL ............................................................................................................ 12
Paris v Stepney Borough Council [1951] – HL............................................................................ 13
Bingley v Morrison Fuels (2009) – CA ......................................................................................... 14
Bolton v Stone [1951] – HL ............................................................................................................ 14
Vaughn v Halifax-Dartmouth Bridge Commission (1961) – NS SC ......................................... 14
Law Estate v Simcoe (1994) – BCSC .......................................................................................... 14
Bateman v Doiron (1991) – NBQB ............................................................................................... 14
De Vos v Robertson (2000) – Ont SCJ ........................................................................................ 14
Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) – HCA ......................................... 15
Lovely v Kamloops (City) (2009) – BCSC; Aff’d (2010) BCCA................................................. 15
Watt v Hertfordshire County Council [1954] – EWCA................................................................ 15
Priestman v Colangelo (1959) – SCC .......................................................................................... 15
Burbank v Bolton (2007) – BCCA ................................................................................................. 15
United States v Carroll Towing Co (1947)  Learned Hand Test ......................................... 16
SPECIAL STANDARDS OF CARE .......................................................................................... 17
Fiala v Cechmanek (2001) – Alta CA ........................................................................................... 17
Roberts v Ramsbottom [1980] (UK).............................................................................................. 18
Mansfield v Weetabix [1998] (UK) ................................................................................................ 18
Joyal v Barsby (1965) ..................................................................................................................... 18
McEllistrum v Etches [1956]........................................................................................................... 18
White v Turner (1981) HC, aff’d 1982 ONCA .............................................................................. 19
Ter Neuzen v Korn (1995) SCC .................................................................................................... 19
Causation .................................................................................................................................. 19
But-For Test .............................................................................................................................. 20
Kauffman v Toronto Transit Commission (1959) – ONCA, aff’d [1960] SCC ........................ 20
Barnett v Chelsea & Kensington Hospital Management Committee [1969] – QB................. 21
Sam v Wilson (2007) – BCCA ....................................................................................................... 21
Qualcast (Wolverhampton) Ltd v Haynes [1959] – HL .............................................................. 21
Richard v CNR (1970) – PEI SC ................................................................................................... 21
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Chester (Guardian ad litem of) v LeBlanc (2007) – BCSC ....................................................... 21
Exceptions to the But-For Test .............................................................................................. 22
1. Multiple Negligent Defendants Rule ................................................................................ 22
Cook v Lewis [1951] – SCC ........................................................................................................... 22
2. Informed Consent ................................................................................................................. 22
Hopp v Lepp [1980] – SCC; Reibl v Hughes [1980] – SCC ...................................................... 22
Recent Attempt to Modify the But-For Test .......................................................................... 22
1. Material Contribution to Risk Test ................................................................................... 22

HL essentially overturned LORD WILBERFORCE in Wilsher v Essex Area Health
Authority [1988] ................................................................................................................................ 23

SCC in Snell limited the application of WILBERFORCE’s reverse of burden. .............. 23
Snell v Farrell [1990] – SCC [not strictly a material contribution to risk case, but comments
on McGhee] ...................................................................................................................................... 23
Fairchild v Glenhaven Funeral Services Ltd [2002] – HL .......................................................... 24
Barker v Corus (UK) plc [2006] – HL ............................................................................................ 24
2. Material Contribution to Injury Test ................................................................................. 24
Clements v Clements [2012] – SCC [also a case of tortious and non-tortious independent
insufficient causes] .......................................................................................................................... 24
3. Proportionate Cause and Loss of Chance ..................................................................... 25
Sindell v Abbott Laboratories [1980] – Cal Sup Ct ..................................................................... 25
Multiple Causes........................................................................................................................ 26

Cook v Lewis [1951] – SCC  Three categories of cases where Ds will be joint
tortfeasors: ........................................................................................................................................ 26
Newcastle (Town) v Mattatall (1987) – NB QB ........................................................................... 27
1. Independent Insufficient Causes – but-for test is adequate ........................................ 27
Athey v Leonati [1996] – SCC [Multiple tortious and multiple non-tortious; also a case of
material contribution to injury] ........................................................................................................ 28
Nowlan v Brunswick Construction Ltd (1972) – NBCA .............................................................. 29
Arneil v Paterson [1931] – HL ........................................................................................................ 29
Chapman v Hearse (1961) – HC Australia .................................................................................. 29
2. Independent Sufficient Causes ......................................................................................... 29
Penner v Mitchell (1978) – Alta CA............................................................................................... 30
Lambton v Mellish [1894] – simultaneous tortious causes; significant factor test ............. 30
Baker v Willoughby [1969] – HL – successive tortious causes; UK case endorsed by
Canada in Penner .......................................................................................................................... 31
Remoteness .............................................................................................................................. 32
Two Perspectives about Remoteness ................................................................................... 32
Relationship Between Remoteness and DOC ...................................................................... 33
Relationship Between Remoteness and SOC ...................................................................... 33
Tests for Drawing the Remoteness Line............................................................................... 33
Re Polemis and Furness, Withy & Co [1921] – KB .................................................................... 33
Wagon Mound #1 [1961] – PC ...................................................................................................... 34
Minister Administering the Environmental Planning and Assessment Act 1979 v San
Sebastien Ltd [1983] – NSW CA ................................................................................................... 34
Wagon Mound #2 [1967] – PC ...................................................................................................... 34
Assiniboine South School Division, No 3 v Greater Winnipeg Gas Co (1971) – Man CA;
aff’d (1973) SCC .............................................................................................................................. 35
Mustapha v Culligan of Canada Ltd [2008] – SCC .................................................................... 35
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Hughes v Lord Advocate [1963] – HL .......................................................................................... 36
Tremain v Pike [1969] – ER  Seems to go against HL in Hughes ................................... 36
Jolley v Sutton London BC [2000] – HL ....................................................................................... 36
Lauritzan v Barstead (1965) – Alta SC......................................................................................... 36
Trevison v Springman [1996] – BCSC ......................................................................................... 37
Doughty v Turner Manufacturing [1964] – EWCA ...................................................................... 37
Thin Skull Rule ......................................................................................................................... 38
Smith v Leech Brain & Co [1962] – QB  Illustrates Thin Skull Rule (TSR) ..................... 38
Marconato v Franklin [1974] – BCSC ........................................................................................... 38
Swami v Lo [1980] – BCSC ........................................................................................................... 39
Gray v Cotic (1983) – SCC ............................................................................................................ 39
Kavanagh v Akhtar (1998) – NSW CA ......................................................................................... 39
Dredger Liesbosch v Steamship Edison [1993] – HL  Thin wallet rule not recognized 39
Alcoa Minerals of Jamaica v Broderick [2000] – PC .................................................................. 39
Conarken Group Ltd v Network Rail Infrastructure Ltd [2011] – EWCA ................................. 40
Intervening Act (Novus Actus Interveniens) ........................................................................ 40
Bradford v Kanellos (1973) – SCC  Leading case for the novus actus test in Canada
............................................................................................................................................................ 40
Oke v Weide Transport Ltd (1963) – Man CA............................................................................. 41
Price v Milawski (1977) – Ont CA ................................................................................................. 41
Block v Martin [1951] – Alta SC..................................................................................................... 41
Spencer v Wincanton Holdings Ltd [2009] – EWCA .................................................................. 41
Bourgoin v Leamington (Municipality) (2006) – Ont SCJ .......................................................... 42
Hewson v Red Deer (1976) – Alta TD .......................................................................................... 42
Tony v Bedwell [2002] – Alta QB .................................................................................................. 42
Dorset Yacht Co v Home Office [1970] – HL .............................................................................. 42
Lamb v London Borough Council of Camden [1981] – Eng CA ............................................... 43
INTRODUCTION TO NEGLIGENCE

Negligence refers to the state of mind of the defendant, who must have been running an
unreasonable risk that certain consequences would come about
 What constitutes a reasonable risk is assessed as a standard of care
 Unlike intentional torts, requires actual damage/loss
 It is a popular tort because intentional torts are more restrictive
 Similarities to nuisance:
o Both stem from write of trespass on the case
o Both require actual loss (i.e., not actionable per se)
o Both involve question of reasonableness as between P and D
 Different meanings:
o Negligence (entire tort)
o negligence (carelessness, breach of duty of care, imposed an unreasonable risk of
harm)
o Also used in plain speech as a moral criticism of one’s character
o Used in criminal law (criminal negligence = gross negligence)
Short Summary of Negligence:
“Did I, by virtue of my failing to take reasonable care, interfere with your legallyrecognized interest? Further, were you and these interests I interfered with the reason I
should have taken care in the first place?”
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Elements of Negligence  P must establish all 5 on B. O. P:
1. Duty of Care
o Was the D under a legal obligation to take care with respect to P’s interests?
o If so, they owe a DOC to P
o There’s a duty not to fail by virtue of not trying + not to injure by virtue of not to fail
 Can still cause injury and not be liable in negligence because you took care
and tried
o Was the harm a reasonably foreseeable consequence as a result of D’s conduct?
o Donoghue v Stevenson: D has DOC to people who you might expect to be hurt by
their negligent action
o Palsgraf v Long Island Railroad Co
2. Standard of Care (breach of duty) [This is what P actually shows]
o D is expected to act as a reasonable person would in the circumstances
 Reasonable people do not impose an unreasonable risk on someone
 Arland v Taylor
o If acted unreasonable and it caused harm, acted negligently
o What constitutes an unreasonable risk changes over time
o (1) Probability of injury (2) Severity of injury
o Bolton v Stone
3. Causation (factual causation)
o But-for the breach/negligence, would the damage have happened?
o Barnett v Chelsea Hospital
4. Remoteness (legal causation/legal proximity/proximate cause)
o Connection from the breach to the damage P complained of
o Is the right kind of damage caused? (e.g. man’s wife left because he lost toes - no)
o If the damage that happens is the very kind of act that you had a duty to take care to
avoid, there will be legal causation/connection won’t be too remote
o Criminal principle: it’s not remote if there’s no intervening agent or force of nature
5. Damage
o Negligence isn’t actionable per se
o P has to establish that they suffered legally recognized damage
o Clear: (1) Personal injury (physical and mental harm); (2) Property injury
o Unclear: (1) Pure economic loss (historically not allowed, but there are exceptions);
(2) Emotional setbacks (grief, sorrow); (3) Loss of autonomy
Defenses  D must prove on BOP
 Mostly have to do with P’s conduct
 Is there anything P did/could have done to mitigate liability?
1. Contributory negligence (almost has to show the 5 elements for P)
2. Voluntary assumption of risk
3. Illegality of action
4. Lapse of limitation period
5. Inevitable accident
Dunsmore v Deshield (1977) – SK QB
FACTS: P ordered special Hardex lenses that are more impact resistant than ordinary lenses.
While playing touch football, P made contact with another player and injured his eye after the
glasses shattered. Turns out the lenses were not Hardex. Neither the manufacturer (D1) nor the
optometrist (D2) tested the lenses to ensure they were Hardex.
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HELD: Ds were jointly and severally liable in negligence.
REASONS:
 Duty of Care: The judge had no discussion about client-optometrist or buyermanufacturer relationships. However, the Ds should have had not only the person
wearing the glasses in mind, but also the other people who would play sports with
that person.
 Breach: J speaks of standard of care (hardness testing): (1) it is easy to do with a
colmascope; (2) It is reasonable to test them because Ds admitted that sometimes
mistakes happen in shipping – both Ds should have tested them (reasonable care)
 Causation: Ds argued that you couldn’t have proven Hardex wouldn’t have broken
as well, saying the force of the collision was likely harder than the steel-ball test. J
said the hard ball is very concentrated on the lens, whereas a collision is more diffuse.
Further, P does not need to show this with certainty (only B.O.P.). What is true in
science isn’t necessarily what is true in the law.
 Remoteness: P suffered physical injury playing touch football. D says it could happen
to anyone wearing glasses (narrow argument). P described the risk as very broad.
o P’s arguments: (1) Ds represented that P would be able to play contact sports
like anyone else if he wore these glasses; (2) Why else would P have bought the
lenses? They make those glasses so that people like P can play contact sports;
(3) Thus, P’s situation falls within Ds’ described narrow risks
o Ds’ arguments: Even if they had told P lenses were regular, he would have
played anyways – his actions were novus actus interveniens
 The court outright rejects this – on B.O.P. he would not have played,
and we know this from his conscientious and careful character
 Damage: Physical harm.
o $7500 in general (not quantifiable) damages (loss of vision clearly from the
accident because only the injured eye decreased in efficacy, can’t wear soft
contact lenses anymore, impact on his work where he has to do a lot of reading).
o $646.50 in special (quantifiable) damages (reflects lost time off work)
 Ds’ Defense: Contributory negligence  played with glasses on. Ds needed to show that
touch football is just as violent as tackle football and failed to do this. Court also said that
P relied on Hardex, so it wasn’t unreasonable to play this game of football wearing them.
o Usually, contributory negligence takes percentage of contribution and applies it to
percentage of damages awarded
Duty of Care
Duty of care = to whom do I have a legal obligation not to act carelessly towards so as not to
expose them to an unreasonable risk?
 (Remoteness= Risk to what?)
 (Standard of care=Kind of conduct that creates an unreasonable risk)
History: At the early stages, the approach to DOC was conservative, cautious, and categorical
 Negligence law was restricted to precedent
 Not creating new law, rather applying to old law
 Come Donoghue v Stevenson, new rules were made. Suddenly, manufacturers were
responsible for any customers that buy their products
 Donoghue cited Winterbottom v Wright
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Winterbottom v Wright
FACTS: P (postal worker) was injured because the cart wheel broke. Post office had a contract
with D to keep the cart in a state of good functioning. P wanted to sue D.
HELD: P can’t sue. The doctrine of privity applies (lack of a close and direct relationship that
would come with rights and obligations)
REASONS: Privity  you cannot sue on the breach of contract owed to another
DOC Analysis:
Is there a pre-existing duty?
 If YES: Proceed to standard of care.
 If NO, do Cooper/Anns Test.
Donoghue v Stevenson [1932] – HL  General DOC Test
FACTS: Mrs. Donoghue’s friend bought her a ginger beer. She drank most of it, and then the
rest was poured out onto her ice cream, at which point she saw a partially-decomposed snail
pour out. She suffered shock and gastroenteritis. Mrs. Donoghue (P) sued the manufacturer (D)
in negligence.
HELD: For P.
REASONS: LORD ATKIN (maj): How do we get a connection from D to P, since there was an
intervening party (the vendor)? The bottle was opaque, so the vendor could not have known.
The principle of privity originally prevented D from being liable, but that must change. One must
take care to avoid acts or omissions which are reasonably foreseeable to injure one’s
neighbour.
 “Who then in law is my neighbour?” People who are so closely and directly affected by
me [proximity requirement] that I ought reasonably to have in contemplation when I
act. [general]
o Also gives particular, already-established duties: doctor-patient, pharmacistpatient, innkeeper-guest
 Proximity is not confined to physical proximity, but also extends “to such close and direct
relations that the act complained of directly affects a person whom the person alleged to
be bound to take care would know would be directly affected by his careless act.”
 Lord Esher in Heaven v Pender explained that in the case of sale of goods: “where it
would be obvious to the person supplying, if he thoughts, that the goods would in all
probability be used at once by such persons before a reasonable opportunity for
discovering any defect which might exist…”
 Narrow Ratio: There was no reasonable possibility of intermediate inspection, it was sold
in the same way it was shipped, there was an absence of reasonable care, and since it
is a common household item, someone other than the purchaser may have used it
(making whoever drinks it within D’s care)
LORD BUCKMASTER (dis): There can be no special duty attaching to the manufacture of food
apart from that implied by contract or imposed by statute. No court case stands for any
alternative. He quotes a case with almost identical facts, but with a mouse instead of a
decomposing snail. The Lord in that case said it would be outrageous to make distributors of
goods liable for the contents of every single bottle.
 Ex Post Factum  only after coming to court do you discover you had a legal duty
NOTE: LORD ATKIN may have intended the narrow ratio, but courts subsequently interpreted it
broadly, in assessing proximity by Lord Atkin’s neighbour explanation (including Cooper v
Hobart, the leading Canadian case).
 Response to LORD BUCKMASTER’s criticism: the law already anticipated this (hence
the list of duties already existing). We are just applying to it.
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Anns v London Borough Council [1977] – HL
FACTS: LBC was negligent in inspecting building plans. Anns’ building had inadequate
foundation and the land subsided, causing property damage.
HELD: For P.
REASONS: LORD WILBERFORCE – Presumptive duty approach (plaintiff-friendly).
Created a two-step test:
1. Ask whether as between D and P there is a sufficient degree of proximity or
neighbourhood (Donoghue v Stevenson; proximity defined by reasonable foreseeability)
such that in a reasonable contemplation of D, damage was foreseeable.
 This is a prima facie D.O.C.
 P has burden of proof
 If YES, move to #2
2. Are there any considerations which ought to negative/limit/reduce the scope of the duty
owed?
 D has burden of proof
NOTE: HL overturned Anns in Murphy (1991) because it was decided to be too open-ended, too
plaintiff-friendly, and capricious. Australia also eliminated it, but Canada still uses it (Kamloops;
Cooper)
Cooper v Hobart [2001] – SCC
FACTS: Eron Mortgage Corporation was a mortgage broker under the Mortgage Brokers Act.
Cooper advanced $ to Eron. Eron’s mortgage license was suspended and they went out of
business when it was discovered that they used $ of over 6000 investors for unauthorized
purposes. Cooper alleged that Eron’s registrar breached a D.O.C. that it allegedly owed to her
and other investors as it had been aware of the serious violations of the Act committed by Eron
and did not suspend its license soon enough. Cooper was successful at trial. BCCA reversed.
Cooper appeals.
HELD: Appeal dismissed, no D.O.C. found.
REASONS: MCLACHLIN CJ & MAJOR JJ: Anns test must apply. There are already many preestablished duty-invoking situations:
A. D’s act foreseeably causes physical harm (extends to nervous shock – Alcock v Chief
Constable)
B. Government authorities who have undertaken a policy of road maintenance have been
held to owe a D.O.C. to execute the maintenance in a non-negligent manner (Just v BC)
C. Negligent misstatements (Hedley Byrne & Co)
D. Duty to warn of risk of danger, if positive obligation to do so (Rivtow Marine Ltd)
E. Municipalities have duty to ensure houses are constructed soundly and to inspect
houses (Anns; Kamloops)
F. Manufacturer-consumer (Donoghue; Dunsmore)
This is not a type of negligence that can be likened to any other case as it deals only with pure
economic loss. However, as there was insufficient proximity between Cooper and the registrar,
there was no D.O.C. owed. Modified Anns Test:
 Step 1A: Was it a reasonably foreseeable consequence?
o SCC: Yes. If the registrar allowed the mortgage broker to continue on with his/her
actions, it is clear that the client (Cooper) would suffer a loss
 Step 1B: Was there sufficient proximity?
o SCC: No. Must look at the statute under which the Registrar was appointed. The
statute imposes no D.O.C. on the Registrar to investors with mortgage brokers
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regulated by the Act. The Registrar’s duty is rather to the public as a whole. A
duty to individual investors would actually conflict with the duty to the public.
o This is the step at which the analysis fails in this case
 Step 2: Residual policy considerations as to why there should be no D.O.C. found?
o SCC: No application, since no D.O.C. found.
OBITER: Even if duty established, would have been negated for policy reasons.
NOTES: When doing a D.O.C. analysis, always begin by seeing if the facts support using an
already-established duty (exact same situation or analogous). Other pre-existing duties not
mentioned in Cooper include parent-child, doctor-patient, and innkeeper-guest (Donoghue).
 Mustapha says that you do NOT need to do the 3 steps (1A, 1B, 2) if there is already a
pre-existing duty
Modified Anns Test from Cooper (for Novel DOC)
1.









a. REASONABLY FORESEEABLE?*
P has burden of proof
A very low threshold
In Anns and Kamloops, this is the entirety of step 1.
In Cooper, it’s just a threshold question
b. SUFFICIENTLY PROXIMATE RELATIONSHIP? (Internal/relational policy)
Is the relationship between P and D sufficiently proximate to ground a DOC?
P has burden of proof
Look to the facts of each case in conjunction with the past jurisprudence.
o How do the facts support proximity?
Cooper: Look to the expectations, representations, reliance, and the property or other
interests involved.
If there is a governing statute, look to it to find these factors
o When dealing with public authorities, both Cooper and Syl Apps say that the
factors giving rise to proximity must be grounded in the governing statute when
there is one.
 The statute is the relationship between the authority (D) and P
 The statute also delineates D’s duty
 The statute may immunize D as well (Syl Apps)
 The statute may also have its own remedial procedures (Syl Apps)
2. RESIDUAL POLICY CONSIDERATIONS? (External policy)
 What is the effect of recognizing the duty on society more generally?
 What considerations support the limiting of DOC? In what circumstances is infringement
reasonable?
 D has burden of proof
 D must raise some evidence; it can’t be speculative (Hill v Hamilton Wentworth)
 Examples of recognized residual policy reasons to negate a DOC (Cooper)
o (1) Indeterminate liability
 Can be either that there (a) are many claims; or (b) is unquantifiable
damage
o (2) Alternative remedy
o (3) Societal values and needs
 Dobson v Dobson  Fetus injured by mother’s negligent driving.
 HELD: it’s not a societal value to have a child (unborn) sue its mother
o (4) Administrative difficulty
8
 Difficulty of proof, possibility of fraudulent claims, etc.
o (5) Burden on taxpayers*
o (6) Legislative and judicial independence*
*Cooper concerns #5 and #6
How are 1B and 2 related?
1B – Unjust or unfair to hold D liable for a duty because of sufficient proximity
 “Micro-policy”
 Policy = relational policy confined to P and D
2 – “Macro-policy”
 Policy related to society as a whole
Syl Apps  the difference between proximity and residual policy is the relevant policy between
two parties involved versus the effect of recognizing a D.O.C. on other legal obligations, legal
system, and society at large.
Cooper  whether policy assessment occurs at step 1 or step 2 does not matter (But, Sinel
says it does because the party that has the burden of proof is different).
Syl Apps Secure Treatment Centre and Douglas Baptiste v BD [2007] – SCC
FACTS: 14-year-old girl picked up by child services and placed under the care of a treatment
centre where Douglas Baptiste was her caseworker. Parents/siblings filed claim for $40M
alleging that she was taken away from them and Baptiste essentially turned her against her
family as if her parents actually sexually and physically abused her. TJ found for D (Syl Apps)
after a motion was filed under Rule 21.01(1)(b) of the Ontario Rules of Civil Procedure to have
the statement of claim struck down on the ground that it disclosed no reasonable course of
action. CA reversed. D appealed.
HELD: Appeal allowed, for D.
REASONS: For D.O.C. to exist between Baptiste/Syl Apps and the girl’s family, family must
establish:
1. Reasonably foreseeable harm [YES]
2. Sufficient Proximity [NO]
 (A) The Act itself provides remedies for parents seeking to challenge way in which
their children are treated. (B) Clear legislative intent to protect those working in
child protection field from liability for the good faith exercise of statutory duty.
Child’s interests are paramount. Statutory duty > parents’ claim for liability.
 Fails at this step (like Cooper)
3. No residual policy issues against finding duty [N/A]
Imposing a D.O.C. for relationship between the family of a child in care and that child’s courtordered service provider creates a very real possibility of interfering with the service-provider’s
statutory duty to promote best interests, protection, and well-being of children in their care.
Conflict is inevitable in most cases of children being placed under state care. Further, the child
is under medical-care, and conflicting duties would arise if medical practitioners had to disclose
confidential information about their patients.
NOTE: This case and Cooper fail because of the same micro-policy reason – conflicting duties
where D is a public authority and its duties are defined by statute.
 Here, if D, whose principle obligation is to act in children’s best interests, were focused
on parents’ interests, would be in violation of its primary obligation. While the statute
does mention an obligation to parents, it also says that it cannot be in conflict with the
primary obligation to children
9
o

Might think this applies at step 2 of the analysis, but since the statute says there
is a duty to the children, it cannot say that there is a duty to the parents. Thus, no
duty is found to be able to move to step 2, and it may not even be a policy issue.
In Cooper, D owed a duty to the public at large and could not have effectively discharged
this duty if it was also focusing on P’s specific needs. Realistically, this could have been
dealt with at step 2.
Canada v UK
In Canada, we follow Cooper. McLachlin CJ says “neighbourhood” principle from Donoghue
conceals a balancing of interests. The quest for best interests = policy.
In UK, Anns was overruled. Privy Council says if you establish 1A and 1B, it will be exceedingly
rare to find policy reasons to negate the D.O.C.
Palsgraf v Long Island Railroad Co [1928] – NYCA
FACTS: D (train employee) tried to boost a person onto the train to help him catch it, but the
person’s package fell and exploded because he had fireworks inside. The explosion toppled
luggage onto P (another patron on the platform). P sues D in negligence.
HELD: For D.
REASONS: D.O.C. described differently by the judges.
 CARDOZO – D.O.C. is relational (concept of the foreseeable plaintiff).
o D’s conduct was negligent with respect to the man holding the package and not
P, who was standing very far away. Negligence is the imposition of an
unreasonable risk (Bolton v Stone). The concept of risk is relational – the very
idea of what a risk is does not make sense unless we think in terms of to whom
[duty] and of what [remoteness]. Duty in negligence = not to impose an
unreasonable risk to another (also, therefore, relational).
o The duty is personal and the wrong is personal and relational. Only if YOUR right
has been injured do you have the right to sue. Thus, you owe a duty to all those
who you can reasonably foresee would be injured by your actions. The risk here
is that the man’s package might drop, NOT that it might contain explosives and
explode.
 D owes no duty of care to P since D could not have known there were
fireworks inside the luggage.
o Risk imports relation  an internal limit, limited by the relation you have with
your surroundings and the people in it
 ANDREWS (dissent) – D.O.C. is practical politics, a balancing of best interests.
o It doesn’t have to result in damage – the wrong is merely an imposition of risk
(e.g., speeding down a street). It doesn’t have to be personal.
o Duty = don’t act so that you might harm others. In the present case, D did act in
this way.
o The damage complained of is a proximate cause, similar to Scott v Shepherd.
Where do we draw the line? Practical politics.
o There is no internal limit, but rather it is arbitrary.
o “Because of convenience, of public policy, of a rough sense of justice, the law
arbitrarily declines to trace a series of events beyond a certain point.”
o “It is all a question of expediency. There are no fixed rules to govern our
judgment."
NOTE: Canadian law seems to be a hybrid of the two standpoints. Everything can be boiled
down to practical politics, but should the court impose liability because of it?
10
Breach of Duty (Standard of Care)
REASONABLENESS
This is both an objective and subjective test:
 Objective:
o Impersonal, detached from the qualities of D
o Reasonable person is free from over-apprehension and over-confidence
o An external standard imposed on D
o A fixed legal standard imposed on D
 Subjective:
o Application of the standard to the facts of the case
o Reasonableness changes based on facts and also time
o Reasonableness is based on community standards, which changes over time
What is wrong with the reasonable person test?
 Doesn’t describe anyone who has lived – difficult to imagine
 The test is not to put YOURSELF in the shoes of D (Arland v Taylor)
 Could introduce bias and instantiate the dominant class, gender, race, etc. (certain
societal hierarchies)
 Correct to critique this but doesn’t mean that the test is invalid. Might very well determine
reasonableness
 Doesn’t account for the intelligence of D (Vaughan v Munlove)
 Modern takes on past wrongs can be difficult – standards and practices change. Who’s
to say that common practices at the time of the wrong were actually right and just, rather
than merely everyone acquiescing to a popular behaviour?
 Might be asking tort law to do too much
 Mack v Canada  addressed via statutory law
Arland v Taylor [1955] – Ont CA  Reasonable Person Test
FACTS: P was in a car accident, said D was negligent. At trial, D found not to have breached
DOC, P appealed.
HELD: Appeal dismissed.
REASONS: TJ did err in describing reasonableness assessment to the jury, but this error was
not substantial enough to overrule TJs decision. He instructed the jury to think about what they
would’ve done in the circumstances, however this is not the test.
 Reasonable person = a mythical creature of the law; a person of normal intelligence
who makes prudence a guide to his/her conduct; whose conduct is guided by
considerations which ordinarily regulate the conduct of human affairs  objective
 However, there is still a subjective element  it is up to the judge to decide what a
reasonable person would have had in contemplation under the circumstances and what
the party sought to be made liable ought to have foreseen (Glasgow Corporation v Muir
et al. [1943])
 By instructing the jury to think what THEY would have done in that situation introduces
bias, the facts having already been heard and the judge perhaps being influenced
himself
o Too subjective, internal, and variable
11
Ryan v Victoria (City) [1999] – SCC  Reasonability factors
FACTS: Appellant injured when thrown from his motorcycle while attempting to cross railway
tracks running down centre of a street. Front tire became trapped in a gap alongside the inner
edge of the tracks. He sued the City and railway companies.
RATIO: Factors to weigh reasonability (since it varies with the facts of a case):
1. Likelihood of known or foreseeable harm
2. Gravity of the harm
3. Burden/cost that would have been incurred to avoid the injury
You can also look to external indicators of reasonable conduct (custom, industry practice,
statutory/regulatory standards).
Vaughan v Munlove (1837)
FACTS: P and D had adjacent property. D’s hayrick was close to the boundary of P’s property.
Hayricks are known to ignite. D installed a chimney to supposedly make sure that didn’t happen.
The hayrick ignited and destroyed much of P’s land.
HELD: For P.
REASONS: D tried to argue that the reasonableness standard shouldn’t apply because he tried
his best/was prudent and shouldn’t be held to the standard since he isn’t that intelligent (judge
me by me, not others).
 Court rejected this because if this was the standard then there would be no rule at all
and the law would not be consistent since each individual is variable. Rules are NOT
self-justified. Need justification for an objective standard of care.
FIVE FACTORS TO DETERMINE WHAT AN UNREASONABLE RISK IS
1) PROBABILITY OF HARM
 How likely does an injury have to be for the defendant to take it into account
when he/she acts (probability = P)? How severe is a resultant injury likely to be
(loss = L)?
 Substantiality of risk = Probability x Loss
Roe v Minister of Health [1954] – CA  whether or not something is an unreasonable risk
should be assessed at the time of the incident
FACTS: D suffered spastic paraplegia after the anesthetic he received for a surgery was
contaminated with phenol. Anesthetic was stored in vials which were placed in phenol for
sterilization. Little cracks in the vial leaked phenol into the anesthetic.
HELD: For D.
REASONS: (DENNING) At the time of trial it was known that this was a possibility, but it was
NOT known at the time of the incident in 1947.
 “We must not look at the 1947 accident with 1954 spectacles.”
Bolton v Stone [1951] – HL
This test will sometimes give different result from economic test. Economic test includes value
of the activity to society. **Might need to argue why one is more appropriate for tort law.
FACTS: P/respondent was walking on a residential road adjacent to a cricket club (D) when she
was struck and injured by a cricket ball.
HELD: Appeal allowed (for D/appellant).
12
REASONS: LORD REID – The matter cannot be decided on foreseeability alone. If it were,
clearly would find for P since no matter how slight the risk it is clearly foreseeable that a cricket
ball may be knocked out, hit someone, and injure that person.
 Degree of risk is also a factor. Reasonable people DO take into account the degree of
risk and do not act in accordance with a small risk as if it were actually substantial (i.e., it
is reasonable to keep playing cricket despite the small chance a passerby gets hit and
injured).
 P x L = not substantial risk
 Reasonable people do not take substantial risks, but this is not one of those risks. It is a
borderline decision, but LORD REID had to follow facts at trial which found that cricket
ground was large enough to be considered safe.
This test will sometimes give different result from economic test.
Economic test includes value of the activity to society.
**Might need to argue why one is more appropriate for tort law.
2) GRAVITY OF HARM (L, SEVERITY)
Paris v Stepney Borough Council [1951] – HL
FACTS: P, a man with only one working eye, worked in a steel factory where his job involved
hammering steel. The factory issued no safety goggles to its workers. While hammering, a piece
of steel hit his eye and blinded him fully. P unsuccessful at Court of Appeal + appealed to HL
HELD: Appeal allowed (for P).
REASONS: LORD OAKSEY (maj) – employers should have taken precautions and provided his
one-eyed employee with goggles. Might not need to provide goggles to a two-eyed man
because the chance of steel breaking off and striking the eye is slim and two-eyed men wouldn’t
feel it necessary (wouldn’t be as injurious to a two-eyed man). Need to look at reasonableness
given the facts of each situation.
 The probability (P) of loss is small. The loss (L) is severe for a one-eyed man – P x L =
substantial
 However, no D.O.C. to a two-eyed man
LORD MORTON (dis) – the employer owed the SAME DOC to one-eyed and two-eyed men to
provide or not to provide goggles. He did not owe a duty to provide goggles because the risk
was very slight (too remote – 6 minor eye injuries in 32 years). An employer would owe more
precautions to a vulnerable employee than to a regular employee, but in this case, there was no
greater risk of injury only a risk of greater injury.
13
Bingley v Morrison Fuels (2009) – CA
FACTS: D company misread delivery ticket and went to P’s home to fill oil heating system with
oil, but P’s system was not fit for oil. Caused $1 million in oil leak damage. TJ held that it wasn’t
reasonably foreseeable that an oil leak would happen from filling the tank. P appealed.
HELD: For P.
REASONS: The reasonable foreseeability goes to the wrong delivery. Harm from a mistaken
delivery was reasonably foreseeable.
3) BURDEN OF TAKING PRECAUTIONS (B)
 P must establish that there was a reasonable alternative D could have taken
Bolton v Stone [1951] – HL
LORD REID: If substantial risk, no defence to say that the precaution was too costly. If a risk is
small but real, and if you have a valid reason for doing it, you might be able to justify (but cost of
precaution is still a consideration).
////////////////////////////////////////////////
Vaughn v Halifax-Dartmouth Bridge Commission (1961) – NSSC
FACTS: D company painted a bridge and flecks of paint blew off it and into P’s car. P sued in
negligence. D argued it took all necessary precautions to prevent injury from paint blowing and
that it wasn’t careless.
HELD: For P.
REASONS: D could have posted notices, made press (radio) announcements, put men below
in lots to warn people and/or help wipe cars. But D did not do any of these things and the cost of
doing them would have been relatively inexpensive.
NOTE: The case shows that not only can the high costs of taking precautions not exculpate
you, but low costs can inculpate you.
Law Estate v Simcoe (1994) – BCSC
FACTS: P sued D doctors for not providing timely, appropriate, and skillful emergency care to
her husband, who subsequently died.
HELD: For P.
REASONS: Despite doctors’ assertion that they felt constrained by BC doctor’s associations to
use a CT scan as a diagnostic tool, a case like this warrants its use. A patient’s life is more
important than financial strain on medicare system.
Bateman v Doiron (1991) – NBQB
FACTS: Moncton hospital had to grant privileges to GPs to fully staff its emergency room. This
led to staffing with doctors who had limited skill.
HELD: For D.
REASONS: HOYT CJNB and ANGERS JA: It is true that some of the doctors who were staffing
the emergency room were of limited skill, but expecting otherwise does not meet the test of
reality. The hospital met the standard of care.
 RICA JA (dissent): Staffing and admin practices of the emergency department are
unacceptable.
De Vos v Robertson (2000) – Ont SCJ
This case reiterated Law Estate in saying that budgetary constraints worked against P’s
interests. The procedures followed may have worked for other patients, but not for this patient in
particular.
14

HELD that the anesthetist breached D.O.C. (did not meet S.O.C.)
Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) – HCA
FACTS: D employed P to wash out large cylindrical tank used to transport milk. P injured
himself when he slipped and fell because the tank was slippery. TJ held for P, finding a breach.
D appealed.
HELD: For D. Appeal allowed.
REASONS: P adduced no evidence of a practical alternative to cleaning the tank.
Lovely v Kamloops (City) (2009) – BCSC; Aff’d (2010) BCCA
FACTS: P fell while disposing of garbage at a transfer station and injured his leg so seriously
that it had to be amputated.
HELD: For P.
REASONS: City breached D.O.C. because they didn’t install handrails and it would’ve been
easy to do economically and practically.
4) SOCIAL UTILITY OF CONDUCT

Mostly considered in cases involving public officers who have affirmative duties
Watt v Hertfordshire County Council [1954] – EWCA
FACTS: Firefighter responded to an emergency call requiring the use of a special jack which
had only been used once in the last 15 years. A special truck was needed to load the jack, but it
was unavailable so the firefighter used a different vehicle. When the driver braked suddenly, the
jack dislodged and seriously injured P. P claimed the employer (D) was negligent in: (1) failing
to properly load the jack; (2) loading it in a way that made dislodging likely should the vehicle
move; (3) permitting/causing P to ride on the back of the vehicle; (4) transporting the jack on a
vehicle that was not equipped with straps; (5) failing to provide adequate supervision.
HELD: For D (appeal dismissed).
REASONS: DENNING – emergencies justify taking considerable risk. If it were a commercial
business, definitely would be negligence. The associated risk with using the vehicle was not so
great as to prohibit saving a life.
Priestman v Colangelo (1959) – SCC
FACTS: D police were in a high-speed chase. Shot at driver’s wheel to take it out, but the bullet
ricocheted and hit a driver. The driver became unconscious and his vehicle collided with
another, killing two pedestrians.
HELD: For D.
REASONS: Ds’ actions were justified because they were under an affirmative duty to
apprehend the suspect protected by the Criminal Code.
Burbank v Bolton (2007) – BCCA
FACTS: RCMP officer (D) pursued what turned out to be an unlicensed 15-year-old driver
impaired by methadone in a stolen car. Driver ran a stop sign in the chase and hit another car,
killing 1 and injuring 4.
HELD: For P.
REASONS: Court found the driver 85% and the officer 15% responsible. This shouldn’t have
been a chase and officer was charged with breaching D.O.C.
 NEWBURY JA (dissent) – this decision leaves little room for police pursuit in any
circumstances.
15
ECONOMIC ANALYSIS OF SOC
United States v Carroll Towing Co (1947)  Learned Hand Test
FACTS: During WWII, a barge driver left his barge unattended at the dock and went to saloons
and strip clubs. When he returned the next day, the barge had drifted and smashed into many
other barges, causing a lot of damage.
ISSUE: Was it unreasonable not to have a barge driver present all through the day?
HELD: For P. D was negligent.
REASONS: There is an economic test to negligence. (1) Probability (P); (2) Gravity of resulting
injury (L); (3) Burden of adequate precautions (B).
 PL > B = negligence
 PL < B = no negligence
 In this case, the burden of watching a barge during wartime was less than the
probability/severity
NOTE: L. HAND did not intend for this formula to arise, but Posner says that it was latent in his
decision. Now in the US, this analysis is always represented in monetary values. Posner says
that we as a society do not like when people squander money.
POSNER: “A Theory of Negligence”
L. Hand’s test:
 When the cost of accidents is less than the cost of prevention (PL < B), a rational profitmaximizing enterprise will pay tort judgments to the accident victims rather than incur the
larger cost of avoiding liability
o Overall economic welfare would be diminished rather than increased by incurring
a higher accident-prevention cost in order to avoid a lower accident cost
 When the benefits in accident avoidance exceed the costs of prevention (PL > B),
society is better off if those costs are incurred and the accident averted
o In this case the enterprise is made liable, in the expectation that self-interest will
lead it to adopt the precautions in order to avoid a greater cost in tort judgments
 The Hand formula doesn’t explicitly include consideration of the victim mitigating loss,
but it is implicit in the demonstration of the negligence standard
 Since we don’t like to squander resources, a judgment of negligence has inescapable
overtones of moral disapproval, for it implies that there was a cheaper alternative to the
accident
o Conversely, there is no moral indignation when the cost of prevention would have
exceeded the cost of the accident – no reason to condemn when costs to avoid
an accident would have consumed excessive resources
Criticisms of the Economic Approach
 Tort law is not about making everyone happy, it’s about compensating a wronged
individual
 People say that non-economic negligence would be hard to assess, but you can assign
numbers to anything
 Courts are bad at these types of assessments
 This analysis reflects norms of economic efficiency, tending to maximize wealth and
minimize costs, by encouraging cost-justified accident prevention while discouraging
excessive investment in safety
 Negligence is not just a matter of calculating the pint at which the cost of injury to victims
exceeds that of providing safety precautions
Lord Reid Test
16
See Bolton v Stone
 Economic analysis is only used for foreseeable, real, and small risks.
SPECIAL STANDARDS OF CARE
A. Physically Disabled


How would a reasonable person with a similar disability act?
SOC=that of a reasonable person with a similar disability
B. Mentally Disabled
Fiala v Cechmanek (2001) – Alta CA
FACTS: Undiagnosed bi-polar man went for a run and had his first ever manic episode. He
jumped on a car and got into the car, choking the occupant, Cechmanek (respondent).
Cechmanek involuntarily accelerated and her car crashed into Fiala’s (appellant) car, injuring
her and her daughter.
ISSUE: Should he be held liable for his actions?
HELD: He did not act voluntarily or with capacity, and cannot be held liable.
REASONS: In order to avoid liability in negligence, D must prove on a BOP one of the following:
1. As a result of mental illness, D had no capacity to understand/appreciate the DOC
2. As a result of mental illness, D was unable to discharge a DOC as he had no
meaningful control over his actions at the time
SEE CHART ON NEXT PAGE
Buckley: thought he was being remote-controlled by aliens
 If you have volition and capacity, you will be held to a regular SOC
Pro-Objective SOC
1. Tort law is about compensation for the
injured party
Pro-Subjective SOC
1. First need to determine if there was a
wrong – unfair to impose liability on
someone morally innocent
2. Practical difficulties in determining mental 2. Significant advancements in health and
illness/capacity/volition
mental illness allow us to know who is faking.
 Potential for feigning mental illness
Also need to treat it like physical illness to
reduce the stigma.
3. Would incentivize caregivers to take better 3. That would make caregiving a less viable
care of mentally disabled people
profession. Also, why sue indirectly through
caregivers when you can sue them directly?
4. Erodes the objective standard
4. We already make exceptions (children,
physically disabled) and the objective SOC
still stands.
5. Reinforces stereotypes about people with
5. Holding people liable in this was effectively
mental illness being dangerous and needing
creates a regime of strict liability  we don’t
to be isolated
want fault to be irrelevant
 Must prove that it happened suddenly and without warning + lack or volition or capacity
The plaintiff claimed that there should be an objective S.O.C. analysis for mentally ill just like
others, but the Court decided more along the lines of a subjective one.
NOTE: This case appears to suggest that there is no lowered SOC for the mentally ill – SOC is
not at issue. Rather, they must be shown to lack volition/capacity.
17
American Law Institute Restatement (Third) of the Law of Torts: Physical and
Emotional Harm


Mental state is not relevant when determining whether conduct is negligent (i.e., for the
SOC), except for children.
Reinforces that mentally disabled not liable due to volition/capacity.
Roberts v Ramsbottom [1980] (UK)
FACTS: D has series of strokes and then begins driving and has more strokes while driving,
causing an accident.
HELD: Liable.
REASON: Not morally to blame, but liable nonetheless.
NOTE: Compared to Fiala, maybe liable because he had both volition and capacity.
Mansfield v Weetabix [1998] (UK)
FACTS: D was a Type 1 Diabetic who didn’t take care of his blood sugar level, causing it to
drop while he was driving and he got into an accident.
HELD: Not liable (oddly).
REASON: Not taking account of driver’s condition would be to impose strict liability.
NOTE: Shocking decision – in Canada, Type 1 Diabetics below glycemic level are considered
inebriated as if they were drunk and must monitor their levels.
C. Children



Under 5 = assumed to be incapable of negligence - American Restatement
o No capacity, so no negligence
SOC for older children=person of similar age, intelligence, and experience
In between ages=modified objective standard
Joyal v Barsby (1965)
FACTS: With cars oncoming, a 6-year-old girl was starting to cross a highway when a car
honked at her. She ran out into the road anyways and hit the side of the car. The driver was
deemed to be negligent, but the question was whether the girl was contributorily negligent.
HELD: Girl behaved reasonably.
REASON: The girl was of average intelligence or just below. She had experience crossing
highways – her father had told her before to be careful and look both ways. She lived in the
country and had experience crossing highways.
Adult vs. Childish Activities
McEllistrum v Etches [1956]
HELD: There is an age below which a child cannot be held liable in negligence. Further, the test
is whether a child exercised the care as would a child of like age, intelligence, and experience.
 The reasonable child standard applies EXCEPT when a child is doing an adult activity
o E.g., driving, snowmobiling, hunting
 What is the rationale for this?
o Leading rationale: If you’re doing an adult activity the public assumes you’re an adult
o Look at the relationship between P and D
 When it’s 2 children (e.g., McHale v Watson – 12 year old threw sharpened
rock at post and girl lost eye) and one injures the other while doing a child’s
activity, one wouldn’t need to meet an adult SOC
18



When the D is a child and P an adult, it is unfair between the parties to hold the
child responsible only as a child when the activity is clearly an adult activity.
Parental/Guardian/Supervisor’s Responsibility
o Usually, no vicarious liability for children’s wrongs
o However, can be liable through negligent supervision
 Common law
 Mainly governed by statutes: ON Parental Supervision Act defines a
responsible parent using a SOC analysis
What about the elderly?
 No modifications for the very old  held to the standard of a reasonable person
D. Professionals


Meet the SOC that your reasonable colleagues would meet
However, breach of standard of care is neither necessary nor sufficient to establish
negligence
White v Turner (1981) HC, aff’d 1982 ONCA
FACTS: D (plastic surgeon) performed a breast reduction on P but took off more skin than
tissue and when D was closing P back up, it was too tight and resulted in deformed breasts.
HELD: Liable.
REASONS: After hearing experts, found that D deviated from the customs of the practice (one
indicator of negligence). The surgeon performed the procedure too quickly and failed to perform
standard check.
Ter Neuzen v Korn (1995) SCC
FACTS: P contracted HIV via artificial insemination.
ISSUE: Did D breach SOC in failing to check the semen for HIV? P was concerned that there
was no standard practice for this.
HELD: No negligence. Not up to the judge to decide if it should be a standard practice. NO
NEW TRIAL to determine if checking semen for HIV is necessary (because deemed not to be),
BUT new trial to determine if checking semen for STDs in general is necessary.
RULE FOR QUESTIONING A CUSTOM: “Where a procedure involves difficult or uncertain
questions of medical treatment or complex, scientific or highly technical matters that are beyond
the ordinary experience and understanding of a judge or jury, it will not be open to find a
standard medical practice negligent.”
 EXCEPTION TO CUSTOM: When D fails to adopt obvious/reasonable precautions
readily observable to an ordinary reasonable person.
Causation
(AKA Factual Causation)
 The standard test for factual causation is the but-for test: Based on the facts, can P
prove on balance of probabilities that D’s breach of the SOC was a cause of P’s loss?
 “Cause-in-fact” test
Causation = the link between D’s breach of SOC and P’s loss
 P can only complain of injuries that resulted from D’s wrong – makes sense since D only
responsible for damage he/she caused
 Each of P’s individual injuries must be analyzed in terms of causation
 “Divisible loss” = a loss that can be attributed to the conduct of a single tortfeasor
19






(1) Single cause approach
(2) Should be defined narrowly
(3) If each divisible loss is readily attributable to the conduct of a single tortfeasor, P
will have separate cause of action against each tortfeasor and the but-for test of
causation, subject to any relevant modifications, will apply
“Indivisible loss” = a loss that can be attributed to the conduct of more than one
tortfeasor
(1) Multiple cause approach
Series of distinct injuries occurring in rapid succession typically considered one loss
(e.g., multiple whiplash injuries from a car crash)
Does not have to be the sole, immediate, direct, or most important cause of injury –
sufficient that D’s negligent act was a cause
Sometimes the balance of probabilities adjusted to achieve public policy goals
Sometimes hard to distinguish from remoteness
PRESENT STATE OF LAW IN CANADA (MCLACHLIN in Clements v Clements):
(1) As a general rule, P cannot succeed unless she shows as a matter of fact that
she would not have suffered the loss “but for” the negligent act or acts of D. TJ
must take a robust and pragmatic approach to determining if P has established
that D’s negligence caused her loss. Scientific proof of causation is NOT
required.
(2) Exceptionally, P may succeed by showing that D’s conduct materially contributed
to risk of P’s injury, where (a) P has established that her loss would not have
occurred “but for” the negligence of 2+ tortfeasors, each possibly in fact
responsible for the loss; and (b) P, through no fault of her own, is unable to show
that any one of the possible tortfeasors in fact was the necessary “but for” cause
of her injury, because each can point to one another as the possible “but for”
cause of the injury, defeating a finding of causation on a balance of probabilities
against anyone.
But-For Test




If P’s injury would not have occurred but-for D’s negligent act, then that act is a cause of
the injury
D’s negligence was “causally effective” – it was necessary
P needs to demonstrate causation on a balance of probabilities.
o Don’t need scientific proof
o Common sense
o Relatively little evidence required
 Means that a judge can infer causation; don’t need expert testimony
Has been criticized for absurd hypotheticals
Kauffman v Toronto Transit Commission (1959) – ONCA, aff’d [1960] SCC  Relation
between SOC and causation
FACTS: P ascending on escalator at subway station. Youths ahead of her were scuffling,
knocking down the man in front of her and in turn having the crowd of two or three fall on her.
She suffered severe and permanent injuries. She alleges that D was negligent in not providing
rubber coverings on handrails as is common practice [breach], thus not allowing her to properly
grip the handrail and hold herself up. Trial judge found for P. D appealed.
HELD: Appeal allowed; for D.
REASONS: There was no evidence that:
 The youths or man in front of P attempted to grab the railing and failed
20
 P would not have fallen had she been able to grasp the rail
 P tried to grab the handrail
 The type of railing was a contributing cause to the accident.
NOTE: Shows how influential standard of care is to causation/damage. Maybe if P’s lawyer
framed it as TTC needing to provide a security guard or make announcements against
roughhousing it would be at least plausibly connected to her injury.
Barnett v Chelsea & Kensington Hospital Management Committee [1969] QB
FACTS: P’s poisoned with arsenic. They got to the hospital (D) at 8am. Doctor sent them home.
One of them died at 1pm from enzyme disruption. P alleges D was negligent in its treatment.
ISSUE: Was D’s breach (8am) causally connected to P’s death? (Was there factual causation?)
HELD: No; for D.
REASONS: Fails but-for test. Even if D didn’t breach the standard of care, he wouldn’t have
been able to treat P until 12:30. It was found that he would have needed to treat him by 12 to
prevent death. If he had done everything right, P still would have died. Thus, there’s no
causation.
NOTE: If the breach were framed as the hospital failing to have staff ready, P might have won.
Sam v Wilson (2007) BCCA
HELD: Negligent monitoring of liver function was not proven to be a cause of P’s liver disease.
Qualcast (Wolverhampton) Ltd v Haynes [1959] HL
FACTS: Experienced foundry worker injured when molten metal splashed on his feet. Wouldn’t
have been injured had he worn protective clothing. Employer provided protected clothing but did
not advise him to use them nor did the worker ask. When he recuperated, the worker continued
not to use the spats.
HELD: For D.
REASONS: D did not breach the standard of care in providing the worker with protective
equipment. However, even if the standard was breached, D’s action would not have been a
cause because he would not have worn them anyway. The worked would have chosen not to
wear it anyway. No causation.
NOTE: Sinel says that now, it would be found that they breached standard of care.
Richard v CNR (1970) PEI SC
FACTS: P was asleep in car aboard a ferry. Heard someone say “we’re here!” and, thinking the
attendant made the statement, proceeded to back his car off the ferry into Gulf of St. Lawrence.
P alleged that among other things, D was negligent in untying the safety rope too soon.
HELD: For D.
REASONS: The “sole, direct, proximate and effective cause” of the accident was P’s rash act of
backing off the ferry, contrary to warning signs and the crew’s attempt to stop him. Even if they
had left it tied, P still would have ended up in the water – not causally connected. What caused
him to drive off was someone yelling “we’re here” – NOT the rope being untied.
NOTE: Like in Barnett and Kauffman, had the SOC been described differently, the outcome
may have been different. Here, P’s lawyer should have argued that the barrier should have
been more than a piece of rope.
Chester (Guardian ad litem of) v LeBlanc (2007) – BCSC
Lawyer’s negligent preparation for mediation not a cause of P’s agreeing to an unfavourable
settlement.
21
Exceptions to the But-For Test

Most widely-accepted modifications involve limited exceptions that apply to relatively
narrow categories of cases
 Each exception addresses a specific perceived unfairness that would result from
applying the but-for test
1. Multiple negligent defendants rule
2. Objective/subjective test in informed consent cases
1. Multiple Negligent Defendants Rule
Cook v Lewis [1951] – SCC
FACTS: D (Cook) and Akenhead were hunting and shot at a grouse. P (Lewis) emerged from
the bushes screaming because he was shot and lost an eye. D and Akenhead both denied firing
in P’s direction. P could not prove on balance of probabilities which hunter had shot him.
BLL: Burden of proof to establish causation would shift from P to D if P could establish that:
1. Both Ds were negligent
2. One had to have caused the loss
3. It’s impossible to prove which D caused loss
Each D found to have negligently caused loss unless he could disprove causation on the
balance of probabilities
 You can’t have 51% required on balance of probabilities because there’s a 50% chance for
each one of them
 Court not sympathetic to this idea (shouldn’t benefit from collective wrongdoing)
NOTE: Court held that the multiple negligent defendants rule only applied to cases involving two
negligent defendants. UK and American courts have applied a version of this involving more
than two.
(e.g. Clements v Clements (2012) SCC  this principle, albeit framed in different terms, is not
limited to cases involving only two negligent defendants.)
2. Informed Consent
Hopp v Lepp [1980] – SCC; Reibl v Hughes [1980] – SCC
Healthcare professionals have a duty to put patients in a position to make informed decisions
about whether to consent to proposed treatment
 Objective/subjective test of causation  whether a reasonable person in P’s position
would have consented if he/she had been adequately informed
o Pro-defendant test
 Rejected standard subjective causation test because disgruntled patients would provide
self-serving evidence (i.e., wouldn’t have had the treatment)
Recent Attempts to Modify the But-For Test
1. Material Contribution to Risk (MCR) Test
2. Material Contribution to Injury (MCI) Test
3. Proportionate Cause and Loss of Chance Test
1. Material Contribution to Risk Test
*Sinel: this has never been applied in Canada but is not bad law.
McGhee v National Coal Board [1972] HL  MCR; Wilberforce’s judgment overturned in
Wilsher
22
FACTS: P worked cleaning out D’s brick kiln. D did not provide showers, so P had to bike home
filthy (which also may have contributed to the dustiness). P developed dermatitis and sued D.
HELD: For P.
REASONS (L. REID, SIMON, SALMON, and KILBRANDON): Thoufgh unable to determine if
absence of showers was more likely than not to have caused P’s condition, D’s failure to
provide showers materially increased the risk of developing dermatitis and that injury actually
occurred. Thus, D is a cause.
 L. WILBERFORCE: P need only prove D created a risk of harm and injury occurred within
this area of risk. Burden of proving causation should shift to D in these circumstances who
must then disprove causation on balance of probabilities. Limited this principle to cases in
which sound policy warranted making an exception to standard test for causation.
NOTE: Canadian courts have adopted WILBERFORCE’s minority approach and have often
applied it well beyond the confines of workplace health + safety and rarely refer to any policy
considerations.
 HL essentially overturned WILBERFORCE in Wilsher v Essex Area Health Authority [1988]
 SCC in Snell limited the application of WILBERFORCE’s reverse of burden.
Snell v Farrell [1990] – SCC Not strictly an MCR case, but comments on McGhee
FACTS: Dr. Farrell performed cataract operation on P. Noticed discolouration after injecting the
anaesthetic, waited, then continued. P ended up blind in that eye.
PRIOR PROCEEDINGS: Experts at trial could not say for sure what caused the blindness or
when damage occurred. Trial judge found D liable on basis of McGhee – P established prima
facie case for causation and burden shifted to D to disprove it, which he could not do. Court of
Appeal dismissed appeal.
ISSUE: Potential tortious cause AND potential non-tortious cause. Damage could have
occurred naturally OR because of the operation
HELD: Appeal dismissed; for P.
REASONS: Allocation of burden of proof is not immutable. In the circumstances of McGhee,
Canadian courts have accepted that an inference of causation is warranted in that there is no
practical difference between materially contributing to the risk of harm and materially
contributing to the harm itself. Here, if D was escaping liability because P could not prove
causation, would apply McGhee by shifting burden of proof. That only applies where the D is in
a better position to know the cause of injury than P (not the case here). The principles relating to
causation are adequate here. The trial judge was wrong to reverse the burden of proof in a case
such as this where the injury may have been caused by factors unconnected to D and not the
fault of anyone. Need a robust and pragmatic approach to the facts.
 Burden is with P, but in the absence of evidence to the contrary adduced by D, an
inference of causation may be drawn although positive/scientific proof of causation has not
been adduced
 Not necessary for medical experts to provide a firm opinion supporting P’s theory –
medical doctors are reluctant to express opinion unless 100% certain, but in law it is 51%
 D was negligent in continuing the operation and doing so greatly increased P’s risk
o More likely than not caused the harm even though it could’ve been caused
naturally by stroke
SUMMARY: Reverse burden of proof where:
1. D is in a better position to know the cause of injury than P
2. Multiple Defendants
 Don’t want D to profit off rules of evidence – must compensate P
 Need to know which D because the chance of being wrong that someone was
negligent in a case of 1 D is only 49%
23
 But if there are 2 Ds, could be 100% wrong if both are excused. We need the
chance of being wrong to go back to 49% by shifting the burden (this
mathematical analysis wouldn’t work with 3+ Ds)
3. WILBERFORCE in McGhee – D negligently materially increased risk and risk occurred
Fairchild v Glenhaven Funeral Services Ltd [2002] – HL  Multiple tortious causes
FACTS: P contracted mesothelioma (occurs when asbestos inhaled). P exposed to asbestos
over the course of many years of employment with different employers, and thus could not
determine which employer was responsible.
HELD: For P. All employers held jointly and severally liable.
REASONS: Reinterpreted L.REID in McGhee  A breach of duty which materially increased
the risk should be treated as if it had materially contributed to the disease. Each employer
increased the risk of injury.
Barker v Corus (UK) plc [2006] – HL  Multiple tortious causes + one non-tortious cause
FACTS: The deceased was exposed to asbestos while employed by two companies and while
self-employed (a non-tortious cause).
HELD: For P; didn’t get complete compensation
REASONS: Distinguished from Fairchild because his mesothelioma could have resulted from
non-tortious exposure to asbestos (self-employment). Thus, D company (Barker) only liable for
its proportionate share of the risk that it created (rather than joint and several liability ‘proportionate share liability’)
NOTE: Overturned by an amendment to the Compensation Act 2006 that makes tortfeasors in
mesothelioma cases jointly and severally liable – no more contributory negligence in those
cases. Everyone who got mesothelioma gets full compensation.
2. Material Contribution to Injury Test
Sinel: A truism about torts and cause-and-effect – D’s carelessness need not be the sole or
sufficient cause.
 Thus, MCI test is just an application of the but-for test
Clements v Clements [2012] SCC  Tortious + non-tortious independent insufficient causes
FACTS: P was a passenger on D (her husband)’s motorcycle. D was driving 20 km/h over
speed limit while passing a car in wet weather and 100 pounds overloaded. Nail had punctured
the rear tire unbeknownst to D and while passing the car it fell out, tire deflated, and they
crashed. Trial judge found for P – but-for not satisfied because of limitations in crash
reconstruction, but applied MCR test. Court of Appeal overturned because but-for not satisfied.
PRIOR PROCEEDINGS: Trial judge applied MCR, said it’s an alternative to but-for. WRONG
HELD: Appeal dismissed. For D. MCR does not apply because there is only one tortious actor.
REASONS (MCLACHLIN): Trial judge was wrong to apply the MCR test. It isn’t really a test for
causation, but rather a policy-driven rule of law designed to allow P to recover in such cases
despite their failure to demonstrate causation. Ps are allowed to jump the evidentiary gap
between breach and damage. D in an action for negligence is not a wrongdoer at large, but
rather a wrongdoer only in respect of the damage which he actually causes to P. Thus, the
approach is rare and only applied when fairness is required and it conforms to principles that
ground recovery in tort.
 Need to distinguish between true impossibility of factual proof (where MCR test would
apply) and situations where P simply fails to meet burden
 Trial judge relied on “scientific impossibility,” but this is not the standard – Snell makes
clear that scientific evidence of causation is not required
24
 Impossibility ≠ logically/conceptually/factually/scientifically impossible
What Does Impossibility Mean?
 MCR test applies typically where there are multiple tortfeasors where all are at fault and
one or more has caused P’s injury
o e.g. Cook v Lewis or cases of multiple-employer mesothelioma cases
 Impossibility = P has established that but-for the negligence of multiple people, they
would not have been injured (global application of but-for), but no balance of
probabilities can be established against any one individual.
o This is not a logical or factual (i.e., failing to meet the burden) impossibility.
 Note: This true impossibility was seen in Cook v Lewis, mesothelioma
cases, and Sindell.
o MCR test is consistent with corrective justice  the deficit that would exist in the
relationship between P and Ds viewed as a group if P were denied recovery is
corrected
 In UK, Courts have applied this test to a single tortfeasor in a case of mesothelioma
where but-for was impossible (Sienkiewicz), but the SCC does not find it appropriate
in Canada
 The but-for test must be applied in a robust, common-sense fashion  only in the above
circumstances should it be discarded in favour of the MCR test
 In the present case, they needed to examine all the contributing factors.
 All tortious factors will contribute in the MCI test.
 Here: two tortious causes, two non-tortious
Speed 
Tort
Weight/Overloading
Tort
Nail 
No tort
Rain 
No tort
Must ask: but-for the two tortious causes, would the accident have happened?
(From class)  MCLACHLIN summary: General rule is P can’t succeed unless they show butfor causation. This should be applied in a robust and pragmatic manner and doesn’t require
scientific test. Need multiple tortfeasers, each of whom is possibly responsible, for MCR test to
apply. P must show through no fault of her own that one of the possible tortfeasers is in fact
the necessary cause of her injury.
Athey v Leonati (below) is also a material contribution to injury case.
 Don’t have to establish that the D was the sole cause
3. Proportionate Cause and Loss of Chance
Sindell v Abbott Laboratories [1980] – Cal Sup Ct  Multiple tortious causes
FACTS: P developed deadly cancer caused by drug called DES which her mother had taken
while pregnant. About 200 pharmaceutical companies produced it and it was a generic pill with
no markings. Many similar complaints were filed.
HELD: For P; D’s jointly and severally liable for negligence based on their individual market
share.
REASONS: Though P couldn’t prove which company produced the drug her mother took, all
companies negligent in marketing DES because they knew or ought to have known of its risks.
 Canada has not adopted the approach from Sindell for injuries occurring before trial
25

However, Canadian courts have adopted a different standard of proof for losses that may
occur after trial
o If P can establish a substantial or reasonable possibility that D’s negligence will
cause a future loss, P can recover for a percentage of that loss
o E.g., 40% chance that D’s negligence will cause P to go blind. That injury will result
in $100,000 in damages. P would be awarded $40,000 for this possibility (Janiak v
Ippolito [1985] – SCC)
 Loss of chance cases typically arise when D’s negligence has denied P a possibility of
avoiding a loss
 In a case where someone dies, but if it weren’t for D doctor’s negligence the person would
have had a 25% chance of recovery  no liability because cannot succeed on balance of
probabilities
o If 70% chance of recovery, for example, can recover
NOTE: Incorporates material contribution to risk test (though it might not be a risk at all –
definitely injured someone) with the proportionate cause test. There was no way to know which
D caused which victim’s injury, but each contributed to the risk.
NOTE: Different than Fairchild because in that case Ds may not actually have been injured by P
at all.
Himowitz: Same facts as Sindell, BUT no exculpatory clause  even if a D
company could show that they didn’t sell the drug at the relevant time and place,
they could still be found liable
Multiple Causes
Two issues raised by multiple causes:
1. Over-determination: when you have multiple sufficient causes, no one cause is a
necessary cause of the injury
2. Under-determination: when you have multiple insufficient causes, no single cause
on its own can be said to be the cause of the injury
 More than one tortious cause [multiple Ds]
 Tortious cause and non-tortious cause [e.g. act of nature]
 Timing: when causes happen simultaneously or sequentially
Must ask two questions before commencing an analysis under multiple causes:
(a) Is the injury divisible or indivisible?
o Divisible injuries can be attributed to act of a single tortfeaser
 E.g. A shoots you in arm, B shoots C in leg
 A responsible for arm and B is responsible for leg
 But if C dies, that is an indivisible injury
o Divisible injuries no problems for multiple causes because there aren’t multiple
causes.
(b) If indivisible, are the defendants joint tortfeasors or independent tortfeasers?
o Independent tortfeasers are liable only for injury they cause
o Joint tortfeasers are liable for all injuries caused by other tortfeasers. Only one needs
to be proven.
o JOINT TORTFEASERS:
 Cook v Lewis [1951] SCC  Three categories of cases where Ds will be joint
tortfeasors:
i.
Principal and agent relationships (agent committing tort while acting for
principal)
26
ii.
o
Master and servant relationships (employee committing tort in course of
employment)
iii.
Concerted actions or joint ventures (2+ individuals acting in concert to
bring about a common end that is illegal, inherently dangerous, or one in
which negligence can be anticipated)
 This third case is the most fact-specific and also the most testable
 The release of one joint tortfeasor extinguishes P’s right to sue the other joint
tortfeasor (Tucker (Public Trustee of) v Asleson [1993] BCCA)
 P could settle with one tortfeasor, not provide a release, and then
sue the remaining joint tortfeasors
If independent, need to establish causation independently.
 Independent tortfeasors are only liable for the injuries that they cause
 Two situations:
1. Those involving independent insufficient causes
 But-for test is adequate
2. Those involving independent sufficient causes
 But-for test produces anomalous results
Newcastle (Town) v Mattatall (1987) NBQB
FACTS: 3 youths broke into a rink with the intention of stealing everything they could find. One
of them negligently started a fire that resulted in substantial property damage.
ISSUE: Are other youths also responsible for that property damage?
HELD: Yes; jointly and severally liable.
REASONS: The fire was caused in pursuit of the three youths’ common wrongful intention.
NOTE: Falls into the 3rd category outlined in Cook v Lewis.
(Class) Martin: four brothers held liable when one beat up P who they owed money. All were
trespassers and …
Two Types of Independent Causes (make a chart)
 Multiple Insufficient Causes
A) Tortious and non-tortious
B) Tortious and tortious
 Multiple Sufficient Causes
A) Tortious and non-tortious
i)
Sequential
ii)
Simultaneous
B) Tortious and tortious
i)
Sequential
ii)
Simultaneous
1. Multiple Insufficient Causes – but-for test is adequate
Two possible scenarios:
A. Tortious and non-tortious
B. Tortious and tortious
A) Tortious and Non-Tortious:
This is almost always every injury.
 Usually something D as a tortfeasor did not/could not control (P gets full recovery using
the but-for test)
 (Multiple causes, all of which are necessary, but none of which are sufficient)
 Authority: Athey v Leonati
27


How to approach:
P recovers from full extent of injury on the basis of the but-for test. Aim is to restore
Athey v Leonati [1996] SCC  Multiple tortious + multiple non-tortious causes  MCI
FACTS: P had pre-existing back problems and was involved in two traffic crashes negligently
caused by Ds, who admitted negligence. P’s doctor advised fitness classes. P experienced a
herniated disc from an exercise one day, was permanently partially disabled and forced to quit
job and take a different one with lower pay. TJ said crash causally contributed to onset of
disability, but reduced P’s damages by 75% to reflect greater causal role played by pre-existing
back condition. CA upheld. P appeals to SCC.
PRIOR PROCEEDINGS: Trial judge says D is 25% liable (rejected by SCC)
HELD: For P; appeal allowed; full liability.
REASONS: D’s negligence need not be the sole cause, but enough that D was part of the
cause of injury. There is no basis for reduction of liability because of the existence of other
preconditions. There is a single indivisible injury here (disc herniation) so division is neither
possible nor appropriate.
 Crumbling Skull Doctrine: Similar to TSR, crumbling skull recognizes that the preexisting condition was inherent in P’s “original position”
 D need not put P in a position “better” than their original one
o No need to compensate for injuries P would have experienced anyway; only liable
for additional damage; can take into account “measurable risk” of the injury
occurring anyway
o This argument does not succeed because at trial there was no finding of any
measurable risk that the disc herniation would have occurred without the accident.
 Thus, there was no basis to reduce the award to account for such risk
 Mere stretching alone was not sufficient to cause herniation in the absence of some
latent disposition or previous injuries. If injuries sustained in motor vehicle accidents
caused or contributed to herniation, Ds are fully liable for damages flowing from
herniation
 P must prove causation via but-for test
(1) If disc herniation would likely have occurred at the same time, without injuries
sustained in the accident, causation is not proven
(2) If it is necessary to have both the accidents and the pre-existing condition for
herniation to occur, causation is proven, since herniation wouldn’t have occurred
but-for the accident  D’s actions never have to be the sole cause
(3) If accidents alone a sufficient cause and pre-existing conditions alone a sufficient
cause, unclear which was the cause-in-fact of the herniation. TJ must determine
on balance of probabilities.
 Findings from trial judge show that option 2 is the applicable scenario, even though preexisting condition was found to play a greater role (accidents contributed 25%, thus
outside de minimis range – it is a material contribution to injury).
 Thus, causation is met.
o There is no apportionment of damages based on % of contribution. Principle of
full restoration – P’s back would be fine but-for D’s negligence. If apportionment
was ever allowed, tort law would never compensate P for injury.
Clements v Clements (above) is also an independent insufficient causes case involving a
tortious and non-tortious cause.
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Nowlan v Brunswick Construction Ltd (1972) – NBCA
FACTS: D contractor was negligent in constructing P’s house, which suffered extensive rot due
to leaks in the structure. D argues that no damage would have occurred but-for architect’s poor
design, which had not provided for proper ventilation. Trial judge found for D.
HELD: Appeal allowed, for P.
REASONS: While architect contributed, so did the contractor. True that there wouldn’t have
been rot if the architect did his job properly, but there also wouldn’t have been rot if,
notwithstanding the poor architecture, the contractor did his job properly.
Arneil v Paterson [1931] – HL
FACTS: Ds’ 2 dogs separately mauled P’s sheep, killing 2 of them.
HELD: For P; each D liable.
REASONS: Impossible to determine which dog caused which injuries to which sheep, but the
loss should be viewed as indivisible with both dog owners liable for the entire loss.
NOTE: It may also have been difficult for the court to disentangle causal roles of two or more
negligent acts if they happen in close succession (chain reaction, multi-vehicle car crashes are
another example of this issue).
B) Tortious and Tortious:
 Independently insufficient, but both necessary for injury to result
Chapman v Hearse (1961) – HC Australia
FACTS: Chapman injured himself in a car accident. Cherry stopped at the scene to help. Cherry
was killed when Hearse’s car hit him. Thus, there are two Ds – Chapman, who carelessly
caused the scene that invoked Cherry to stop, and Hearse, who carelessly hit Cherry.
HELD: D’s jointly and severally liable.
REASONS: P can choose to sue one D for all injuries or both Ds. If chooses 1 D, that D can
then sue the other D for being negligent. Here, Cherry’s estate sued Chapman, and Chapman
sued Hearse.

Both causes are necessary but independently insufficient  injury wouldn’t have
happened if other person hadn’t done something wrong
o Each D was a “but-for” cause of Cherry’s death
o Neither them alone was sufficient
2. Multiple Sufficient Causes
Cause problems for the but-for test
 If two tortfeasors cause an injury, but each individual tortfeasor’s action would have
sufficed to cause that injury, but-for test would fail for both tortfeasors and both would be
absolved of liability
 To correct this obvious inequity, courts have applied a significant or substantial factor
test of causation in such situations
(1) P’s fate after the appeal period ends has no impact on the original tortfeasor’s liability
(2) Tortfeasor’s liability reduced to reflect P’s pre-existing injuries/disabilities (consistent
with taking P as you find him/her)
(3) More uncertainty where P suffers independent, parallel injury prior to trial on the first
injury
Example 1: Both A and B shoot C in the heart at the same time. Neither one was a
necessary cause, but both did a negligent act that culminated in C’s death.
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Example 2: Both A and B want C dead, but are unaware of each other’s desires. A poisons
C’s water in C’s only flask. B, unaware that A has done this, puts a hole in the flask. C goes
into desert and dies of thirst. If B hadn’t put hole in flask, C would still be dead. If A hadn’t
put poison there, C would still be dead.
POSSIBLE SCENARIOS:
A. Tortious and Non-tortious
i.
Successive
ii.
Simultaneous
 These have the same result for liability
B. Tortious and Tortious
 These are very rare
i.
Successive
ii.
Simultaneous
 These have differing results for liability
A) Tortious and Non-Tortious:
Penner v Mitchell (1978) – Alta CA  Tortious and non-tortious causes
FACTS: Trial judge awarded P (respondent) damages for loss of income for 13 months due
to the accident caused by D (appellant). Respondent would have been unable to work for 3
of those months anyway due to a pre-existing heart condition. Appellant contends that he
should not have had to compensate her for that 3-month period.
HELD: Appeal allowed, for D. Owes $9,230 rather than $12,000.
REASONS: Contingencies that do not give rise to a cause of action (non-tortious) should be
taken into account when assessing damages. This is contrasted to circumstances such as in
Baker v Willoughby in which the successive injury arose by culpable means (i.e., another
tortfeasor caused it – 2 tortious causes). In that case, L. REID did not allow the subsequent
injury to mitigate the damages owed by the first tortfeasor.
 Future contingencies arising in culpable circumstances should not be taken into
account because otherwise the P would receive less than full compensation
 Not taking into account contingencies arising from non-culpable circumstances would
overcompensate the P
 P cannot recover from things that flow from non-tortious causes.
 Ask: “in a world without wrongs, would this have happened?”
 D will only be liable for loss that exceed the losses that P would have sustained anyway
 When tortious and non-tortious cause are both sufficient to cause the same injury,
timing is irrelevant to liability
 Can be significant for two tortious causes
B) Tortious and Tortious:
Lambton v Mellish [1894]  NOT REALLY an example of simultaneous tortious causes;
significant factor test
FACTS: D had an amusement/refreshment stand with a merry-go-round. He also had organ
music accompanying the ride, playing from the morning until night. A rival business also had
an organ. P said the noise was maddening and applied to the court for an injunction. D says
his organ is much quieter than the rival’s.
HELD: For P. Both D’s liable for ALL P’s resulting losses.
30
REASONS: Each man is making a noise and each is adding his quantum until the whole
constitutes a nuisance (both Ds are contributing a significant factor in P’s injury). Each is
separately liable.
 Cannot have someone else’s wrong as a defense
NOTE: If the “but-for” test were applied, it would exculpate both D’s. The P has essentially
been wronged twice and shouldn’t receive zero damages because of that. This is somewhat
of a “global” but-for test – in a world without wrongs, what position would P be in? Here, she
would still have injury.
NOTE: “Necessary Element of a Sufficient Set” (NESS) Test is NOT the appropriate test.
 (of actual antecedent causal factors)
 Example: small group and scotch?????
NOTE: DON’T APPLY the MCR test – Apply the SIGNIFICANT FACTOR TET
Baker v Willoughby [1969] – HL  Sequential tortious causes; endorsed in Penner
FACTS: D caused a car accident, leaving P with a “stiff leg.” Because of this stiff leg, P
suffered a diminished earning capacity. Before trial, P was shot in the same leg by a thief,
resulting in amputation. The question at trial was who was liable for the loss of income? CA
ruled that the 2nd injury subsumed the 1st injury, and thus held for D. P appealed.
 D argued that he was no longer liable because the injury caused by his tort was
subsumed by second injury/tort
ISSUE: Who is liable?
HELD: For P.
REASONS: The first D is liable (the one who caused the car accident). The second D was
entitled to take the victim as he found him (essentially the thin skull rule being used to his
benefit). The first injury caused P’s inability to lead a full life, while the second injury did not
diminish or exacerbate P’s position from this standpoint. *This is the dominant approach.
NOTE: There are 2 other possible scenarios (aside from the dominant approach applied
here) for a case of successive tortious actions for independent sufficient causes:
(1) Second D is fully liable  the first tortfeasor should not be responsible for a
subsequent loss. P’s injury would have happened anyways (essentially the same
argument as used for a successive non-tortious injury). This is the least popular test
– it was applied by the CA in this case.
(2) Both D’s are liable  this is the same approach as is applied for simultaneous
tortious independent sufficient causes.
NOTE: D can sue for contribution with any of these 3 approaches.
NOTE: If the 2nd D had made P’s loss of income even worse, each D would be liable for the
extent that their tort caused the portion of the loss.
NOTE: If the 2nd injury occurred after trial, the 1st D would automatically be wholly liable and
could not sue for compensation (no damage reduction on account of 2nd tortious cause –
see hypothetical below)
WHAT SHOULD WE DO WITH SEQUENTIAL TORTIOUS CAUSES?
1. D1 is liable (Baker) (justification=TSR)
2. D2 is liable (justification=it was going to happen anyway)
3. Let P choose (justification=P can’t always find both Ds – e.g. Baker: D2 ran away)
WHAT IS THE RULE IN CANADA FOR SEQUENTIAL TORTIOUS CAUSES?
 There is case law supporting all three approaches
 Mostly Rule 1: D1 is fully liable (Penner, Baker)
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


Damages typically assessed against D1 as if the wrong occurred immediately
BEFORE D2’s tort
D2 not liable for damages caused by T1 – but if T2 exacerbates damages P suffered
(e.g. Baker) then they’re responsible for that
The rule is D1 is responsible in cases of multiple sufficient sequential tortious
causes, and D2 will only be liable for the losses flowing from their tort if those losses
add to those caused by D1
Thin Skull Rule vs. Crumbling Skull Rule
 TSR:
o Take victim as you find them
 CSR:
o Relevant in causation
o Tortfeaser must accept victim’s frailties but doesn’t need to relieve the P of
losses that P would have suffered anyway
o But may have to compensate for exacerbation of those original frailties
Remoteness
(AKA Legal Causation)
“The whole purpose of remoteness is to cut off the logical inquiry at some point. Moreover, that
cut-off point will necessarily be somewhat arbitrary, because it is based on policy rather than
logic.”
Sinel: remoteness answers questions of whether a certain consequence of my action is my
responsibility.
For intentional torts, consequences are the responsibility of the actor when they intend to bring
those consequences about.
 In negligence, we say the actor was negligent with respect to bringing about those
actions
 How is it the actor’s responsibility?
 Causally affected/created an outcome, but which consequences “belong to” the actor?
When you’re negligent, you’re imposing an unreasonable risk (SOC)
 You are responsible for the consequences of your unreasonably-imposed risks
 Risks are relational – dangerous to someone for something
Two Perspectives about Remoteness
1. The ambit of one’s responsibility is coterminous with the ambit of the risk one
unreasonably imposed
o Liability is dependent on the use of judicial reasons
o Has an internal limit
o Cardozo-esque (Palsgraf)
2. Remoteness is merely a tool to arbitrarily cut off the ambit of one’s responsibility
o Arbitrary ≠ unprincipled
o Subject to judicial discretion (think Denning)
o This is the view promoted by the textbook
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Relationship Between Remoteness and DOC
SIMILARITIES
 Reasonable foreseeability  don’t owe duty to a person when they would not be
affected by your actions (in reasonable contemplation)
 Both are tools the courts use to draw the line for where liability ends
o E.g., Palsgraf: 1) Injuries too remote; 2) P not a foreseeable victim
DIFFERENCES
 DOC is more about conduct, while remoteness is more about consequences
 DOC asks the question: Is this person in my contemplation?
 Remoteness asks the question: Is this person’s limb in my contemplation?
Relationship between Remoteness and SOC
SIMILARITIES
 D negligent only if he/she exposes another to an unreasonable risk
 SOC looks like an inquiry into the likelihood of injury occurring and so does remoteness
DIFFERENCES
 Can breach SOC (and be negligent), but the injury can be too remote
 Doughty v Turner  Not liable because the injury was too remote, though could argue
that the SOC was breached
 Mustapha
 Palsgraf  Cardozo thinks no SOC breached (Sinel disagrees), but her injury was too
remote
TRY TO USE CASE LAW TO SHOW WHERE ONE OF THE ELEMENTS IS PRESENT BUT
THE OTHER IS NOT
Tests for Drawing the Remoteness Line
1. Directness Test (Polemis)
Re Polemis and Furness, Withy & Co [1921] – KB
FACTS: D’s servants dropped plank of wood onto canister of benzene that was in P’s ship,
causing an explosion that destroyed it.
HELD: For P.
REASONS: Directness as the test for remoteness  not too remote if a direct (close
temporal and spatial connection) result of defendant’s carelessness.
 Not reasonably foreseeable, but direct connection.
NOTE: Criticized as being theoretically unsound.
 NOT GOOD LAW, ALLEGEDLY
 A close spatial/temporal connection between breach and damage
 In Polemis, dropping something and causing an explosion was direct, though not
reasonably foreseeable – held D liable
 Not a good test anymore  negligence = to hold liable for consequences in
reasonable contemplation
 It is theoretically unsound and unfair
 Very pro-plaintiff
 In Wagon Mound #1 L. SIMMONDS criticizes the directness rule
 Disproportionate to allow for all consequences
 It is fair to hold liable for probable consequences of an act
 This is a principle of civil liability
33

To demand more would be too harsh, to demand less ignores the
minimum standard
2. Reasonable Foreseeability of Injury (Wagon Mound #1)
Wagon Mound #1 [1961] – PC
FACTS: Appellants carelessly leaked oil while fueling a ship. Oil escaped for over a day,
carried under the respondent’s wharf, whose men were welding. Sparks lit the oil on fire
and severely damaged the wharf. TJ held that fire not reasonably foreseeable to spread
on water, but held for the plaintiff/respondent on the basis of oil congealment on the
wharf.
HELD: Appeal allowed.
REASONS: The test for remoteness is whether a reasonable person would foresee the
damage (NOT directness). Directness leads to never-ending and insoluble problems of
causation. Reasonableness is in accordance with paying for a moral wrongdoing (per
Donoghue).
NOTE: In Assiniboine, DICKSON says the WM#1 was decided in that way because it
was not known that oil could burn over water. D in that case had a duty not to discharge
oil, not for fire concerns but for concern of damaging the wharf/shore. This would have
satisfied the directness test, but it was not reasonably foreseeable
 DICKSON details the reasonable foreseeability test
 Applying to WM#1 fire was not reasonably foreseeable
o One is not responsible merely because the consequence is natural and
probable, but because natural and probable consequences are
foreseeable
o Characterization of reasonably foreseeable as probability of injury
Minister Administering the Environmental Planning and Assessment Act 1979 v San
Sebastien Ltd [1983] – NSW CA
 Reasonable foreseeability = possibility that careless conduct of any kind on the
part of D may result in damage of some kind to P or P’s property
 Breach = reasonably foreseeable that the kind of carelessness of D might cause
damage of some kind to P
Problems with the reasonably foreseeable test:
 Insufficient precision – judges have retreated from WM#1
 Though the test says “probable,” unclear what level of reasonable foreseeability
is sufficient
3. Reasonable Foreseeability of Possibility of Injury (Wagon Mound #2)
Wagon Mound #2 [1967] – PC
FACTS: Same facts as Wagon Mound #1, but Ps here were owners of two boats
damaged in the harbour fire. TJ dismissed the action for negligence because it was not
reasonably foreseeable (thus, too remote), but rather a mere possibility.
HELD: For P.
REASONS: (LORD REID) significantly diminished the strength of WM#1
 In the present case, there is a real risk which would not have been ignored by a
reasonable person (Bolton v Stone). It is a real, but small risk, so must consider
the cost of precautions. There are NO valid reasons for running the risk because
dumping oil in the harbour is illegal and they could have easily refrained.
34

A reasonable person would only neglect a minute risk if he had a good reason for
doing so (e.g., considerable expense)  no justification in the present case for
discharging oil into the harbour (an offense in itself, plus it cost them money)
 Because a risk is remote does not mean it is not reasonably foreseeable
 Reasonable person ought to have known of the risk of oil igniting
 The biggest difference from WM#1 is that there is evidence here (WM#2) that
bunker oil would catch fire on water (different finding of fact)
o In WM#1, it was not in the plaintiff’s favour to raise this as fact because
he would have been contributorily negligent for welding with an open
flame nearby
NOTE: LORD REID’s characterization of the risk = the possibility of fire. Since fire has
occurred, clearly within the ambit of wrongdoing/risk.
Assiniboine South School Division, No 3 v Greater Winnipeg Gas Co (1971) – Man CA;
aff’d (1973) SCC
FACTS: Snowmobilers struck a gas riser pipe, causing leakage into the adjacent school.
Explosion caused extensive damage to the school. TJ awarded damages of $50K, paid
50% by the gas company and 50% by the snowmobilers. All Ds appeal.
HELD:
REASONS: It is a question of what is possible rather than what is probable (in line with
WM#2). The extent of damage and its manner of incidence need not be foreseeable if
physical damage of the kind which in fact ensues is foreseeable.
 Here, damage was of the type or kind which any reasonable person might
foresee
 Gas company likewise should have foreseen the possibility that the riser would
be damaged. Though the likelihood of it being struck by a vehicle was not great,
the probable seriousness of any injury was very great
o Costs? Protective pipes could have been installed at a small cost and
with little difficulty
NOTE: At trial, the injury has already happened, therefore it was clearly possible
 This issue is addressed in Mustapha  possibility alone does not mean
something is reasonably foreseeable. Endorses LORD REID in WM#2 saying
that if it is a real risk that a reasonable person would not have easily brushed
aside, it is foreseeable.
Mustapha v Culligan of Canada Ltd [2008] – SCC  Leading case for psych damage
FACTS: Mustapha bought a water bottle made by Culligan, saw parts of dead flies in it
and ended up having depression/severe psychiatric debilitations. The ONCA claimed
that there was no DOC owed, but the SCC says the problem turns on remoteness.
HELD: For D; damage is too remote.
REASONS: Culligan, a manufacturer, owed a DOC to P. It also breached the SOC and
P’s injury is a cognizable psychiatric injury. However, need to determine if too remote.
 Any injury which has in fact happened is possible. Thus, this is not a helpful
standard. Need to assess via a “real risk” (WM#2).
 In terms of psychiatric injuries, need to consider how a person of reasonable
fortitude might react – unusual or extreme reactions to events caused by
negligence are imaginable but are not reasonably foreseeable
 If D knows of this susceptibility, injury might be reasonably foreseeable
(not the case here)
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NOTE: Why doesn’t the thin skull rule (TSR) allow Mustapha to recover? Some think
that Mustapha violates the TSR.
4. Reasonable Foreseeability of Type of Injury (Hughes)
Hughes v Lord Advocate [1963] – HL
FACTS: D’s employees left a paraffin lamp and open manhole unattended (inside a
tent). An 8-year-old boy knocked the lamp into the manhole and the vaporized paraffin
that escaped from the broken lamp caused an explosion. The boy fell into the manhole
and was badly burned.
HELD: For P - full liability.
REASONS: Even though (1) the extent of the injury and (2) the manner in which it
occurred were NOT reasonably foreseeable, burning in general was reasonably
foreseeable. The distinction between injury from exploding and injury from burning is
irrelevant. The extent of the injury is irrelevant, but the manner is a consideration
(although, the manner is not really important here because the type of injury was
reasonably foreseeable).
 LORD REID: “The cause of this accident was a known source of danger, the
lamp, but it behaved in an unpredictable way.”
o Mirrors DICKSON in Assiniboine: “One need not envisage “the precise
concatenation of circumstances which led up to the accident.””
 LORD GUEST: The lamps were attractive to children and it is foreseeable that
they might pick them up and play with them
NOTE: How was Doughty v Turner decided to be no liability on the strength of this case?
Tremain v Pike [1969] – ER  Seems to go against HL in Hughes
FACTS: D carelessly failed to control rat population on his farm. P, a farmhand,
contracted Weil’s disease after coming into contact with rat urine.
HELD: For D.
REASONS: Though injury from rat bites was reasonably foreseeable, rat urine not
reasonably foreseeable to be problematic.
NOTE: Relies on a characterization of P’s injury, contrary to Hughes.
Jolley v Sutton London BC [2000] – HL
FACTS: D’s boat was dangerously decrepit and he resolved to remove it, however never
did so. P and friend (14 years old) found it and wanted to sail it. Hoisted it up with a car
jack to repair and it fell, rendering P paraplegic. TJ found for P, with 25% reduction due
to contributory negligence. CA reversed based on remoteness, taking a narrow view of
both Wagon Mound #1 and Hughes, saying accident was a different type than what was
reasonably foreseeable. P appealed.
HELD: Trial judgement restored – for P.
REASONS: Children’s play can take the form of mimicking adult behaviour and it was
reasonably foreseeable that children would “meddle with the boat at some risk of injury.”
Their conduct did not sever the chain of causation (not a novus actus).
Lauritzan v Barstead (1965) – Alta SC
FACTS: D’s negligence caused his car to be stuck in snow during a bad storm on a
relatively unused portion of a rural highway. P and D forced to stay in vehicle for 36
hours. P left for help after that but got severe frostbite. Had to have both feet amputated.
P’s wife of 26 years left him because she did not want to live with a disabled man.
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HELD: Physical injuries not too remote, but loss of consortium is not a foreseeable
injury.
Trevison v Springman [1996] – BCSC
FACTS: D was entrusted with P’s house key. D’s son stole house key and set fire to P’s
house in order to cover up a series of thefts.
HELD: For D.
REASONS: Losses due to fire too remote from D’s negligent failure to supervise and
control frequently delinquent son. D is only liable for P’s losses due to theft.
5. Ambit of the Risk
Doughty v Turner Manufacturing [1964] – EWCA
FACTS: Doughty injured in his work at a factory owned by Turner when a cover over a
cauldron of molten hot liquid fell in and caused an explosion, propelling the liquid
towards him. It was unknown that the cover would explode when it fell into the liquid.
Turner liable at trial, which they appeal.
P’s Argument: Hughes should apply since the type of injury was unforeseeable, but
injury in general was foreseeable.
HELD: Appeal allowed, not foreseeable.
ISSUE: Was the specific cause of injury foreseeable?
REASONS: LORD DIPLOCK says the ratio from Wagon Mound must be applied. This
case is different than Hughes because in that case a boy was injured by an uncovered
manhole – the specific injury was unforeseeable, but D’s negligence directly led to it.
Here, the only duty owed to Doughty was to ensure that he would not be injured if the
top fell in the liquid and splashed over the side. This was prevented. Only reason
Doughty was injured was because of an explosion, which Turner had no duty to protect
as it was unforeseeable.
 There were two risks:
o (1) Splashing from something dropping in the liquid (Known)
o (2) Explosion from the lid disintegrating in the liquid (Unknown)
 Risk #1 was not run – the lid slid in, it did not drop in and splash
 Risk #2 was run – this is what eventuated P’s injury
o However, at the time of the accident, D had no duty not to run risk #2
because it was unknown at the time of the accident. Further, their entire
operation involved dipping items into the liquid, so a lid sliding in wasn’t
perceived to be dangerous
 “The fact that it was done inadvertently cannot create any liability, for the
immersion of the cover was not an act which they were under any duty to take
care to avoid.”
 The duty here was not to create a splash, NOT “don’t create an explosion”
 In Hughes, the breach of duty was legally and causally connected to D’s actions,
which is not the case here
NOTE: Could perhaps consider this case to involve a question of SOC (i.e., D should
have taken care not to negligently knock the lid in). However, SOC is more general (i.e.,
did someone run an unreasonable risk?), whereas remoteness is specific (i.e., is that
breach or unreasonable risk connected to the injury?). While the two concepts definitely
overlap, this is more appropriately remoteness.

Ambit of the risk test also described by DICKSON in Assiniboine: “When one permits a
power toboggan to run at large, or when one fires a rifle blindly down a city street, one
37
must not define narrowly the outer limits of reasonable prevision. The ambit of
foreseeable damage is indeed broad.”
Thin Skull Rule


Deals with the extent of injury
Even though Polemis is no longer good law, the TSR reasoning seems to be explained
well by that case’s directness test. Directness is evaluated via the value of the right that
was lost, and does NOT apply to consequential losses.
o TSR is about valuating the right damaged or lost, and things that flow from it
(ability to work, happiness in your life, etc.) are NOT covered
 If it was NOT reasonably foreseeable that D’s carelessness would cause any injury of a
particular type, then P cannot recover even if, because of a peculiar vulnerability,
he/she actually suffered a great deal
o However, if it was reasonably foreseeable that D’s carelessness would cause
SOME injury of a particular type, then P can recover in full even if, because of a
special vulnerability, he/she suffered to a greater extent than could have been
reasonably foreseen
 Different from a crumbling skull (causation chapter)
o Crumbling skull = doomed to damage. D only responsible for extent that he/she
hastened the injury
Smith v Leech Brain & Co [1962] – QB  Illustrates Thin Skull Rule (TSR)
FACTS: Piece of metal flew off and burned a man on the lip. Because of this burn and a
predisposition, he got cancer and died.
HELD: For P.
REASONS: The thin skull rule (TSR) dictates that you must take your plaintiff as you find
him/her. It does not matter if D knew of the vulnerability. Wagon Mound, which describes the
remoteness test as based on reasonable foreseeability, does not undermine this principle, even
though it did not have TSR in mind. The test is NOT whether the burn would, with reasonable
foreseeability, cause cancer, but rather whether D could reasonably foresee the damage
suffered (i.e., the burn), which they could. D found liable for full consequences of the tort.
NOTE: If anything, the TSR undermines Wagon Mound.
Marconato v Franklin [1974] – BCSC
FACTS: Woman was physically injured in a motor vehicle accident in which D was negligent.
She became depressed, hostile, and anxious (personality change), however she had preexisting paranoid tendencies.
HELD: For P.
REASONS: Once you establish physical injury from D’s negligence, any consequential loss
stemming from that physical injury is compensable. Granted P was predisposed to psychotic
tendencies, but D’s negligence set it in motion to arise.
NOTE: Distinguished from Mustapha because P suffered no physical injury there. Might have
been successful had he experienced physical injury first.
Thin-Skulled vs Thin-Skinned
 Can recover for everything stemming from physical injury, including resultant emotional
damage or psychiatric injury (thin-skull)
 But if your action caused emotional damages which then turned into psychiatric injury,
would NOT be able to recover (thin-skinned)
o The law assumes that D is dealing with a person of reasonable mental fortitude
(Mustapha)
38
o
Not reasonable to demand D to take care with respect to an extra-sensitive
person where everyone else would not be affected
Thin-Skull Rule and Suicide
Swami v Lo [1980] – BCSC
FACTS: Victim, a mentally-healthy man, got into motor vehicle accident due to D’s negligence.
Because of the pain from the accident, he began drinking a lot and quit work. He became very
depressed and killed himself.
HELD: For D – too remote.
REASONS: The man was not criminally or civilly insane.
NOTE: If the initial injuries had led to a psychiatric injury developing, and that legal insanity
leads to suicide, then victim’s suicide would have fallen within ambit of D’s negligence/risk and
would not have been too remote. However, mere depression is not recognized as “insanity” in
the eyes of the law. Further, his drinking and quitting work contributed.
Gray v Cotic (1983) – SCC
If victim has a pre-existing mental condition, will be able to hold D liable for the victim’s suicide
after D negligently injures the victim.
Takeaway: A person has to have been rendered legally insane before the suicide to have the
suicide considered as within the ambit of D’s wrongdoing. Can also think of it in terms of agency
– was the person who committed suicide acting with his/her own agency? If not, D is
responsible.
Kavanagh v Akhtar (1998) – NSW CA
FACTS: Heavy box fell on P at D’s store, causing injuries to her shoulder and arm. She was
unable to care for her very long hair, so she had it cut short. Her husband, a devout Muslim,
perceived this as against their religion and left her. P sues for psychiatric injuries suffered as a
result.
HELD: For P.
Thin-Wallet Rule
Dredger Liesbosch v Steamship Edison [1993] – HL  Thin wallet rule not recognized
FACTS: P’s ship sunk and lost due to D’s carelessness. Before the accident, P contractually
promised to use the ship to provide certain services to a 3rd party. Further, P had a generallystrained financial situation so couldn’t buy a new ship immediately, so had to rent another ship
to fulfill the contract.
HELD: P can recover value of ship, but not more.
REASONS: D is not responsible for P’s impecuniosity.
NOTE: Overruled by HL in Lagden v O’Connor [2004].
Alcoa Minerals of Jamaica v Broderick [2000] – PC
FACTS: D committed tort of nuisance by operating a smelting plant that emitted corrosive
materials and damaged P’s roof. This occurred in 1989, damage was $211,000. By trial in 1994,
cost was $938,000 due to inflation. TJ awarded the inflated amount. D appealed to Privy
Council on the basis of Liesbosch and that P should have repaired roof immediately.
HELD: For P, appeal dismissed.
REASONS: No absolute rule that requires damages to be assessed at date of initial harm.
There is also no absolute rule that P cannot recover full value of a loss that was exacerbated by
its own impecuniosity. Reasonable foreseeability test applies  reasonably foreseeable on the
39
facts of this case that a person in P’s position might not be able to afford to immediately repair
damage caused by D’s nuisance and that economic factors would render later repairs costlier.
Conarken Group Ltd v Network Rail Infrastructure Ltd [2011] – EWCA
FACTS: Motorists negligently crashed into P’s property [Network Rail], who was contractually
obliged to compensate other corporations operating passenger rail services for service
interruptions caused by the damage. Can P recover that cost from negligent motorists?
HELD: For P.
REASONS: The expenses are a foreseeable type of harm when a commercial asset is
negligently damaged.
NOTE: This is economic loss consequential on property damage. Pure economic loss is
resolved based on special duty principles.
Intervening Act (Novus Actus Interveniens)






Some factor that interrupts the causal sequence of events
Does not affect factual causation, but rather legal causation (aka remoteness)
Any outside force (human or natural)
A full defence
Eliminates claim P has against D because it becomes too remote
The current Canadian test is the “within the scope of the risk” test
Bradford v Kanellos (1973) – SCC  Leading case for the novus actus test in Canada
FACTS: Grill in a restaurant (D) built up grease, and the kitchen staff failed to clean it. The
kitchen was open and visible to the dining area. The grill had a fire-prevention system. When it
caught fire, the workers competently used the system, which caused a hissing and popping
sound. An unidentified restaurant patron (“idiot”) heard the sound, stood up and yelled that there
was gas and there could be an explosion. A stampede ensued and P got trampled. P sued the
restaurant.
ISSUE: Was the consequence within the risk created by the respondent’s negligence in
permitting an undue amount of grease to build up on grill?
D’s Argument: The idiot was a novus actus.
 TJ found for P, saying the idiot’s actions were reasonably foreseeable because in an
emergency situation people act unpredictably and unstably.
 ONCA reversed it and said the idiot was a novus actus. P appealed to SCC.
PRIOR PROCEEDINGS: Trial  found liable because actions of person was reasonably
foreseeable (RF that people act in idiotic ways in an emergency
HELD: Appeal dismissed. For D.
REASONS (MARTLAND J, majority): Fire was D’s fault, but they did everything correctly when
it started. They had good fire prevention equipment in place and used it. P’s injuries resulted
from the idiot’s actions. The idiot’s actions were a novus actus.
 It would not be fair to recognize the stampede as within the risk of D’s negligence
(the negligence being the failure to clean the grill).
(SPENCE J (+ LASKIN), dissent): “Idiot” acted in a usual/human way. The kitchen, being open
to the restaurant, was set up such that it would be a reasonable reaction to start panicking upon
seeing fire. D is running the unreasonable risk that people will see the fire and panic.
 The person guilty of original negligence ought to have reasonably foreseen the
subsequent intervening negligence.
NOTE: Intervening person seen as acting in a reasonably foreseeable manner by TJ and
dissent at SCC, thus dismissing the possibility of novus actus. The matter also seems to hinge
40
on whether the intervening person was acting reasonably.
Oke v Weide Transport Ltd (1963) – Man CA
FACTS: D knocked down traffic sign on gravel strip separating eastbound and westbound
lanes. D stopped, removed some debris, but was unable to move the sign. D notified garage
attendant, but not the police or highway authorities. Next day, driver was killed when he was
trying to pass illegally and the sign pierced his chest.
HELD: For D.
REASONS: Even if D was careless in not reporting the incident, could not be liable because
deceased’s intervening act and its consequences could not have been foreseen.
Price v Milawski (1977) – Ont CA
Medical negligence
Novus actus
FACTS: P injured ankle playing soccer, but the doctor (D) ordered x-rays on his foot. X-ray
came back negative. P went to another doctor, who looked at the x-rays and also said it was not
broken. After some time and further discomfort, went to yet another doctor who ordered new xrays and found the break. P suffered permanent disabilities because of the delays in proper
treatment.
PRIOR PROCEEDINGS: TJ found first 2 doctors negligent. Ds appealed to ONCA.
ISSUE: Was the 2nd doctor’s decision not to order new x-rays a novus actus? Is it within the
scope of the risk?
HELD: Appeal dismissed. For P.
REASONS: “A person doing a negligent act may, in circumstances lending themselves to that
conclusion, be held liable for future damages arising in part from the subsequent negligent act
of another, and in part from his own negligence, where such subsequent negligence and
consequent damage were reasonably foreseeable as a possible result of his own negligence.”
 It was reasonably foreseeable that the negligent x-ray would be relied upon by other
doctors.
 Such a risk was not one a reasonable man in 1st doctor’s position would brush aside as
far-fetched (WM#2)
 It was a breach of SOC for D1 to tell D2 to x-ray foot because he injured his ankle
 Breach for D2 not to order new x-rays upon seeing
Block v Martin [1951] – Alta SC
FACTS: D negligently ran over P, causing slight fracture in leg. P’s doctor told him to keep
walking. P slipped while fishing and completely fractured the leg.
HELD: For P.
REASONS: original injury was a cause of the second fracture and P’s conduct in going fishing
was not a novus actus.
Spencer v Wincanton Holdings Ltd [2009] – EWCA
FACTS: P suffered minor injury, but eventually led to amputation. Fitted with prosthesis.
Stopped at a gas station, didn’t put on prosthesis when he exited the car, tripped and fell,
seriously injuring other leg.
HELD: For P, but reduced due to contributory negligence.
41
Bourgoin v Leamington (Municipality) (2006) – Ont SCJ
FACTS: P suffered ankle injury while walking on uneven sidewalk, developed chronic
intractable pain. D argued she failed to reduce damages by refusing to undergo recommended
amputation which was 95% likely to eliminate pain.
HELD: For P.
REASONS: Municipality should have repaired sidewalk in state of disrepair. Not unreasonable
for P to not want to amputate leg.
Hewson v Red Deer (1976) – Alta TD
FACTS: Tractor owned by the city was left on a pile of gravel by its operator, who took all the
necessary precautions in leaving it idle. However, he did not remove the keys. Returned to find
it had crashed into the Hewson residence. Footprints suggested an unknown person drove it
from the pile. D argues the damage was too remote due to novus actus interveniens even if
there was negligence.
ISSUE: What is the relationship between reasonable foreseeability and the novus actus
doctrine?
HELD: For P; entitled to damages against the City.
REASONS: Injury may have been prevented by elementary precautions: removing key and
locking cab. These precautions were not taken. It is a populated area and so it is reasonably
foreseeable that someone would go inside and drive it. Novus actus is not applicable in the
present case.
RATIO: Defence of novus actus is not available if the D failed to guard against the very thing
that was likely to occur; where the negligence was failing to prevent the intervening act, you
cannot claim that the intervening act made the loss too remote
NOTE: Reversed on appeal – no evidence that it was reasonably foreseeable that tractor would
be set in motion.
Tony v Bedwell [2002] – Alta QB
FACTS: D stopped at traffic light when someone smashed his windshield. He got out and ran
after him leaving the keys behind, but his car was stolen when he did that. The thief crashed his
car into P’s car. P sued D in negligence.
HELD: For D.
REASONS: Reasonably foreseeable that car would be stolen, but not that the thief would drive
in such a manner as to cause damage (no witnesses, so to say that the thief was panicked isn’t
obvious).
Dorset Yacht Co v Home Office [1970] – HL
NOTE: This case is about DOC. Issues regarding remoteness are said in obiter. The summary
below is referencing the arguments re: remoteness.
FACTS: Several “borstal boys” (young offenders ages 15-20) were under the supervision of 3
officers of the Home Office (correctional department) when they were working on an island. The
officers went to sleep and left them to their work. 7 of the boys escaped, stole a yacht, and
crashed it into another yacht owned by Dorset Yacht. They also boarded the 2nd yacht and
caused further damage. The Home Office appealed Dorset’s ability to bring a claim to HL.
HELD: Appeal dismissed, trial allowed.
REASONS:
*Sinel does not like Lord Reid’s view – prefers Diplock
LORD REID – Times have changed  now liability can be found for unforeseeable outcomes.
One just needs to establish that initial act was negligent, which has been established. Stealing
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the boat and damaging another is exactly the type of outcome that should’ve been foreseen.
There are no obvious public policy issues to prevent finding liability.
 Do intervening human actions always break the chain of liability? NO. The dividing line is
that the intervening act must not be very likely (i.e., an intervening act will not break the
chain if it is very likely to occur).
 Lotto ticket example  it is foreseeable to win, but winning is not a natural and probable
cause of buying a lotto ticket
o Mere foreseeability does not cut it
o However, uses a standard (“very likely”) that seems higher than natural & probable
 Taking the boat and sailing it unskillfully was the very thing that the officers ought to
have seen to be a very likely result of failing to supervise the borstal boys
LORD DIPLOCK (concurring) – In new situations where duty is being established, the
characteristics of the situation must be compared to already-established negligent situations.
When there is a discrepancy from the cumulative experience of past decisions, must decide if
enough is lacking in the new case to prevent establishing a duty. In the present case, being on
an island makes escape by boat a very foreseeable outcome of negligence, and therefore
should’ve been prevented.
 Do intervening human actions always break the chain of liability? NO. The dividing line is
that the intervening act must not have happened because of the existence of a
distinctive risk (i.e., the intervening act will not break the chain if D’s negligence created
a distinctive risk – this is about the specific risk being run, the risk in contemplation. How
they would escape, what they would use to do that, and the results).
 The borstal boys will clearly create a distinctive risk when afforded the opportunity to
escape
 Duty is owed to persons:
o Who have property in the vicinity of the place of detention;
o That the detainees are likely to steal/appropriate;
o When they’re trying to escape in order to avoid immediate re-capture.
 Diplock has more fact-specific understanding of why what they did was wrongful
 Difference between releasing borstal boy at the end of his term vs negligently allowing
him to escape during his term?
o Escaped boy – liability for recapture
o Distinctive added risk=if you’re trying to escape, you will steal nearby property in
order to escape.
o So the reason this was wrongful is that people escaping are likely to use and
damage nearby property.
Lamb v London Borough Council of Camden [1981] – Eng CA
FACTS: Lamb owned a house in Hampstead. She moved to America and rented her house to a
tenant. LBC workers, working on the street, struck a water main that caused serious damage to
the house’s foundation, the tenant moved out. All furniture was removed. Squatters eventually
took over the house. However, an agent of Lamb ejected them and installed meagre security.
Squatters took it over again and ruined the house. Lamb sued the LBC for the damages caused.
PRIOR PROCEEDINGS: LBC was successful at trial. Lamb appeals.
HELD: Appeal dismissed.
ISSUES:
(1) Is the damage a foreseeable consequence of the LBC’s negligence?
(2) Does the test set out in Dorset Yacht help reach the logical conclusion?
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REASONS: (DENNING) – rejects LORD REID’s test from Dorset Yacht as being too expansive
and allowing damages to be assessed when they should not – many things are very likely! What
really underlies these types of case decisions is public policy. No one, throughout the course of
squatters being in the house, suggested it was the Borough’s fault or tried to stop it. Insurance
should be the provider of funds, not the courts. Although this is a foreseeable outcome of the
water main breakage, using LORD REID’s test, damages should not be assessed due to public
policy reasons.
 All judicial reasoning lies in public policy. The act of an intervening party severs liability
when public policy dictates as such.
 Duty, causation, remoteness are all devices used to draw the line, but ultimately it’s up to
policy for the judges to decide.
 She should have insured herself. It is not fair in a broad policy understanding that the
entire borough should bear the costs of her misfortune and her failure to mitigate losses
with insurance. Would be making the city an involuntary insurer of her mistakes
(OLIVER) – Agrees with DENNING. LORD REID’s test does not limit damage assessment
enough and should include a more stringent standard.
(WATKINS) – In cases like these, judges must simply use their instincts to decide whether or
not the outcome is too remote to deserve damages. Usually, there is a clear common-sense
answer.
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