Tort Law Outline – Winter 2018 – Professor Peppin
Negligence
3
Duty of Care (General)
3
Reasonable Foreseeability
4
Proximity
5
Affirmative Duties
5
Relationships Requiring Rescue (Host’s Duty of Care)
6
Relationships of Economic Benefit
6
Creators of Dangerous Situations
7
Reliance Relationships and Undertakings
7
Duties During Pregnancy
8
Third Party Liability to Fetus
8
Mother-Fetus Relationship
8
Doctor-Fetus/Mother Relationship
9
Duty of Care for Negligence Involving Public Authority
10
Standard of Care
12
Reasonable Person Standard
13
Unreasonable Risk
13
The Reasonable Person
13
Factors in Determining Breach
The Role of Custom
Special Standards of Care
13
13
14
Children
14
Mentally Disabled
14
Medical Professionals
14
Lawyers
15
Medical Manufacturers
16
Statutory Standards
Causation
16
17
But For
18
Material Contribution
18
Multiple Causes (Two Negligent Defendants)
18
Inferring Causation
19
Material Increase to Risk
19
English Mesothelioma Cases
19
1
Proof Issues
20
Onus
20
Inferring Negligence
20
Remoteness
20
Basic Principles
21
Type of Damage
21
Recurring Situations
21
Thin Skull Rule
21
Psychiatric Damage Without Physical Injury
21
Rescuers
22
Second Accident
22
Intervening Medical Error
22
Intervening Error/Acts
23
Intermediate Inspection
23
Defences to Negligence Claims
24
Contributory Negligence
24
Seat Belt Defence
24
Voluntary Assumption of Risk
25
Illegality
25
Strict Liability
26
General
26
Principle from Rylands v. Fletcher
Test for Strict Liability (Rylands)
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26
Defences
26
Animals
27
Fires
27
Vicarious Liability
Vicarious Liability
Test for Vicarious Liability
Nuisance
28
28
28
29
Nuisance
Private Nuisance
Requirements for Private Nuisance
29
29
30
Public Nuisance
31
Remedies
31
Public Authorities (Intentional Torts)
31
Tort of Misfeasance in Public Office
31
Test for Misfeasance in Public Office (Odhavji)
Intentional Torts
Battery
32
32
32
Test for Battery
Assault
33
33
Test for Assault
33
Sexual Wrongdoing
34
2
False Imprisonment
Test for False Imprisonment
Intentional Infliction of Mental Suffering
Test for Intentional Infliction of Mental Suffering (Prinzo)
Intrusion Upon Seclusion
Test for Intrusion Upon Seclusion (Jones)
Defences to Intentional Torts
Consent
35
35
36
36
37
37
38
38
Requirements for Consent
38
Consent in Medical Context
39
Self-Defence
Requirements for Self Defence
Necessity
Requirements for Necessity
Legal Authority
39
39
40
40
41
Accepted Categories for Negligence
43
Rejected Categories for Negligence
44
Negligence
Elements of a Negligence Action: plaintiff has burden of proof on ​first five steps​, defendant has
burden to prove defences
1. Duty of care: ​Does a duty of care exist? By virtue of their relationship, did the defendant
have any obligation to exercise care with respect to the plaintiff?
2. The standard of care and its breach: Was there a breach of the standard of care? What
would a reasonable person have done in the circumstances?
3. Causation (cause-in-fact)​: Was the loss suffered by the plaintiff caused by the defendant’s
breach of the standard of care?
4. Remoteness of damages (cause-in-law): Were the losses suffered by the plaintiff
reasonably foreseeable consequences of the defendant’s negligent act? Are the breach and
the injury too remote to warrant recovery?
5. Actual loss/harm: ​Has the plaintiff established that they suffered a legally-recognized,
compensable, actual harm? (physical, economic, psychological)
6. Defences:​ Are general defences available? Should the plaintiffs actions reduce/eliminate
damages?
Duty of Care (General)
IF PUBLIC AUTHORITY SEE DUTY OF CARE FOR PUBLIC AUTHORITY
Test for Duty of Care (​Anns/​ ​Cooper)​ :​ if it is foreseeable that your conduct may cause an injury to
someone, you owe a duty to that person – based on the neighbour principle from ​Donoghue
1. Is the alleged DofC within an established category, or is it analogous to an established
category in which a DofC has been recognized?
○ If yes, rely on that DofC and use the associated SofC
○ If no, continue and ​establish a novel DofC
Stage One:​ ​Prima Facie ​Duty (onus on the ​plaintiff​)
2. Was the harm that occurred ​reasonably foreseeable​?
○ Foreseeable risk of injury: ​a general duty of care extends only to foreseeable
consequences which could involve a reasonable probability of causing harm
○ Foreseeable plaintiff: ​the plaintiff must belong to a class of person foreseeably at
risk from defendants’ actions – the defendant doesn’t owe a duty to the world at
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large
○ Foreseeability includes notice of plaintiff’s situation (​Nova Mink)​
3. Was there a sufficient relationship of ​proximity​ (legal, not just physical) between parties?
○ Was there a “close and direct” relationship between the defendant and plaintiff?
■ Focus on the factors arising from the relationship between the plaintiff and
defendant – defining the relationship may involve expectations,
representations, reliance, the property or other interests involved
■ Type of interests: emotional, physical, economic, property
■ Statutory/contractual framework
Stage Two:​ Residual Policy Considerations (onus on the ​defendant​)
4. Are there residual policy reasons that tort liability should not be recognized in this DofC?
○ Alternative remedies: a parallel system of justice is available, or another field of law
is more appropriate to resolve the matter
○ DofC would give rise to indeterminate liability: “floodgates”
○ Broad policy reasons: effect on social relationships, nature of damages, deterrence,
social utility, etc.
Reasonable Foreseeability
Donoghue v. Stevenson [1932] UK ​– ​snail in ginger beer; neighbour principle
Donoghue’s friend orders orders drink for them, which the cafe purchased from a distributor that
purchased it from Stevenson. Sues Stevenson for negligence because of a snail found in the bottle,
which made Donoghue seriously ill. Judgement for Donoghue.
● Proximity: ​harm that ought to be reasonably foreseeable to people “closely and directly
affected by my act”
● Manufacturers principle: ​duty to take reasonable care in production and packaging to
avoid injury that the manufacturer knows would result otherwise (all products)
● Neighbour principle: ​duty to take reasonable care when proceeding with actions or
omissions that you can reasonably foresee harming your neighbour (a person who is closely
and directly affected by your acts, not the world at large)
Nova Mink v. Trans-Canada Airlines [1951] NS SC​ – ​mink farm; not foreseeable
TCA pilot flew too low and scared mink on farm and caused them to eat their young causing $10K in
losses. Owner of farm hadn’t told TCA – mink are easily scared, were particularly susceptible as
they had been whelped. Harm was not reasonably foreseeable, judgement for TCA.
● Foreseeability also includes notice afforded of defendant’s situation
● In the absence of knowledge as to any special susceptibility of the plaintiff to harm, there
can be no duty from making an action which would otherwise be harmless
Cooper v. Hobart [2001] SCC​ – ​sued registrar; proximity must arise from statute
EMC was a mortgage broker regulated under Mortgage Brokers Act. Cooper had advanced money
to EMC. EMC's mortgage license was suspended and assets frozen by the Registrar and they went
out of business when it was discovered that they used money of over 3,000 investors for
unauthorized purposes. Cooper could thus not sue EMC, so sued the registrar Hobart. Cooper
alleges that the registrar breached a novel duty of care that it allegedly owed to her and other
investors as it had been aware of the serious violations of the Act committed by EMC and not
suspended its license soon enough.
● Proximity must arise out of the statute and the statute must contain the duty – here there
was no statutory duty to investors
● The regulator’s duty is to the public at large to ensure mortgage brokers act properly, not to
any specific investors
● Regulator is allowed to go through its own process to determine whether to suspend a
license – statutory discretion requires deference
Hill v. Hamilton-W
​ entworth [2007] SCC​ – ​wrongful conviction; negligent investigation
Hill investigated by police, arrested, tried wrongfully convicted and acquitted after 20 months in jail.
Police suspected Hill on circumstantial evidence, ignoring evidence that would have proved his
innocence. Police released Hill’s photo to media during investigation, misled witnesses in ID’ing him.
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Eventually acquitted and brought action for negligent investigation. Judgement for police (not
enough to show negligent investigation on the facts).
● Sufficient proximity between a police officer and a suspect (close and direct) giving rise to
prima facie DofC – no broad policy reasons not to recognize DofC.
Hay v. Young [1943] UK HL – ​stillborn after traumatic accident; only owe DofC to foreseeable
plaintiffs
Hay was getting off bus, and Young (a speeding motorcyclist) passed on the other side of the bus
and collided with a car. Hay heard the crash, said it affected her mentally after seeing the blood, and
later had a stillborn, and claimed it was because of the shock and reaction to the event.
● Only owe DofC to those who are within scope of foreseeable risk – DofC is not owed to the
world at large
Palsgraf v. Long Island Railway [1928] NY​ – ​package explosion; no apparent hazard
Station guard, trying to assist a man rushing for a train, accidentally knocked a package of fireworks
from his arm, which caused an explosion where a scale 25-30 feet away was knocked over and hit
Palsgraf. Claim denied because there was no duty imposed as duty is only owed to those who one
could reasonably foresee being harmed by actions, not an inherently dangerous act and no way of
knowing that the package had those contents and that the explosion would occur.
● Difference between a “wrong” and a “tort” – if no hazard was apparent to the eye of ordinary
vigilance an act innocent and harmless, at least outward seeming, with reference to her did
not take itself to the quality of a tort because it happened to be a wrong.
● Suggestion that negligence isn’t a tort unless there is a wrong associated with it, when harm
not willful, plaintiff must prove act had possibility of danger so apparent as to entitle him to
be protected against the act
Proximity
R. v. Imperial Tobacco [2011] SCC​ – ​tobacco lawsuit; proximity analysis
Tobacco companies, sued in two separate lawsuits, issued notices against the federal government,
saying that if they were liable to BC government, or to individual class action PLs, they would be
entitled to contribution from Canada. Canada applies to have these claims struck. Imperial Tobacco
alleges Canada negligently misrepresented health attributes of low-tar cigarettes to consumers, and
is therefore liable for contribution and indemnity if plaintiffs are successful against tobacco
companies in this case. Tobacco companies allege Canada made negligent misrepresentations to
tobacco companies, and Canada is thus liable for any losses the tobacco companies incur to
plaintiffs in either case.
● Court finds Canada did not owe a prima facie duty of care to consumers, but did owe a
prima facie duty of care to the tobacco companies
● Only way to find Canada owed duty to consumers would be through statute, as there is not
sufficient proximity otherwise – relevant statutes only provide general duties to the public,
not private law duties to consumers
● Special relationship between Canada and the companies:
○ Health Canada assumed duties separate from its governing statute, including R&D
on tobacco, products, and promotion
○ Agriculture Canada carried out program of support and cooperation with tobacco
growers and cigarette manufacturers
○ These officials gave advice and directions to manufacturers
○ These are specific interactions with tobacco companies, but did not have such
specific interactions with consumers – thus ​reliance is reasonable in circumstances
● Foreseeability: Canada did not need to foresee liability would extend to health care costs, or
that BC would enact such a statute to recover these costs, only that, "it is sufficient that
Canada could have reasonably foreseen in a general way that the companies would suffer
harm if the light and mild cigarettes were more harmful to health of smokers than regular
cigarettes"
Affirmative Duties
Situations Where Affirmative Duties Arise​: a duty to act (​Childs​)
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1. Relationships of economic benefit
○ Affirmative duty not to place an individual in a situation where it is reasonably
foreseeable they could be injured (​Jordan House;​ ​Crocker​)
2. Where a defendant intentionally attracts and invites third parties into an inherent and
obvious risk that they created or control
○ The nature of an ​invitee/invitor relationship is such that one person is in control of
the risk while the other is reliant or dependant on the person who is in control of the
risk
○ If someone participates/creates the risk and attracts third party to join risky situation,
there is a duty of care owed
○ Owner/operator of pleasure boat is under legal duty to take reasonable steps to
rescue a passenger who falls overboard – if a person undertakes a rescue, they will
be liable for any negligence that ensues (​Horsley​)
○ Generally, the law wants to encourage people to rescue others, so rescuers are
rarely liable (unless conduct is foolhardy)
3. Relationships of control or supervision
○ Parent-child relationship: uncommon for child to sue parent for negligence (unless
to access insurance) – but a third party involved in accident may bring action
against negligent parent and seek contribution
○ Teacher-pupil: need for immature child to be protected by others, or from himself;
during school the child is beyond protection and control of the parent
○ Carrier-passenger
○ Prisons-inmates: been held partially at fault for failing to protect inmate from suicide
knowing he was a suicide risk (​Reeves v. Commissioner of Police of the Metropolis​)
■ "State owes a duty of care to those whom, against their will, it takes into its
custody"
○ Landlords-tenants
○ Hospitals-patients
4. Reliance relationships (​Imperial Tobacco​)
5. Statutory duties
Relationships Requiring Rescue (Host’s Duty of Care)
●
No general duty to take reasonable steps to rescue when you have not contributed to
creating the perilous situation – but such a duty arises if the defendant has innocently or negligently
participated in creating the perilous situation (​Horsley)​
●
Even if the risk arises independently, if the defendant aggravates the risk, they may be liable
to a degree (​Zelenko​)
Horsley v. MacLaren [1972] SCC​ – m
​ an overboard; duty to rescuers
MacLaren invited Matthews and Horsley onto his boat, Matthews fell overboard. MacLaren
attempted to rescue Matthews, but Horsley thought his maneuver was inept and jumped overboard
to try and rescue. Matthews sank, Horsley was picked up but could not be resuscitated. MacLaren
was not at fault for Matthews falling overboard, and failure to comply with recommended “man
overboard” procedure does not justify finding MacLaren induced Horsley to risk his life. Judgement
for MacLaren
● Undertaking acts gives rise to a duty not to be negligent in doing the thing the moment you
start the act
● Duty to rescuers: if a person by his fault creates a situation of peril, he must answer for it to
any person who attempts to rescue the person who is in danger – as long as the rescue
attempt was not “reckless and foolhardy” it remains within risk set in motion by wrongdoer
Relationships of Economic Benefit
Jordan House v. Menow & Honsberger [1973] SCC – ​drunk hit by car; affirmative DofC in
relationships of economic benefit
Honsberger was the driver of a car that struck Menow as he was walking on the road after being
ejected from JH's hotel. JH knew about Menow’s tendency to drink excessively and act recklessly,
and employees were told not to serve Menow unless he was chaperoned, but they still sold beer to
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him past the point of apparent intoxication after his chaperones had left. JH ejected him from the bar
for annoying patrons – each party deemed 1/3rd negligent.
● DofC exists in invitor/invitee relationships where one party is benefiting economically
○ Affirmative duty not to place an individual in a situation where it is reasonably
foreseeable they could be injured
○ Court concludes it is not an overbearing burden to require the hotel to take care
either by calling police or a cab
● JH was aware of Menow’s past behaviour but still profited off getting him drunk – kicking him
out, where he had to use a public highway to leave, breached duty to prevent him from harm
(but apportioned contributory negligence for Honsberger’s lack of reasonable care in hitting
him, and Menow’s own role in becoming that drunk)
● Does not mean every bar-owner has duty to watch all patrons – ​knowledge of past
behaviour is important
Crocker v. Sundance Northwest Resorts [1988] SCC –
​ ​drunk tubing; don’t place drunk person in
danger
Crocker signed up for drunk tubing, and signed waiver. Resort had duty because it was highly
dangerous sport, through which they profited. Court found that liability waiver was of no force and
effect because Crocker was visibly drunk, and not aware he was signed away his rights. Crocker
deemed 20% contributorily negligent.
● Duty is not to place an obviously intoxicated person in foreseeable danger.
Childs v. Desormeaux [2006] SCC – ​drunk leaving party; no affirmative DofC on social hosts to
third parties
Zimmerman hosted private BYOB party and Desormeaux drank excessively and Zimmerman did not
monitor him. Desormeaux drove afterward, and crashed into Childs' vehicle and paralyzed her,
Childs sued Zimmerman for negligence.
● Social hosts don’t owe DofC to third parties injured by intoxicated guests – not reasonably
foreseeable
Creators of Dangerous Situations
Oke v. Weide Transportation [1963] MB CA – ​broken sign; no duty to prevent unforeseeable
harm
Carra without negligence, knocked down a traffic sign in the middle of a gravel strip dividing a
highway, stopped and removed the debris, but could not remove the cut-off metal post in the ground.
Carra told a nearby garage attendant, and intended to call the police, but the attendant dissuaded
him. Oke, while trying to make an illegal pass, drove into the metal post, which came through the
floor of his car and killed him – no affirmative duty found.
● Even if duty to report original accident existed, harm was unforeseeable – no duty to prevent
future harm that is not reasonably foreseeable
● Dissent said Carra’s unique role in causing the damage put him in a special class beyond
other motorists who also saw the broken pole and didn't report it – he participated in the
creation of the hazard and that made him different from any other motorist
Reliance Relationships and Undertakings
Zelenko v. Gimbel Bros. [1935] NY – ​leaving sick person; undertaking task creates DofC to
person you are aiding
Zelenko’s intestate was sick in GB's store, and GB tried to render aid. When aid could not be given,
GB left intestate alone. Zelenko argued that if GB had left them alone, someone would have called
an ambulance. Judgement for Zelenko.
● If defendant owes no duty, refusal to act is not negligence – but they can assume duty by
meddling in matter with which legalistically she had no concern
○ A person engaged in an undertaking must not omit to do what a reasonable person
would do (standard of care for the undertaking) – should have followed through
Mercer v SE & Chatham Railway [1922] UK – ​railway locking gate; reliance self-imposed duty
Railway would consistently lock a wicket gate when train was passing. They forgot one time, and
Mercer, knowing of practice, believed it to be safe to pass, and was injured as result. Railway liable.
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●
●
If a self-imposed duty is ordinarily performed, those who knew of it will draw an inference if
on a given occasion it is not performed
If the Railway wanted to protect itself from that inference, they should do so by giving notice
R v. Nord-Deutsche [1971] SCC​ – s
​ elf-imposed duty and reliance
● Established that an undertaking and reliance thereon may lead to establishment of a legal
duty to take care (at least in cases of government safety activity) – if they cannot perform
the undertaking, they must give notice/warning in order to avoid liability
● By performing the task, they inspire reliance on it – "one who assumes to act, even though
gratuitously, may thereby become subject to a duty of acting carefully, if he acts at all"
Duties During Pregnancy
●
●
●
●
●
Born Alive Rule: a child born alive can sue, a fetus cannot – fetus’ rights only crystalize
upon birth (​Winnipeg​)
○ No action may be brought (1) until the child is born alive or (2) for stillbirth
○ But an action could be brought for an injured child born alive (​Duval)​
Unity principle: ​before birth, law treats the mother and unborn child as one (​Winnipeg​)
Parens ​patriae ​jurisdiction (where government becomes the legal protector of citizens
unable to protect themselves) over minors doesn’t apply during pregnancy (​Winnipeg)​
A child cannot sue it’s own mother for prenatal injuries (​Dobson​) for policy reasons:
○ Autonomy: limiting virtually all of pregnant mother’s activities (​Winnipeg​; ​Dobson​)
○ Biological unity: relationship of complete dependence (​Winnipeg)​
○ Special emotional connection: “fundamentally different” than third party negligence
Ontario Family Law Act​, s.66: "No Person is disentitled from recovering damages in respect
of injuries for the reason only that the injuries were incurred before his or her birth"
○ A child may sue in tort for injury caused before birth, even though the legal status to
sue arises only when the child is born and damages are assessed only as at the
date of birth
Third Party Liability to Fetus
Duval v. Seguin [1972] ON HC​ – ​fetus in car crash; foreseeable pregnant drivers
Duval was born damaged due to injury from a car accident negligently caused by Seguin while
Duval was in utero.
● Foreseeable that other people on roadway may be pregnant, and that driving negligently on
highway may cause damage to a fetus – thus unborn child falls within area of potential
danger that the defendant should foresee and take reasonable care to avoid
● Not necessary to consider whether unborn child was a person in law, or when she becomes
a person – for negligence only requirement is damages, a fetus can be injured, and
damages sued for are damages suffered since birth of the child (and those that she will
continue to suffer)
Mother-Fetus Relationship
Winnipeg CFS v DFG [1997] SCC​ – m
​ other sniffing glue; born alive rule
Pregnant mother was addicted to glue sniffing (which can seriously damage the fetus), and had
three previous children who were born with disabilities due to glue sniffing. Child welfare agency
sought order to have her detained for her pregnancy – no order granted
● Born alive rule:​ mother does not owe DofC to fetus until birth, fetus and mother are legally
considered one person – no complete tort unless there is a “real” person
● A duty of care that would unjustly restrict autonomy is void for policy reasons – if you cannot
distinguish tortious action from non-tortious action, the duty of care is too broad
Dobson v. Dobson [1999] SCC​ – ​mother negligent in car accident; no DofC to fetus
Mother is pregnant, causes accident. Child born with disabilities. Child sues for damages.
● Prima facie DofC between mother and fetus due to close relationship, but upholds principles
in ​Winnipeg​ for two stated reasons:
○ DofC would result in unacceptable and extensive intrusions into bodily integrity,
privacy and autonomy rights of pregnant women
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○
●
It is impossible to judicially define a reasonable standard of conduct for pregnant
women
Fetuses can sue upon birth for damages sustained in utero caused by third parties; but
cannot sue their mothers for such damages – ​PP: Injuries should be discoverable upon
birth, if they are fully healed there is no injury, so no damages
Doctor-Fetus/Mother Relationship
● A doctor does not owe a DofC to an unborn fetus (​Cherry​)
○ There is no recognition of an action for “wrongful life” (​Paxton​)
○ Doctor does not we a DofC for a child pre-conception – relationship with future child
is indirect, and mother alone has the power to make decisions affecting her child
(​Paxton​)
■ Until child is born alive, doctor must act in woman's (patient) best interest
○ No DofC to future children not to cause harm as doctors only owe DofC to patient –
co-extensive DofC would create conflict of interest (​Bovingdon)​
● Exceptions:
○ Damage occurs ​during failed abortion​ (​Cherry)​ : once there was a failure to carry
out the abortion, a duty of care arose to provide care to the fetus born-alive
■ Once child was born-alive, there was a duty to provide adequate care
(which doctor failed to do)
○ Injuries suffered during delivery (​Liebig​): doctor/midwives doesn’t owe DofC until
child is born – can be liable for negligence during delivery
Cherry v. Borsman [1992] BC CA​ – n
​ egligent abortion; duty arises during negligent abortion
Doctor Borsman failed abortion because of negligence, had failed to calculate gestational date
correctly and carry out adequate aftercare for abortion, also didn’t use the correct instrument.
● A surgeon performing an abortion owes a DofC to the mother to perform it properly, but at
the same time owes a DofC to the fetus not to harm it if he should fail in meeting the duty of
care he owes the mother
● Analogous case: Thalidomide cases application of the born alive rule for negligence,
children suffered harm in utero, injuries compensable when they were born alive – had they
been stillborn, they wouldn’t have been able to collect
Paxton v. Ramji [2008] ON CA – ​acne drug during pregnancy; no pre-conception DofC between
doctor and fetus
Ramji prescribed acne drug only because he knew husband had a vasectomy but Paxton got
pregnant and child was born with birth defects. Standard for prescribing the drug was to require
mother to be on two forms of birth control.
● No DofC to a future child if alleged negligence by a health care provider took place prior to
conception
Bovingdon v. Hergott [2008] ON CA​ – ​fertility drug twins; DofC conflict between mother/fetus
Hergott prescribed fertility drug but didn’t inform that it would increase likelihood of twins, and by
extension risk of complications.
● Doctor does not owe DofC to future children not to cause them injury when prescribing for
the mother, as that would conflict with DofC to the mother of ensuring that she possesses
knowledge sufficient to make an informed decision
● In a case in which ‘but for’ the wrongful act or omission, the child would not have been born
at all, the child has no claim
● In a case where the abnormalities have been caused by the wrongful act/omission, child has
valid claim (i.e., failed abortion)
Liebig v Guelph General Hospital [2010] ON CA​ – ​negligence during delivery; doctor owes DofC
to child during delivery
Doctor did not deliver child properly, Liebig was born with cerebral palsy, and sued hospital staff who
provided maternal/fetal care up to and including delivery. Injuries factually caused by negligence of
hospital staff before during and after delivery.
● A child born alive may sue for damages that resulted from negligence during labour and
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delivery.
McKay v. Essex Area Health Authority [1982] UK​ – ​diagnosed disability; no DofC to abort
McKay claimed that the doctor was negligent not advising for abortion when they diagnosed a
serious disability during pregnancy. Asserted doctor had legal obligation to fetus to terminate its life.
● Doctor does not owe a DofC to terminate fetus’ life during pregnancy
Duty of Care for Negligence Involving Public Authority
●
●
●
●
Public authority discretion related to core policies is not actionable, but those related to
operational decisions are actionable.
○ Rationale: Relates to the legitimacy and competency of courts second-guessing the
political decisions of public authorities.
Distinguish core policy from operational decisions:
○ Look at: standard of conduct, routine decision? Degree of discretion, type of
interest, deliberate vs unintentional injury, nature of gov’t activity, status of decision
maker, wrong pinpointed to one party? One victim? Resource allocation?
○ Policy decisions are those involving ​Political, economic or social factors
○ Operational = product of administrative discretion, held to expert/ technical
standards, or general standards of reasonableness
○ PP: policy will often define the scope of an operational view – lower you go in
government hierarchy, the less likely its core policy
If a complaint is raised relating to the authority’s lack of due care in ​determining policy
matters​, for example, deciding whether and how to implement a program, then negligence
law review, at least on an ordinary foreseeability of harm and standard of care analysis, is
not appropriate. ​As long as the authority’s exercise of discretion in formulating policy was
conscientious and in good faith, the authority is immune from liability
Where, however, the alleged negligence relates to something done during the ​operational or
implementational stages​ of an activity, especially when the injury causing event was neither
planned nor anticipated, then ordinary​ negligence law principles can be applied.
Test for Duty of Care Involving Public Authorities (​Just/​ ​Cooper​):
1. Is the alleged DofC within an established category, or is it analogous to an established
category in which a DofC has been recognized?
○ If yes, rely on that DofC and use the associated SofC
○ If no, continue and establish a novel DofC
Stage One:​ ​Prima Facie​ Duty (onus on the ​plaintiff​)
2. Was the harm that occurred ​reasonably foreseeable​?
3. Was there a sufficient relationship of ​proximity​ (legal, not just physical) between parties?
○ Consider their interactions, legitimate expectations, representations, reliance,
interests involved (grounded in the governing statute where there is one) (​Taylor)​
■ Was there direct contact?
■ Did the representation directly cause the harm?
■ Can a private law duty co-exist with a public duty?
○ Did plaintiff reasonably rely on defendant to take reasonable precautions with
respect to operational policies? (​Fullowka)​
Stage Two:​ Residual Policy Considerations (onus on ​defendant​)
4. Are there residual policy reasons that tort liability should not be recognized in this DofC?
○ Is there an explicit statutory exemption/immunity?
○ Residual policy considerations include, among other things:
■ The effect of recognizing that duty of care on other legal obligations
■ Its impact on the legal system
■ The effect of imposing liability on society in general
○ Apply policy/operational dichotomy ​(​Imperial​)
■ If it’s “core policy” decision, then it’s immune (​Just)​
● Core policy: based on public policy considerations (social, political,
economic factors) – provided they are neither irrational nor taken in
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bad faith
Core policy decisions are generally made by persons of high level
authority (but not necessarily), or decisions concerning budgetary
allocation (​Imperial​)
If not a core policy decision (or if it is an operational decision) then its not
immune
●
■
Kamloops (City) v. Nielsen [1984] SCC​ – ​leading case on public authority negligence
Municipality was sued by a purchaser of a house which had been built on foundations that were not
in accordance with the approved building plans, Municipality had the statutory authority to regulate
the construction and had discretion whether to inspect construction. Kamloops argued that it could
not be liable for exercising that discretion.
● The exercise of the statutory discretion granted to the city to inspect was a policy decision -however, once the city elected to inspect, the enforcement of inspection was operational
decision which could give rise to a DofC
○ Use of discretion does NOT necessarily equal a true policy decision
● Court held Kamloops liable for its failure to give serious consideration to what it should do, if
anything, to deal with the infraction committed by the builder – its inaction, for what were
most likely improper reasons, was not “a policy decision taken in the bona fide exercise of
discretion”
Areas of Precedent
● Making safety comments about low tar cigarettes was core policy (​Imperial Tobacco​)
● Police should have warned women living in area with balconies — failure to protect
life/safety (duty to protect -- ​Jane Doe​)
● Mining inspectors had close interaction with miners who died from a bomb — possible to
find prima facie duty based on foreseeability and proximity (​Fullowka​)
● A duty of care is owed by individuals who take on a protector role for those they are
protecting (​Fullowka​)
● Protection of an individual citizen’s rights against public authority use of discretion (no such
thing as absolute and untrammelled discretion) (​Roncarelli​)
○ Good faith in this context means carrying out the statute according to its intent and
purpose (​Roncarelli​)
● If decisions to inspect (policy) inspection system must be reasonable and inspection must
be carried out reasonably (operational) (​Just​)
● Health Canada didn’t owe DofC to plaintiff for jaw implant, despite plaintiff’s claim of
negligence in exercising responsibilities under ​Food and Drug Act ​(​Taylor​)
○ General representations made by the regulator to the public and relied on by the
plaintiff as a member of the public could not, standing alone, create a direct,
proximate relationship -- individual's reliance that the regulator will do its public and
statutory duty cannot create the sufficient proximity (​Taylor​)
○ However, general representations and reliance on those representations, in
combination with other factors, could give rise to a relationship between the
regulator and the plaintiff sufficiently close and direct to establish a prima facie
private law duty of care owed to the plaintiff (​Taylor)​
■ Health Canada's misrepresentations, combined with its failure to correct
those misrepresentations in the face of knowledge of the serious and
ongoing risk posed, could prove actionable -- the implant was sold for
several years after growing evidence of its dangers (​Taylor)​
● Government actor who reasonably foresees losses to individuals in carrying out duties
under legislation does not have a prima facie DofC to those individuals if the DofC is not
specified in the legislation (​Cooper​)
● Tort of misfeasance of public office (applies to police officers) (​Odhavji)​ : 1) engaged in
deliberate unlawful conduct in the exercise of public functions; and 2) awareness that the
conduct was unlawful and likely to injure the plaintiff.
All of the following activities and decisions were characterized by courts as policy decisions​:
● A statutory conservation authority’s policies regarding flood control measures
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●
●
●
●
●
●
●
●
The adoption and implementation of an elk feeding program by the Minister of the
Environment
The standard of care adopted by the city in its street maintenance program (​Hugh v.
Vancouver)​
A decision not to inspect traffic control devices but to rely upon public complaints (​Thornhill​)
A decision not to grant a temporary pass to an inmate (​Toews​)
A decision not to upgrade water supply for fire fighting services
A municipality’s failure to enforce provisions of a restrictive covenant
Decision by municipality to visually inspect only one-third of sidewalks annually
The failure on the part of provincial Cabinet Ministers to take actions to protect the
environment
Standard of Care
Test for Standard of Care:​ concerned about conduct (as negligence is an objective standard) –
standard is the care that would have been taken by a reasonable person in the circumstances
1. Was the alleged DofC within an established or analogous category?
○ If there was an analogous/established DofC, apply the SofC in that case
○ If there was no analogous/established DofC, continue to determine novel standard
Stage One:
2. Assume reasonable person standard to avoid the creation of “a risk that is substantial”
(​Bolton)​ -- or failure to do something a person of “ordinary prudence” would do in the same
circumstances (​Blyth​/R
​ yan​)
○ Defendant is required to have regard to caution that the reasonable person would
observe – test is ​objective​, not considering personal factors short of incapacity (i.e.,
intelligence – ​Vaughan)​
○ The reasonable person acts with reference to average (i.e., foreseeable)
circumstances (​Blyth​)
○ Measure of what is reasonable depends on (​Victoria)​ :
■ Likelihood of injury (​Bolton​)
■ Magnitude of injury (​Paris​)
■ Burden or cost which would be incurred to prevent the injury (​Bolton)​
■ External indicators (e.g., custom, industry practice, statutory/regulatory
standards)
● Custom is not necessarily determinative (​Waldick​)
○ The SofC for an activity is ​RAISED ​if: the probability of harm is high (​Bolton)​ ; the
severity of harm will be serious if it occurs (​Paris​); or the cost or difficulty of
preventing injury is low
○ The SofC for an activity is ​LOWERED ​if there is a public policy reason why the
injured person, rather than the person performing the activity should bear the risk of
injury (e.g., if the harmful activity is one that is highly valued in the community –
such as the police chasing criminals or an ambulance taking someone to the
hospital)
○ If there is a statute involved, remember:
■ There is no tort of statutory breach (​Wheat Pool​)
■ Statutory breach is prima facie evidence of negligence (​Wheat Pool)​
■ There is no liability in negligence based on breach of statute if the
negligence is not consistent with the purpose of the statute (​Gorris​)
■ Compliance with statute only is not sufficient – party acting under statutory
authority must still comply with common law SofC for reasonableness
having regard to circumstances (​Ryan)​
Stage Two:
3. Consider special subjective standards of the defendant (if applicable)
○ Mentally Disabled ​(​Fiala​): defendant will not be liable in negligence where:
■ They are inflicted with serious mental illness, suddenly and without warning,
AND
■ They have no capacity to understand ​or​ appreciate duty owed, as a result of
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mental illness; ​OR
They are unable to discharge duty because of no meaningful control over
actions as a result of mental illness
Children ​(​Heisler​):
■ 0-6 years old: is the child, having regard to their age, intelligence,
experience, general knowledge, and alertness capable of being found
negligent at law in the circumstances?
■ 6-majority: what a reasonable child of that age could be reasonably
expected to do and to foresee in those circumstances
Professionals:​ doctors, lawyers, manufacturers, etc. (see below)
■
○
○
Reasonable Person Standard
Dunsmore v. Deshield [1997] SK QB – ​glasses break during football; glasses manufacturer and
optometrist
Dunsmore playing touch football, collides with another player, glasses lens breaks and injures right
eye. Deshield is the optometrist who supplied glasses, which should have been special impact
resistant.
● Both Deshield and supplier had duty to temper and test lenses. Deshield owed no duty to
supplier, only to the consumer. Liability apportioned, but Deshield indemnified from supplier.
Unreasonable Risk
Bolton v. Stone [1951] UK​ – ​cricket club; SofC is probability and gravity of harm
During a cricket match, a ball went over a high fence above the cricket pitch, and hit Stone who was
100 yards away. Cricket club’s conduct was not unreasonable as probability (only happened 6 times
in 30 years) and gravity of harm was low.
● What a reasonable person must not do is “create a risk that is substantial” and therefore the
test that is applied is whether the risk of damage to a person was so small that a reasonable
person would have thought it right to refrain from taking steps to prevent the danger
Paris v. Stepney Borough Council [1951] UK​ – ​one-eyed employee; magnitude and likelihood
Paris was employed by SBC, but only had use of one eye, which was injured when working,
resulting in total blindness. Claimed negligence in failing to provide him with goggles, but evidence
was that usual practice in the trade was not to supply goggles for those engaged in the work, at least
if they were men with the use of two eyes. Gravity of harm likely to be caused meant the DofC
should have required them to supply goggles.
● In considering negligence, two factors must be considered: (1) the magnitude of the risk;
and (2) the likelihood of injury being caused
The Reasonable Person
Vaughan v. Menlove [1837] UK​ – ​haystack fire; reasonable person is objective standard
Vaughan repeatedly warned Menlove that a haystack near Vaughan's property was a fire hazard.
Menlove instead said "he would chance it", and it caused a fire which destroyed Vaughan's two
cottages. Menlove appealed on the basis that he did not possess “the highest order of intelligence”.
● To allow a subjective standard would be too variable – court “ought to adhere to a rule that
requires a regard to caution such as a man of ordinary prudence would observe”
Blyth v. Birmingham Water Works [1856] UK – ​flood from frost; reasonable person acts with
reference to average circumstances
BWW had installed a fire hydrant according to the best-known system, but exceptionally severe frost
caused damage to it resulting in Blyth's house flooding. Hydrant had worked for the past 25 years –
SofC not breached as state of frost was a contingency which was not foreseeable.
● Reasonable person is guided by considerations which ordinarily regulate conduct of human
affairs – only necessary to take precautions for foreseeable, reasonable risks
Factors in Determining Breach
The Role of Custom
Waldick v Malcolm [1991] SCC​ – ​icy driveway; custom not determinative
Waldick fell on Malcolm’s icy driveway which had not been salted or sanded because that was the
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custom of the region, although it breached the SofC in the Occupiers Liability Act.
● Practices of persons in the same situation should be considered, promoting behaviour that
accords with reasonable expectations of community members
● But court can still evaluate customs – no amount of general community compliance will
render negligent conduct reasonable
● Compliance with widely accepted professional standard is usually reasonable (​Karderas)​
Special Standards of Care
Children
Heisler v. Moke [1972] ON HCJ – ​child and tractor; modified objective test for children in
negligence
TJ found 9-year-old Moke was a "bright, alert child". Moke was warned against jumping while he
was pressing down with his leg on the clutch of a tractor, but jumps and causes injury to Heisler.
● 0-6: is the child, having regard to their age, intelligence, experience, general knowledge, and
alertness capable of being found negligent at law in the circumstances?
● 6-majority: what a reasonable child of that age could be reasonably expected to do and to
foresee in those circumstances
● Ontario Parental Responsibility Act:​ holds parents liable for damages caused by their
children unless they could prove it was unintentional (only applies to property)
Ryan v. Hickson [1974] ON SC – p
​ arents duty to control children
● Parent can be found jointly liable for damages if it can be shown that the parent breached
their duty to control the behavior of their children
Mentally Disabled
Fiala v. Cechmanek [2001] AB CA – ​jogger mentally disabled, mentally disabled are exception
to reasonable person
MacDonald went for a run, and experienced a severe manic episode, and jumped on Cechmanek's
car. MacDonald broke through the sunroof and choked Cechmanek, who involuntarily hit the gas
pedal and struck Fiala's car, injuring her.
● Mentally disabled are not held to the reasonable person standard (no wrongdoing because
they are incapable of avoiding it) – must show:
○ Because of mental illness, defendant had no capacity to understand DofC owed
○ Because of mental illness, defendant was unable to discharge DofC, as they had no
meaningful control over their actions at the time the relevant conduct fell below the
objective standard of care
Medical Professionals
Challand v. Bell [1959] AB SC​ – ​gangrene from broken arm; SofC for doctors
Challand broke his arm and had a bone puncture wound, Bell inspected the wound and judged that
it was clean based on the absence of foreign material. Arm was set in a cast and ordered to take
penicillin. Challand complained about circulatory issues, Bell sent him to a specialist who diagnosed
the arm with acute gangrene and immediately amputated. Challand alleges Bell was negligent in
properly cleaning the wound or by neglecting to watch the circulation of his arm.
● SofC for medical professionals: (1) surgeon undertakes that he possesses the skill,
knowledge and judgment of the average; (2) in judging that average, regard must be had to
the special group to which he belongs (e.g., neurosurgeon vs. family practitioner); and (3) if
the decision was the result of exercising that average standard, there is no liability for an
error in judgement
● Specialists would be held to a greater standard of care -- skill, knowledge, and judgement of
average other physicians, but if a specialist, then held to the standard of a specialist (​Wilson
v. Swanson​)
● Doctors are not perfect and can make reasonable mistakes – where experts disagree but
most supported treatment given, then the treatment should not be criticized
● Duty to refer: ​if you don’t have or you’re unable to acquire necessary expertise yourself,
call someone else (includes conscientious objection to abortion and assisted suicide)
● Duty to treat: ​meeting standard of care in treatment, provide appropriate aftercare
● Duty to instruct patient
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●
●
Duty to disclose errors ​(​Frazier v. Haukioja​) -- otherwise it’s fraud or misrepresentation
No locality rule in Canada: no difference in doctor’s SofC because of difference of locale
(i.e., urban vs. rural), but will still take access to equipment, and other resources into
account
Reibl v. Hughes [1980] SCC – ​surgery before retirement; doctor must disclose nature + gravity
+ material risks, modified objective test
Reibl underwent serious surgery for the removal of a blockage in artery, and immediately after had a
serious stroke which left him paralyzed. Reibl had been told that he would be “better off” having the
surgery, and so consented to the surgery. Reibl claimed that he was not properly informed about the
risks involved and would have opted against surgery during this time (because he was close to
collecting pension, and stroke left him unable to work) if he was made aware of these risks.
● No informed consent is also a battery
● Duty to disclose​: doctors must disclose:
○ (1) Nature and gravity of the proposed procedure:
○ (2) Material risks: ​risks inherent in given procedure and consequences of leaving
ailment untreated – includes consequences with low risk but grave harm, or
consequences with high risk but low degree of harm (​probability and gravity of risk​)
■ Doctors ought to know that some non-material risks may be material risks
depending on the patient (e.g., shoulder operation on tennis player -subjective factors can play a role if doctor is aware)
○ (3) Special or unusual risks: ​those that are not ordinary, common, everyday
matters -- risks that are somewhat extraordinary, uncommon, and not encountered
every day, but known to occur occasionally
■ SCC has declared that they should be described to a reasonable patient,
even though they may not be ‘material’
○ (4) Alternatives: what the reasonable patient ought to want to know about –
including no treatment
○ (5) Any questions asked by the patient
● Exceptions to disclosure include common risks (risks that all are aware of), therapeutic
privilege (if there is a genuine therapeutic reason for non-disclosure, they may accept it -but everything else is paternalism and not accepted), those signing waivers, common risks
of products
● Note:​ specific causation test for cases of non-disclosure for medical procedures
● Health Care Consent Act -- informed consent:
○ Elements of consent: (1) consent must relate to the treatment; (2) consent must be
informed; (3) consent must be given voluntarily; and (4) consent must not be
obtained through misrepresentation or fraud
○ Consent to treatment is informed if, before giving it: (1) the person received the
information about the matters set out in ​subsection (3) ​that a reasonable person in
the same circumstances would require in order to make a decision about the
treatment; and (2) the person received responses to his or her requests for
additional information about those matters.
Arndt v. Smith [1997] SCC​ – ​chickenpox while pregnant; causation in medical context standard
Arndt contracted chickenpox while pregnant, and Doctor Smith did not fully advise of risk to fetus,
and Arndt gave birth to baby with congenital defects
● Altered the way the modified objective test is analyzed from ​Reibl​, reasonable person is
taken to possess the patient’s fears/beliefs/desires/expectations (very interior test, less
objective)
Lawyers
Brenner v. Gregory [1973] ON HC​ – l​ and transaction; SofC for lawyers
Brenner agreed to purchase land, and Gregory was retained to search title and close the transaction
– vendor warned that a survey might be needed but none was undertaken – Brenner sued Gregory
claiming he was negligent in not obtaining a survey
● Not enough that lawyer made error in judgement or shown ignorance in part of the law –
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●
●
●
error/ignorance must be such that an ordinarily competent lawyer would not have made it
Obligation is discharged if they acted in accordance with general and approved practice
followed by lawyers unless that practice is inconsistent with prudent precautions against a
known risk (e.g., client gives specific instructions that they don’t follow)
The standard is the reasonably diligent and competent solicitor (same standard as that
required of physicians)
Judges are immune from tort liability for mistakes
Medical Manufacturers
Hollis v. Dow Corning [1995] SCC​ – ​breast implant; learned intermediary; duty to warn
Hollis underwent breast implant surgery, but was not warned by surgeon Birch about the risks of
post-surgical complications or possibility that the implants could rupture. Hollis noticed the right
implant had ruptured, and Hollis required a mastectomy on both breasts. Birch received little warning
from Dow that ordinary, non-traumatic human activities could cause a rupture, which they were
aware of since 1979. Dow’s warning to Birch was inadequate as they had knowledge of rupture
reports.
● Duty to warn: ​medical manufacturers have duty to inform ultimate consumer ​OR​ a learned
intermediary about what they know or ought to have known regarding specific dangers that
can arise from use of their product
○ Includes dangers known at time of the sale and dangers discovered after the
product has been sold and delivered (​Lastoplex​)
○ All warnings must be reasonably communicated and clearly describe any specific
dangers that arise from the ordinary use of the product – the more dangerous the
product, the stronger the warning should be (​Lastoplex)​
● Learned intermediary: ​where an intermediate inspection of the product is anticipated or
where a consumer is placing primary reliance on the judgement of a "learned intermediary",
a warning to the consumer may be made by warning the learned intermediary directly
○ Applies to technical products intended to be used only under the supervision of
experts, or where the nature of the product is such that the consumer will not
receive a direct warning from the manufacturer before using the product
○ Manufacturer can only discharge its duty to the consumer when the intermediary's
knowledge approximates that of the manufacturer – and then the onus shifts to the
doctor to provide a warning fully disclose the information (see ​Reibl)​
● Note:​ specific causation test for cases of non-disclosure for medical procedures (refer
Causation section)
Statutory Standards
R v. Sask. Wheat Pool [1985] SCC​ – i​ nfested grain; breach of statute not an automatic tort
Wheat Board sought damages from SWP for delivery of infested grain contrary to Canadian Grain
Act. Wheat Board did not allege that SWP owed it a common law duty, but based its claim on breach
of the statutory duty. Breach was penalized under statute, but no provision in statute for civil action
by a person injured by the breach.
● Statutory causes of action must be stated in the statute and cannot be implied – liability for
the breach must be stated in the statute as well
● No tort for statutory breach unless expressly stated in the statute
○ Statutory breach is prima facie evidence of negligence (​Sterling Trusts)​
● Where there is a common law duty of care, courts may have regard to statutory standards
as useful evidence of the standard required of the parties (the weight to be ascribed to the
breach is a matter of discretion for the triers of fact)
Gorris v. Scott [1874] UK – ​sheep overboard; no action when nature of damage not
contemplated by statute
Scott had contracted to carry Gorris' sheep on a ship, but they were lost when they were washed
overboard. Scott neglected to comply with an order to put the animals in pens under the ​Contagious
Diseases (Animals) Act​, passed for sanitary purposes to prevent communication of infectious
disease between animals. No liability because statute was not designed for tort liability, failure to
obey statute was not proximate cause of injury.
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●
●
When the damage is of such nature as was not contemplated by the statute, and as to
which it was not intended to confer any benefit on the plaintiff, they cannot maintain an
action founded on the neglect
Not only must the accident be a type the statute was meant to prevent, but the claimant
must be a member of a class of persons who the statute was designed to protect
Ryan v. City of Victoria [1999] SCC​ – ​bike crossing flangeways; statute and common law SofC
Ryan was injured when he was thrown from his motorcycle while attempting to cross railway tracks
running down the center of a street. Ryan sued the City and railway which owned and operated the
tracks. Railway denied liability since tracks complied with applicable statutes – should have also
designed them to make sure that a motorcycle would not fall in the flanges.
● Compliance with statute only is not sufficient – party acting under statutory authority must
still comply with common law SofC for reasonableness having regard to circumstances
● A party acting under statutory authority must still take precautions as are reasonable within
the range of authority to minimize risks
O’Rourke v. Schacht [1972] ON CA – ​drove into pit; police statutory duty can be used to find
common law duty
A well-lit barrier marking a detour around construction was knocked over at night and was not visible
to motorists. OPP investigated the incident but failed to warn traffic about the danger on the road,
and O’Rourke was injured when he drove his car into an unmarked excavation
● The police have a greater standard of care to the public arising from statute and common
law
● The existence of a statutory duty can be used as a factor to be considered by the courts in
decided whether to create a concomitant common law duty – court may rely on statute to
decide that affirmative duty exists and to determine its scope
Causation
Test for Causation (​Clements​):
1. General rule: plaintiff cannot succeed unless they show as a matter of fact that they would
not have suffered the loss ‘but-for’ the negligent act(s)/omission of the defendant (​Kauffman)​
a. Robust and pragmatic approach to determining whether the plaintiff has established
that the defendant’s negligence caused their loss (scientific proof of causation is not
required – ​Snell​)
2. Exceptional cases: ​plaintiff may succeed by showing that the defendant’s conduct
materially contributed to the ​risk​ of harm, where (​Cook v. Lewis​):
a. Plaintiff has established that their loss would not have occurred “but-for” the
negligence of two or more tortfeasors, each possibly in fact responsible for the loss;
and
b. Plaintiff, through no fault of their own, is unable to show that any one of the possible
tortfeasors in fact was the necessary or “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 BoP against anyone
Test for Proximate Causation for Disclosure in Medical Procedures (​Reibl/Arndt/Hollis/
Buchan​):
Standard developed to determine whether the patient would have decided against the treatment if
they had been properly informed of the risks (i.e., if disclosure would have resulted in patient’s
foregoing of the proposed treatment) -- must prove:
1. Scientific causation (onus on ​plaintiff​):
○ General scientific causation:​ does the kind of procedure generally lead to the risk
involved in this case? (i.e., removal of blockage generally leads to stroke -- ​Reibl)​
○ Specific scientific causation:​ did the procedure in this specific case cause the
particular harm to the plaintiff? (i.e., surgery lead to stroke -- ​Reibl)​
2. Decision causation (onus on ​plaintiff​): would the plaintiff, with the proper information, have
decided to go through with the procedure?
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This is assessed on a ​modified objective​ basis (​Reibl​/​Arndt​) if in a ​patient-doctor
relationship​ (i.e. if the doctor had been informed by manufacturer, but doctor failed
to informed patient)
■ Reasonable person is taken to possess the patient’s fears, beliefs, desires,
expectations, etc. (​Arndt)​
○ This is assessed on a ​subjective​ basis (​Hollis​/​Buchan​), in a ​consumermanufacturer relationship​ (i.e. if the manufacturer failed to warn the learned
intermediary, and as a result of this failure, the patient was not warned by the
doctor)
3. If doctor was warned, would they have warned patient? (onus on ​defendant​)
○ Doctor-patient:​ rebuttable presumption that if doctor was warned, he would have
warned patient (​Reibl/​ ​Arndt​)
■ Note: we did not discuss a case where the presumption was rebutted
○ Manufacturer-patient: ​no onus on plaintiff to prove that learned intermediary would
have warned if the manufacturer had properly disclosed -- ​PP: basically foregone
conclusion​ (​Hollis/​ ​Buchan)​
○
But For
Kauffman v. TTC [1959] ON CA (aff’d SCC)​ – ​escalator fall; ‘but-for’ test
While ascending an escalator, Kauffman was injured when she fell after two youths ahead of her fell
back on a man, who fell on her. Kaufmann sued TTC for negligence because they didn’t test the new
handrails. No evidence to suggest different handrail would have prevented her from falling
● Test for factual causation: would the damage have occurred ‘​but for’​ the defendant’s
negligent act?
Material Contribution
Athey v. Leonati [1996] SCC – ​stretching after accident; negligent and non-negligent
contributions
Athey had pre-existing back condition, suffered neck and back injuries in car crash that defendant
negligently caused. Doctor’s physiotherapy plan advised Athey to begin exercising, and he suffered
a herniated disc while stretching.
● If the defendant’s negligence materially contributes to the plaintiff’s single indivisible injury
(along with other non-tortious sources), the defendant is liable
○ Where the other causes were non-tortious, the defendants will bear the entire
burden
○ Where the other causes were tortious, there can be apportionment between
defendants, although in most jurisdictions each defendant will remain fully liable to
the plaintiff
○ Where the other cause was the plaintiff’s own fault, the rules of contributory
negligence will apply
● Thin Skull Rule​: tortfeasor must take their victim as they find them, and is therefore liable
even though the plaintiff’s losses are more dramatic than they would be for the average
person (​Leech Brain)​
○ The thin skull rule is only applicable after the person of ordinary fortitude test – at
that point you can take your victim as you find him/her (​Mustapha​)
● Crumbling Skull Doctrine​: defendant only has to restore plaintiff to original position, should
not have to compensate for debilitating effects of pre-existing condition -- defendant can be
liable for additional damages, but not pre-existing damage.
Multiple Causes (Two Negligent Defendants)
Cook v. Lewis [1951] SCC – ​hunting accident; reverse onus for multiple negligent defendants
to prove they were not negligent
Two groups, Cook and Akenhead, and Lewis and two others, were hunting when Lewis was injured
by a gunshot when his group came close to Cook's group. Lewis claimed they had negligently
injured him by discharging their guns knowing he was in the vicinity and without making sure that he
was out of their line of fire. Jury could not decide whose bullet hit Lewis.
● When there are two parties, and it is proven that one of them caused harm in their actions,
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●
but it cannot be proven which party did it, then both of them are liable for the resulting
damages
The onus should be shifted to the wrongdoer to exculpate himself when there are multiple
defendants but only one cause of action – if not, then both are liable
○ Only applies when both parties acted negligently, but the jury is unable to determine
who caused the damage
Inferring Causation
McGhee v. National Coal Board [1972] UK​ – ​brick kiln; material increase to risk
McGhee worked in brick kilns, developed dermatitis from the accumulation of coal dust on skin –
NCB was negligent by not providing shower facilities at work, increasing the time (and risk of
dermatitis) the dust was on his skin as he had to shower at home. Limits of scientific knowledge
made it impossible to rule out possibility that he hadn't contracted dermatitis during the non-wrongful
exposure to brick dust while working in the kiln. If it could be shown that the dust caused harm by the
time he reached home, then it was non-negligent exposure plus negligent non-provision of showers
that created the harm. Risk of harm materially increased by prolonged exposure to brick dust. NCB
was not found negligent for having the dust around, but they were held negligent for not providing
showers - thus materially increasing the risk of harm.
● A ​material increase ​in risk t​ reated as equivalent to a ​material contribution ​to damage
● A claimant need not demonstrate that the defendant's actions were the "but for" cause of the
injury, but instead that the defendant's actions materially increased the risk of injury, and
thus damage, to the claimant
○ Material contribution to risk was equated to material contribution to damage
● Plaintiff need only prove that the defendant created the risk of harm and that the injury
occurred within the area of the risk (technically reversal of onus) -- defendant can exculpate
self by showing no negligence
● This is judgement is a radical proposition -- it is the state of law in UK, but use only in limited
circumstances in Canada
Snell v. Farrell [1990] SCC​ – ​blind after eye surgery; robust and pragmatic ‘but for’
Snell became blind in one eye following a cataract operation performed by Farrell. TJ found Farrell
negligent for continuing the operation after noticing bleeding in Snell's eye. Continuing the surgery
was determined to be a possible cause of blindness, although there were other possible causes,
although they could not say which.
● In the absence of evidence to the contrary adduced by the defendant, an inference of
causation may be drawn although positive or scientific proof of causation has not been
adduced -- legal proof just requires proof on BoP
● Causation need not be determined by scientific precision – but-for test is adequate if you
use a robust and pragmatic approach
● Where the subject matter of the allegation lies particularly within the knowledge of one party,
that party may be required to prove it (difficult for patients in medical malpractice setting)
Material Increase to Risk
Clements v. Clements [2012] SCC​ – ​motorcycle accident; leading causation test
Husband driving motorcycle with his wife as passenger, but motorcycle was 100 pounds over weight
restriction. Husband didn’t know motorcycle had a nail stuck in the back tire, which fell out when he
went 20km/h over the speed limit to pass a car. Wife suffered severe brain injuries from crash and
sued husband’s for negligence. TJ couldn’t find defendant liable due to lacking scientific
reconstruction of the "but-for" test, so applied the material contribution test and found husband liable.
● The material contribution to risk test can only be applied in cases of multi-tort feasors
English Mesothelioma Cases
Fairchild v. Glenhaven Funeral Services [2002] UK ​– ​inhaling asbestos; material increase in risk
Fairchild got mesothelioma from asbestos poisoning while working for two consecutive employers
which both negligently exposed him to asbestos. Could not be determined which job actually led to
the poisoning. Liability apportioned between both employers.
● Employers should be liable for an injury, squarely within the risk which they created, and
19
●
they should suffer the consequences of the impossibility, foreseeably inherent in the nature
of his injury, of segregating the precise consequences of their default
Can collect damages from both defendants when plaintiff (C) was:
(a) Employed by two different companies (A and B) at different times;
(b) Both A and B owed a duty of care to C;
(c) Both A and B breached their duty to C when he worked for them;
(d) C suffers from an injury directly related to the breach of duty;
(e) Any other cause of injury can be effectively ruled out; and
(f) C cannot prove on BoP when the injury developed or who was responsible
Proof Issues
Onus
Wakelin v. London SW Railway [1886] UK – ​hit by train; cannot infer negligence from
circumstances without evidence
Action was brought by administratrix for the death of Wakelin caused by alleged negligence by the
Railway. Railway admitted Wakelin was struck by one of its trains, that Wakelin had a clear view of
the track, and that they did not have any special signal at the crossing. No evidence to show that the
train ran over the man, rather than that the man ran into the train. Judgement for Railway.
● To infer negligence, there must be evidence to show that the plaintiff’s version of events
occurred – where there are too many theoretical possibilities, and the evidence does not
favour one version, there is no causal proof
● No evidence to show that “the train ran over the man rather than that the man ran against
the train”
Inferring Negligence
Fontaine v. Insurance Corp. of BC [1998] SCC​ – ​unwitnessed car accident; no res ipsa loquitur
Fontaine sued Insurance for death of husband who died in car accident, but there were no
witnesses. Husband and friend were found in friend’s truck along a mountain highway, and friend
was buckled in driver’s seat. Weekend had a great deal of rain in the vicinity – held that
circumstantial evidence did not establish negligence on friend’s part.
● Must weigh circumstantial evidence with direct evidence to determine whether plaintiff has
established case – ​res ipsa loquitur (​ “the thing speaks for itself” – ​Byrne v. Boadle​) no longer
valid doctrine
● If the plaintiff cannot establish on BoP that defendant’s negligence caused the harm, there is
no causal connection and the claim will fail
Remoteness
Test for Remoteness: injury will be seen as remote when it was not reasonably foreseeable that
the negligence would have caused an injury to the objective plaintiff of reasonable fortitude – ask
whether the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable.
1. Would the reasonable person in the position of the defendant foresee the harm as an
objectively probable “​real risk​”, as opposed to a ​“farfetched” possibility to be brushed aside​?
(Mustapha)
○ Defendant doesn’t have to foresee the precise concatenation of events – only the
type/kind of injury resulting from negligent conduct
■ Extent of injury and manner is not relevant, just that the accident may occur
(​Hughes​)
■ If the injury is unforeseeable, it is unpreventable -- there should not be
liability for it
○ Concerned with ​probability ​(​WM1​), not with ​possibility ​(​WM2​)
2. The plaintiff must be treated as a ​person of reasonable fortitude (objective) with respect
to foreseeability -- the injury is too remote if it arises from their own subjective vulnerabilities
(​Smith)​
○ Plaintiffs with particular hyper-sensitivities with be barred from recovery (​Mustapha​)
■ Exception​: If the defendant knew that the plaintiff was of less than ordinary
fortitude, the plaintiff’s injury may have been reasonably foreseeable to the
20
○
defendant (​Mustapha​)
Thin skull rule applies ​after the person of ordinary fortitude test – at that point you
take your victim as your find them because the rule applies to the foreseeability of
severity of harm already caused (​Mustapha)​
■ All elements of negligence (duty; breach of SoC; causation; reasonable
foreseeability; injury etc.) BEFORE applying thin skull
■ This applies to: kind/type of injury resulting from negligent conduct
Basic Principles
Overseas Tankship v. Morts Dock (Wagon Mound 1) [1961] UK​ – ​dock fire; probability
Tankship docked in Morts’ dock and spilled oil in harbour while unloading. Morts enquired whether
the oil was flammable and was told it wouldn’t. Oil ignited when molten metal fell into the water and
ignited a rag that ignited the oil. Held that it wasn’t reasonably foreseeable that oil spill would result
in large fire that happened, therefore not liable.
● The test for remoteness is whether the defendant could reasonably foresee the ​probability
of the accident – not looking at the act, but rather the consequences in determining whether
they are reasonably foreseeable
Overseas Tankship v. Miller Steamship (Wagon Mound 2) [1996] UK​ – ​dock fire; possibility
Tankship was docked and leaked oil into the harbour. Sparks from welders caused the leaked oil to
ignite, and Miller sued for damages. Held that some risk of fire would have been present to the mind
of a reasonable man in Tankship’s circumstances.
● For foreseeability, rather than requiring that the type of injury be probable, the injury only
needs to be ​possible​ as long as there is a “real risk” ​(overruled in ​Mustapha​)
● “It is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances
are such that a reasonable man, careful of his neighbour’s safety would think it right to
neglect it”
● McLachlin in ​Mustapha:​ “Since any harm that has occurred is “possible, it is therefore clear
that possibility alone does not provide a meaningful standard for the application of
reasonable foreseeability”
Type of Damage
Hughes v. Lord Advocate [1963] UK​ – ​lamp down manhole; foreseeability is type not sequence
Post office employees opened a manhole for work and put warning lamps around it. Hughes decided
to explore the manhole but knocked one of the lamps into it and caused an explosion, which caused
Hughes to fall into the manhole and resulted in severe burn injuries. Cause of the explosion was a
result of the lamp being so disturbed that paraffin escaped from the tank, formed vapour, and was
ignited by the flame, which experts said had a low probability of occurring.
● What has to be foreseeable is the ​type of injury, not the accident or sequence itself –
burning accidents were foreseeable, so liability was imposed
● This judgement sets a lower bar for plaintiffs, as they don’t have to show the ​way the harm
occurred was foreseeable, just that the type of harm was foreseeable
Recurring Situations
Thin Skull Rule
Smith v. Leech Brain [1962] UK​ – ​metal on lip; thin skull rule
Leech’s negligence resulted in piece of molten metal striking Smith which ulcerated a premalignant
condition causing cancer then death.
● Thin skull rule: ​allows recovery beyond what would be a reasonably foreseeable injury to a
more severe injury suffered because of a plaintiff’s frailty
○ Thin-skull rule provides a qualification for foreseeability – since the victim has to be
taken as they are found, the defendant must only foresee that he could ​cause​ the
victim an injury and DOES NOT need to foresee the ​extent​ of that foreseeable injury
● Changes in personality are compensable under the thin-skull rule (​Marconato​)
Psychiatric Damage Without Physical Injury
Mustapha v. Culligan of Canada Ltd [2008] SCC​ – ​fly in water bottle; leading foreseeability case
21
Mustapha was changing bottle of drinking water, saw dead fly in water resulting in depression,
phobia, major depressive disorder. Judgement against Mustapha as he was abnormally sensitive.
● Psychological harm may constitute the harm suffered required in a negligence action – have
to show person of ordinary fortitude would have suffered the same injury
○ Distinction from physical injury is “illusive and artificial”
○ Must rise above “minor and transient upsets” to qualify as harm (serious injury) –
mere upset is considered transitory and not recoverable
Rescuers
Horsley v. MacLaren [1972] SCC​ – m
​ an overboard; negligence must induce rescue
See DofC section for facts.
● If a person creates a situation of peril by his own fault, he is liable to those who are induced
to rescue and are injured – however, if there is no negligence, or no fresh danger created by
the defendant, their actions will be too remote to give rise to such liability
● A rescue attempt is a reasonably foreseeable occurrence in a perilous situation and
therefore an injured rescuer has a right to sue the person who created the peril
● Conditions:
○ The situation of peril must have been brought about as a result of the defendant’s
negligence
○ Rescue attempt need not necessarily be successful (may have been futile from the
outset)
○ As long as the rescue attempt was not “reckless and foolhardy” it remains within the
risk set into motion by the wrongdoer
○ There must be a situation of peril (i.e., a real risk of injury to potential victims)
Second Accident
Wieland v. Cyril Lord Carpets [1969] UK – ​fell down with neck brace; injury may be cause of
another injury
Wieland fell down stairs while recovering from original injury caused by Cyril. Wieland was being as
careful as she could while going down stairs but couldn’t see because of her neck brace and
bifocals.
● Injury sustained in one accident may be the cause of a subsequent injury
● If it can be said that it is foreseeable that one injury may affect a person's ability to cope with
the vicissitudes of life and thereby be a cause of another injury, foreseeability of this general
nature will suffice
● The original defendant may be liable for secondary accidents as a result of the first injury -further injuries are weighed based on the likelihood of them materializing
McKew v. Holland [1969] UK – ​fell down stairs; not liable for second injury if plaintiff acting
unreasonable
McKew’s leg was weakened in an accident caused by Holland which made his leg give out
occasionally. McKew went to go down some stairs, his leg collapsed, and jumped attempting to land
on his feet but broke his ankle.
● If the injured plaintiff acts unreasonably, he cannot hold the defendant liable for injury
caused by his own negligent conduct
Intervening Medical Error
● Onus on the original defendant to prove that the intervening medical error was negligent if
they are to escape tort liability for it
● Mercer v. Gray [1941] ON CA:​ every tortfeasor causing injury to a person placing him in the
position of seeking medical help must assume the inherent risks of complications, bona fide
medical error or misadventure, if they are reasonable and not too remote
○ It is for the defendant to prove that some new act rendering another person liable
has broken the chain of causation
● Kolesar v. Jeffries [1974] SCC:​ an original defendant may be responsible for the later
negligence of a doctor or hospital which aggravates a plaintiff’s injuries “unless it is
completely outside the range of normal experience”
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●
Price v. Milawski [1977] ON CA:​ one negligent doctor could be liable for the additional loss
caused by another doctor’s negligence
Intervening Error/Acts
Harris v. TTC and Miller [1967] SCC​ – ​arm outside bus; partially liable if foreseeable
Harris had their arm outside window, which was crushed and broken by pole which the bus had
brushed closely. Bus driver could reasonably foresee a child putting their arm out the window,
regardless of posted warnings – damages apportioned per fault of each.
● Defendant can be found partially liable where the injury is caused by the plaintiff’s
negligence if it was foreseeable by the defendant and the duty to prevent it was not
discharged
Stansbie v. Troman [1948] UK​ – ​idiot decorator; failure to take reasonable care
Decorator left house unlocked and thief came in and stole things – court found injury (theft) within
risk of negligent act (not locking house).
● Failure to take reasonable guard against the very thing that happened is negligence
● The initial actor is responsible for the second accident and is therefore responsible for the
harm that ensues from both the first harm and any subsequent harm
Bradford v. Kanellos [1971] SCC​ – ​restaurant fire; non-negligent intervening act
Flash fire in a restaurant was caused by negligence. An employee activated an extinguisher system
which released the agent but also created a hissing sound. A patron shouted that gas was escaping
and that there was danger of an explosion. Patrons stampeded to the exits. Plaintiff was injured.
● Bradford’s injuries resulting from the hysterical conduct of a customer (who thought there
was a gas leak when the extinguisher hissed) which occurred when the fire extinguisher
properly fulfilled its function is not a consequence fairly to be regarded as within the risk
created by Kanellos’ negligence in permitting an undue quantity of grease to accumulate on
the grill
● When there are measures in place to eliminate potential injuries from negligent acts, and
they work properly in eliminating the risk when such an act occurs then improbable
outcomes resulting from the correct employment of the measure cannot be attributed to the
original negligent act
Intermediate Inspection
Ives v. Clare Brothers [1971] ON HC – ​did not respond to service complaints; negligence of
intermediate examiner does not break causation
Clare manufactured, sold and installed a furnace. Both the manufacture and inspection of the
furnace by Twin City were negligent resulting in injuries suffered by the plaintiff. Three service calls
were made by Twin City to Ives and Ives was not warned of any danger.
● Both parties are negligent – intermediate examiner does not break chain of causation
● Where there are duties on two or more parties and negligence by each causing or
contributing to the cause of damage, it is the ​Negligence Act a
​ nd not the doctrine of
proximate cause which is applied
Smith v. Inglis [1978] NS CA​ – ​cut grounding pin; foreseeable intervening act
When Smith touched the oven and fridge at the same time, he would get shocked from the fridge
manufactured by Inglis. Shock was from Inglis’ negligence in an electrical defect and that someone
previously cut off the grounding pin. Third party removing grounding pin was not an intervening act,
Inglis should have foreseen that it could happen. Plaintiff also contributorily negligent by not
checking to see if it was removed.
● If something is known to occur in an industry, it is foreseeable by the manufacturer – act that
occurs within ordinary course of things is not an intervening act
Good-Wear Treaders v. D&B Holdings [1979] NS CA – ​sold worn tires; duty not to sell if
knowledge of inappropriate use
Someone was sold a retreaded tire with a warning that the tire should not be used on the front end
of a gravel truck. D&B knew that its warning would be disregarded by the buyer, and buyer mounted
tires on a gravel truck, and later failed, causing an accident.
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●
A warning that will be disregarded does not absolve from all liability – the duty was not to
sell when the buyer's intentions were that they would be used inappropriately; duty breached
by selling inappropriate product with knowledge of intended use
Defences to Negligence Claims
Contributory Negligence
Ontario Negligence Act:
● s.1: ​Where damages have been caused or contributed to by the fault or neglect of two or
more persons, the court shall determine the degree in which each of such persons is at fault
or negligent… each are jointly and severally liable… in the absence of any contract express
or implied, each is liable to make contribution and indemnify each other in the degree in
which they are respectively found to be at fault or negligent.
● s.3​: In any action for damages that is founded upon the fault or negligence of the defendant
if fault or negligence is found on the part of the plaintiff that contributed to the damages, the
court shall apportion the damages in proportion to the degree or fault or negligence found
against the parties respectively.
Butterfield v. Forrester [1809] UK​ – ​fast horse; contributory negligence bars recovery (old)
Butterfield was riding down a highway, and was thrown off his horse by an obstruction created by
Forrester. Witnesses said that if Butterfield had not been riding very fast he might have observed
and avoided the obstruction and gone through the opening Forrester created.
● Defendant not liable for damages resulting partially from negligence of plaintiff in not acting
reasonably – contributory negligence is a complete bar to recovery (​OLD LAW​)
Davies v. Mann [1842] UK – ​donkey wandered into road; contributory negligence not a
complete bar
Mann ran over and killed Davies’ donkey when he was driving "at a smartish pace" down the road in
his carriage. Davies mistakenly tied the donkey in such a way that it could wander on to the road.
● Plaintiff still has action if defendant’s negligence ultimately causes the injury (i.e. if a
non-negligent defendant would not have caused the injury, despite the plaintiff’s negligence,
then plaintiff can still sue)
Bell Canada v. Cope (Sarnia) Ltd [1980] ON HC (aff’d CA) -​ - ​summary of contributory negligence
● The question of whether the claimant owed a duty to the defendant is not relevant to a
finding of contributory negligence
● Three ways plaintiff can contribute to their own injuries by their own negligence:
(1) Contribute to the accident which caused the injuries
(2) Expose themselves to a risk of being involved in an accident, or
(3) Fail to take reasonable precautions to minimize injuries should an accident occur
Seat Belt Defence
Galaske v. O’Donnell [1994] SCC​ – ​car accident; ensure children wear seatbelts
Galaske and his father were passengers in O'Donnell's car, and Galaske got injured after not
wearing a seatbelt when an accident occurred through no fault of O'Donnell's. Galaske sued
O'Donnell for negligence in not ensuring that he was wearing a seatbelt.
● Driver of car owes duty to ensure that passengers under 16 wear their seatbelts. Older
passengers have duty to ensure their own safety and to wear their seatbelt, if not they may
be deemed contributorily negligent
● SofC for younger passengers may be to put it on for them – SofC for older passengers (still
under 16) may be to remind them (depends on the relationship, age, intelligence, etc.)
● There may be a joint responsibility or DofC resting upon both a parent and a third party –
may mean the responsibility is shared, but does not negate the duty owed by the driver
Gagnon v. Beaulieu [1977] BC SC​ – ​summarizes the seat-belt defence
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1. Failure, while traveling in a vehicle on a street or highway, to wear a seat belt is failure to
take a reasonable step which a person knows or ought to know to be reasonably necessary
for his own safety
2. If in such circumstances he suffers injury as a result of the vehicle being involved in an
accident, and it if appears from the evidence that if the seat belt had been worn the injuries
would have been prevented or the severity thereof lessened, then the ​failure to wear a seat
belt is negligence which has contributed​ to the nature and extent of those injuries
3. Onus is on the defendant to satisfy the court not only that the seat belt was not worn but
also that the injuries would have been prevented or lessened if the seat belt had been worn
Voluntary Assumption of Risk
●
●
●
Consent or ​volenti non fit injuria ​– "to a willing person, injury is not done"
The defendant must prove an ​express or implied agreement between the parties whereby
the plaintiff has consented to accept both the physical risk of injury and the legal risk of
injury (abandonment of right to sue in negligence) from the defendant’s negligence
○ Involves an understanding on the part of both parties that the defendant assumed
no responsibility to take due care for the safety of the plaintiff, and the plaintiff did
not expect him to
Volenti p
​ lays a role in sports cases – the general principle is that the person who
participates in a sporting activity accepts the “normal”, “ordinary” and “obvious” risks of that
sport
Hambley v. Shepley [1967] ON CA​ – ​roadblock; public duty means no volenti
On instruction, Hambley used his police car as a roadblock against Shepley, who was escaping
arrest. Shepley's car, being driven at high speed in the wrong lane, struck the car before Hambley
could get out. TJ dismissed the action on grounds that the claim was barred by ​volenti.​
● Volenti r​ equires evidence that the plaintiff consented not merely to the risk of injury, but to
the lack of reasonable care which may produce that risk
○ The doctrine of ​volenti d
​ oes not apply to people carrying out their public duty
● Two correlative effects of volenti: (1) means that the plaintiff is agreeable to bearing injurious
consequence of defendant’s negligent conduct; and (2) that the defendant is relieved of any
DofC to the plaintiff in respect to particular harm
Crocker v. Sundance Northwest [1983] SCC – ​drunk tubing; waiver notice, incapable of
consenting
Court refused to uphold a contractual exemption clause since the clause had not been drawn to the
plaintiff’s attention, had not been read by him, and was not otherwise known to him.
● Volenti requires awareness of circumstances AND awareness of consequences/risks –
incapable of consenting due to their drunkenness
Dyck v. Manitoba Snowmobile Association [1985] SCC ​-- ​snowmobile race; valid waiver
Dyck paid to compete in the Association’s snowmobile race. As part of the contractual relationship,
the P ​expressly agreed to hold “harmless” the association and its agents. Dyck was injured as a
result of the negligence of one of the employees administering the race.
● Court held that the clause was effective in protecting both the association and its employees
from liability and dismissed the action
Illegality
Hall v. Hebert [1993] SCC​ – ​drunk driving; ex turpi causa
Hall and Hebert, both drunk, were in Hebert's car when it stalled on a road at night. Tried a rolling
start with Hall at the steering wheel, but he lost control of the car, and it went into a ditch, and Hall
suffered significant head injuries. Hall's action was based on Hebert's negligence in allowing him to
drive his car despite the fact that he knew he was drunk.
● Ex turpi causa s​ hould only apply when the integrity of the legal system is in question –
illegality can only act as a defence where the plaintiff is seeking to profit from illegal conduct
or where a tort action is being used to circumvent or negate a criminal penalty
○ The ​ex turpi causa principle w
​ ill not operate in tort to deny damages for personal
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●
●
injury, since tort suits will generally be based on a claim for compensation, and will
not seek damages as profit for illegal or immoral acts
Plaintiff will not be allowed be allowed to profit from his or her wrongdoing
Hall was able to recover Since they were not seeking to profit from their illegal conduct
(drinking and driving), nor was he circumventing the criminal law -- however, he was
contributorily negligent and damages were reduced to 50 percent
British Columbia v. Zastowny [2008] SCC – ​sexual assault in jail; recover for imprisonment only
for wrongful conviction
Zastowny, while in prison, was sexually assaulted by a prison official, and after his release, he
became addicted to heroin, and was a repeat offender. Zastowny sued the government for its
vicarious liability relating to the assaults, and that they had contributed to his subsequent difficulties.
He was unable to recover for lost wages while in prison.
● Except for exceptional circumstances such as a person having been wrongfully convicted,
they are not entitled to compensation for periods of unemployment due to incarceration for
conduct which the criminal law has determined worthy of punishment
● Ex turpi d
​ octrine bars Zastowny from recovering damages for time spent in prison because
such an award would introduce an inconsistency in the fabric of law
○ System of justice shouldn’t be undermined – if there is an inconsistency that
compromises the integrity of the justice system, the inconsistent rule will not be
applied.
Strict Liability
General
Principle from Rylands v. Fletcher
●
Strict liability is liability without fault – does not require moral wrongdoing or failure to
observe a standard of care (i.e., intention or negligence)
Test for Strict Liability (​Rylands)​
1. Non-natural use of land:​ not for the general benefit of the community
○ “It must be some special use bringing with it increased danger to others, and must
not merely be the ordinary use of the land or such a use as is proper for the general
benefit of the community” (​Rickards)​
○ A non-natural use is any use which ​introduces special dangers to the
neighbourhood – more narrowly, a non-natural use has been defined as a use
which is not only hazardous, but also unusual or special, in the sense that it is not
one ordinarily conducted on the land
2. An escape from control: requires an ​escape ​of hazardous thing that causes damage on
another’s property (interpret strictly)
○ An explosion that occurs entirely on the defendant’s land didn’t count as it didn’t
“escape” (​Read v. J. Lyons [1947] UK)​
Rylands v. Fletcher [1868] UK​ – ​flooding; lead case for strict liability
Fletcher owned and operated a mine adjacent to Rylands who constructed an artificial pond. The
latter caused a mine shaft collapse, which resulted in a flood, and damaged the mine’s operation.
● The person who for his own purposes brings on his lands and collects and keeps there
“anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do
so, is prima facie answerable for all the damage which is the natural consequence of its
escape”
Defences
1. Consent​: express (no problems) or implied (some problems, court less likely to imply
consent if no benefit to plaintiff – ​Western Engraving​).
○ Even if some benefit, plaintiff is entitled to strict liability if if they doesn’t consent to
specifics (​London Guar)​
26
Applies to waiver situations like ​Crocker​ (has awareness of circumstances and
consequences)
Default of the plaintiff​: similar to contributory negligence – damages apportioned based on
“fault or negligence of the defendant” (​Negligence Act)​
Act of God​: another natural cause (rarely used – only meant to cover the extraordinary
phenomena of nature which cannot be foreseen)
○ Applies to those circumstances which “no human foresight can provide against and
of which human prudence is not bound to recognize the possibility”
Deliberate act of a third person​: if the escape in question was caused by a third person’s
conscious act of volition, the defendant will be exempted from strict liability (​Prosser)​
○ If foreseeable that third party may interfere, even negligently, strict liability may still
be available (​Rickards​)
Legislative authority​: available only if the legislation clearly authorizes the particular
activity in question – but they still can’t be negligent in that activity (​Vaughan v. Taff​)
○ Restriction of notion of implied authority – only where damage is a necessary or
inevitable result of the authorized act (Manchester)
○ “Traditional rule is that liability will not be imposed if an activity is authorized by
statute and the defendant proves that the nuisance is the ‘inevitable result’ or
consequences of exercising that authority” (​Ryan v. Victoria​)
○
2.
3.
4.
5.
Animals
●
●
●
Two types of dangerous animals
○ Ferae naturae (​ “wild nature”): animals that are dangerous as a species – imposes
strict liability if they cause damage (even when there has been no “escape”)
■ Irrebutabble presumption that they are “wild”
○ Mansuetae naturae ​(“tame by nature”): may be dangerous as individuals, even
though they are members of a species considered harmless (domesticated dogs,
cats, etc.)
■ If a dog bites a child the owner will be held responsible if the owner could
have reasonably foreseen such an event occurring and failed to take
reasonable steps to prevent it (​Draper v. Hodder​)
■ It is not ownership, but possession and control which creates this
responsibility (​Draper v. Hodder​)
■ When an individual animal in this group is known to be dangerous, and
harms someone, strict liability will be imposed
■ Doctrine of scienter (knowledge): “every dog is entitled to one bite”
■ PP: Knowledge is assessed objectively, based on the type of
animal
■ Scienter is narrow: if there is evidence of a lot of barking or chasing
or other vicious tendencies, this can be sufficient for strict liability
(​Sgro v. Verbeek​)
■ Cattle are liable for damages that are ordinarily within their nature to commit
Control is the crucial determination in finding liability (in ​African Lion Safari​, liability imposed
because of loss of control)
The only defence that usually works in this area is volenti (you consented to going into the
lion’s cage)
Cowles v. Balac (African Lion Safari) [2006] ON CA (leave denied) – ​ALS; contributory negligence
does not apply
Cowles sued for injuries resulting from attack by tigers at drive-thru zoo. Tiger reached into car after
the driver hit the automatic window opener, and tigers forced window lower.
● Contributory negligence does not apply to strict liability (strict liability is not a negligence
case)
Fires
●
Common law recognized a special action of trespass on the case against occupiers for their
“negligent” use of fire (despite the use of the word “negligence”, liability for fire was strict)
27
●
●
●
●
●
It was presumed that fire was started by the occupier or by someone for whom the occupier
was responsible, and the only defences which were permitted were act of stranger or act of
God (old view - no longer followed)
Ontario ​Fire Protection and Prevention Act,​ s.76 – no action shall be brought against any
person in whose house or building or on whose land any fire ​accidentally begins, nor shall
any recompense be made by that person for any damage suffered thereby; but no
agreement between a landlord and tenant is defeated or made void by this Act
○ Applies to fires arising spontaneously without human intervention; or by the
uncontrollable agency of third parties (act of stranger)
Musgrove v. Pandelis [1919] UK​: even an “accidentally” and spontaneously ignited fire might
not be protected by the statute if the fire is not properly controlled and spreads – the “new
fire” is not then considered to be an accidental one
Franks v. Sanderson [1986] BC SC​: fire started in the Sanderson’s garage and spread to
the Franks’ café – Franks failed to prove that the fire had been started by the Sanderson or
someone for whom he was responsible, as opposed to a “stranger”.
○ Burden of Proof is on PL to show that the fire was caused by the defendant
Smith v. Widdicombe [1987] MB QB​: fires set by farmers to burn off scrub is a natural use of
land
Vicarious Liability
Vicarious Liability
●
●
●
●
●
●
Not a distinct tort – theory that holds one person responsible for the misconduct of another
because of their relationship of employment/control
○ Respondeat superior ​(“let the master answer”): an employer is responsible for the
actions of employees performed within the course of their employment
Does not require proof of personal wrongdoing on the part of the person who is subject to it
(employer) -- “species of strict liability”, does not relate to negligence
Sometimes employer may be excused from VL when it transfers an employee to another
employer (e.g., nurses)
○ PARTIALLY: The second hospital is still responsible as an employer, they are still
required to ensure their employees are properly trained and hospital has same
duties as would apply to their other employees
Some duties are “non-delegable”:
○ Employer’s personal responsibility for the safety of its employees in workplace
(Wilsons & Clyde v. English)
○ VL for intrinsically dangerous work cannot be shifted to independent contractors
(Scarmar Construction)
If employer is found VL, they may be able to re-claim damages from the employee in a
separate suit
PP: VL has implications on employment practices; employer can be held responsible for
failing to take action to protect against the tortious conduct of their employees -- goes
towards the need for the companies to have good training, supervising practices etc.
Test for Vicarious Liability
1. Control test:​ are they an employee or an independent contractor? (​Sagaz​)
○ The central question is whether the person who has been engaged to perform the
services is performing them as a person in the business, or on his own account –
consider:
■ Level of control of the proposed employer over the worker’s activities
■ Worker providing his own equipment OR the degree of responsibility for
investment and management held by the worker
■ Worker hires his own employees/helpers
■ The degree of financial risk taken by the worker
■ The workers opportunity for profits in the performance of his/her tasks
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2. Salmond test: employers are VL for tortious acts committed ​in the course of employment
where: (1) the acts authorized by the employer; or (2) the unauthorized acts are so
connected with authorized acts that they may be regarded as modes of doing an authorized
act (​Curry)​
○ Was there a material increase in the risk as a consequence of the employer’s
enterprise and the duties he entrusted to the employee?
○ Was there a significant connection?
■ VL is generally appropriate where there is a significant connection between
the creation/increase of a risk and the wrong that accrues therefore, even if
unrelated to the employers desires – incidental connections to the
employment enterprise, like time and place (without more), will not suffice
■ Factors to consider in determining the sufficiency of the connection between
the employers creation or enhancement of the risk:
● Control: ​opportunity that the enterprise afforded the employee to
abuse his or her power
● Interest: ​extent to which the wrongful act may have furthered the
employers aims (and hence more likely to be committed by the
employee)
● Intimacy/friction: ​extent to which the wrongful act was related to in
friction, confrontation, or intimacy inherent in the enterprise (e.g., an
obnoxious customer)
● Power: ​extent of power conferred on the employee in relation to
victim
● Vulnerability: ​the vulnerability of potential victims to the wrongful
exercise of the employee’s power
● Do NOT consider the foreseeability of the harm suffered
671122 Ontario Ltd v. Sagaz Industries Canada [2001] SCC – ​seat covers; independent
contractors not included in VL
671 suffered losses when it was replaced by Sagaz as Canadian Tire’s synthetic car seat cover
supplier. Sagaz’s consultant paid a bribe to the head of CT’s automotive division. Consultant was in
business on his own account, he was an independent contractor, so Sagaz not liable for his acts.
● An employer does not have same degree of control over independent contractor
● A doctor is considered an independent contractor, not an employee of the hospital (hospital
will not be held VL for doctor’s negligence)
Bazley v. Curry [1999] SCC​ – ​pedophile at youth care; test for VL
Bazley was sexually assaulted as a young child by Curry in a youth care facility. Facility operator
had carried out a background check on Curry, but didn’t discover he was a pedophile. Operator put
Curry in boarding school situation where he lived with kids – operator vicariously liable.
● What is required is the material increase in the risk as a consequence of the employer’s
enterprise and the duties he entrusted to the employee, mindful of the policies behind
vicarious liability (not foreseeability).
Nuisance
Nuisance
Describes a type of harm that is suffered, rather than a kind of conduct that is forbidden.
Private Nuisance
●
●
Private nuisances are interferences for a substantial length of time by owners or occupiers
of property with the use or enjoyment of the neighbouring property (​Pugliese)​ – issue is
whether the degree of interference complained of is such that it should not be tolerated by
the ordinary occupier in the position of the plaintiff
Substantial​ and ​unreasonable​ interference with the use and enjoyment of land:
29
○
Cases turn on ​gravity (trivial interferences aren’t actionable) and ​duration
(continuity)
Requirements for Private Nuisance
● Antrim ​test​: which applies both to both ​material interference and to ​non-material
interference -- interference must be both:
○ Substantial: ​interference is one that is non-trivial
■ Tock ​indicia: how severe was the interference given its nature, duration
(continuity), effect, and the character of the locale?
■ No thin-skulls or abnormally sensitive plaintiffs in nuisance actions (​Devon
Lumber​)
○ Unreasonable: ​interference is not acceptable in all of the circumstances
■ Tock ​indicia: how severe was the interference given its nature, duration
(continuity), effect, and the character of the locale?
■ The reasonableness of the interference must be determined by ​balancing
the competing interests ​(expected to pay attention to the interests of your
neighbour)
■ No use of land is reasonable if it produces substantial discomfort to others
or causes damage to property (​St. Helens)
■ Utility of the defendant’s conduct is significant but considered in light of its
nature (how it’s carried out) and if it is an interference that should be
accepted as a part of living in an organized society
● Ask whether it is reasonable for claimant to bear the interference
without compensation -- NOT whether it was reasonable for
defendant/statutory authority to undertake the work
● Defences​: consent, statutory authority
● Not a defence:​ all from ​Russel Transport​:
○ Prescription: nuisance is continuous and plaintiff has been aware
○ That the plaintiff “came to the nuisance” (i.e., that nuisance was there before the
plaintiff)
○ The nuisance is beneficial to public large despite injury to plaintiff
○ That no other place is available for the operation
○ That that the place from which the nuisance proceeds is suitable for carrying out the
operation
○ That all possible care and skill is being used -- nuisance is not negligence
○ That it is reasonable use of the property
Pugliese v. National Capital Commission [1977] ON CA – ​groundwater table; impact on
neighbour
Pugliese sued because their ground water table below their property was substantially lowered by
the construction of a collector sewer on lands owned by the NCC.
● Owner of land does not have an absolute right to the support of water beneath his land not
flowing in a definite channel – but he does have the right of not be subjected to inference
with the support of such water amounting to nuisance
● If an operation cannot exercise reasonable care and skill from preventing a nuisance then it
cannot be lawfully undertaken unless there is either a statutory authorization or consent
Tock v. St. John’s Metropolitan Area Board [1989] SCC – ​basement flood; substantial and
unreasonable factors
Tock’s basement was flooded by water that came from Board’s obstructed storm sewer after an
exceptionally heavy rainfall. Board had statutory authorization to operate a water system.
● Defendant ​must refute that there are alternative methods of carrying out the work – mere
fact that one is considerably less expensive will not avail
● If only one method is practically feasible, it must be established that is was ​practically
impossible to avoid the nuisance
Antrim Truck Centre v. Ontario [2013] SCC​ – ​truck stop; substantial and unreasonable
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Antrim owned a truck stop on a highway, and Ontario opened a new section of highway which
significantly impeded access to their truck stop and effectively put them out of business.
● Interference with owner’s use/enjoyment of land must be substantial and unreasonable
● Interferences that substantially alter the nature of the claimant's property itself or interfere to
a significant extent with the actual use being made of the property are sufficient to ground a
claim in nuisance
Hunter v Canary Wharf Ltd [1997] UK ​-- ​loss of view not protected under nuisance
Court found mere presence of a building not enough to constitute a nuisance.
● “A man’s right to build on his land is not restricted by fact that presence of building may itself
interfere with neighbour's enjoyment of the land”
● Loss of view is not protected under nuisance
Public Nuisance
●
●
●
Public nuisance refers to a group of criminal or quasi-criminal offences which involve actual
or potential interference with public convenience or welfare – however, the initiative in
proceeding against the perpetrator lies with an official representative of that interest (i.e.,
typically the Attorney General will bring the action)
As long as the suffering or inconvenience is general and uniformly injurious, there is no
place for independent intervention by private citizens
Sometimes nuisance may be characterized as a public nuisance in the criminal sense, but
also causes substantial damages to a particular private individual – therefore a private
individual has traditionally been allowed a civil action in certain circumstances, the fact that
the ​casus delicti ​is a public nuisance is in most cases irrelevant
Hickey v. Electric Reduction Company [1970] NF SC – ​polluted fishery; public vs. private
nuisance
Electric discharged poisonous material into the bay, which polluted the water and poisoned the fish,
rendering them of no commercial value. Fishermen sued.
● For public nuisance to become private nuisance, must show that the injury inflicted upon
them is particularly direct and substantial, over and above the injury inflicted upon the public
in general – where the damage is common to all persons of the same class, then a private
right of action is not maintainable
Mint v. Good [1951] UK --​ ​leased property in disrepair causing nuisance
Mint was injured by collapse of wall adjoining a highway owned by Good who leased out of the
property.
● Law of England holds structures adjoining the highway a nuisance if they fall into disrepair
as they are danger to passerbys -- thus public nuisance
● Owner is also liable to anyone injured by reason of the disrepair -- no defence of attempted
repair, will still be liable even if contractor did work badly
● Owner is liable despite not actually occupying it due to the lease -- it is typically the owner's
responsibility to undertake these structural repairs, not the lessee, and the owner is in better
position to insure against such risks
Remedies
Appleby v. Erie Tobacco Company [1910] ON SCDC​ – ​tobacco plant; injunction remedy
Appleby complained of noxious odours from Tobacco's plant interfering with his enjoyment of
property near the factory, and sought and granted injunction.
● Injunctions are available when damages are insufficient – if injury is small, can award
damages
● Modern approach to injunctions is to consider the impact on both parties – Courts are
reluctant to impose an injunction if there’s a disproportionate impact on the defendant and
little benefit to the plaintiff (they want to see a benefit to the plaintiff)
Public Authorities (Intentional Torts)
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Tort of Misfeasance in Public Office
Test for Misfeasance in Public Office (​Odhavji​)
1. Deliberate unlawful conduct in the exercise of public functions (​Odhavji)​
○ Actor must be a public official
○ More than negligence, mismanagement or poor judgement – must prove the
defendant knowingly acted illegally and in bad faith (​Pikangikum​)
○ Bad faith includes but is not limited to intentional misconduct – also includes
recklessness, gross/serious carelessness (​Finney)​
2. Awareness that the conduct is wrongful and likely to injure the plaintiff (​Odhavji)​
○ Defence: legitimate exercise of discretion based on budgetary constraints or other
matters of public interest
■ Discretion: good faith in discharging public duty (​Roncarelli​)
■ Good faith: carrying out statute according to its intent and for its purpose
(​Roncarelli)​
Per ​Odhavji,​ the tort can arise in one of two ways:
● Involves conduct that is specifically intended to injure a person or class of person -- can’t act
for improper purpose
● Involves a public officer who acts with knowledge both that he has no power to do the act
complained of and that the act is ​likely to injure​ the plaintiff
Roncarelli v. Duplessis [1959] SCC​ – j​ ehovah’s witness; good faith in discretion
Roncarelli sued the QAG when his liquor license was permanently cancelled by the Quebec Liquor
Commissioner, Archimbault, at the order of Premier Duplessis. Regulating liquor statute allowed
Archimbault the right to revoke licenses at his discretion. Roncarelli was a Jehovah's Witness, and
had been active in the community by providing bail for numerous members of his faith who had been
arrested for their religious activities.
● Officials must apply the law in discretion of “good faith”, towards the intended objectives of
the statute, and cannot be used arbitrarily for any purpose
● Discretionary authority is not unlimited. It must be based on the weighing of considerations
pertinent to the object of the administration of the act. No legislative act can give unlimited
arbitrary power.
● Good faith: means carrying out the statute according to its intent and for its purpose; it
means good faith in acting with a rational appreciation of that intent and purpose and not
with an improper intent and for an alien purpose; it does not mean acting for the purposes of
punishing a person for exercising an unchal​lengeable right; it does not mean arbitrarily and
illegally attempting to divest a citizen of an incident of his civil status
Odhavji Estate v. Woodhouse [2003] SCC​ – ​shot by police; lead case for misfeasance
Odhavji was fatally shot by the police, and his family commenced actions in tort alleging that a lack
of thorough investigation into the shooting caused them to suffer mental distress. Family claimed
that the officers' failure to comply with their statutory duty to cooperate with the SIU, and Chief's
failure to compel the officers to do so as required by statute gave rise to actions for misfeasance in a
public office.
● Public officer must have engaged in deliberate and unlawful conduct in his or her capacity
as a public officer and been aware both that his conduct was unlawful and that it was likely
to harm the plaintiff
Intentional Torts
Battery
●
●
●
The least amount of touching of another is a battery (​Cole​)
Battery is the intentional infliction upon the body of another of a harmful or offensive contact
(​Bettel)​
Fundamental underlying principle is that everyone’s body is inviolable – legal wrong consists
in act of violating another’s bodily security (​Cole)​
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●
●
Plaintiff does not have to be conscious for a battery to occur
If using violence against another, forcing way in a rude inordinate manner → battery (​Cole)​
Test for Battery
1. Intention​: must intend to make contact with the other person’s body (​Cole​)
○ Deemed to have intended what resulted from your act if it is an almost certain
consequence of the act (​Bettel​)
○ Intent to harm a third person can be transferred into intention to harm the plaintiff
(​Carnes​)
○ Lack of intention and negligence is a valid defence (​Goshen​)
○ Defendant must have the mental capability to appreciate the nature and quality of
their acts (​Tillander – ​children; ​Lawson​ – mental illness)
2. Directness​: physical contact must result directly from the defendant’s act (​Cook​)
○ Directly produced when it flows naturally from the defendant’s act without the
necessity of an intervention by another independent factor (​Sansalone​)
○ “Would the result have occurred had it not been for the intervention of another
independent agency?”
3. Offensiveness​: contact does not need to be physically harmful or cause an injury – only
requirement is invasion of personal dignity
○ Doesn’t have to be in anger – you can have good motives but still commit a battery
if no consent
○ Objective test – “What would the reasonable person consider to be acceptable?”
○ “Public transit exception” accounts for insignificant touching associated with “the
exigencies of everyday life” (​Sansalone​)
4. Physical contact​: need not be person-to-person contact
○ Doesn’t have to be the physical skin of a person – clothes or thing connected to
them is enough (​Loyacomo​)
5. Without consent​:
○ Mistaken belief as to facts of situation can be defence (e.g., walking onto movie set
and stopping fight but it’s actually a scene)
○ Defendant doesn’t have to know that the plaintiff did not consent
Goshen v. Larin [1974] NS CA​ – ​referee leaving match; unintentional and not negligence
Referee Larin made unpopular crowd decision, had objects thrown at him as he left the ring with
guards. In response he put arm up for protection, and pushed Goshen causing him to fracture his
wrist.
● Absence of both intention and negligence is a defence
Bettel v. Yim [1978] ON SC​ – s
​ tore owner shakes kid; liable for all that results from contact
Bettel threw lit match into Yim’s store and a bag of charcoal caught on fire. Yim grabbed Bettel and
shook him, causing Bettel’s head to hit Yim’s head, and broke Bettel’s nose. Yim only intended to try
and get him to confess the fire, and had no intention for injury
● A person is responsible for all damage, foreseeable or not, that results from their
battery​ (not negligence so foreseeability doesn’t apply)
● If physical contact is intended, then anything that results from that immediate contact can be
considered a battery
Carnes v. Thompson [1932] USA​ – ​dodged pliers and hit another; principle of transferred intent
Thompson went to strike employee with pliers, but hit Carnes instead.
● Transferred intent: when the intention to harm one individual inadvertently causes a second
person to be hurt instead, the defendant is still held responsible
Assault
Test for Assault
1. Intentional act/threat of violence: ​threat of harm is sufficient (​I De S​) – can be offer/threat
to use force (​Bruce)​
○ Words are usually not enough – look into contextual factors to see if words are
threatening and extreme (​Mainland;​ ​Warman​)
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2. Causes a reasonable apprehension of harm: ​apprehension of harm is sufficient –
physical harm is not necessary (​I De S)​
○ Doesn’t have to be any intention to use violence, sufficient if plaintiff reasonably
believes they are in danger (​Bruce​)
3. Of immediate/imminent offensive physical contact: ​must be sufficient to create feeling of
apprehension in the plaintiff – but there must be means of carrying the threat into effect
(​Myers​)
4. Voluntary
I De S & Wife v W De S [1348] UK​ – ​missed hatchet; threat of harm is sufficient
W came to I’s house and pounded on the door with a hatchet, tried to hit the wife but missed
● There is harm done even though he didn’t hit her directly and should therefore still pay
damages – threat of harm is sufficient for assault
Stephens v. Myers [1830] UK​ – ​church fight; must be means of carrying threat into effect
Myers said “I’d rather pull the chairman out of his chair than leave the room” and immediately
advanced with his fist clenched towards Stephens but was stopped by the churchwarden
● Threat to assault is sufficient where plaintiff takes action to begin carrying out the act of
assault – enough to have the apparent ability to carry out a threat
Tuberville v. Savage [1699] UK – ​sword attack; threatening statement without imminent threat
of harm is not assault
Tuberville provoked Savage by placing his hand on his sword, causing Savage to attack. Savage
said Tuberville began first by threatening him.
● A conditional threatening statement, without an imminent threat of harm, does not constitute
an assault
● Pointing a loaded or unloaded gun at someone is an assault (​Regina v. St. George​) – does
not need to be accompanied by a statement (​Blake v. Bernard​)
Bruce v. Dyer [1970] ON CA – ​road rage; must reasonably believe they are in danger of
violence
Road rage situation, where Bruce blocked Dyer from getting back into the lane. They later got out of
their cars and fought, and Dyer fractured Bruce’s jaw. Dyer tries to claim self-defence based on
assault from conduct on the highway
● No need for actual intention or power to use violence, it is enough if the plaintiff on
reasonable grounds believes he is danger of it
● When a person is assaulted he may do more than ward off a blow, he may strike back
Mainland Sawmills v. USW Local [2007] BC SC – ​picketers threatening employees; threat of
violence exhibiting intention to assault and ability to carry it out
Labour dispute terminated by back-to-work legislation. One group went back to work, while other
group was unhappy they returned. Defendants stormed plaintiffs on their shifts, carrying tools and
screaming at them to leave.
● Verbal threat can constitute “reasonable fear of immediate physical contact” if it carries
intention to assault, and present ability to carry out the assault
● Harm could have easily been avoided by Pl but this doesn’t matter
Warman v. Grosvensor [2008] ON SCJ​ – ​online threats; actionable even if it never occurs
Grosvenor, in a series of hateful and defamatory postings on the internet, encouraged readers to
engage in violence against Warman, going so far as giving them the plaintiff’s address and phone
number. Grosvenor stated online that, "I have a [pistol] and its bullets have your name on them".
● Specific threats online can justify reasonable apprehension of immediate physical harm
● Damages are recoverable by someone who is made apprehensive of immediate physical
contact, even if that contact never occurs
Sexual Wrongdoing
34
●
●
●
Unwanted sexual contact is a battery and may also constitute other torts such as assault
and intentional infliction of emotional distress (​Wilkinson​)
M.(K.) v. M.(H.) [1992] SCC:​ incest victim vs. father – limitation period only begins when the
claimant had realized the harm had been done, even though battery ended 12 years prior
○ Limitation period does not begin until the plaintiff is reasonably capable of
discovering the wrongful nature of the defendant’s acts and the nexus between
those acts and their injuries
Samms v. Eccles [1961] USA​: persistent indecent proposals can be sexual assault, if there
are threats or the plaintiff is intimidated – emotional distress is compensable in aggravated
circumstances – medical evidence is not required, severe emotional distress is recoverable
if the defendant intentionally engages in conduct towards the plaintiff that is objectively or
subjectively harmful
Norberg v. Wynrib [1992] SCC​ – ​doctor-patient; consent vitiated if abuse of power
Norberg was a drug addict, doctor Wynrib found out and offered her drugs for sex. She was charge
with double doctoring and court and her character was questioned because she was an addict (ex
turpi causa).
● Where the two parties are in a position of inequality and the dominant party exploits that
position, consent is not a valid defence
False Imprisonment
●
●
May be committed through words alone, acts alone, both words and acts, by operating on
the will of the individual, personal violence, or both will and personal violence
Protects one’s right to go where one has a lawful right to be – involves conduct which
directly confines victim
○ Legal wrong is the restriction of plaintiff’s liberty – actual damage is not necessary
○ Tort is committed when a person is imprisoned without lawful justification
Test for False Imprisonment
1. Complete deprivation of liberty: totally restrained from going where they wanted – do not
need to be confined to a small perimeter
○ Obstruction can be caused by psychological barriers (constructive imprisonment) –
no requirement for a physical obstruction (​Chaytor​)
○ Consciousness not necessary for false imprisonment – can falsely imprison
someone who is sleeping (​Meering)​
○ Requires absence of consent and totality of restraint
2. No reasonably discernable means of escape: plaintiff is not entitled to insist on following
an exact route
○ No false imprisonment as long as a reasonable alternative route exists (​Bird​) – even
if it requires trespassing (​Wright)​
○ Imprisonment by agreement is not actionable when conditions of exit are
reasonable (​Robinson)​
3. Directness:​ must be directly caused by the defendant
○ Notion of restraint is required (​Bird)​
Bird v. Jones [1845] UK​ – ​can’t go on road; requires full obstruction
Bird wanted to cross a bridge that was blocked off, but was prevented from continuing it by Jones.
Bird was not obstructed in any other directions, could turn around, but this was not the direction they
wanted to go.
● Partial obstruction, unaccompanied by force or threat of force, does not constitute false
imprisonment
● False imprisonment requires full obstruction, no reasonable exit, and restraint
Robinson v. Balman New Ferry [1910] UK – ​penny-on penny-off; imprisonment by agreement is
not actionable when conditions of exit are reasonable
Ferry terminal required a penny to get in and out, and there was a sign indicating that penny would
be collected whether or not the person actually rode the ferry. Robinson entered the terminal, but
35
then changed his mind and wanted to leave, but refused to pay a penny to get through the exit
turnstile. Ferry staff restricted him from passing through to prevent him from not paying.
● When the plaintiff voluntarily puts self in confinement, defendant can impose “reasonable
condition on their exit"
● If notice is given to persons of reasonable conditions for exit, failure to perform conditions is
not considered to be false imprisonment when they are prevented from exiting
Chaytor v. London and Price [1961] NF SC​ – ​price shopping; psychological barriers
Chaytor went to the Price’s store across the street to do price research. Store manager called them
spies, asked his store detectives to watch them and called the police to arrest them as “suspicious
characters”. Chaytor followed the police to avoid embarrassment, and after being detained for 15
minutes, they left with no charges.
● False imprisonment can result from psychological imprisonment whereby the victim feels
like they have no choice but to comply (compliance is not consent)
● Words are sufficient to constitute imprisonment if they impose a restraint on person
Bahner v. Marwest Hotel [1969] BC SC – ​bottle of wine; cannot imprison someone for owing
money unless it is unreasonable to let the person go
Bahner ordered bottle of wine. They didn’t want to pay for it because they didn’t order/finish it.
Marwest security blocked them from leaving, called police.
● Police may detain if reasonable grounds to suspect that the individual is connected to a
particular crime and that such a detention is necessary
● Cannot imprison someone for owing civil debt (money) unless it is unreasonable to let the
person go
● Cannot collect debt by using authority as force to falsely imprison another when that
authority doesn’t come from the law
Mann v. Canadian Tire [2016] ON SC​ – ​alleged shoplifting; shopkeeper’s privilege defence
Mann set off security alarms, and approached by Canadian Tire staff who said he could not leave
the store. Staff checked bags, Mann became anxious and asked if he was free to leave. No
evidence employees made physical movement to stop him from leaving store, only asked him to
stay so they could delete the video. Mann alleges he feared for his safety.
● Shopkeeper’s privilege allows staff to prevent someone from leaving for the sole purpose to
check if they had shoplifted, but does not extend to preventing someone from leaving on the
basis of an incorrect claim (i.e., could not detain him to delete the video)
● Detention involves inviting someone to be searched; does not bestow shopkeeper power to
search without consent. Sole purpose of detention must be to search. The search must be
done quickly. If detained person refuses to be searched, they can prevented from leaving by
using reasonable force, whilst summoning police
● Shopkeeper must prove that the crime they suspected had actually been committed, not
necessarily by the person detained, but by some one, and that they had reasonable ground
and probable for suspecting the person detained (​Williams v. Laing​)
● Any evidence of threats, unnecessary force or bullying will extinguish the defence and
expose the store to liability for false imprisonment.
Intentional Infliction of Mental Suffering
Test for Intentional Infliction of Mental Suffering (​Prinzo)​
1. Defendant’s acts or statements were flagrant and outrageous
○ Not an omission – often verbal, but does not have to be, can be a true or false
statement
○ Does not need to be a public statement – can have an action where the statement is
made directly to plaintiff or to another who repeats the statement
○ Can be direct or indirect (​Rahemtulla)​ – claim can succeed even if the statement is
made to another who repeats it to the plaintiff
○ No requirement of malicious purpose to cause the harm or any motive of spite
(​Prinzo)​
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2. Specific acts were calculated to produce harm similar to the type that actually
occurred
○ Defendant must have intended the consequences that follow, or been substantially
certain to follow (higher than reasonably foreseeable – natural or probable
consequence)
○ Reckless disregard is not enough (​Piresferreira​)
○ The reaction of the victim must have been “normal”, unless the defendant knew the
specific plaintiff was unusually susceptible to the act or statement (​Boothman​)
○ Extent of the reaction/degree of injury does not have to be anticipated
3. Resulting in visible and provable injury
○ Physical harm in the nature of “a violent shock to plaintiff’s nervous system,
producing vomiting and other more serious and permanent physical consequences”
(​Wilkinson​)
○ Emotional stress, mental anguish, despair generally not accepted (​Rahemtulla)​
○ No foreseeability requirement for the injury (Wilkinson)
Wilkinson v. Downton [1897] UK​ – ​dead husband prank; words are sufficient for IIMS
Downton said Wilkinson’s husband was in an accident as a prank. Wilkinson suffered violent shock
to her nervous system, vomiting, permanent physical consequences, weeks of suffering. These
consequences were not the result of previous conditions.
● Person who wilfully tells a lie that is likely to frighten and cause physical harm to the plaintiff
is liable for the damage naturally resulting from it, regardless of if the harm suffered is more
than anticipated
● You can recover damages for nervous shock even if there is no physical injury
Prinzo v. Baycrest Centre [2002] ON CA​ – ​stress on employee; leading case for IIMS
Prinzo laid off while on medical leave and Baycrest’s director continually pressured her to return to
work and claimed her doctor cleared her which was false. Threatened that if she didn’t return to work
immediately that it would be a “work refusal” – caused her weight gain, increased symptoms of
diabetes, and emotional upset.
Piresferreira v. Ayotte [2010] ON CA​ – ​depression from shove; reckless disregard not included
Supervisor Ayotte was upset at Piresferreira’s lack of sales, shoved her, and put her on a
performance improvement plan. Piresferreira could not return to work and was diagnosed with
severe depression and anxiety. Could not show that Ayotte intended depression to result.
● Must be shown that the defendant desired to produce the kind of harm that was suffered –
anything less than knowledge or substantial knowledge cannot be a tort
● Reckless disregard is not included, can only look at intentional infliction of mental suffering
Intrusion Upon Seclusion
Test for Intrusion Upon Seclusion (​Jones)​
1. Defendant’s conduct must be intentional: ​which includes recklessness
2. Defendant must have invaded, without lawful justification, plaintiff’s private affairs or
concerns
3. A reasonable person would regard the invasion as highly offensive, causing distress,
humiliation, or anguish
○ Claims from individuals who are sensitive or unusually concerned about their
privacy are excluded (must be serious interference with someone’s financial or
health records, sexual practices and orientation, employment, diary or private
correspondence, etc.)
○ Proof of harm to a recognized economic interest is not an element of the cause of
action
○ Action must be balanced by competing interests, such as freedom of expression
Jones v. Tsige [2012] ON CA​ – ​spying on bank account; lead case for IUS
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Jones and Tsige worked at different branches of BMO, and Jones has a primary bank account at
BMO. Tsige became involved with Jones’ ex-husband, and used her work computer to view Jones’
account over 174 times, but did not publish the information in any way.
● One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his
private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the
invasion would be highly offensive to a reasonable person
Defences to Intentional Torts
Consent
●
●
●
Onus is on the defendant to raise and establish consent (​Scalera)​
Consent can be express or implied from conduct – to be implied, conduct must be such that
the reasonable person would be led to believe the plaintiff was consenting (​Gerula)​
○ In sports, individuals consent to the risks inherent in the norms of the game – if
there is a deliberate act to injure outside norms of the game, that may be actionable
General exception includes emergency situations – acceptable to perform battery to save a
person’s life or preserve their health
Requirements for Consent
1. Free, full, and informed as to the nature and quality of the act
○ Plaintiff must voluntarily consent to the actual interference that constitutes the
complaint
○ Consent is given to a particular person – other person cannot perform the act
○ Medical: there is no consent if a surgeon operates on wrong body part
2. Must be voluntary (no duress/coercion)
○ Must not have been induced by fraud/misrepresentation – cannot be coerced into
an action
○ Look to see if there is a power imbalance between the two parties, may indicate
coercion – look at inequality between the parties and exploitation of that inequality
(​Norberg​)
○ Failure to resist or protest is an indication of consent “if a reasonable person who is
aware of the consequences and capable of protest or resistance would voice his
objection” (​Norberg​)
3. Capacity to consent
○ Need to have knowledge/ability to understand information relevant to the situation
and appreciate reasonably foreseeable consequences
○ Must have ability to do each of the factors above (knowledge, understanding,
appreciating consequences) – relates to age, mental capacity, etc. (a minor can
consent so long as they have the capacity)
O’Brien v Cunard Steamship [1891] USA​ – ​vaccination for immigrants; implied through conduct
O’Brien was a passenger on Cunard’s ship. Those immigrating to the US had to be immunized
against smallpox. O’Brien held up her arm to doctor, which he took as consent to the vaccination,
but O’Brien sued for battery.
● When consent to act isn’t explicitly expressed, can rely on behavior/overt acts to determine
if consent is present
Norberg v. Wynrib [1992] SCC​ – ​doctor-patient; consent vitiated if abuse of power
Doctor Wynrib offered to supply Norberg, a drug addict and his patient drugs in return for sexual
favours.
● Where it can be shown that there was such a disparity in the relative positions of the parties
that the weaker party was not in a position to choose freely, consent will be considered
legally ineffective
Charland v. Cloverdale Minor Baseball [2013] BC SC​ – ​fight at game; consensual fight
Consensual fight at pee wee baseball game between two fathers of players.
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●
If the plaintiff consents to defendant’s conduct, it negates argument that tort has been
committed – if fight is proved to be consensual, parties cannot complain of injuries suffered
in course of fight
○ Exception: force used by one of combatants is excessive or unnecessary
○ Exception to exception: if the party subjected to excessive force responds with
excessive force of their own (matching blows)
Consent in Medical Context
Malette v. Shulman [1990] ON CA – ​jehovah’s witness blood transfusion; prior expression to
refuse
Malette was injured in a car accident, and she carried a card saying she forbid blood transfusions
because of her religion. Shulman determined blood transfusion was necessary and administered
one. Malette recovered, sued Shulman for battery. Shulman had no reason to doubt card’s
legitimacy.
● A doctor is not free to disregard advance instructions any more than he can disregard
instructions given at the time
● Right to refuse treatment is inherent component of the supremacy of the patient's right over
his own body
● Informed consent does not extend to informed refusal
● State interest to protect life does not override patient autonomy
Marshall v. Curry [1933] NS SC​ – ​hernia surgery but removed testicle; emergency procedures
Marshall sued Curry for removing his testicle when he had only consented to having a hernia
removed. Curry did not tell Marshall that it may be necessary to remove the testicle, but it became
apparent after beginning surgery that it would need to be removed.
● In cases of emergency, if the doctor’s actions were necessary and it would have been
unreasonable to postpone them to a later date to get informed consent for that particular
procedure, no action will lie on him for acting without patient’s consent
● It must be performed to save life or preserve health, and a question of necessity, not mere
convenience
Ontario Health Care Consent Act​ – ​rules for consent to treatment
● Overarching statute for all hospitals in the province – outlines who can act as a substitute
decision maker for a person considered mentally incapable
● Decision being made, must be made based on the prior wish of that person, if the injured
person is over 16 (best interests includes combination of values, risk-benefit, beliefs, etc.)
○ In lieu of wish, must make decision based on person’s best interest
○ If below the age of 16, then must decide based on best interests
○ If under 16 and conscious then will take wishes of minor into account if they conflict
with parent’s wishes
● List of substitute decision makers: spouse/partner, statutory guardian, family members,
attorney person of care
○ If children over 16, then they are also entitled
○ If no substitute decision maker found or two or more entitled decision makers can’t
agree, then decision can be left to public guardian and trustee
● Health practitioner has the right to take the word of the person asserting to be the decision
maker – doctor can challenge the decision maker (if SDM is not acting within the act)
● Also presumes adults are capable to make decisions – presumption of capability has to be
rebutted (i.e., ​Malette​)
● Protection from liability: health practitioner is not liable for administering treatment if
practitioner believes on reasonable ground and in good faith (can’t simply override religious
believes) that there is consent – physician can also act if he believes SDM did not comply
with s. 21 of the Act
Self-Defence
Requirements for Self Defence
1. Must be situation where defence is needed
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Do not have to wait for the other to strike the first blow (​Bruce v. Dire)​
Entitled to defend other people who are being attacked or threatened (​Gambriell)​
■ Can be excused from liability even if operating under mistaken assumption
(helpful bystander rule) provided force is reasonable
○ In defence of one’s own house, you do not need to retreat before the threat of
grievous bodily harm (​R. v. Hussey)​
2. Defensive force must be reasonable/not excessive
○ The reasonableness of the force is determined by a consideration of all the
surrounding circumstances, including: the nature of the attack, size and strength of
the opponent, the force needed to repel the attack, extent of imminent danger, the
use of weapons, the availability of non-violent means of defence, person’s role in
the incident, history between parties, and lawfulness of behaviour
○ Permissible to kill in self-defence if it is necessary to preserve one’s life or to avoid
serious bodily injury (​R. v. Smith)​ – but it is not necessary to kill in self defence
when the assailed can defend himself by retreating
○ Can use reasonable force to defend property against wrongful interference –
typically applied where there is trespass followed by a physical ejection of the
trepasser
○
○
Cockroft v. Smith [1705] UK​ – ​bit off finger; self-defence must be proportionate
Cockroft ran his finger towards Smith’s eye, and Smith bit off part of their finger.
● The level of violence used in self-defence must be proportionate to the violence inflicted by
the assault/battery
● “If a man strike another, who does not immediately after resent it, but takes his opportunity,
and then – sometime after – falls upon him and beats him, in this case self-defence is no
good plea”
Necessity
●
●
●
●
●
An act that is needed to avoid inevitable and irreparable evil – no more is done than is
reasonably necessary to achieve the purpose, evil inflicted is not disproportionate to the evil
avoided (​Re A​)
Acts as a complete bar to action when made out
Public necessity: Involves infringement on someone’s property rights in the interest of the
public (​Dwyer)​
Private necessity: applies, but defendant will owe damages to compensate plaintiff for the
injury done to his property – more of an incomplete privilege (​Vincent)​
Cannot kill for necessity (​Dudley​)
Requirements for Necessity
1. Unavoidable alternative is faced by the individual (i.e., forced choice)
2. One branch must be to perform an act causing damage as the only way to avoid serious
harm
3. Other branch must be to allow that serious harm to occur, resulting in the effective loss of
something worthwhile
4. The harm must be unjust
5. “It must be significant and greater or at least equal in significance to that of the loss that
would result from the act of necessity”
Dwyer v. Staunton [1947] AB DC​ – ​snowstorm driving over property; public necessity
Dwyer sues for trespass and claims damages because of damages to crops, gates and fences
made by Staunton’s vehicle, which went over his land when they were unable to follow highway
alongside the farm due to a snowstorm
● A private mischief shall be endured, rather than a public inconvenience, and therefore if a
highway is impassable, a passenger may lawfully go over the adjoining land
Vincent v. Lake Erie Transportation [1910] USA​ – ​damages from moored boat; private necessity
40
LETC moored boat to Vincent’s dock and there was a bad storm, so he kept it moored to dock,
which caused damage to dock. LETC argued that he had no choice, and Vincent argued that it was
his decision, so he should be responsible for property damage.
● Not liable in trespass for coming onto land if necessary, but must still compensate for
damages sustained.
Re A (Conjoined Twins) [2001] UK​ – c
​ onjoined twins; one life over none
Operation was needed to separate the twins, but if operation was performed, the weaker twin would
die (could not support herself) but stronger would likely live. If not both would likely die.
● Not required to give up life to save other
● Permissible to separate twins, knowing the weaker twin would die as a result
Southwark London Borough Council v. Williams & Anderson [1971] UK – ​homeless trespass; no
necessity if legal alternatives available
Defendants in dire need of housing, entered two empty houses owned by the local authority.
Authority owned hundreds of empty houses in areas that were awaiting redevelopment for public
housing. Authority secured order for possession to remove DFs.
● Cannot claim necessity if other legal alternatives are available
Legal Authority
●
●
●
Defence entitles defendant to engage in conduct that would otherwise be tortious and
actionable
Numerous provincial and federal statutes that explicitly or implicitly provide defences to tort
claims (e.g., Criminal Code, Narcotics Control Act, Mental Health Act, etc.)
Umbrella defence – covers host of different statutory defences (each of which must be
analyzed and interpreted in context of its enacting legislation)
○ Ordinary rules of statutory interpretation, constitutional & charter issues also must
be considered
Criminal Code of Canada​ – ​police and citizens arrest
● s.25(1): Everyone who is required or authorized by law to do anything in the administration
or enforcement of law is, if he acts on reasonable grounds, justified in doing what he is
required or authorized to do and in using as much force as is necessary for that purpose
● s.495(1): Police officer may arrest without warrant in three circumstances: committed or is
reasonably believed is about to commit an indictable offence; a person found committing a
criminal offence; a person whom they believe a warrant is issued for
○ If they believe on reasonable and probable grounds that the person they are looking
for is present (​Reyen v. Antonenko​)
○ If they make a proper announcement to the occupier
○ Normally, the police should knock, identify themselves, and give the reason for their
entry
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42
Accepted Categories for Negligence
(bold cases are lead cases for that duty)
Case(s)
Relationship
DofC
SofC
Donoghue​,
Mustapha
Manufacturer to final Duty to design and
consumer
manufacture in a
reasonable manner
Reasonable care to avoid
defects, injuries they
know would result
otherwise
Lastoplex​;
Inglis
Manufacturer to final Duty to warn of
consumer
dangerous aspects of
products
Provide warning
Donoghue
Retailer to consumer
Horsley
Invitor to invitee
Jane Doe
Police to victim
Hill
Notes
Consider safety of
invitees
Reasonable steps to
rescue – need not follow
best protocol
AFFIRMATIVE
DUTY
Police to suspect
Not be negligent in
investigation
Reasonable officer in the
circumstances
Horsley
Author of risk to
rescuers
Not to abandon in
situation of danger
Assist
Only as long as the
rescuer is not
foolhardy
Jordan
House
Relationships of
Duty to protect once
economic benefit
intoxicated
(commercial hosts) –
bar to patron they
know is an alcoholic
Ensure they do not get
extremely intoxicated or
injured
Knowledge of past
behaviour is
important
Zelenko​;
Horsley
Rescuer to rescuee
Only when rescue is
undertaken
Not be negligent in
course of action
AFFIRMATIVE
DUTY
Crocker
Creator of a risk to
participant
Duty to participants to
ensure safety
Not allow participation for
drunk people
Cherry
Abortion surgeon to
mother
Perform operation
Perform it properly
Liebig
Labour delivery
doctor to to child
Deliver child
Perform it properly
Hollis
Pharmaceutical
manufacturer to
consumer/learned
intermediary
Warn of defects, risks of
product
Fully inform of defects,
risks
Discharged to
learned
intermediary if
SofC met​ – see
“Special Standards
of Care –
Manufacturers” for
details
Hollis
Learned
intermediary to
pharmaceutical
consumer
Warn of defects, risks of
product
Fully inform of defects,
risks
Only if fully
informed by
manufacturer
Dunsmore
Optometrist to
patient
Ensure correct product
was received
Test glasses
Wilson
Physician to patient
Treat properly?
Skill, knowledge, and
judgement of average
Challand
Specialist to patient
Treat properly?
Skill, knowledge, and
No liability for error
judgement of the average in judgement
Owes duty to fetus
at the same time if
they fail in meeting
duty to mother
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– having regard to the
resulting from
special group to which he exercise of the
belongs
average standard
Challand
Medical
professionals to
patients
Duty to treat – duty to
refer*
Reibl
Medical
professionals to
patients
Inform/disclose of risks, Elevated standard of care See “Special
answer patient questions
Standards of Care
– Medical
Professionals” for
details
Brenner
Lawyer to client
Reasonably diligent and
competent solicitor
O’Rourke
Police to public
Elevated standard of care
Galaske
Driver of vehicle to
passengers <16
Ensure they’re wearing
seatbelts
Depends – may be to put Depends on the
it on for them, may be to relationship, age,
remind them
intelligence, etc. –
may also be a joint
responsibility with
third parties
Nord
Deutsche;​
Mercer
Relationships of
reliance
Duty to take care in
reliance undertaking
Must not omit what a
Can protect itself
reasonable person would by giving notice
do
Paris
Employer to
employee
Duty to take care for
employees
Take reasonable
precautions
Good-Wear
Sellers to buyers
Duty to think of third
parties
Do not sell if you know it
will be used in an unsafe
manner
●
Standard of care in
treatment, appropriate
aftercare – calling
someone else*
*Includes those
who
conscientiously
object to abortion/
assisted suicide
Discharged unless
that general
practice is
inconsistent with
instructions given
from client
Any government statute that imposes duties – may also be affirmative duty
Rejected Categories for Negligence
●
●
●
●
●
●
●
●
Cooper:​ registrar breaching alleged duty owed to investors (no proximity as per statute)
Childs​: social hosts to third parties injured by intoxicated guests (no proximity)
Oke​: driver who hit a sign and the metal pole later killed someone (harm not reasonably
foreseeable)
Horsley:​ no general common law duty to rescue (exception in ​Zelenko​)
Winnipeg CFS/​ ​Dobson​: mother to fetus (rejected for policy reasons)
Paxton​/​Bovingdon​/​Cherry:​ doctor does not owe duty of care to unborn fetus (conflict of
interest with duty to patient mother – notable exceptions in “Doctor-Fetus-Mother” section)
McKay​: no duty to advise mother to abort fetus when they diagnosed a serious disability
Dunsmore​: no duty owed from optometrist to manufacturer to test; manufacturer & optometrist
owed duty to consumer to test
44