Torts
SHORT SUMMARY .......................................... 6
DUTY OF CARE ...........................................................................................................................................................6
BREACH OF DUTY.....................................................................................................................................................8
CAUSATION .................................................................................................................................................................9
REMOTENESS/PROXIMATE CAUSE .............................................................................................................. 10
DEFENCES................................................................................................................................................................. 11
QUANTIFICATION OF DAMAGES .................................................................................................................... 12
JOINT AND SEVERAL/SEVERAL LIABILITY ............................................................................................... 12
INTENTIONAL INFLICTION OF HARM ......................................................................................................... 12
NUISANCE ................................................................................................................................................................. 12
TORT LAW SUMMARY .................................. 13
THEORETICAL PERSPECTIVES ON TORT LIABILITY ............................................................................. 13
(1) RIGHTS BASED VS. SOCIAL WELFARE .....................................................................................................13
(2) ECONOMIC ANALYSIS OF TORT LAW .......................................................................................................14
(3) CORRECTIVE JUSTICE ......................................................................................................................................15
(4) FEMINIST PERSPECTIVE ................................................................................................................................15
NUISANCE .................................................... 15
ELEMENTS OF THE TORT .................................................................................................................................. 16
Appleby v. Erie Tobacco Co (1910) ON Div Ct ..............................................................................................16
Rogers v. Elliott (1888) Massachusetts Sup Ct .............................................................................................16
NATURE OF THE NUISANCE ............................................................................................................................. 16
Fontainebleau Hotel v. Forty-Five Twenty-Five (1959) Florida CA ...................................................16
LAND USE AND MOTIVE .........................................................................................................................................16
Shuttleworth v Vancouver General Hospital [1927] BCSC (QUIA TIMET ACTIONS) .................17
Laws v Florinplace Ltd. [1981] (UK) (OBJECTIVE SUSCEPTIBILITIES) ...........................................17
Sturges v Bridgman (1879) (COMING INTO NUISANCE) ........................................................................17
Motherwell v. Motherwell (1976) Alberta CA ...............................................................................................17
STATUTORY DEFENCES ..................................................................................................................................... 18
Tock v St. John’s Metropolitan Area Board [1989] .....................................................................................18
Ryan v Victoria (City) [1999] SCC (NO ALTERNATIVE)...........................................................................18
DEFENCES (COMING INTO NUISANCE) ..........................................................................................................19
Miller v Jackson [1977] English CA (OVERRULED STURGES) ...............................................................19
REMEDIES................................................................................................................................................................. 19
Shelfer v City of London Electrical Lighting Co. [1895] English CA....................................................19
Boomer v Atlantic Cement Co. (1970) New York CA (LIMITS SHELFER) ........................................19
Kennaway v. Thompson [1980] English CA (LIMITED INJUNCTIONS).............................................20
Spur Industries v Del E. Webb Development Co. (1972) Arizona SC ..................................................20
THE INTENTIONAL TORTS ............................. 20
(1) VOLITION........................................................................................................................................................... 20
Smith and Stone (1647) KB (TRESPASS CANNOT BE INVOLUNTARY) ............................................20
Lawson v. Wellesley Hospital, (1975) ONCA .................................................................................................20
(2) ASSAULT ............................................................................................................................................................ 20
I. DE S. & Wife v. W. DE S (1348).........................................................................................................................20
Stephens v. Myers, (1830) English CA (ABILITY TO CARRY OUT THREAT)....................................21
Tuberville v. Savage, (1699) KB (THREAT MUST BE REAL)..................................................................21
Mainland Sawmills v. USW, Local 1-3567 [2007] BCSC (THREAT MUST BE IMMINENT) ......21
(3) BATTERY ........................................................................................................................................................... 21
Cole v. Turner, (1705) English CA (ANGER) ..................................................................................................21
Bettel et al. v. Yim (1978) Ontario County Court (CURRENT TEST) ..................................................21
(4) INTENTIONAL INFLICTION OF PSYCHIATRIC INJURY .................................................................. 22
NEGLIGENCE ................................................ 22
THE REQUIREMENT OF VOLITION/CONTROL ......................................................................................... 22
Vaughan v. Menlove (1837), 132 ER 490 (CP) .............................................................................................22
Buckley v Smith Transport Ltd. [1946] ONCA (MENTAL ILLNESS) ...................................................22
Tillander v. Gosselin [1967] ONCA (INFANTS: CAPACITY).....................................................................23
THE DUTY OF CARE .............................................................................................................................................. 23
Two views on Duty of Care: ............................................................................................................................... 23
THE NEIGHBOUR PRINCIPLE ........................................................................................................................... 24
Donoghue v. Stevenson [1932] HL .....................................................................................................................24
Palsgraf v Long Island Railroad Co (1928) New York CA .......................................................................24
TWO-STAGE TEST ................................................................................................................................................. 25
ANNS/KAMLOOPS/COOPER TEST .....................................................................................................................25
Dobson v. Dobson (1999) SCC OVERRIDING POLICY CONCERNS .......................................................25
Childs v. Desormeaux, [2006] SCC ......................................................................................................................26
DUTY TO RESCUE, DUTY TO ACT.................................................................................................................... 26
Depue v. Flatau et al. (1907) Minnesota SC HOSTS/GUESTS ............................................................26
Stovin v. Wise, [1996] HL (POLICY CONCERNS) ..........................................................................................26
LIABILITY TO RESCUERS ................................................................................................................................... 27
Haynes v Harwood [1935] KB ..............................................................................................................................27
Horsley v. MacLaren (1971) SCC (CANADIAN ADOPTION)....................................................................27
PURE ECONOMIC LOSS: NEGLIGENT MISREPRESENTATION ............................................................ 27
Candler v. Crane Christmas & Co. [1951] King’s Bench DENNING DISSENT .................................27
CARDOZO’S CONFLICTING DECISIONS ............................................................................................................27
Hedley Byrne & Co. Ltd. v. Heller [1964] HL ADOPTS DENNINGS CANDLER DISSENT ............28
DIFFICULTIES WITH LIABILITY FOR NEGLIGENT MISREPRESENTATION...................................28
Grand Restaurants of Canada v. City of Toronto (1981) ONCA (CONTRIBUTORY)....................29
Caparo Industries v. Dickman [1990] HL (SHAREHOLDERS) ...............................................................29
Hercules Managements Ltd. v. Ernst & Young [1997] SCC (POLICY CONSIDERATIONS) ........30
NEGLIGENT MISREPRESENTATION AND CONTRACT .......................................................................... 30
BG Checo International Ltd. v. BC Hydro and Power Authority (1993) SCC ..................................30
Nunes Diamond Ltd. v. Dominion Electric Protection (1972) SCC ......................................................30
PURE ECONOMIC LOSS: FAULTY CONTRUCTIONS ................................................................................. 31
ECONOMIC LOSS: PROFESSIONAL RESPONSIBILITY ...............................................................................31
POLICY CONCERNS: ..................................................................................................................................................31
RELATIONAL PURE ECONOMIC LOSS........................................................................................................... 31
Barber Lines A/S v. M/V Donau Maru (1985) Massachusetts CA (POLICY CONCERNS).........31
Weller v. Foot and Mouth Disease Research Institute [1966] QB (FORESEEABILITY) .............32
Canadian National Railway v. Norsk (1992) SCC CANADIAN APPROACH .....................................32
CURRENT APPROACH ..............................................................................................................................................32
PSYCHIATRIC INJURY .......................................................................................................................................... 33
McLoughin v. O’Brian [1982] English CA (RULE: SECONDARY VICTIMS): .....................................33
Mustapha v. Culligan of Canada Ltd. (2008) SCC (SERIOUS INJURY) ...............................................33
White v. Chief Constable of South Yorkshire Police [1992] HL (RESCUERS) .................................33
Tame v. New South Wales (2002) AUSTRALIAN APPROACH ................................................................34
THE RELEVANCE OF STATUTES ..................................................................................................................... 34
Jordan House v. Menow (1973) SCC ..................................................................................................................34
THE STANDARD OF CARE/CARELESSNESS/BREACH OF DUTY ....................................................... 34
Vaughan v Menlove (1837) Court of Common Pleas (OBJECTIVE STANDARD) ...........................34
Fleming, The Law of Torts (1992) (VARIETIES OF REASONABLE PERSON) .................................34
McHale v Watson (1966), Aust. HC (CHILDREN) ........................................................................................35
McErlean v Sarel (1987) ONCA (CHILDREN: EXCEPTION) ....................................................................35
UNREASONABLE BEHAVIOUR ......................................................................................................................... 35
United States v Carroll Towing Co (1947) 2nd Cir (HAND FORMULA) ..............................................35
[Posner] McCarty v. Pheasant Run, Inc. (1987) 7th Cir PROBLEMS WITH FORMULA ...............36
Bolton v. Stone [1951] HL REJECTION OF HAND FORMULA .................................................................36
The Wagon Mound No. 2 [1966] Privy Council (VALID REASONS) ....................................................36
Latimer v AEC [1953] HL REASONABLE STEPS ..........................................................................................36
Paris v Stepney Borough Council [1951] English CA ACCEPTANCE OF HAND FORMULA ......36
CUSTOM/TRADE/PROFESSIONAL STANDARDS ..................................................................................... 37
Trimarco v. Klein (1982) New York CA TRADE CUSTOMS .....................................................................37
The T.J. Hooper (1932) 2d Cir. (EXCEPTION) ...............................................................................................37
ter Neuzen v Korn (1995) SCC PROFESSIONAL STANDARDS ...............................................................37
Walker Estate v York Finch General Hospital (2001) SCC (EXCEPTION) .......................................37
STATUTES SETTING STANDARDS.................................................................................................................. 38
Posner, Economics, Politics, and the Reading of Statutes and the Constitution (1982) ...........38
The Queen v. Saskatchewan Wheat Pool (1983), Supreme Court of Canada ................................39
Board of Governors of Seneca College v. Bhadauria (1981) SCC .........................................................39
Retail Wholesale & Department Store Union v. Dolphin Delivery (1987) SCC (CHARTER) ....39
PROOF OF NEGLIGENCE ..................................................................................................................................... 39
Byrne v Boadle (1863) Court of Exchequer (RES IPSA LOQUITUR) ...................................................40
Fontaine v British Columbia (Official Administrator) [1998] SCC CANADIAN EDITION .........40
CAUSATION: THE “BUT FOR” RULE ............................................................................................................... 40
(1) THE MEANING OF THE “BUT FOR” RULE AND ITS IMPLICATIONS...........................................41
Corey v Havener (1902) Massachusetts SC (OVERLIABILITY) .............................................................41
Sunrise Co Ltd et al v. Ship “Lake Winnipeg” (1991) SCC SEQUENTIAL EVENTS .......................42
Jobling v Associated Dairy [1982] (IMPLICATIONS FOR LIABILITY) ................................................43
Reynolds v. Texas & Pacific Railway Co (1885) Louisiana SC (CAUSATION AND POLICY) .....43
FACTUAL UNCERTAINTY ................................................................................................................................... 43
Cook v Lewis [1951] ..................................................................................................................................................44
Sindell v. Abbott Laboratories et al. (1980) California SC (MARKET SHARE LIABILITY) .......44
Holtby v Brigham & Cowan (Hull) [2000] English CA (TIME SHARE LIABILITY) .......................44
McGhee v National Coal Board [1972] HL (INDUSTRIAL DISEASE) .................................................45
Fairchild v Glenhaven Funeral Service [2002] HL (FAIRCHILD RULE) ............................................45
CANADIAN JURISPRUDENCE: FACTUAL UNCERTAINTY (MORE PLAINTIFF-FRIENDLY) .....45
Resurfice v Hanke [2007] 1 SCR 333 (SUMMARY OF CASUATION) ....................................................46
Clements v. Clements (2012) SCC (MATERIAL CONTRIBUTION TEST)............................................46
REMOTENESS (LEGAL CAUSE/PROXIMATE CAUSE) ............................................................................. 47
RELATIONSHIP BETWEEN REMOTENESS AND DUTY OF CARE ........................................................47
JOINT AND SEVERAL LIABILITY .........................................................................................................................47
Athey v Leonati (1996) SCC (APPORTIONMENT OF TORTIOUS/NON-TORTIOUS)....................48
The Wagon Mound, No.1 [1961] Privy Council (FORESEEABILITY)..................................................48
Dulieu v. White & Sons [1901] KB (THE THINK SKULL) .........................................................................49
Smith v. Leech Brain & Co., Ltd [1962] QB (TYPE OF HARM) ...............................................................49
Athey v. Leonati (1996) SCC (CRUMBLING SKULL RULE) ......................................................................49
Cotic v. Gray (1981) ONCA (THINK SKULL + MENTAL ILLNESS) .......................................................49
REMOTENESS IN ACTION .................................................................................................................................. 49
Jolley v. Sutton London Borough Council, [2000] 3 All ER 409 (HL) (SCOPE OF RISK) ............50
Home Office v. Dorset Yacht Co. Ltd. [1970] HL...........................................................................................50
Lamb v. London Borough of Camden [1981] QB (POLICY ARGUMENT) ..........................................51
NOVUS ACTUS INTERVENIES ..............................................................................................................................51
Bradford v. Kanellos (1973) SCC Type 1: NO ................................................................................................52
Home Office v. Dorset Yacht Co. Ltd. [1970] HL Type 1: YES .................................................................52
Lamb v. London Borough of Camden [1981] QB Type 2: NO .................................................................52
Clay v. A.J. Crump & Sons Ltd. [1964] QB Type 2: YES...............................................................................52
DEFENCES................................................................................................................................................................. 53
CONTRIBUTORY NEGLIGENCE............................................................................................................................53
Froom v. Butcher [1975] English CA .................................................................................................................53
Ingles v. Tutkaluk Construction Ltd (2000) SCC (MULTIPLE DEFENDANTS) ..............................53
VOLUNTARY ASSUMPTION OF RISK (VOLENTI NON FIT INJURIA) ..................................................54
Lambert v. Lastoplex (1971) SCC (SAFETY NOTICES) .............................................................................54
Birch v. Thomas [1972] English CA (STATEMENT OF CAUTION) .......................................................54
Priestley v. Gilbert (1973) Ontario Court of Appeal (INFERRED CONSENT) .................................54
ILLEGALITY (EX TURPI CAUSA NON ORITUR ACTION) ..........................................................................55
Hall v. Hebert (1993) SCC.......................................................................................................................................55
VICARIOUS LIABILITY ......................................................................................................................................... 56
THE EMPLOYMENT RELATIONSHIP ................................................................................................................56
671122 Ontario Ltd v. Sagaz Industries Canada Inc [2000] SCC (ELEMENTS) ...........................56
Ira S. Bushey v. United States (1968) 2d Cir ATTEMPT TO CLARIFY SALMOND (2) ..................57
“IN THE COURSE OF EMPLOYMENT” (RESPONDEAT SUPERIOR) .....................................................57
E.B. v. Order of the Oblates of Mary Immaculate in the Province of B.C. [2005] SCC .................58
INDEMNIFICATION OF EMPLOYER BY EMPLOYEE ..................................................................................58
ECONOMIC/BUSINESS TORTS ......................................................................................................................... 59
GENERAL .......................................................................................................................................................................59
DECEIT ............................................................................................................................................................................59
PASSING OFF ................................................................................................................................................................59
INTIMIDATION............................................................................................................................................................60
CONSPIRACY.................................................................................................................................................................60
INTERFERENCE WITH CONTRACTUAL RELATIONS ................................................................................61
INTENTIONAL INTERFERENCE WITH ECONOMIC RELATIONS BY UNLAWFUL MEANS ......61
SHORT SUMMARY
DUTY OF CARE
To determine if _________________ owes a duty to ________________, we first see if the relationship
fits into an established category that is already recognized as owing a duty…
If not, we must apply the two-stage Anns test (as revised in Cooper v. Hobart), which is the
governing test for determining whether or not the defendant owes a duty to the P
1) STAGE 1 is designed to determine if there is a sufficient relationship of general
proximity between the parties:
a. Was the harm the reasonably foreseeable consequence of the D’s act?
b. Are there reasons, notwithstanding their proximity that tort liability should
not be imposed?
Notes: (a) In considering foreseeability, Donoghue v. Stevenson emphasized one
must consider if the plaintiff belongs to a class of persons so closely and directly
affected by D’s acts that he ought to reasonably have him in contemplation…
(b) Cooper v. Hobart introduced policy considerations concerning the relationship in
question into stage 1.
If the alleged negligence is a question of D’s duty to a third party
Because the alleged negligence is a question of _______________’s duty for damage
caused by a third party, _______________, one must show that _______________ [D] was in a
position of supervision and control over the third party, as in Dorset Yacht.
If the alleged negligence is an omission
Because the alleged negligence is an omission, policy concerns, outlined in Stovin v.
Wise limit the creation of duties in respect to omissions. Therefore, a duty must fall
into one of the three situations identified in Childs v. Desormeaux where there is a
positive duty to act:
(a) A defendant intentionally attracts and invites third parties to an inherent
and obvious risk that he or she controls (Depue v. Flatau et al.)
(b) The case concerns paternalistic relationships of supervision
(c) The case concerns defendants who either exercise a public function or
engage in a commercial enterprise that includes implied responsibilities to
the public at large (Stewart v. Pettie; Clay v. A.J. Crump & Sons Ltd.)
If the alleged negligence is to a rescuer
Because the alleged negligence is a question of ______________’s duty to _______________
who deliberately faced risk caused by [D’s] misconduct, the doctrine of assumption
of risk does not apply (Haynes v. Harwood). Legal protection is afforded to rescuers
unless (a) the risk was “so foolhardy” as to be outside any accountable risk, or (b)
liability to the rescuer stems from an independent duty (Horsley v. MacLaren)
If the alleged negligence is Negligent Misrepresentation
Because the alleged negligence is misrepresentation, the general rule, outlined in
Hedley Byrne is (a) if someone of special skill; (b) undertakes to apply that skill for
the assistance of another person; and (c) that person relies on that skill, a duty of
care arises. This reliance must be reasonable (Hercules Management)
If the alleged negligence is relational pure economic loss
Because the alleged negligence is ______________’s relational pure economic loss there
is a presumption against recovery subject to some exceptions (Valley Husky
(Bermuda) Ltd). These exceptions include (a) where P has a possessory or propriety
interest in the damaged property (b) general average cases (in maritime law) and
(c) joint ventures between the property owner and P (Norsk)
If the alleged negligence is a psychiatric injury
Because the alleged negligence is a psychiatric injury, actionable injuries are limited
to two categories: (1) serious injury (Mustapha); and (2) “shock” (McLoughlin v.
O’Brian). In the latter category claims are limited to spouses/children who
experienced the event or its immediate aftermath. Rescuers (police) are ineligible
for compensation (White v. Chief Constable of South Yorkshire Police)
If the alleged negligence is a vicarious liability CONSULT LONG SUMMARY
Because the alleged negligence is vicarious liability, there are several restrictions.
First, the action must complete three general requirements (a) A commits a tort; (b)
A is employed by the D, B; and (c) A commits the tort in the course of employment.
2) STAGE 2 of Anns deals with residual policy concerns as to why the prima facie duty
of care (Childs v. Desormeaux) ought to be negatived or limited in scope. Consider:
a. Administrative factors (floodgates)
b. Constitutional considerations (Dobson)
c. Increased insurance premiums (Hercules Management)
d. Other…
BREACH OF DUTY
PART 1
To determine if ________________ breached his/her duty to ________________, we must determine
the standard of care: who is the reasonable person against whom the defendant is to be
measured:
IN GENERAL the D is measured against the reasonably prudent person in his/her
circumstances. Below average intelligence (Menlove) or freak accidents (Birmingham
Waterworks) are not considered. It is an objective standard that is contextualized to the
particular fact situation in question.
_____________ [D] falls under one of the exceptions to the general reasonable person standard:
(a) Mental Illness (Buckley v. Smith Transportation) if D suffer from a mental illness or
mental disability that renders them incapable of understanding or appreciating
their duties. The exception is limited (Roberts v. Ramsbottom) if a D retains any
control he/she is liable
(b) Children are generally held to a lesser standard than adults (McHale v. Watson). A
child is only required to exercise the degree of care that the average child of the
same age ordinarily exercises under the same circumstances. The exception to this
is where a child engages in what may be classified as an “adult activity” such as
driving (McErlean v. Sarel).
PART 2
The second part of the breach analysis is examining the unreasonable behaviour. This
involves weighing the probability of harm and the gravity of harm against the burden of
precautions and social utility of the impugned conduct originally put forth by Learned Hand
in US v. Carroll Towing. In considering the probability of harm, the reasonable person takes
into account reasonable probabilities not fantastic possibilities (Bolton v. Stone) [Insert
stuff about probability of harm from fact pattern]. If the harm is foreseeable all
reasonable precautions should be taken (The Wagon Mound No. 2; Latimer). Here, the
burden of precautions is [insert stuff about burden of precautions].
In coming to a conclusion on the unreasonable acts, inquiries into custom, professional
standards, and statutory breaches, while not determinative, can tip the balance one way or
the other.
(a) As established in Trimarco v. Klein, when proof of an accepted INDUSTRY CUSTOM
is accompanied by evidence that D conformed to it, this may establish due care.
Proof that D ignored a customary practice, and that the departure was a proximate
cause of the accident may serve to establish liability. [Insert stuff about the
custom]. An industry custom is however, not conclusive. Where an industry has
lagged in the adoption of a new and available device universal disregard may be no
excuse (The T.J. Hooper). [Insert stuff about whether this is the case].
(b) Where a procedure involves difficult or uncertain questions of medical treatment or
complex scientific or highly the technical matters beyond the understanding of the
judge or jury courts will defer to PROFESSIONAL STANDARDS (ter Neuzen). The
exception to this is failure to adopt obvious and reasonable precautions that are
readily apparent to the fact finder as in Walker Estate v. York Finch General Hospital.
[Insert stuff about professional standards].
(c) STATUTORY BREACH is persuasive, but not conclusive, evidence of breach. R v.
Saskatchewan Wheat Pool showed the D must show (a) that there was a statutory
breach and (b) the breach is the cause of the damage. [Insert stuff from fact
pattern about statutory breach and cause of damage]. Gorris v. Scott further
showed that for a statutory breach to be relevant, (a) the accident must be of the
type the statute seeks to prevent, and (b) the plaintiff must belong to the class of
persons that the statute seeks to protect. [Insert stuff about type of accident and
P protected]. However, even where statutes are drafted by an inapplicable
jurisdiction they may still be relevant (Littley v. Brooks).
CAUSATION
The threshold test for causation is the “but for” test: A caused B’s injury if but for A’s
(careless) act [or if there is a duty to act careless omission] B would not have suffered the
injury (Barnett v. Chelsea & Kensington Hospital Management Committee). [Insert stuff
from fact pattern].
Where the negligence of D greatly multiplies the chance of the an accident, and is of the
character naturally leading to its occurrence, the mere possibility that it might have
happened without the negligence is not sufficient to break the chain of causation (Reynolds
v. Texas & Pacific Railroad)
o
Thin Skull Rule: In cases of damage by physical injury to a person there the Thin
Skull (Eggshell Skull) Rule dictates that there is liability for the consequences
flowing from the preexisting special susceptibility of the victim (Dulieu v. White &
Sons). The rule also applies to mental illnesses (Cotic v. Gray). [Insert relevant
information from the fact pattern].
o
The Crumbling Skull Rule: The Crumbling Skull Rule, a derivative of the Thin Skull
Rule dictates that D is liable for damage, but not pre-existing damage (Athey v.
Leonati). If there is a measurable risk that the pre-existing condition would have
detrimentally affected the P in the future, regardless of D’s negligence, this can
reduce the overall award. [Insert Crumbling Skull information from the fact
pattern].
o
Relaxed Burden in situations where the facts relating to causation lie particularly
within the knowledge of D (medical malpractice): Farrell v. Snell asserted that an
alternative test that can be used in situations where the facts relating to causation
lie within the knowledge of the defendant. The situation in question falls into this
category because [insert why the facts are particularly within the knowledge of
the defendant]. To satisfy Farrell v. Snell very little affirmative evidence on the part
of _____________ [P] is needed, simply an inference – this imposes a tactical burden on
the defendant [discuss and affirmative evidence to the contrary]. Therefore the
test is/is not satisfied
o
Shift in onus because of market share liability: Where problems of proof are not
attributable to P or D, but to the nature of the product or industry, the market share
liability test can be used, as shown in Sindell v. Abbott. [Insert stuff about
problems of proof with industry/product]. To satisfy the test, ____________________
[P] must show:
(a) particular product is the clear cause of the damage
(b) a number of Ds manufacture the same generic product
(c) P is unable to pinpoint which of the defendants is the source of the damage
(d) P sues a substantial share of the market (~85%)
[Discuss how a, b, c, and d relate to the fact pattern]. Because the test is viable
here the onus shifts to defendants.
o
Shift in onus because of time share liability: Where problems of proof are not
attributable to P or Ds, but the nature of the timeframe of the negligence action, time
share liability may be used as in the English case Holtby v. Brigham & Cowan (Hull).
Liability will be imposed on D according to the amount of time P was exposed to
careless risk at the hands of D. [Insert relevant information from the fact
pattern].
o
For additional industrial disease tests look up McGhee v. National Coal Board
and Fairchild v. Glenhaven Funeral Service.
o
Multiple causes: material contribution test: Clements v. Clements states the material
contribution test can be used in situations such as the one in question when four
factors are satisfied: (a) there are two or more tortfeasors; (b) all are at fault and
one or more has in fact caused P’s negligence; (c) P would not have been injured
“but for” their negligence, viewed globally; (d) as they can blame one another, it is
impossible for P to show any one of them caused the injury.
o
Res Ipsa Loquitur: The doctrine of Res Ipsa Loquitur may apply when an accident
occurs in circumstances in which P cannot prove the carelessness of the other party,
but which (a) D owes P a duty; (b) D was in control of the situation/object that led to
the injury; and (c) the accident is one that in the ordinary course of events does not
happen unless there was carelessness. [Insert information from fact pattern
conforming to the steps]. The invocation of the doctrine does not shift the burden
of proof to the defendant. Rather, it means that circumstantial evidence constitutes
reasonable evidence of negligence (Fontaine v. British Columbia)
REMOTENESS/PROXIMATE CAUSE
To determine if a breach is a proximate cause, the foreseeability test established by Wagon
Mound No. 1 is used. There are two elements to consider: foreseeability of plaintiff and
foreseeability of damage:
(a) Foreseeability of Plaintiff
For _____________ [P] to be a foreseeable plaintiff, he/she must fall within the zone the
range of apprehension, as outlined in Palsgraf. [Insert stuff from fact pattern].
Therefore ___________ [is/is not] a foreseeable plaintiff.
(b) Foreseeability of Damage
Wagon Mound No. 1 states that ____________ [D] will only be responsible for the
probable consequences of his/her actions. He/she will be responsible for the
damage if it is a TYPE that is reasonable person would foresee. ______________ [D] does
not have to foresee the extent of damage (Smith v. Leech Brain & Co., Ltd.), nor does
he have to foresee the precise way the damage comes about (Hughes v. Lord
Advocate). [Insert stuff about foreseeability of the type of damage]. Therefore,
this type of damage [was/was not] foreseeable.
For mental injuries: Mustapha v. Culligan showed that it must be foreseeable that a person
would of ordinary mental fortitude would suffer a mental injury in order for the injury to be
compensable. [Insert stuff from fact pattern about foreseeability of mental injury].
However, Mustapha also showed that if the defendant had actual knowledge of the plaintiff’s
sensibilities, the ordinary fortitude requirement can be relaxed. [Insert stuff about
knowledge of sensibilities]. If a mental Injury was foreseeable the defendant need not
foresee the extent of the injury. Here, mental injury [was/was not] foreseeable.
Intervening Cause/Novus Actus: Even where the injury is foreseeable, recovery can be
denied on remoteness grounds if a fresh, independent cause (a novus actus) interrupts the
causal sequence. To constitute novus actus it must be highly improbable and outside the
range of normal experience (Dorset Yacht). [Insert stuff from fact pattern saying if fits
this].
Circumstances generally giving rise to novus actus is typically human conduct that is grossly
negligent or intentionally harmful such as an unexpected hysterical reaction (Bradford v.
Kanellos) or criminal conduct that causes damage removed in time from the original
defendant’s negligence (Lamb v. London Borough of Camden). [Insert stuff from fact
pattern about if constitutes novus actus].
DEFENCES
o
CONTRIBUTORY NEGLIGENCE has been a partial defence in Ontario since the
passage of the Negligence Act. It does not deny recovery, but reduces the plaintiff’s
award through apportionment.
To establish contributory negligence, ________________ must establish all the elements
of negligence except duty (breach, causation, remoteness) on a balance of
probabilities. ______________ [P] is held to a reasonable person standard with respect
of the discharge of duty to him/herself, with all the same expectations that are
available to the defendant. [Do breach, causation and remoteness analysis].
o
VOLUNTARY ASSUMPTION OF RISK (volenti) is a complete defence that denies
recovery altogether. _________________ [D] must show ________________ [P] (a) knew and
understood the risk, and (b) voluntarily incurred the risk (Dube v. Labar). The D
must show the P “bargained away his/her right to sue.” Successful claims are rare.
[Insert discussion of conduct that was express or implied assumption of risk].
o
ILLEGALITY is traditionally a complete defence, but recently has been used to
eliminate particular heads of damage (Hall v. Hebert). Illegally only succeeds as a
defence where allowing recovery would threaten the integrity of the justice system,
for example, by allowing the plaintiff to recover from his or her wrongdoing (where
the award goes beyond compensation or includes lost earnings from criminal
activity). [Discuss the integrity of the justice system and if it would be
threatened by allowing recovery].
QUANTIFICATION OF DAMAGES
Damages for pecuniary losses are designed to compensate the plaintiff for specific,
quantifiable losses he or she suffered. This is broken down into an itemized list, with
specific amounts awarded for each type of loss.
Damages non-pecuniary losses are designed to provide the plaintiff with reasonable
solace for losses suffered. These are intangible losses, and are hard to quantify. It is
awarded as a global amount.
JOINT AND SEVERAL/SEVERAL LIABILITY
(a) Several Liability: Parties are only liable for their respective obligations
(b) Joint and Several Liability: A claimant may pursue any one party for the entire
amount and it becomes the responsibility of the defendants to sort out their
respective proportions of liability and payment. This means that if the claimant
pursues one defendant and receives payment, that defendant must then pursue the
other obligors for a contribution to their share of the liability.
INTENTIONAL INFLICTION OF HARM
Battery: Battery is to intentionally cause harmful or offensive contact with another. To
prove the tort of battery __________________ [P] has to prove that ___________________ [D] intended
the contact, (Cole v. Turner) but he/she did not have to intend harm (Bettel v. Yim). [Talk
about intended contact].
Foreseeability does not matter in the tort of battery: so long as _________________ [D] intended
the contact, he/she needs not intend, nor foresee the full consequences of the contact, [stuff
about things D might not have foreseen, and say it doesn’t matter].
Assault: Assault is conduct that intentionally arouses apprehension of an imminent battery
(I. DE. S & Wife v. W. DE S). To prove the tort of assault, _____________ [P] must prove that
_______________ [D] intended the conduct that created the apprehension (Tuberville v. Savage),
D was able to carry out the threat (Stephen v. Myers) and the threat was imminent
(Mainland Sawmills v. USW, Local 1-3567). [Insert information about the threat].
NUISANCE
Nuisance is interference with the use and enjoyment of land. To succeed in his/her claim
______________’s claim against ________________ is judged in reference to what the reasonable
person (Rogers v. Elliott) would consider an actionable irritation given the circumstances of
the locality (Appleby v. Erie Tobacco Co). [Add information from the fact pattern].
Not every action that creates loss to another will give rise to liability. One needs to show a
violation of a right (Fontainebleau Hotel). If the alleged nuisance was a lawful act serving a
useful and beneficial purpose, however unfriendly the motive might be, D will generally
have the right to do it (The Mayor; etc. of Bradford v. Pickles).
o
Quia Timet actions:
o
To sustain an injunction in a Quia Timet action the law requires: (a) proof by P of a
well-founded apprehension of injury (proof of actual and real danger) [insert
information about danger] and (b) a strong probability that this action will occur
[insert information about likelihood of occurrence].
Coming into nuisance:
When P “comes into” a situation where an alleged nuisance has already been taking
place, Miller v. Jackson proscribes a two-part test (a) is the action a reasonable given
the circumstances of its location; and (b) does it suddenly become a nuisance
because the claimant chooses to enter the location [insert information about
whether the facts satisfy the test]. The test turns on the social utility of the alleged
nuisance. [insert policy considerations].
Shelfer v. City of London Electric Lighting Co sets out the general rule for remedies in
nuisance cases: (a) if the injury is small; (b) it is capable of being estimated in money; (c) it
can be adequately compensated by a small money payment; and (d) it would be oppressive
on D to grant an injunction, damages will be provided. [Insert whether the fact pattern
fits these requirements].
Courts have hesitate to grant injunctions on Ds where large economic consequences may
result (Boomer v. Atlantic Cement Co). [Insert whether this is the case].
For information on Statutory defences: Tock v. St. John’s Metropolitan Area Board
TORT LAW SUMMARY
THEORETICAL PERSPECTIVES ON TORT LIABILITY
(1) RIGHTS BASED VS. SOCIAL WELFARE
Holmes, Privilege, Malice and Intent (1894) JUDGES TRADITIONALLY RIGHTS-BASED
Judges have traditionally disliked reasoning on the grounds of policy and prefer rightsbased legal deductions. Policy questions require critical evaluation of the circumstances of
each case and as a result judges lose the illusion of certainty that makes legal reasoning look
like mathematics.
Coase, The Problem of Social Cost (1960) SOCIAL WELFARE APPROACH
When A inflicts harm on B the traditional approach asks: how should we restrain A? This is
wrong. We are dealing with a problem of reciprocal nature. To avoid the harm to B would
inflict harm on A. The real question that has to be decided is: should A be allowed to harm B
or should B be allowed to harm A? The problem is to avoid the most serious harm
COASE THEOREM: Under assumptions of perfect rationality, perfect (or at least,
substantial) knowledge and zero transaction costs, legal entitlements do not matter for the
attainment of efficient allocation as people will bargain with their entitlements until
resources reach those who value them most.
It is possible to modify the arrangements of a judicial ruling to create a bargain between the
parties. In Sturges v. Bridgman to avoid the doctor inflicting harm on the confectioner he
would waive his right and allow the machinery to continue for a sum of money.
Epstein, A Theory of Strict Liability (1973) CRITIQUE OF COASE
It would have been a grave mistake to say that Sturges v. Bridgman disclosed a reciprocal
harm. The confectioner did not seek to enjoin the doctor enjoin the doctor from the practice
of medicine, because that practice did not and could not harm the confectioner. The notion
of causal reciprocity should not be confused with the notion of redress from harm.
RIGHTS-BASED CASE
Canada Paper Company v. Brown (1922) SCC
Facts: P owned property that had been in his family for several generations. Nearby, the D’s
factory was an important industry and employer in Windsor. Its use of sulphates produced
noxious fumes.
Decision: P was successful. The Court held that the defendant’s arguments on the harmful
impact of an injunction of the community’s prosperity were irrelevant. The decision turned
on the need to protect property rights.
SOCIAL WELFARE CASE
Black v. Canadian Copper Co. (1917) ONCA
Facts: Ps operated farms near the defendant’s copper mine. The vapours produced by the
mine contained large quantities of sulphur dioxide.
Decision: The case produced the opposite result as Brown. The Court held there are
circumstances in which it is impossible for the individuals to assert their rights, as it would
inflict an unreasonable injury on their community.
Stephens v. Village of Richmond Hill [1955] ONCA
Notes: After P obtained an injunction against a sewage plaint on the Don River, the Ontario
legislature passed the Public Health Amendment Act dissolving the injunction and
retroactively deemed the sewage plant to have been constructed, maintained and operated
by statutory authority.
(2) ECONOMIC ANALYSIS OF TORT LAW
Calabresi, The Costs of Accidents (1970) and The Decision for Accidents (1965)
PRIMARY COSTS (the costs of accidents themselves): Reduction of primary costs is
achieved by reducing the level of activity (driving slower or driving less) and investing in
safety measures. The optimal mix of the two will depend on the activity.
(1) SPECIFIC DETERRENCE: State measures for cost reduction. Takes the form of
regulation that can ban certain activities and impose restrictions on the activity
(speed limits) and can require safety measures (seat belt laws)
(2) MARKET DETERRENCE: Imposes liability for accidents on those believed to be in a
position to eliminate the costs of a particular type of accident most cheaply.
(a) CHEAPEST COST AVOIDERS: are those best able to assess the best way to
reduce costs of accidents, implement safety measures, and minimize
secondary costs through their deep pockets or loss spreading
(b) The cheapest cost avoider is encouraged to look in the market for new was
of reducing the primary costs
(c) Assuming the assumption of the Coase Theorem hold the market will always
be able to find the cheapest cost avoider (even if the state gets it wrong).
SECONDARY COSTS (the costs resulting from the social and economic dislocation
caused by accidents): The reduction of secondary costs is achieved through a social
insurance system in which activities are made to bear their full costs.
o The methodology: The cost of an activity, A, includes the sum of the costs of
accidents in which A alone is involved, and some part of the accidents in which A is
involved with other activities.
o Apportionment of accident costs among subcategories of drivers on the basis of
accident proneness will create movement to the safer ones because the greater real
cost of the more dangerous one would be reflected in its price.
(3) CORRECTIVE JUSTICE
Weinrib, Does Tort Law Have a Future? (2000)
CRITIQUE OF ANNS TEST: The Anns Test has radically altered negligence law by focusing
on policy concerns instead of conceptual analysis of the parties’ relationship. This is
problematic:
(1) Policy concerns, the decisive factor for liability, are uncontrolled by the relationship
of the parties and may be beyond the court’s institutional competence to judge
(2) These policy concerns refer only to considerations that negative liability, not those
that might confirm liability.
(3) The test transfigures the notion of foreseeability from an intrinsically bipolar notion
that links the plaintiff’s injury to the defendant’s action to a “relatively low
threshold” for recognizing a prima facie duty.
(4) FEMINIST PERSPECTIVE
Bender, A Lawyer’s Primer on Feminist Theory and Tort (1988)
In tort law the masculine voice of rights, autonomy, and separation, and abstraction has led
to a standard that protects efficiency and profit. The cost-benefit analysis abstracts and
dehumanizes suffering.
CARING NEIGHBOUR: To correct this we could convert the standard of “care of a
reasonable person under the same or similar circumstances” to a standard of “conscious
care of a responsible neighbour or social acquaintance for another under the same or
similar circumstances. This standard requires conscious concern for the consequences of
our actions or inactions on another’s safety and health.
Posner, Conservative Feminism (1989)
Bender’s article misunderstands the significance of the “reasonable person” in tort law,
which lies in preventing tortfeasors that while the average person could have avoided the
accident they could not because they had a below-average capacity to take care.
While the Caring Neighbour approach (which shifts negligence liability toward strict
liability) would provide more compensation to victims it would also result in higher prices
and a burden may be borne by consumers.
NUISANCE
Interference with the use and enjoyment of land; the law of nuisance is the way the common
law elaborates the rights and duties that govern relations between neighbours.
ELEMENTS OF THE TORT
Appleby v. Erie Tobacco Co (1910) ON Div Ct
Facts: An odour occurs from the manufacture of tobacco on the Ds’ premises. The odour
cannot be prevented in the current production process.
Decision: The appeal is successful; the court orders an injunction restraining the Ds stayed
for six months to allow the defendants to abate the nuisance or to make arrangements for
the removal of that part of the business causing the odour.
NO GENERAL STANDARD OF NUISANCE: There is no general standard for nuisance
applicable to all localities; the standard varies based on the circumstances of the
locality.
Rogers v. Elliott (1888) Massachusetts Sup Ct
Facts: D, who was in charge of a church in a small town, regularly rang the bell several
times a day. P, recovering from sunstroke suffered convulsions his doctor attributed to the
noise of the bell. The defendant refused to not ring the bells and the plaintiff sued.
OBJECTIVE STANDARD: The right to make a noise for a proper purpose must be
measured in reference to the degree of irritation which others may reasonably be
required to submit to.
Notes: If one’s right to use his property were to depend upon the effect of the use upon a
person of peculiar temperament or uncommon disease, the standard for measuring it would
be so uncertain and fluctuating as to paralyze industrial enterprises: economic impact.
NATURE OF THE NUISANCE
Fontainebleau Hotel v. Forty-Five Twenty-Five (1959) Florida CA
Facts: The proposed addition to the D’s hotel creates a shadow over the cabana, swimming
pool and sunbathing area of the Ps’ hotel. The plaintiff alleges this will reduce the
enjoyment of its guests and was done in malice.
NOT ALL LOSS GIVE RISE TO LIABILITY: Not every action that causes loss (injury) to
another gives rise to liability. One needs to show a violation of a right. Where a
structure serves a useful and beneficial purpose, it does not give rise to a cause of action,
even though it causes injury to another by cutting off the light and air.
LAND USE AND MOTIVE
(1) The Mayor, etc. of Bradford v. Pickles [1895] HL
Facts: The D decided to sink a well on his property cutting off the water supply to
the P’s land and requiring them to buy their water from him.
Ratio: If it was a lawful act, however ill the motive might be, he had a right to do it. If
it were an unlawful act, however good his motive might be, he would have no right
to do it. The defendant is in his rights to sink a well on his property for financial gain
(2) Hollywood Silver Fox Farm Ltd. v. Emmett [1936] KB
Facts: P bred foxes. During the breeding season the vixens will kill their young or
miscarry if they are disturbed. D was in a dispute with P and made his sons
discharge his guns near the P’s land for the purpose of unsettling the foxes.
Ratio: The motive of the noisemaker must be considered in determining whether or
not he was using his property in a legitimate and reasonable manner.
Shuttleworth v Vancouver General Hospital [1927] BCSC (QUIA TIMET ACTIONS)
Facts: The Ds just finished contraction of an isolation hospital for infectious disease. The P’s
house is directly across the street from the hospital. He alleges it is a nuisance asks for an
injunction or damages. The action is quia timet, to protect from damage that he has reason
to fear will be the result of the hospital.
FOR QUIA TIMET ACTIONS PLAINTIFFS MUST PROVIDE STRONG PROBABILITY OF
NUISANCE: To sustain the injunction the law requires proof by P of a well-founded
apprehension of injury – proof of actual and real danger – a strong probability, almost
amounting to moral certainty that if the hospital is established, it will be an actionable
nuisance.
Laws v Florinplace Ltd. [1981] (UK) (OBJECTIVE SUSCEPTIBILITIES)
Facts: Ps, residents of Longmore Street brought a motion to restrain the operation of a
hard-core pornography store that recently opened. They claimed the nature of the business
would be apparent to the residents and offend their sensibilities as well as attract
undesirable clients. The court granted the injunction.
OBJECTIVE SUSCEPTIBILITIES: There can be nuisance where the use made by the Ds
of their property is an affront to the reasonable susceptibilities of ordinary people
and where the use is apparent to residents and visitors.
Sturges v Bridgman (1879) (COMING INTO NUISANCE)
Facts: D owns a business using two large mortars that has gone uninterrupted for 20 years.
The mortars cause significant noise. P has recently built a medical consulting office on the
site of a former garden. P claims nuisance as the noise/vibrations make it difficult to work.
Decision: The right of the plaintiff is affirmed; the appeal is dismissed
DEPENDANT ON LOCALITY: If a person moves into an industrial neighbourhood they
should not expect to get an injunction that will shut down the factories for nuisance.
However, in this case doctors’ offices occupied the area, the D’s confectionary business is
out of the ordinary.
Motherwell v. Motherwell (1976) Alberta CA
Facts: D, the sister and daughter of the Ps phoned the Ps constantly making unfounded
statements and accusations. She persisted despite demands that she cease. D says she
preformed no actionable wrong. The brother required use of the phone for his business.
Ratio: The protracted and persistent harassment of the Ps is within the principle of
nuisance. The Court approached the invasion of privacy by abuse of the telephone system as
a new category as it is so much the part of daily life that many look on it as a necessity.
Hunter v. Canary Wharf [1997] HL
Facts: the Ds erected a tall building between the television transmitter and the P’s homes,
interfering with television reception.
Ratio: The mere presence of a neighbouring building will not generally give rise to an
actionable private nuisance. It requires something emanating from the Ds land (noise,
fumes, smell, vibration, etc.)
STATUTORY DEFENCES
Tock v St. John’s Metropolitan Area Board [1989]
Facts: Ps suffered extensive damage when their basement flooded after a heavy rain as the
result of a blocked storm sewer operated by the D municipality. They alleged that the
flooding constituted a nuisance. The D’s defence was that operation of the sewer was
authorized by statute.
Issue: Does acting on statutory authority provide a defence to a claim of nuisance?
SPLIT DECISION: There is no doubt that the statutory provisions authorize the D to operate
and maintain the sewage system. They are however, permissive as opposed to mandatory.
They confer power; they do not impose a duty.
WILSON +2:
a) If legislation imposes a duty and the nuisance is the inevitable consequence of
discharging that duty, then the nuisance is itself authorized and there is no recovery
in the absence of negligence
b) If the legislation is specific as to the manner or location of doing the thing and the
nuisance is the inevitable consequence then the nuisance is itself authorized and
there is no recovery absent negligence
c) BUT, if the legislation confers an authority and gives the public body a discretion on
how to do it and in what location and if it decides to do the thing, it must do so in a
manner and at the location which will avoid the creation of a nuisance, otherwise it
will be liable therefor, whether there is negligence or not
LA FOREST +1: A useful distinction exists between isolated and infrequent occurrences
that inflict heavy material damage on a single victim, and ordinary disturbances diffuse in
their effect and have a broad and general impact on the comfort, convenience and material
well being of the public at large.
SOPINKA: Public authorities must show that there are no practical ways of avoiding the
nuisance: “The courts strain against a conclusion that private rights are intended to be
sacrificed for the common good.”
Ryan v Victoria (City) [1999] SCC (NO ALTERNATIVE)
NO ALTERNATIVE: D must show that there are not alternative ways of carrying out the
work. The mere fact that one is considerably less expensive will not avail. If only one
method is practically feasible it must be established that it was practically impossible to
avoid nuisance.
Sutherland v Canada (Attorney General) [2002]
Facts: New runway in Vancouver International Airport results in noise nuisance. The Court
says a tort of nuisance was committed, but a statute implicitly authorized its commission.
DEFENCES (COMING INTO NUISANCE)
Sturges v Bridgman (1879) English CA RIGHTS-BASED
NO PRESUMPTION OF CONSENT: Until the noise became an actionable nuisance, which it
did not at any time before the consulting-room was built, the basis of the presumption of
the consent, viz., the power of prevention physically or by action, was never present.
Miller v Jackson [1977] English CA (OVERRULED STURGES)
Facts: After 70 years of practicing cricket in a community a new resident bought a house at
the edge of the cricket field and won a suit for an injunction. The cricket club added a fence
and offered to compensate homeowners for any damage as a result of balls, but the new
resident refused.
COMING INTO NUISANCE TEST
1. Is the use of the cricket club of this ground for playing cricket a reasonable use of it?
To answer this question one should look a the circumstances surrounding the
property
2. Does it suddenly become a nuisance because one of the neighbours chooses to build
a house on the edge of the ground?
SOCIAL WELFARE: There is a contest here between the interest of the public at large and
the interest of a private individual
REMEDIES
Shelfer v City of London Electrical Lighting Co. [1895] English CA
GENERAL RULE:
(1) If the injury to the P’s legal right is small;
(2) it is capable of being estimated in money;
(3) it can be adequately compensated by a small money payment; and
(4) it would be oppressive to the D to grant an injunction:
Damages in substitution for an injunction may be given.
EXCEPTION: There may also be cases in which, though the four above-mentioned
requirements exist, the defendant by his conduct – acting with a reckless disregard to the
plaintiff’s rights, has disentitled himself from asking that damages be assessed in
substitution for an injunction.
Boomer v Atlantic Cement Co. (1970) New York CA (LIMITS SHELFER)
Ratio: Reversed the New York equivalent of the Shelfer rule. The court, impressed by the
large economic consequences of the injunction held that although a nuisance existed the
plaintiff could recover damages, but not receive an injunction.
Kennaway v. Thompson [1980] English CA (LIMITED INJUNCTIONS)
Facts: P built a house on land next to a lake where motorized boat races took place. Over
the following years the activities became more frequent and noisier, as a result she brought
a nuisance suit against the club.
INJUNCTIONS MAY BE “LIMITED”: The court held that the boat club’s activities were a
nuisance and granted an injunction. The injunction did not prohibit races, but set out
detailed provisions limiting when and for how long boat races were permitted
Spur Industries v Del E. Webb Development Co. (1972) Arizona SC
Facts: Doperated a feedlot outside Phoenix, P purchased land nearby and built a housing
development. The citizens of the development sued for an injunction.
SOCIAL WELFARE: The feedlot is required to move not because of any wrongdoing on its
part, but because of proper and legitimate regard of the courts for the rights and interests of
the public
COMPENSATION FOR INJUNCTION: It does not seem harsh to require a developer, who
has taken advantage of the lesser land values in a rural area as well as the availability of
large tracts of land on which to build and develop a new town to compensate those who are
required to move as a result.
THE INTENTIONAL TORTS
(1) VOLITION
Smith and Stone (1647) KB (TRESPASS CANNOT BE INVOLUNTARY)
D was violently pursued onto the land of the P who sought damages in an action for trespass
to land. It was held that a trespass cannot be committed involuntarily, and the action failed.
Lawson v. Wellesley Hospital, (1975) ONCA
Facts: P, a non-psychiatric patient of the D hospital, sought damages for injuries sustained
as a result of an attack by a psychiatric patient with a history of violent conduct.
VOLUNTARY ACTION: An essential element in the tort of assault is that there be a
voluntary act, and the mind prompting and directing the act. A mentally ill person is by
reason of his illness incapable of the intent to assault a person and not liable in an action
founded upon that assault.
(2) ASSAULT
I. DE S. & Wife v. W. DE S (1348)
THE TORT OF ASSAULT DOES NOT REQUIRE PHYSICAL CONTACT: D struck the P’s
tavern door with a hatchet. He was told it was closed. When the P’s wife stuck her head out
of the window the D attempted to hit her, but missed.
Stephens v. Myers, (1830) English CA (ABILITY TO CARRY OUT THREAT)
Facts: The P and D had an angry exchange in a parish meeting. The D advanced with
clenched fists toward the P, but was stopped by the churchwarden. He was not close enough
to plaintiff to strike a blow.
ABILITY TO CARRY OUT THE THREAT: In order for a threat of personal violence to
constitute an assault there must be the means of carrying the threat into effect.
Tuberville v. Savage, (1699) KB (THREAT MUST BE REAL)
THREAT MUST BE REAL: If a person strikes a person in discourse it is not an assault as
there is no intention to assault. However, if a person intends an assault, strikes at someone
and misses this is assault. In addition, if a person holds up there hand in a threating manner
and says nothing it is also assault.
Mainland Sawmills v. USW, Local 1-3567 [2007] BCSC (THREAT MUST BE IMMINENT)
Facts: A labour dispute at the mainland mill was terminated by back-to-work legislation.
While one local went back to work after the legislation was tabled, another waited until it
passed. The latter union picket the first at their workplace.
THREAT MUST BE IMMINENT: The underlying policy of the tort of assault is the reduction
of violence. A threat to do harm at some future time does not constitute assault because
such a threat is not as likely to spur retaliation.
CONTEXT IMPORTANT: While words alone, without some accompanying action, are not
normally sufficient to constitute an assault, it is important to note that the context in which
words are spoken may add substance to a verbal threat.
(3) BATTERY
Cole v. Turner, (1705) English CA (ANGER)
(1) The lightest touch of another in anger is a battery;
(2) If two or more meet in a narrow passage, and without any violence or design to
harm, the one touches the other gently, it will be no battery; However,
(3) If either one of them use violence against the other, to force his way in a rude
inordinate manner, it will be battery
Bettel et al. v. Yim (1978) Ontario County Court (CURRENT TEST)
Facts: P and his friends threw lighted matches into the D’s store, one of which, thrown by
the P caused a bag of charcoal to ignite. D grabbed him and unintentionally injured P.
NO “FORESEEABILITY” IN INTENTIONAL TORTS: While strong policy reasons favour
determining limits to liability where conduct falls below an acceptable standard, the same
reasons do not apply to deliberate conduct.
TEST: The logical test in intentional tort is whether the defendant was guilty of deliberate,
intentional and unlawful violence or threats of violence. If he was, and a more serious harm
befalls the P than was intended by the D, the D, and not the innocent P, must bear the
responsibility for the unintended result.
(4) INTENTIONAL INFLICTION OF PSYCHIATRIC INJURY
Wilkinson v. Downton (1897) QB
Facts: As a practical joke, D told P her husband had been seriously injured in an accident. As
a result the P suffered a violent psychiatric shock and suffered weeks of incapacity.
DAMAGES FOR MENTAL DISTRESS: D wilfully performed the act that harmed the P. As it
was obvious the actions would harm the P the Court held that this was done intentionally.
NEGLIGENCE
THE REQUIREMENT OF VOLITION/CONTROL
Vaughan v. Menlove (1837), 132 ER 490 (CP)
Facts: The defendant stacked his hay in a state that gave rise to a high probability of fire.
Over a period of five weeks he was warned of this, but stated he would “chance it.”
However, as a precaution he put a chimney through the sack. Nevertheless, the hay caught
fire and burned the plaintiff’s cottages.
Ratio: The liability for negligence should be a regard for caution such as a man or ordinary
prudence would observe. (REASONABLE PERSON STANDARD)
Blyth v Birmingham Waterworks Co [1856]
Ratio: Negligence is the omission to do something that a reasonable man, guided
upon those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent man would not do.
Buckley v Smith Transport Ltd. [1946] ONCA (MENTAL ILLNESS)
Facts: A truck driven by an employee of D rammed a streetcar operated by P at high speed.
The employee was suffering from syphilis of the brain and died from the disease soon after.
MENTAL ILLNESS EXCEPTION: The court found that, at the time of the collision, the
employee’s mind was so affected by the disease that he neither understood nor was
able to discharge the duty to take care.
Roberts v Ramsbottom, [1980] QB
Facts: P was emerging from her parked car when D, who at the time of the accident was
suffering from a stroke, struck P’s car injuring her and her daughter and causing irreparable
damage to her car.
RATIO: A driver will be able to escape liability if his actions at the relevant time were
wholly beyond his control. The most obvious case is sudden unconsciousness. But if he
retained some control, albeit imperfect control, and his driving, judged objectively was
below the required standard, he remains liable.
Mansfield v. Weetabix [1998] English CA
Facts: D’s employee, a trucker, did not know he had a condition that caused his brain to
malfunction when his blood sugar was low. He caused a series of accidents by driving after
he had little to eat.
DECISION: The standard of care the driver was obliged to show in these circumstances was
that which is to be expected of a reasonably competent driver unaware that he is or may be
suffering from a condition that impairs his ability to drive. To apply the objective
standard in a way that did not take account of his condition would be to impose strict
liability. But that is not the law.
Tillander v. Gosselin [1967] ONCA (INFANTS: CAPACITY)
Facts: Infant D, nearly 3 years old, removed a baby from her carriage and dragged her over
100 feet, fracturing her skull and causing brain damage. The action was framed in trespass.
It is not negligence, as the D had no right to touch or remove the infant.
INFANTS LACK CAPACITY: It cannot be negligence, such an infant is considered to be
lacking in sufficient judgment to exercise that reasonable case that is expected of one.
In recent years the weight of authority is to the effect that no action will lie in trespass if the
act is not wrongful, wither through willfulness or as the result of negligence.
THE DUTY OF CARE
Two views on Duty of Care:
(1) The duty of care is required to establish the basis for liability between the parties:
a. “A man is entitled to be as negligent as he pleases toward the whole world if
he owes no duty to them” Le Lievre v Gould [1893]
b. “It is not enough to prove the respondent to be careless… The question
[also]: Does he owe a duty to take care, and to whom does he owe that duty.”
Donoghue v Stevenson (Macmillan)
(2) Duty of care is a “control device” to keep liability limited:
a. “An actor is subject to liability for negligent [careless] conduct that is a legal
cause of physical harm”
b. “Even if the defendant’s negligent conduct is the legal cause of the plaintiff’s
physical harm, the [defendant] is not liable for that harm if the court
determines that the he owes no duty. Findings of no duty are unusual, and
are based on judicial recognition of special problems of principles or policy
that justify the withholding of liability
Winterbottom v Wright (1842) Court of Exchequer OVERRULED
Facts: D was a contractor for the supply of mail coaches employed under contract by the
Postmaster-General for Hartford to Holyhead. P, a mail-coachman hired to drive one of the
D’s mail coaches was seriously injured after the defective coach broke down and threw him
from his seat. Judgment for D.
PRIVITY OF CONTRACT: It is a general rule, that whenever a wrong arises merely out of
the breach of a contract, the party who made the contract alone can sue. If the rule were
otherwise there would be no limit to such actions.
THE NEIGHBOUR PRINCIPLE
Donoghue v. Stevenson [1932] HL
Facts: P drank a bottle of ginger beer manufactured by D that a friend had bought from a
retailer and given her. The bottle contained the decomposed remains of a snail that were
not, and could not be detected until the majority of the bottle was consumed.
ATKIN: THE NEIGHBOUR PRINCIPLE: The rule that you are to love your neighbour
becomes in law, you must not injure your neighbour; and the lawyer’s question, “who is my
neighbour?” receives a restricted reply. Who then, in law is my neighbour? Creates a test
for duty: is anyone so closely and directly affected by your acts that you ought
reasonably have them in your contemplation.
MACMILLAN: The cardinal principle of liability is that the party complained of should owe
to the party complaining a duty to take care, and the party complaining should be able to
prove that he has suffered damage in consequence of a breach of that duty.
MacPherson v Buick Motor Co (1916) New York CA
Facts: D was an automobile manufacturer who obtained wheels for its automobiles from a
separate manufacturer. D sold its vehicles to retailers. P purchased one of the vehicles from
a dealer. When P was riding in the vehicle it collapsed he was injured. There was evidence
that the defective wheel could have been discovered by reasonable inspection.
DUTY OF MANUFACTURERS: If a product is reasonably expected to be dangerous if
negligently made and the product used by those other than the original purchaser in the
normal course of business, a duty of care exists.
Palsgraf v Long Island Railroad Co (1928) New York CA
Facts: P was standing on a platform of the D’s railroad after buying a ticket. When a train
stopped at the station a man ran forward to catch it. When he jumped aboard (with help
from railway guards) he dropped a package containing fireworks on the tracks that
exploded the P was injured as a result.
ACTIONABLE NEGLIGENCE REQUIRES A DUTY: Negligence is not actionable unless it
involves the invasion of a legally protected interest, the violation of a right. “Proof of
negligence in the air, so to speak, will not do.” Negligence is the absence of care, according to
the circumstances.
 What the plaintiff must show is “a wrong” to herself; i.e., a violation of her own right,
and not merely a wrong to someone else, nor conduct “wrongful” because it is
unsocial, but not “a wrong” to any one.
 The victim does not sue derivatively, or by right of subrogation, to vindicate an
interest invaded in the person of another… He sues for a breach of duty to himself.
TWO-STAGE TEST
The two-stage test to decide whether or not a private duty of care existed was created in a
novel situation. The House of Lords in developed the test in Anns v. Merton London Borough
and the SCC adopted it in City of Kamloops v. Nielson.
Cooper v Hobart (2001)
Facts: P represented a group of investors who brought a class action seeking damages for
losses suffered after advancing money to a mortgage broker. The money was allegedly used
for unauthorized purposes. According to P, if the Registrar had acted more promptly, the
losses suffered by the class would have been avoided or diminished. Appeal dismissed.
RATIO: Cooper modifies the Anns test and makes it somewhat harder for the plaintiff,
introducing policy into Stage 1 (regarding relationship between classes of people); Stage 2
regards residual policy concerns.
ANNS/KAMLOOPS/COOPER TEST
(1) (a) Was the harm that occurred the reasonably foreseeable consequence of the D’s
act? and (b) are the reasons, notwithstanding there proximity between the parties
established in the first part of the this test, that tort liability should not be
recognized?
(2) The question still remains whether there are residual policy considerations outside
the relationship of the parties that may negative the imposition of a duty of care
(e.g., indeterminate liability)
Decision: Stage 1 was not satisfied. Even if there was foreseeable harm if the D was
careless, there is no sufficient proximity between the parties based on the statute that
establishes the defendant.
Dobson v. Dobson (1999) SCC OVERRIDING POLICY CONCERNS
Facts: In her 27th week of pregnancy D was in a car accident caused by her negligent
driving. As a result of the accident P, now an infant boy, suffers from permanent mental and
physical impairment.
DECISION: Part Two of the Anns Test is not satisfied; significant policy concerns weigh
against the imposition of maternal tort liability for parental negligence. These related to (1)
the privacy and autonomy rights of women and (2) the difficulties inherent in articulating a
judicial standard of conduct for pregnant women.
The relationship between a pregnant woman and her fetus is unique: everything the
pregnant woman does or fails to do may have a potentially detrimental impact on her fetus.
If a mother were to be held liable for prenatal negligence, this could render the most
mundane lifestyle decisions subject to the scrutiny of the courts.
McLACHLIN: Liability for fetal injury by pregnant women would run contrary to two of the
most fundamental values – liberty and equality. Such legal action carries the potential to
bring the whole of the pregnant woman’s conduct under the scrutiny of the law. This has
the potential to jeopardize the pregnant women’s right to control her body and make
decisions in her own interest laid out in R v Morgentaler [1988].
Childs v. Desormeaux, [2006] SCC
Facts: A guest left the Ds’ BYOB party after consuming a large quantity of alcohol. The guest
drove his vehicle into oncoming traffic and collided with another vehicle causing serious
bodily harm to P. The Ds say they did not know the guest was intoxicated when he left.
SHIFT IN BURDEN OF PROOF: If foreseeability and proximity are established at the first
stage of the Anns test a prima facie duty arises and the burden of proof shifts to the
defendant in the second stage.
DUTY TO RESCUE, DUTY TO ACT
Depue v. Flatau et al. (1907) Minnesota SC HOSTS/GUESTS
Facts: Cattle buyer requested to stay overnight at a farmer’s house. His request was not
granted. The buyer begins to feel ill and again requested to stay overnight (this is disputed
by the farm). The buyer collapses on the way home and nearly freezes to death overnight,
losing several fingers.
DUTY: If you let someone into your premises, whether for a business transaction or
otherwise, you are under an obligation to keep them in reasonably safe condition.
Union Pacific v Cappier (1903) Kansas SC
Facts: The P’s son was run over by a railway car in error and injuries received. Immediately
after the accident a railroad employee phoned the police and an ambulance was sent. The
action is based on the failure of railroad employees to call a surgeon or render him any
assistance after the accident. The action fails.
TRADITIONAL RULE: No liability for failure to rescue. A duty must be owed from D to P
in an individual capacity, and not merely to the general public. This excludes from
actionable negligence all failures to observe the obligations imposed by charity, gratitude
and generosity.
Childs v. Desormeaux, [2006] SCC SOCIAL HOSTS/MOTORING PUBLIC
NO DUTY: Hosting a party in which alcohol is served does not, without more; establish the
degree of proximity required to give rise to a duty of care on the hosts to third-party
highway users who may be injured by an intoxicated guest
Jordan House v. Menow (1973) SCC TAVERN OWNERS/INTOXICATED PATRONS
DUTY: Liability of bar towards patrons who get drunk and injure themselves
Stewart v. Pettie [1995] SCC TAVERN OWNERS/MOTORING PUBLIC
DUTY: Although the action was dismissed on the facts, Stewart affirmed that a special
relationship exists between taverns and the motoring public that could require the former
to take positive steps to protect the latter.
Stovin v. Wise, [1996] HL (POLICY CONCERNS)
POLICY CONCERNS: There are sound policy reasons why omissions require different
treatments from positive conduct:
(1) POLITICAL: Indeterminate liability (a duty to prevent harm and render assistance to
a person in may apply to a large and indeterminate group).
(2) ECONOMIC: The efficient allocation of resources usually requires an activity should
bear its own costs
LIABILITY TO RESCUERS
Haynes v Harwood [1935] KB
Facts: Ds are owners of a two-horse van that was driven by their servant when the incident
took place. After being struck by a stone the horses started galloping and had the potential
to cause serious harm to bystanders. P stopped the horses, but suffered serious personal
injuries when one of the horses fell on him.
DUTY TOWARDS RESCUERS: The doctrine of assumption of risk does not apply where P
has, under an emergency caused by D’s misconduct, deliberately faced a risk to rescue
another from immediate danger of person injury or death.
Horsley v. MacLaren (1971) SCC (CANADIAN ADOPTION)
CANADIAN ADOPTION: Legal protection is now afforded to one who risks injury to himself
in going to the rescue of another hos has been foreseeably exposed to danger by the
unreasonable conduct of a third party:
o The risk by the rescuer must not be “so foolhardy as to be outside of any
accountable risk and thus beyond even contributory negligence
o Liability to the rescuer is stemming from an independent and not derivative duty to
the negligent person
PURE ECONOMIC LOSS: NEGLIGENT MISREPRESENTATION
Candler v. Crane Christmas & Co. [1951] King’s Bench DENNING DISSENT
Facts: D accounting firm provided a negligently prepared balance sheet to P, a potential
investor. The company folded and P lost his investment. He sued claiming he would not
have invested had he known the company’s true position.
Denning (dissent): The circumstances where a duty to use care in statement exists apart
from a contract to that effect:
(1) Those under the duty are persons such as accountants whose profession and
occupation is to make reports on which other people rely in the ordinary course of
business
(2) They owe a duty to their employer or client, and to any third party to whom they
themselves show the accounts, or to whom they know their employer will show the
accounts
(3) The duty extends only to those transactions which the accountants knew their
accounts were required
CARDOZO’S CONFLICTING DECISIONS
(1) Glanzer v. Shepard, (1921), New York CA DUTY
Facts: Ds public weighers hired by a vendor to certify the weight of bags of beans
sold to the P. P paid for the beans, but upon discovering the weight was less than
certified, sued Ds for the amount overpaid.
DECISION: The claim is successful. Ds weighed and certified at the order of one with
the very end and aim of shaping the conduct of another. Diligence was owed, not
only to him who ordered (contractual), but him also who relied.
(2) Ultramares v. Touche (1931) New York CA NO DUTY
Facts: Ds were a firm of public accountants who negligently prepared an audit that
was relied upon by the Ps in lending money to the audited firm.
INDETERMINATE LIABILITY: If liability for negligence exists, a thoughtless slip or
blunder, the failure to detect a theft or forgery beneath the cover of deceptive
entries, may expose accountants to a liability in an indeterminate amount for an
indeterminate time to an indeterminate class.
SPECIAL RELATIONSHIP: The categories of special relationships that give rise to a duty of
care are not limited to contractual relationships or fiduciary duties, but include
relationships ‘equivalent to contract’ where there is an assumption of responsibility in
circumstances in which, but for the absence of consideration, there would be a contract.
Hedley Byrne & Co. Ltd. v. Heller [1964] HL ADOPTS DENNINGS CANDLER DISSENT
Facts: P (advertising firm) entered into a K with a customer. The customer’s bankers, “in
confidence and without responsibility” stated that the company’s financial situation was
sound. The appeal is dismissed.
RULE:
(a) If someone of special skill
(b) undertakes (irrespective of contract) to apply that skills for the assistance of
another person, and
(c) that person relies upon that skill
(d) a duty of care arises
DIFFICULTIES WITH LIABILITY FOR NEGLIGENT MISREPRESENTATION
(1) Lack of relationship between the degree of carelessness and loss (Cardozo in
Ultramares)
(2) Difficulty of identifying loss (Pearce in Hedley Byrne: “Damage by negligent acts to
persons or property… is more visible and obvious”)
(3) Potential dissemination: “words can be broadcast with or without consent… of the
speaker…” (Reid). This can result in liability “in an indeterminate amount for an
indeterminate time to an indeterminate class” (Cardozo).
(4) Disincentive to beneficial activity: people will not make maps anymore (Asquith in
Candler)
Haig v. Bamford (1976) SCC
Facts: D accounting firm, was asked to prepare audit for a furniture company for expansion
through new investment. Report showed the business as profitable. In reliance of this
report P’s invested. The report was negligently prepared and P lost his investment.
CONCERN FOR INDETERMINATE LIABILITY RELAXED: The claim is accepted; the
accountants knew that the financial statements were being prepared for the purpose of
influencing investment from a limited class of investors (including the plaintiff).
Grand Restaurants of Canada v. City of Toronto (1981) ONCA (CONTRIBUTORY)
Facts: P, an experienced restaurateur, concluded a contract to buy a restaurant in reliance
of the D city’s assurance that it did not have any building violations. However, because P
was aware of prior work orders, the Court held a reasonable person with the Ps experience
should have been made further investigations and was held to contributorily negligent.
CONTRIBUTORY NEGLIGENCE: There is a distinction between reasonable reliance as a
necessary prerequisite to ground liability, to constitute the cause of action under Hedley
Byrne, and reliance in the context of contributory negligence as simply a factor determining
the extent of the damages suffered.
Reliance that is “unreasonable” simply goes to reducing damages otherwise
recoverable by the plaintiff; it does not go to cancelling the prima facie liability of the
defendant.
Queen v. Cognos (1993), SCC
Facts: D hired the P telling him his new position would be a lifelong career. Relying on these
representations the P quit his existing job. Shortly afterward D scaled down the project and
P’s position was eliminated.
NOT CONFINED TO ‘PROESSIONALS’: D should have exercised reasonable care during the
pre-employment interview in making representations as to the employer and the
employment being offered. Confining this duty of care to “professionals” who are in the
business of providing information and advice (doctors, lawyers, bankers, architects)
reflects an overtly simplistic.
Caparo Industries v. Dickman [1990] HL (SHAREHOLDERS)
Facts: D are chartered accountants who audited a public company. The audit revealed the
company’s profits lower than expected and the company’s share price dropped. P began
buying shares, eventually holding 91.8%. P eventually found out the company’s position
was worse than the audit showed, and sued the accounting company.
Issue: What is the extent of the shareholder’s interest that the auditor has a duty to protect?
SHAREHOLDERS: The scope of duty of care should not extent beyond the protection of any
individual shareholder from losses in the value of the shares that he holds. As a purchaser of
additional shares in reliance on the auditor’s report, he stands no different than any other
investing member of the public.
Hercules Managements Ltd. v. Ernst & Young [1997] SCC (POLICY CONSIDERATIONS)
Facts: P shareholders, they relied on the D’s audit of the corporations’ financial statements
to make investment decisions and as a result incurred investment losses. Brought an action
of negligence against the D. The SCC dismissed it:
Issue: What constitutes a “relationship of proximity” in the context of negligent
misrepresentation?
RULE: In cases of negligent misrepresentation, the relationship between P and D arises
through reliance by P on D’s words. Proximity exists when:
(a) The D ought reasonably to foresee that P will rely on his or her representation; and
(b) Reliance by the P would, in the particular circumstances of the case, be reasonable
POLICY CONSIDERATIONS: Deterrence of negligent conduct is an important policy
consideration with respect to auditors’ liability. Nevertheless, this is outweighed by the
socially undesirable consequences to which the imposition of indeterminate liability of
auditors (STAGE 2 OF ANNS)
NEGLIGENT MISREPRESENTATION AND CONTRACT
BG Checo International Ltd. v. BC Hydro and Power Authority (1993) SCC
EXPECTATION VS. RELIANCE DAMAGED
o EXPECTATION (Contract): If a contract is breached a P seeks damages, P will be
put in a position she would have been had the contract been performed. These
damages protect P’s expectation for profit from the contract (forward looking).
o RELIANCE (Contract): A contract is signed and P, in reliance on the contract has
some expenses. It then turns out that D misled P on a material fact, and P cancels the
contract. P can sue for compensation for those expenses. These put P in the position
she would have been in had there been on contract (backward looking).
o RELIANCE (Tort): Like reliance damages in contract: they put P in the same
position she would have been in, had there been no tort.
Nunes Diamond Ltd. v. Dominion Electric Protection (1972) SCC
Facts: P’s safe was protected by the D’s alarm system. After a burglary of another store
merchant the P requested D confirm the system’s integrity. This was done. The original K
stated D was “not an insurer” and liability was limited to $50. A burglary later took place.
PRIVITY OF CONTRACT: The parties mutually established their rights and obligations by
contract. There is nothing from which it can be inferred that a much greater obligation was
established by the company’s misrepresentations.
DISSENT: The K is important insofar as it established a relationship between the parties,
and provided the basis for future misrepresentations. The mere existence of a K cannot
foreclose tort liability under the Hedley Bryne principle.
PURE ECONOMIC LOSS: FAULTY CONTRUCTIONS
Result from poor business decisions. You buy a house for $1M, but because of faulty
construction the house is only worth $0.8M. The reason to restrict liability in this area is a
concern for indeterminate liability.
Different approaches:
a) No negligence liability (English law)
b) Negligence liability for dangerous constructions (Canada)
c) Negligence liability for pure economic losses resulting from the purchase of faulty
constructions (Australia)
ECONOMIC LOSS: PROFESSIONAL RESPONSIBILITY
White v. Jones [1995] HL
Facts: The father of Ps instructed D, his lawyer, to prepare a new will incorporating Ps.
Before the new will was prepared the father died. The Ps sued, claiming the negligent delay
deprived them on their inheritance.
DECISION: By accepting instructions to draw a will, the lawyer comes into a special
relationship with those intended to benefit under it.
POLICY CONCERNS:
o
o
o
The Ps are not receiving the money from the recipient under the old will, but the
lawyer. Therefore a third party (the recipient) receives a windfall.
The Ps had no contractual agreement with the lawyer.
Courts are generally unsympathetic to other claims associated with pure
economic loss and professional responsibility, such as a suit against a doctor
for the costs of raising a child after a failed sterilization.
RELATIONAL PURE ECONOMIC LOSS
Pure economic loss suffered by B that is relational to physical harm suffered by C, as a result
of A’s negligence. Example: a car hits a building on the same block as a restaurant. The
building needs to be torn down and the restaurant loses patrons because of a road closure.
Benson, The Basis for Excluding Liability for Economic Loss in Tort Law (1995)
RIGHTS ISSUES: At common law, a proprietary or possessory right in something entitles a
person to exclude anyone else from using it without his consent. If a P lacks this right, he
has no legal standing to constrain a D from intentionally using it as he sees fit.
In contrast, contractual rights are personal rights against a definite individual. In
circumstances of relational economic loss, P’s sole exclusive right is, by hypothesis, a
contractual right against someone other than the D.
It seems then, P lacks a right on which to rest the interest that forms the very basis of
his claim, and this is deemed to be fatal from the standpoint of justice.
Barber Lines A/S v. M/V Donau Maru (1985) Massachusetts CA (POLICY CONCERNS)
Facts: The D’s ship spilled oil into Boston Harbour. The P’s ship was prevented from
docking and suffered additional costs.
POLICY CONCERNS: Even though the financial loss was foreseeable the claim failed.
Allowing Ps to recover pure economic loss would make litigation an extremely expensive
process and would hurt society generally through insurance premiums.
Weller v. Foot and Mouth Disease Research Institute [1966] QB (FORESEEABILITY)
Facts: Ds owned land where they conducted hoof and mouth disease tests. When
neighbouring cattle became infected the government order the closing of two markets in
the area. The Ps, cattle auctioneers, brought a suit.
FORESEEABILITY: P’s claim fails. D’s duty to take care to avoid the escape of the virus was
due to the foreseeable fact that the virus might infect cattle in the neighbourhood. The duty
of care is accordingly owed to the owners of cattle in the neighbourhood, P do not own
cattle. The Court’s decision in Weller contains both policy and right-based arguments.
Spartan Steel & Alloys Ltd. v. Martin [1972] English CA
Facts: D a company doing roadwork. Damaged electricity cable that required the electricity
board to shut down the power. P a 24/7 steel factory; as a result of the power outage the
company suffered losses: £368 lost melt £400 lost profit on melt; £1,767 lost revenues from
unmade melt during power cut.
DENNING (POLICY): It seems to me better to consider the particular relationship at hand,
and see whether or not, as a matter of policy, economic loss should be recoverable. The
£368 lost melt and £400 lost profit on melt are recoverable, but not the £1,767 in lost
revenues
DISSENT (FORESEEABILITY): economic loss is recoverable if it is the foreseeable and
direct consequence of negligence.
Canadian National Railway v. Norsk (1992) SCC CANADIAN APPROACH
Facts: A tug owned by D negligently struck a railway bridge owned by a third party. A
number of companies, including P held contracts to use the bridge. P was the primary user
(86% of total use). Repairs on the bridge caused them to reroute shipping at significant cost.
MAJORITY (McLachlin +2): Anns test is satisfied – pure economic loss is prima facie
recoverable where, in addition to negligence and foreseeable loss, there is sufficient
proximity between the negligent act and the loss. Proximity is the controlling device which
avoids the specter of unlimited liability. When property limited (as in this case), there is no
danger of floodgates of unlimited liability and it is fair.
La Forest +2: No sufficient reason to depart from the general exclusionary rule disallowing
liability for contractual relational pure economic loss.
Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd, (1997), SCC
REVERSAL OF APPROACH: Court somewhat reversed the Norsk decision, adopting a
position must closer to the dissent in the earlier decision.
CURRENT APPROACH
RULE: Presumption against recovery subject to some expectations:
a) Where P has a possessory or propriety interest in the damaged property
b) General average cases (in maritime law)
c) Joint venture between property owner and P (Norsk)
PSYCHIATRIC INJURY
McLoughin v. O’Brian [1982] English CA (RULE: SECONDARY VICTIMS):
(1) A claim for damages for psychiatric illness resulting from shock caused by
negligence van be made without the necessity of the plaintiff establishing that he
was himself injured or was in fear of personal injury
(2) A claim for damages for such illness can be made when shock results from:
o SPOUSE/CHILD: From death or injury to the plaintiff’s spouse or child or the fear of
such death or injury, and
o IMMEDIATE AFTERMATH: The shock has come about through the sight or hearing
of the event or its immediate aftermath
Mustapha v. Culligan of Canada Ltd. (2008) SCC (SERIOUS INJURY)
Facts: P sues for psychiatric injury sustained by seeing dead flies in a bottle of water
supplied by D company. The plaintiff developed a major depressive disorder.
SERIOUS INJURY:
o The law does not recognize upset, disgust, anxiety, agitation or other mental states
that fall short of injury.
o Actionable mental injury must be serious and prolonged and rise above the ordinary
annoyances, anxieties and fears that people living in society routinely, if sometimes
reluctantly, accept.
REASONABLE FORTITUDE:
The requirement that a mental injury would occur in a person of ordinary fortitude is
inherent in the notion of foreseeability.
 This is not to be confused with the ‘eggshell skull’ situation where as a result of a
breach of duty the damage inflicted proves to be more serious than expected.
 Exception: In cases where the defendant is aware of the plaintiff’s particular
sensibilities, the ordinary fortitude requirement need not be applied.
Alcock v. Chief Constable of the South Yorkshire Police [1991] HL
Facts: Litigation arose out of the Hillsborough disaster, a football riot with 95 dead and 400
injured. Ps are related to those at the stadium and they claim to suffer from psychiatric
injuries as a result of the live broadcast of the disaster.
RATIO: Simultaneous television broadcasts of what occurred cannot be equated with the
“sight or hearing: of the event or its immediate aftermath and as a result, shocks sustained
by reason of the broadcasts cannot found a claim.
White v. Chief Constable of South Yorkshire Police [1992] HL (RESCUERS)
Facts: The Ps were police officers who had suffered psychiatric injury as a result of tending
to victims at the Hillsborough football disaster.
RESCUERS: The court rules no liability unless the rescue workers fall within the category of
recognized Ps.
POLICY CONCERNS: Such an extension of liability would be unacceptable to the ordinary
person because it would offend his notions of distributive justice. He would think it wrong
that policemen should have the right to compensation for psychiatric injury out of public
funds while the bereaved relatives are sent away with nothing.
Tame v. New South Wales (2002) AUSTRALIAN APPROACH
Facts: Ps are parents of 16-year-old who worked on the D’s cattle station. D sent the boy to
work on a remote property where he went missing. A search ended when his body was
found. The parents sue for the psychiatric harm suffered during the lengthy search.
RATIO: The Ps were successful even though the psychiatric harm was not a “sudden shock”
or a direct perception of a disastrous event. A rigid distinction between the psychiatric
injury suffered by parents in this case, and a similar injury suffered by parents who
see their son being run down by a vehicle is indefensible.
THE RELEVANCE OF STATUTES
Jordan House v. Menow (1973) SCC
Facts: D hotel served P past the point of intoxication then ejected him. Soon afterward an
automobile struck him.
Notes: It was a violation of s. 53(3) of the Liquor Licence Act and s. 81 of the Liquor Control
Act for the hotel to serve anyone apparently in an intoxicated condition.
DUTY OF CARE: Statutory provisions are relevant for the question of proximity in the
context of duty of care. They become an authoritative source in considering, on common
law principles, whether or duty of care should arise.
THE STANDARD OF CARE/CARELESSNESS/BREACH OF DUTY
Vaughan v Menlove (1837) Court of Common Pleas (OBJECTIVE STANDARD)
Facts: D stacked his hay in a state that gave rise to a high probability of fire. Over a period of
five weeks he was warned of this, but stated he would “chance it.” As a precaution he put a
chimney through the sack. Nevertheless, the hay caught fire and burned the P’s cottages.
THE OBJECTIVE STANDARD: The liability for negligence should be a regard for caution
such as a man or ordinary prudence would observe.
Fleming, The Law of Torts (1992) (VARIETIES OF REASONABLE PERSON)
THE REASONABLE PERSON: The objective standard means that individuals are often held
guilty of legal fault for failing to live up to a standard that as a matter of fact they cannot
meet. Therefore, moral blameworthiness and legal default do not invariably coincide.
VARIETIES:
A. Physicians: A physician will be judged by the standard of the average practitioner
of the class to which he belongs. A higher level of skill will be demanded from a
specialist than a generalist.
B. Beginners: The paramount social need for compensating accident victims
outweighs all competing considerations, and the beginner is, therefore, held to the
standard of those who are reasonably skilled and proficient in that particular calling
or activity.
C. Need for Experts: For tasks requiring expert skill, especially those impinging
immanently of public safety, even a layman will be judged by the standard of an
expert.
D. Physical, Intellectual and Emotional Characteristics: The physically disabled are
judged by the standard of what can be expected from a reasonably prudent person
suffering from his disability. Though allowance is due for his lessened faculty, he
may have to take correspondingly greater precautions in other respects to
compensate for it.
McHale v Watson (1966), Aust. HC (CHILDREN)
Facts: P suffered a serious injury to her right eye with two other girls of about her age and
D, a few years older, aged 12½. They were playing tag and D threw an object into P’s eye
causing loss of sight. D was not found negligent.
RULE: A child is required to exercise only that degree of care that the average child of
the same age ordinarily exercises under the same circumstances.
The Queen v Hill [1986] SCC
Ratio: If the legal system is to reflect accurately the view of children as being in the
developmental stages en route to full functioning capacity as adults, the standard against
which children’s actions are measured must be such as can logically culminate in the
objective standard of the ordinary person upon their arrival at full adulthood.
Notes: In negligence law, whereas the extremely young infant assumes almost no legal
liability for his or her actions, older children are expected to conform to the standard
appropriate for ordinary children of the same age.
McErlean v Sarel (1987) ONCA (CHILDREN: EXCEPTION)
EXCEPTION: Where a child engages in what may be classified as an “adult activity,” he
or she will not be accorded special treatment, and no allowance will be made for his
or her immaturity.
POLICY CONCERNS: While teenagers may at times be judged by standards commensurate
with their age, intelligence and experience, it would be unfair and dangerous to the public to
permit them in the operation of power-driven vehicles to observe any lesser standard than
that required if all drivers of such vehicles.
UNREASONABLE BEHAVIOUR
United States v Carroll Towing Co (1947) 2nd Cir (HAND FORMULA)
Facts: An unattended barge broke from its moorings and collided with another ship. Was it
negligent for a barge to be left unattended in the harbour for several hours? Judge Learned
Hand developed a formula to judge liability.
THE HAND FORMULA: An owner’s duty, as in other similar situations to provide against
resulting injuries is a function of three variables:
B= Burden: costs of prevention
P= probability of harm
L= Loss
B<PxL
Accordingly, one is negligent when B <PL, but one does not take the precautions to
eliminate the risk.
[Posner] McCarty v. Pheasant Run, Inc. (1987) 7th Cir PROBLEMS WITH FORMULA
IMPERFECT INFORMATION: Parties do not provide the information required to quantify
the variables that the Hand Formula picks out as relevant. That is why the formula has a
greater analytic than operational significance.
MONETIZING PERSONAL INJURIES: Conceptual as well as practical difficulties in
monetizing personal injuries may continue to frustrate efforts to measure expected accident
costs with the precision that is possible, in principle at least, in measuring the other side of
the equation – the cost burden of precaution.
Bolton v. Stone [1951] HL REJECTION OF HAND FORMULA
Facts: Stray ball from a cricket match hit P who received serious injuries and sues for
negligence. The action not successful.
RATIO: In determining if an unreasonable risk was taken, both the likelihood of
damage occurring and the potential severity of injury must be considered. The test is
whether risk of damage to a person on the road is so small that a reasonable person
in the position of the Ds would have thought it right not to take additional steps to
prevent the danger.
The Wagon Mound No. 2 [1966] Privy Council (VALID REASONS)
Facts: D, a large oil buring ship, spilled oil into the wharf where P vessel was being repaired
and because of a third-party spark the ship was damaged by fire.
NEGLECT RISK ONLY FOR “VALID REASONS”: The risk of the oil catching fire would have
been regarded as extremely small. However, a reasonable man would only neglect such a
risk if he had some valid reason for doing so, such as considerable expense to eliminate the
risk. He would weigh the risk against the difficulty of eliminating it.
Latimer v AEC [1953] HL REASONABLE STEPS
Facts: Exceptional rainfall flooded a factory floor. When the water drained the floor was
slippery due to the mixing of water with the oily liquids used in production. Although the
employer spread all available sawdust on the floor there were gaps and an employee fell,
hurting his ankle. He sued for negligence.
RULE: P had to show that a reasonable employer would be likely to have acted
differently than D.
Paris v Stepney Borough Council [1951] English CA ACCEPTANCE OF HAND FORMULA
Facts: P, employed in a garage owned by D, only had the use of one eye, and D knew this.
During his work a chip of mental flew into his functioning eye and he became blind. Prior to
the incident D did not provide goggles.
DECISION: D was not required to supply goggles to all employees, as the risk of blindness
was fairly small. But the expected loss in the case of an employee with only one eye is much
greater. In this situation liability was imposed because costs of prevention were lower than
the loss multiplied by the probability.
CUSTOM/TRADE/PROFESSIONAL STANDARDS
Trimarco v. Klein (1982) New York CA TRADE CUSTOMS
Facts: P suffered severe lacerations from the shattering of a bathtub’s glass enclosure door
in a rental unit leased by D. Since the 1950s these enclosures have been made of glazed
materials and shatterproof glass.
RULE:
(1) When proof of an accepted practice is accompanied by evidence that the
defendant conformed to it, this may establish due care [i.e., no carelessness].
(2) Contrariwise, proof that a customary practice was ignored and that this
departure was a proximate cause of the accident, it may serve to establish
liability.
The T.J. Hooper (1932) 2d Cir. (EXCEPTION)
Facts: Barges towed by tugs were caught in a storm and consequently sank. The tugs were
alleged to be unseaworthy because they did not carry radio receiving sets which they could
have received warnings about changes in the weather. The appeal is dismissed; the tug
owners hold liability
EXCEPTION: When an industry has lagged in the adoption of new and available
devices Courts may say these required and a universal disregard is no excuse for
omission.
ter Neuzen v Korn (1995) SCC PROFESSIONAL STANDARDS
Facts: D physician conducted an artificial insemination procedure that resulted in P
contracting HIV through the infected semen. There was expert evidence at the trial that the
D’s practice was in keeping with the general practices across Canada. Specifically, his
practice of recruitment and screening of donors and semen accorded with the standard
practice across Canada.
RATIO: Where a procedure involves difficult or uncertain questions of medical treatment or
complex, scientific or highly technical matters that are beyond the ordinary experience and
understanding of a judge or jury, it will not be open to find a standard medical practice
negligence.
EXCEPTION: If the standard practice fails to adopt obvious and reasonable precautions that
are readily apparent to the ordinary finder of fact, then there is no excuse for a practitioner.
Walker Estate v York Finch General Hospital (2001) SCC (EXCEPTION)
Notes: The hospital’s screening procedures were inadequate: the message conveyed by the
pamphlet was insufficient to deter those at high risk of having the HIV virus from donating
blood. This fell outside the domain of medical experts.
STATUTES SETTING STANDARDS
Economic analysis of law treats common law fields, especially tort law, as forms of
regulation (based on the deterrent effect of the threat of liability).
To some extent tort law and regulation reflect two different approaches to dealing with
social problems.
(1) Public versus private (who brings the claim)
(2) Ex ante versus ex post (regulation sets standards in advance, tort generally waits
for damage to happen then awards damages – injunction an exception)
(3) Expert-based versus common-sense based
(4) Rules versus standards (regulations are specific, tort is general)
Posner, Economics, Politics, and the Reading of Statutes and the Constitution (1982)
o
o
PUBLIC INTEREST THEORY: Function of legislation to increase economic welfare
by correcting market failures such as crime and pollution.
INTEREST GROUP THEORY: Legislation is a good demanded and supplied much as
other goods. The determinate of the net benefit of legislative protection to a group is
the cost of organizing effective political action.
ISSUES RELEVANT TO TORT LAW
(a) Legislative Intent: The relevance of the standard to the case at hand: whether P
claiming the benefit of the statute was one of the people whom the legislature was
trying to protect
(b) Technical Invalidity (Littley v. Brooks): A technical defect invalidates a statute,
should the court nonetheless give it weight in a case involving the same subject
matter?
(c) Tortious Acts Outside the Legislative Purpose (Gorris v. Scott): How far should
liability extend past outside the scope of risk considered by the statute?
(d) Federal Standards in Provincial Courts (Littley v. Brooks): Should courts rely on
federal law in areas strictly under provincial jurisdiction and vice versa?
(e) Additional Tort Remedies (Bhadauria): In deciding whether a statute creates a
private cause of action for those injured by its violation, courts frequently ask
whether the statute creates an adequate set of public remedies for its violation.
Littley v. Brooks (1930) SCC
Facts: Ps, the widow and son of the deceased, sued D train company whose train collided
with the deceased’s car at a crossing, killing him and three children. Ps pointed to the 1917
order of the Ontario Railway and Municipal Board restricting the speed of trains at
crossings to 5 mph. However, D was a federal company and governed exclusively by federal
regulations.
RATIO: Relevant but inapplicable statutes may provide evidence when establishing
liability. While the Court rejected the idea that the company was bound by the order, it was
accepted as evidence that the crossing was dangerous and it was not unreasonable to
require the precaution be taken.
Chipchase v. British Titan Products, [1956] QB
Facts: P was painting a factory on a thin wooden plank when he fell and injured himself. He
sued his employers at common law. Had P been working slightly higher off the ground
Building Regulations required a wider plank. He was working 6-feet off the ground and
argued he was nearly within the regulations.
INCONSISTENT WITH BROOKS: Undue complications would be brought into cases if,
whenever the courts were considering common law obligations they had to consider all the
statutory regulations which nearly apply.
The Queen v. Saskatchewan Wheat Pool (1983), Supreme Court of Canada
Facts: When grain is shipped, the practice was to test visually for insect infestation and
10% of shipments received more rigorous test (results took 2-3 days and grain would
already be shipped by the time results come in). For one shipment a test showed an
infestation of beetle larvae. Statute said D could ship infested wheat.
Issue: Where A has breached a statutory duty causing injury to B, does B have a civil cause
of action against A? If so, is A’s liability absolute (it exists independently from fault)?
ROLE OF STATUTES IN TORT LAW
o Independent Tort “Breach of Statutory Duty” (England)
o An Element of the Tort of Negligence
o Negligence (carelessness) per se, not rebuttable (America)
o Evidence of Carelessness (Canada)
RULE: Statutory breach is mere evidence of negligence; it is not determinative.
Board of Governors of Seneca College v. Bhadauria (1981) SCC
Facts: P a highly qualified mathematics teacher form India whose 10 applications for
employment were rejected by D college. The positions were filled non-Indian individuals
with lower qualifications. She claimed discrimination pursuant to the Ontario Human Rights
Code and damages for being deprived of teaching opportunities
STATUTES NOT A GATEWAY TO NEW TORTS: The claim fails. The Code is comprehensive
in its administrative and adjudicative features, the latter including a wide right of appeal to
the Courts on both fact and law. It is one thing to apply a common law duty of care to
standards of behaviour under a statute; it is quite different to create an obligation
Retail Wholesale & Department Store Union v. Dolphin Delivery (1987) SCC (CHARTER)
THE CHARTER AND PRIVATE LAW: Where private party A sues private party B relying on
the common law and where no act of government is relied upon to support the action, the
Charter will not apply. However, the judiciary will apply and develop the principles of
the common law in a manner consistent with the fundamental values enshrined in
the Constitution.
PROOF OF NEGLIGENCE
Prosser, The Law of Torts (1971)
Evidentiary Burden: Before any duty, or any standard of conduct may be set, there must
first be proof of facts that give rise to it. If the evidence is such that no reasonably intelligent
man would accept it as sufficient to establish the exercise of a fact essential to negligence, it
becomes the duty of the court to remove the issue from the jury.
Existence of a Duty: This is entirely a question of law, to be determined by reference to the
body of statutes, rules, principles and precedents that make up the law; and must be
determined by the court.
Burden of Proof: In civil cases, unlike criminal prosecutions, the burden of proof does not
require that the jury be convinced beyond a reasonable doubt, but only that they be
persuaded on a balance of probabilities. The burden of proof of the defendant’s negligence
is on the plaintiff.
Byrne v Boadle (1863) Court of Exchequer (RES IPSA LOQUITUR)
Facts: A barrel of flour fell from the window above D’s house and shop and knocked the
plaintiff down. D submitted that there was no evidence of negligence for the jury. P was
unconscious and all evidence came from witnesses.
RES IPSA LOQUITUR: When an accident occurs in circumstances in which P cannot prove
the carelessness of the other party, but which (a) D owes P duty of care; (b) D was in control
of the situation/object that led to the injury, and (c) the accident is one that in the ordinary
course of events does not happen unless there was carelessness.
Fontaine v British Columbia (Official Administrator) [1998] SCC CANADIAN EDITION
Facts: P claimed damages under the Family Compensation Act with respect to the death of
her husband who died after his friend’s vehicle tumbled down a rock-covered embankment
and was swept downstream. The trial judge rejected P’s contention that the vehicle leaving
the highway was prima facie evidence of the driver’s negligence.
Notes: For res ipsa loquitur to arise, the circumstances of the occurrence must permit an
inference of negligence attributable to D. The strength or weakness of that inference will
depend on the factual circumstances of the case.
RATIO: The invocation of res ipsa loquitur does not shift the burden of proof to the
defendant. Rather, it means that circumstantial evidence constitutes reasonable
evidence of negligence.
CRITICISM OF THE DOCTRINE: It was nothing more than an attempt to deal with
circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who
should weigh the circumstantial evidence with the direct evidence, to determine whether
the plaintiff has established on a balance of probabilities a prima facie case of negligence.
CAUSATION: THE “BUT FOR” RULE
Barnett v Chelsea & Kensington Hospital Management Committee [1968]
Facts: P is the widow of the deceased and the administrator of his estate. The deceased a
night watchman who died from arsenic laced tea. The doctor who was informed about the
deceased’s vomiting refused to see him (and the other two individuals who were vomiting
from the same tea).
RULE: A caused B’s injury if but for A’s (careless) act [or if there is a duty to act
careless omission] B would not have suffered the injury.
Decision: Even if the doctor had received the deceased, the chances of survival were so low
that P failed to establish, on the grounds of probability, that the D’s negligence caused the
death of the deceased. Therefore, is not present and the suit fails.
Wright, Causation in Tort Law (1985)
Article argues for NESS (necessary element of a sufficient set) test for cause in fact. Under
the test, a particular condition is the cause of a specific consequence if and only if it was a
necessary element of a set of actual conditions that logically proceed and are sufficient for
the occurrence of the consequence.
In a hypothetical pollution case where seven defendant’s discharged 1 unit of pollution,
contributing to the 5 units necessary for injury, the NESS confirms that each defendant’s
pollution contributed to the injury, even though it was neither necessary or independently
sufficient for the injury
Walker Estate v York Finch General Hospital, [2001] 1 SCR 647
Facts: P, the estate of an AIDS victim, sued the Canadian Red Cross Society (CRCS) for
inadequately screening donors. CRSC’s questionnaire did not include an identification of
AIDS and high-risk groups, the American Red Cross (ARC) did.
MODIFIED “BUT FOR” TEST: The proper test for causation in negligent donor screening
cases is whether D’s negligence materially contributed to P’s harm. Even using the strict
but-for test, which is not required in these types of cases, causation is proved on the facts.
(1) THE MEANING OF THE “BUT FOR” RULE AND ITS IMPLICATIONS
Athey v Leonati (1996)
Facts: P suffered back injuries in two successive motor vehicle accidents, and soon after
experienced a disc herniation during a mild stretching exercise. The herniation was caused
by a combination of the injuries sustained in the two motor vehicle accidents and a preexisting condition.
Issue: Whether tortfeasors who contributed to injury caused by a combination caused by a
combination of pre-existing disposition and negligence should be liable for all the harm
DECISION: Yes. If the law permitted apportionment between tortious causes and nontortious causes defendants could frequently identify non-tortious contributing causes and
plaintiffs would rarely receive full compensation. Joint and several liability.
Corey v Havener (1902) Massachusetts SC (OVERLIABILITY)
Notes: Two Ds were found guilty after they rode their motorized vehicles on either side of
P’s horse and frightening the animal causing P injuries.
RATIO: Both Ds were wrongdoers and each contributed to the injury enough to bind
them. P is entitled to judgment against each for the whole amount.
Lambton v Mellish [1894]
Facts: P leased a house adjoining a public park. Ds, two refreshment contractors, separated
by a railway line, played music continuously between 10AM and 6PM; as a result of this
nuisance P brought an action to obtain an injunction.
Decision: The Court did not agree: “Each of the men is making a noise and each is adding
his quantum until the whole constitutes a nuisance. Each hears the other, and is adding to
the sum which makes up the nuisance.”
RATIO: If the acts of two persons, each being aware of what the other is doing, amount
in the aggregate to what is an actionable wrong, each is amenable to the remedy
against the aggregate cause of complaint.
Dillon v Twin State Gas (1932)
Facts: The deceased leaned over a girder and fell. While he was entitled to no protection
from D for falling, there is a potential liability in the exposure to charged wires. If but for the
current in the wires he would have fallen down on the floor of the bridge or into the river,
he would without doubt have been either killed or seriously injured.
DECISION: Although he died from electrocution, if he was bound to have died shortly after
from the fall D would not be liable, expect for conscious suffering found to have been
sustained from the shock.
RATIO:
o If you are “damaged” when the second event occurs, the second event only caused
the additional deterioration in your situation (an compensation should be reduced
accordingly.
o If you are already “virtually damaged” when the harm occurs, your compensation
should be similarly limited to the additional deterioration in your situation.
Sunrise Co Ltd et al v. Ship “Lake Winnipeg” (1991) SCC SEQUENTIAL EVENTS
Facts: The Kalliopi went aground in the St. Lawrence twice, the first incident was caused by
the D’s negligence and the second was innocent. The time in dry dock necessitated by
damage repairs for both incidents was 27 days. The dry dock repairs for the first incident
would also have been 27 days. Repairs relating to the second required 13 days.
MAJORITY (L’HEUREUX DUBE): If the first casualty directly prevented the ship from its
profit-making for the length of the period of any repairs resulting from any other cause (the
second incident) the detention and dry-docking expenses fall upon the party responsible for
the first incident. Defendant is liable for everything (27 days).
DISSENT (PRO RATA APPORTIONMENT) Where repairs have been executed
simultaneously with repairs as to which the owner is uninsured, and an expense has been
incurred would have been necessary for wither purpose alone, such expense is not wholly
attributed to one set of repairs alone, but forms a factor in the cost of each, and must
therefore be divided between them in some proportion, which prima facie would be equally.
Baker v. Willoughby [1970] HL
Facts: P suffered a severe injury to his leg and ankle because of D’s negligent driving.
Subsequently P was shot in the leg during a robbery and it was amputated. Claim only
against the first tortfeasor (the other had gone bankrupt).
Decision: The House of Lords held that the actions of D and the robber were concurrent
causes of loss of income and that therefore D has to compensate P for the losses.
Jobling v Associated Dairy [1982] (IMPLICATIONS FOR LIABILITY)
Facts: D’s negligence caused P to suffer a back injury that incapacitated him for any but
light work. Subsequently P was found to be suffering from an unrelated spinal disease that
resulted in total incapacity from work.
RATIO: The compensation should start from an assessment of the total loss. The award
against the second tortfeasor cannot in fairness fail to recognize that P was already to
some extent incapacitated.
IMPLICATIONS OF CASES ON THE SCOPE OF LIABILITY:
First event innocent, second event tortious: thin skull + crumbling skull
(1) First event tortious, second event innocent: Negligent party is deemed to have
caused only the first harm and has liability only for its share – (a) all harm in
intervening period, (b) the “extra” for the later period.
(2) Both tortious: both are liable, the question of apportionment remains to be
discussed
Reynolds v. Texas & Pacific Railway Co (1885) Louisiana SC (CAUSATION AND POLICY)
Facts: P and her family purchased tickets to ride on the railway. The train reached the
station at 2am. To get to the train passengers had to walk down stairwell with inadequate
lighting. The train company rushed them to the waiting train and (250lb) P fell and was
seriously injured.
RATIO: Where the negligence of D greatly multiplies the chances of an accident, and is of
the character naturally leading to its occurrence, the mere possibility that it might have
happened without the negligence is not sufficient to break the chain of cause and effect.
Courts in such matters consider the natural and ordinary course of events and do not
indulge in fanciful suppositions
FACTUAL UNCERTAINTY
Sometimes, even with the best available evidence, there is still an evidentiary gap, and the
courts need to decide who should suffer from this this factual uncertainty (burden of
persuasion)
Blackstock v Foster [1958]
Facts: P was sitting in a stationary car when D drove into it causing P to be thrown forward
into steering wheel. Since the accident it had been discovered that P has an inoperative
malignant growth under his ribs.
Factual Uncertainty: whether the tumor was caused by accident or happened regardless of
accident (uncertainty of whether harm is the result of tort [careless], or caused naturally)
THE TRADITIONAL APPROACH: P must prove that loss was caused by the D’s act;
therefore in this case there is no liability for tumor (50:50 = P loses).
Cook v Lewis [1951]
Facts: Ds, part of a party hunting grouse, simultaneously fired their rifles and one bullet hit
P in the face, causing him to lose an eye.
UNCERTAINTY REGARDING THE INJURER: which D fired the shot that caused P’s injuries
(uncertainty regarding the person who caused the loss).
SHIFT IN THE BURDEN OF PROOF: In a scenario where the one of two negligent parties is
the injurer the onus is shifted to the wrongdoers to exculpate themselves. If they are unable
to decide which is the guilty party both defendants should be found liable.
Sindell v. Abbott Laboratories et al. (1980) California SC (MARKET SHARE LIABILITY)
Facts: P brought action against D drug companies, alleging that the latter negligently
promoted and administered the drug DES to the her mother during pregnancy. Although Ds
knew or should have known that DES was carcinogenic and could be gravely dangerous to
unborn daughters of the mothers who took it, they failed warn of the potential danger.
Factual Uncertainty: P knows the type of drug, but cannot identify the manufacturer
MARKET SHARE LIABILITY: As between an innocent Pand negligence Ds, the latter should
bear the cost of the injury. Each D will be held liable for the proportion of the judgment
represented by its share of that market unless it demonstrates that it could not have
made the product that caused plaintiff’s injuries.
Holtby v Brigham & Cowan (Hull) [2000] English CA (TIME SHARE LIABILITY)
Facts: P was exposed to asbestos during employment with several employers including 21
years with D, other times with other employers for periods of months to five years.
Contracts asbestosis.
Factual Uncertainty: What is the relative contribution of D to P’s illness (uncertainty
regarding the relative contribution to the injury).
“TIME SHARE” LIABILITY: English CA held that in such a case we can have what may be
called “time share” liability: liability will be imposed on D according to the amount of time P
was exposed to careless risk at the hands of D (Again, several liability, not joint and several
liability).
UNCERTAINTY ABOUT IDENTITY OF INJURER: SUMMARY
Ps will not always succeed; HOWEVER:
o Since in these cases our assumption is that the defendants were careless, courts are
likely to be less sympathetic to them
o As a result the various doctrinal solutions considered (market share liability, time
share liability, shift in burden of proof, evidential damage) operate to shift the risk
of fact-finding error to the defendants
McGhee v National Coal Board [1972] HL (INDUSTRIAL DISEASE)
Facts: Ds employed P as a worker in their brickworks. After working in dusty brick kilns the
appellant suffered from dermatitis. He sued the respondents for damages alleging breaches
on their part of common law duty to provide adequate washing facilities.
Notes: In cases like this we must take a broader view of causation. The medical evidence is
to the effect that the fact that the man had to cycle home caked with grime and sweat added
materially to the risk that this disease might develop.
INDUSTRIAL DISEASE:
(a) When it is proved on a balance of probabilities that an employer has been negligent;
(b) that his negligence has materially increased the risk of his employee contracting an
industrial disease;
(c) and an employee if he contracts the disease
(d) He is liable (HOWEVER, the employer is not responsible for the other factors which
have materially contributed to the disease).
Fairchild v Glenhaven Funeral Service [2002] HL (FAIRCHILD RULE)
Facts: Ps suffered from mesothelioma as a result of the negligence of either or both of two
employers, but could not prove which of them had been the factual cause of the condition.
Mesothelioma, unlike asbestosis does not develop incrementally.
Where conditions 1-6 are satisfied C is entitled to recover from both A and B:
1) C employed for differing periods of time by both A and B
2) A and B were both subject of a duty to take reasonable care or to take all predictable
measures to prevent C inhaling asbestos dust
3) Both A and B were in breach of duty in relation to C during C’s employment
4) C is suffering from mesothelioma
5) Any cause of C’s mesothelioma of than inhalation at work can be discounted
6) C cannot prove on a balance of probabilities the employer where he contracted
mesothelioma
FAIRCHILD EXCEPTION: Ds whose breaches of their duty of care 'materially increase the
risk' of mesothelioma are jointly and severally liable for the damage suffered if
mesothelioma does in fact develop. This rule relaxes the usual requirement that a
claimant must show that it is more likely than not that the harm he has suffered has
been caused by the defendant's breach.
CANADIAN JURISPRUDENCE: FACTUAL UNCERTAINTY (MORE PLAINTIFF-FRIENDLY)
Farrell v Snell [1990] SCC
Facts: P underwent a medical procedure on her right eye. D is careless, operating when he
should not have, and P suffered complications leading to a loss of sight. Expert witnesses
uncertain as to what caused the loss of sight.
Issue: Whether a P in a malpractice suit must prove causation in accordance with
traditional principles or whether developments in the law justify a finding of liability on the
basis of some less onerous standard
REASONABLE INFERENCE: The ultimate burden of proof lies with P, but in the absence of
evidence to the contrary, an inference may be drawn where scientific or expert evidence
cannot establish a probable connection between D’s negligence and P’s injury, the court
may draw a reasonable inference on causation.
Application: In these circumstances, it was open to the trial judge to draw the inference
that the injury was caused by the [doctor’s negligence].
Resurfice v Hanke [2007] 1 SCR 333 (SUMMARY OF CASUATION)
SUMMARY OF THE TEST OF CAUSATION FOR NEGLIGENCE CASES
GENERAL RULE: the basic test for determining causation remains the “but for” test. This
applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the
negligent act or omission of each defendant, the injury would not have occurred.
EXCEPTIONS:
(1) “MATERIAL CONTRIBUTION” TEST: When the following two requirements are
satisfied, liability may be imposed, as a strict interpretation of the “but for” test
would offend basic notions of fairness [Example: Cook v Lewis]
(2) IMPOSSIBLE TO VERIFY WITH CERTAINTY: It is impossible to prove what a
particular person in the causal chain would have done had D not committed a
negligent act or omission, thus breaking the “but for” chain of causation (i.e. in
Walker Estate v York Finch Hospital it could be used where it was impossible to
prove the donor with tainted blood would not have given blood if the defendant had
properly warned him).
Gregg v Scott [2005] 2 AC 176 (HL)
Facts: D negligently diagnosed a lump under the claimant’s arm, leading to a 9-month delay
and deterioration in the claimant’s chances of survival from 42% to 25% at the date of trial.
NO “LOSS OF CHANCE” CLAIMS: The complexities of attempting to introduce liability
for the loss of a chance of a more favourable outcome in personal injury claims drove
the Court to conclude that it should not be done.
Kaminsky v Hertz Corp (1979)
Facts: P was injured by ice that flew off the top of a passing truck. The truck bore the
distinctive yellow colour and the logo of D’s rental vehicles. As D did not own 10% of the
trucks bearing this colour and logo, the trial court granted summary judgment to D. The
Court of Appeal reversed:
PRIMA FACIE OWNERSHIP: The Hertz colour scheme and logo establish a prima facie
showing of ownership or control sufficient to prevent summary judgment. While the named
firm may introduce evidence indicating lack of control or ownership these are for the jury to
evaluate in light of surrounding circumstances.
Clements v. Clements (2012) SCC (MATERIAL CONTRIBUTION TEST)
Facts: The parties (Mr. and Mrs. Clements) were en route to visit their daughter on a
motorbike in wet conditions with the bike 100 lbs. overloaded. A nail punctured the bike’s
rear tire. When he passed another car it fell out the tire deflated and the bike crashed. Mrs.
Clements suffered a severe brain injury and is suing Mr. Clements by his negligence in the
operation of the bike.
CLARIFICATION OF THE MATERIAL CONTRIBUTION TEST:
o “BUT FOR” THE GENERAL RULE: causation test must be applied in a robust
common sense fashion. P must establish on a balance of probabilities that D caused
P’s injury on the “but for” test. This is a factual determination.
o MATERIAL CONTRIBUTION A RARE EXCEPTION: courts have accepted that a P
may be able to recover on the basis of a “material contribution to risk of injury”,
without showing factual “but for” causation.
o DRIVEN BY POLICY CONCERNS: It is a policy-driven rule of law designed to permit
Ps to recover in such cases desire their failure to prove causation (Ps are permitted
to “jump the evidentiary gap”).
WHEN THE MATERIAL CONTRIBUTION TEST IS USED
It is impossible for P to prove that the defendant’s negligence caused P’s injury using the
“but for” test:
(a) There are two or more tortfeasors
(b) All are at fault and one or more has in fact caused P’s injury
(c) P would not have been injured “but for” their negligence, viewed globally
(d) As they can blame one another, it is impossible for P to show any one of them
caused the injury
REMOTENESS (LEGAL CAUSE/PROXIMATE CAUSE)
RELATIONSHIP BETWEEN REMOTENESS AND DUTY OF CARE
Wright, Cases on the Law of Torts (1967)
As negligent conduct is conduct that creates an unreasonable risk, the questions arise, “risk
to whom” and “risk of what”?
o When a question arises concerning the person or persons who may be considered
within a risk created by D’s conduct, courts have tended to use the concept of “duty”.
o When one passes from the persons within the risk to the ways in which a risk may
culminate in harm, or the interests which may be invaded by conduct courts use
concepts of “proximate cause” and “remoteness”
Duty is thought of best as a general requirement regarding general categories, while
remoteness deals with particulars and is fact-based. For example, in Mustapha the duty of
care was the Donoghue duty of manufacturers to consumers. The remoteness question
applied to his situation and whether his suffering was foreseeable.
JOINT AND SEVERAL LIABILITY
Kingston v Chicago and North West Railway (1927)
Facts: Sparks from the defendant’s locomotive started a fire that subsequently merged with
a fire of unknown origin 940 feet from the plaintiff’s property. The united fire bore down
and destroyed the property.
JOINT OR CONCURRENT ACTS: Any one of two or more joint tortfeasors, or one of two
or more wrongdoers whose concurring acts of negligence result in injury, are each
individually responsible for the entire damage resulting from joint or concurrent acts
of negligence.
o While a wrongdoer may escape liability for damage that would have occurred in the
absence of his wrongful act, liability is imposed where two causes, each attributable
to the negligence of a person, concur in producing an injury to another, either of
which causes would produce it regardless of the other.
o This is because it is impossible to apportion the damage and to permit each of two
wrongdoers to plead the wrong of the other as a defence of his own wrongdoing
would permit both wrongdoers to escape and penalize the innocent party who has
been damaged.
Athey v Leonati (1996) SCC (APPORTIONMENT OF TORTIOUS/NON-TORTIOUS)
NOTES: If the law permitted apportionment between tortious causes and non-tortious
causes, a P could recover 100% of his or her loss only when the D’s negligence was the sole
cause of the injuries. Since most events are complex Ds could frequently identify nontortious contributing causes and Ps would rarely receive full compensation.
THE “TEST”
Re Polemis v. Furness, Withy & Co [1921] KB
Facts: P ship-owners chartered a steamship to D who used the ship to transport petrol. Due
to rough weather petrol vapour was release below deck. A labourer employed by D to
unload the ship knocked a plank into the hold starting an explosion that destroyed the ship.
D claimed the damages claimed by the owners of the ship were too remote.
THE DIRECTNESS RULE: Once liability has been established (on the basis of foreseeability)
one is liable for all harms (whether foreseeable or not) so long as they are “directly
traceable to the negligent act”, even if the harm that materializes is different in kind and
itself unforeseeable from the harm that was foreseen.
The Wagon Mound, No.1 [1961] Privy Council (FORESEEABILITY)
Facts: Ps are shipbuilders who owned and operated a timber wharf. A vessel, the Corrimal,
was moored along the wharf being refitted using welding equipment. The Wagon Mound, an
oil burning ship was moored six hundred feet away. A large amount of oil was carelessly
spilled into the bay by the ship and Ds made no attempt to disperse it. The oil ignited and
caused significant damage to the wharf and the Corrimal.
OVERRULED THE DIRECTNESS RULE: Polemis should no longer be considered good law,
the directness rule does not agree with current ideas of justice. A man should only be
considered responsible for the probable consequences of his act.
NEW RULE: FORESEEABILITY: The essential factor in determining liability is whether
the damage is of the kind as the reasonable man should have foreseen.
The Wagon Mound No. 2 [1966] Privy Council
RATIO: The risk of the oil catching fire would have been regarded as extremely small. But, it
does not follow that, no matter what the circumstances may be, it is justifiable to neglect a
risk of such a small magnitude. A reasonable man would only neglect such a risk if he had
some valid reason for doing so (that it would involve considerable expense to eliminate the
risk). He would weigh the risk against the difficulty of eliminating it.
Dulieu v. White & Sons [1901] KB (THE THINK SKULL)
RATIO: If a man is negligently injured in his body, it is no answer to the sufferer’s
claim for damages that he would have suffered less injury, or no injury at all, if he had
not had an unusually thin skull or an unusually weak heart.
Smith v. Leech Brain & Co., Ltd [1962] QB (TYPE OF HARM)
Facts: P is the widow of the deceased, an employee of the D’s firm (galvanizers at an iron
works). On the premises there was a tank of molten metal. Although some protection was
provided it was not within industry standards and the deceased received a cut on his lip
from spitting molten metal. Although the cut was treated it subsequently ulcerated, became
cancerous and caused death
TYPE OF HARM: Ds do not need to reasonably foresee the amount of damage caused by the
injury, only the type of injury that is suffered (the burn). What in the particular case is the
amount of damage depends [as per the Thin Skull Rule] on the characteristics and
constitution of the victim.
Stephenson v. Waite Tileman Limited [1973] NEW ZEALAND CA
Facts: P, employed by the respondent as a steeplejack, injured when a wire broke and
slashed the back of his hand. The hand swelled and the appellant developed a fever,
eventually becoming chronically infirm. Action deals with D’s negligence in allowing the
wire to be in dangerous condition
NEW RISKS: In cases of damage by physical injury to the person there is liability for the
consequences flowing from the pre-existing special susceptibility of the victim and/or from
a new risk or susceptibility created by the initial injury
Athey v. Leonati (1996) SCC (CRUMBLING SKULL RULE)
CRUMBLING SKULL RULE: The pre-existing condition was inherent in the P’s “original
position.” The D is liable for additional damage, but not pre-existing damage. If there is a
measurable risk that the pre-existing condition would have detrimentally affected
the P in the future, regardless of the D’s negligence, this can reduce the overall award.
Cotic v. Gray (1981) ONCA (THINK SKULL + MENTAL ILLNESS)
Facts: P’s husband suffered a series of serious injuries in a car accident caused by the D’s
negligence. Prior to the accident the husband suffered from severe depression. After the
accident his condition worsened and he committed suicide. The D denied liability for the
death as the suicide was unforeseeable.
THE THIN SKULL RULE APPLIES TO MENTAL ILLNESSES: The claim that the suicide
broke the chain of causation ought to be rejected, not because the suicide was the
foreseeable or natural consequence of the D’s act but rather because ascribing independent
causal significance to the victim’s peculiar vulnerability would thwart the policy forwarded
by the “thin-skull” principle.
REMOTENESS IN ACTION
Hughes v. Lord Advocate [1963] HL
Facts: D Post Office employees, working on telephone cables, uncovered two manholes and
put up canvas shelters around them. Ps (aged 8) and his 10-year-old uncle entered the
shelter and while exploring the manhole a lamp was knocked over and Ps suffered burns.
DECISION: It is sufficient if the accident that occurred is of the type (burning) that should
have been foreseen by a reasonably careful person. The precise concentration of
circumstances need not be envisaged.
Doughty v. Turner Manufacturing Co., Ltd. [1964] 1 QB 518 (CA) PROBLEMATIC
Facts: D factory owners used cauldrons with asbestos cement covers to heat metal parts. No
one knew that if the covers were immersed in the cauldron’s molten liquid erupt. P
(employee) was standing next to a cauldron when it erupted and suffered personal injuries.
P sued for negligence.
DECISION: The Court distinguishes this case from Hughes, “in the present case D’s duty
owed to P in relation to the only foreseeable risk, that is of splashing… it is not clear
whether the dropping of the cover on to the liquid caused any splash at all. The case shows
the Court’s description of the risks is important and will have a clear impact on the
way the harm is treated.
Palsgraf v Long Island Railroad Co (1928) New York CA
NOTES: Harm to passenger with the package was foreseeable, but not harm to the plaintiff
and it was the plaintiff that was injured.
o Andrews: “transferred” liability
o Cardozo: duty of care cannot be transferred
o Midway position? Expanding the domain of remoteness to the creation of risk
Jolley v. Sutton London Borough Council, [2000] 3 All ER 409 (HL) (SCOPE OF RISK)
Facts: D failed to remove an abandoned boat that appeared to be in sound condition, but
was rotten. The teenage P and a friend jacked the boat up and were in the process of
repairing it when it fell and caused serious injuries.
Application: The Court determined that the actual injury fell within the description of risk
and the found for P.
SCOPE OF RISK APPROACH: D admitted that they should have removed the boat (risk
children would suffer minor injuries from the rotten planks). The concession shows that if
there were a wider risk, the council would incur no additional expense to eliminate it.
Therefore, the wider risk would also fall within the scope of the council’s duty unless it was
different in kind from that which should have been foreseen.
Home Office v. Dorset Yacht Co. Ltd. [1970] HL
Facts: Several young offenders, “borstal trainees” escaped from their residence during the
night and went aboard a yacht. They set the yacht in motion and it collided with the
respondent’s yacht causing significant damage.
REID: PRINCIPAL OF GENERAL APPLICABILITY: The time has come when we can and
should say that Lord Atkin’s general principle ought to apply unless there is some
justification or valid explanation for its exclusion. Here the ground of liability is the
carelessness of these officers in knowledge that their carelessness would probably result in
the trainees causing damage of this kind.
DIPLOCK: DUTY OF CARE: The judicial development of the law of negligence proceeds in
two parts. Look at the relationships that exist in the case and see how they correspond with
relationships that have previously given rise to duty-of-care. Any duty of a borstal officer to
use reasonable care to prevent a trainee from escaping from his custody was owed only to
persons whom he could reasonably foresee had properly situate in the vicinity of the place
of detention of the detainee which the detainee was likely to steal or to appropriate and
damage in the course of eluding immediate pursuit and recapture.
DILHORNE: TRADITIONAL VIEW: If the foreseeability test is applied to determine whom
the duty is owed, there is no logical ground for excluding liability to persons who suffer
injury or loss, no matter how far they or their property may be from the place of escape if
the loss or injury was of a character reasonably foreseeable as a consequence of failure to
take proper care to prevent the escape.
Lamb v. London Borough of Camden [1981] QB (POLICY ARGUMENT)
Facts: Mrs. Lamb an absentee landlord living in New York. A sewer main replacement broke
a water main that washed the soil from the foundations of the house. The house became
unsafe to live in and the tenant moved out. Squatters ended the house and did significant
damage. Is the local council liable for the damage caused by the squatters?
DENNING (POLICY, CHEAPEST COST AVOIDER): Duty, remoteness and causation, are all
devices by which the courts limit the range of liability for negligence or nuisance. All these
devices are useful in their way, but ultimately it is a question of policy for judges to decide.
Rule/Application: Looking at the question of as one of policy, I ask myself: whose job was
it to do something to keep out the squatters, and if they got in, to evict them? To my mind
the answer is clear. It was to job of the owner of the house.
Notes: On broader grounds of policy: the criminal acts here, malicious damage and theft, are
usually covered by insurance and the loss is spread throughout the community. So, if Mrs.
Lamb was insured against damage the insurers should pay the loss. If she was not insured,
that is her misfortune.
WATKINS (INTUITION): A robust and sensible approach to the area of remoteness will
more than often produce an instinctive feeling that the event or act being weighed in the
balance is too remote to sound in damages for the plaintiff.
Application: I have an instinctive feeling that the squatter’s damage is too remote.
NOVUS ACTUS INTERVENIES
TWO TYPES
(1) To what extent is A liable to B for his or her careless behaviour that did not by
itself (directly) cause harm, but started a chain of events [enabled] in which
C’s actions caused harm to B?
(2) To what extent is A liable to B, whom he or she negligently harmed, for an
aggravation of the harm caused by C?
If we conclude the chain has been broken:
(1) [Dorset Yacht] Defendant is liable for harms caused by the acts of another. That
other person may be liable as well for that harm. Liability is joint and several.
(2) D is liable for first harm; assuming the second harm is divisible they are also liable
for the second harm; the person causing the second harm may be liable for the
second harm only
If we conclude that the chain has been broken:
(1) [Bradford v. Kanellos] First careless defendant is not liable
(2) Each defendant is liable for the harm it caused
Bradford v. Kanellos (1973) SCC Type 1: NO
Facts: Ps, husband and wife, were customers in the D’s restaurant. While eating, flash fire
occurred, the grill’s automatic fire extinguisher discharged carbon dioxide to extinguish the
fire. The extinguisher’s hissing sound made a customer yell there was a gas leak and P was
injured as people ran out of the restaurant.
Decision: P’s injuries resulted from the hysterical conduct of a customer. This consequence
is not fairly to be regarded as within the risk created by D’s negligence in permitting an
undue quantity of grease to accumulate on the grill.
Dissent: The person who shouted the warning of what they were certain was an impending
explosion was not negligent. They acted in a very human way and usual way and that their
actions were utterly foreseeable and were part of the natural consequence of events leading
to the P’s injury.
Home Office v. Dorset Yacht Co. Ltd. [1970] HL Type 1: YES
NOVUS ACTUS INTERVENIENS: Where human action forms one of the links between
the original wrongdoing of the defendant and the loss suffered by the plaintiff, that
action must at least have been something very likely to happen if it is not to be
regarded as novus actus interveniens breaking the chain of causation.
Lamb v. London Borough of Camden [1981] QB Type 2: NO
SUBSEQUENT INTENTIONAL ACT: The factor in the dismissed of Mrs. Lamb’s case was
the similarity in the type of harm; water damage from the pipe bursting, and the
destructive habitation of the squatters
Cotic v. Gray (1981) ONCA
SUBSEQUENT INTENTIONAL ACT: The way the subsequent events occurred, while
unusual were within the scope of risk (suicide).
Clay v. A.J. Crump & Sons Ltd. [1964] QB Type 2: YES
Facts: a garage owner hired the D architect and demolition contractors to redevelopment of
his property. The owner asked the architect to keep a particular wall standing. The wall
collapsed on a shelter for building contractors killing two and injuring P.
“INTERVENING” OMISSION: A creates a risk, which B has an opportunity and a duty to
eliminate; B fails to do so and C is injured as a result. A cannot claim break in the chain of
causation:
o
o
The class of persons to whom a duty was owed was not affected by the fact that
other persons had ample opportunity to inspect the way.
The fact that the building contractors had the last opportunity of examination
did not break the chain of causation.
DEFENCES
CONTRIBUTORY NEGLIGENCE
Butterfield v. Forrester (1809), KB TRADITIONAL APPROACH (NO LIABILITY)
Facts: P, riding down the road on his horse, was thrown off the saddle and suffered serious
injuries. The horse had tripped on a pole on the road that was left as a result of house
repairs. A witness at the scene claimed P would have avoided the obstruction had he been
riding at a reasonable speed.
Decision: If P had used ordinary care he would have seen the obstruction. As a result, the
accident appear to happen entirely from his own fault.
RATIO: No liability when the plaintiff was in part to blame for his or her injury.
Froom v. Butcher [1975] English CA
Facts: P was driving home with his family. Neither he nor his wife had a seatbelt on. He was
driving at normal speed and was hit head on by a driver in the opposite lane. The other
driver was charged with careless driving. P suffered a series of injuries, all of which (save a
broken finger) would have been prevented if he was wearing a seatbelt.
DAMANGES REDUCED: In an accident, the negligent driver must bear a far greater share of
liability. But insofar as the damage might have been avoided or lessened by wearing a seat
belt, the injured person must bear a share. In cases where the damage would have been
prevented altogether by a seat belt, damages should be reduced by 25%.
FAILURE TO USE SAFETY DEVICES: a plaintiff’s failure to use safety devices can be used in
a claim of contributory negligence.
Atiyah, Accidents, Compensation and the Law (1993)
A finding of contributory negligence as a very different effect from a finding of negligence: a
finding of negligence shifts a loss away from the plaintiff, and spreads it by means of
insurance or other processes, whereas a finding of contributory negligence leaves part or all
the loss on the plaintiff. Thus, contributory negligence falls much more heavily on the
plaintiff than negligence falls on the defendant.
The doctrine of contributory negligence is no longer needed to spare an individual
defendant the injustice of being made to compensate a plaintiff who was partly responsible
for his own injuries. It operates now as a penal device: punished through a reduction of
damages.
Ingles v. Tutkaluk Construction Ltd (2000) SCC (MULTIPLE DEFENDANTS)
MULTIPLE DEFENDANTS: When there are two or more tortfeasors and a P has also been
found negligent, the proper approach to apportionment is to first reduce the extent of the
recoverable damages in proportion with the P’s negligence, and then to apportion the
remaining damages between D in accordance with their fault. This means the division of
liability between D does not affect the scope of contributory negligence of P.
Galaske v. O’Donnell (1994) SCC
SAFETY LEGISLATION: Since 1968 courts in Canada have properly recognized that the
exercise of reasonable care requires occupants of a motor vehicle to wear seat belts. This is
true whether a vehicle is being driven on a highway or in the city, over a long or a short
distance. The cases correctly reflect the dictates of common sense.
VOLUNTARY ASSUMPTION OF RISK (VOLENTI NON FIT INJURIA)
A complete defence when a plaintiff accepts a certain risk. “Officially”, the doctrine applies
to cases of knowing and willing acceptance of risks. In practice an important sub-category
involves what might be called the “idiot defence”.
SCOPE:
 Historically the defence covered cases of “common employment” (an employee
consented to the possible risk associated with co-workers.
 Because of the doctrine’s harsh consequences for plaintiff’s (who are unlikely to be
injured) the courts try to define the doctrine very narrowly (Dube)
 Especially in cases of foolish behaviour courts are much more likely to recognize a
high degree of contributory negligence.
Lambert v. Lastoplex (1971) SCC (SAFETY NOTICES)
Facts: P, an engineer, purchased a can of lacquer sealer to use on a floor in his basement.
The furnace was nearby with a pilot light hidden behind a panel. The sealer was lit on fire
and caused serious burns and property damage. The sealer contained three labels
cautioning the user on its flammability.
SAFETY NOTICES: Where manufactured products are put on the market for ultimate
purchase and use by the general public and carry danger has a duty to specify the attendant
dangers. The cautions on the labels affixed to the container cans of the lacquer lacked the
explicitness that the degree of danger in its use in a gas-serviced residence demanded.
RATIO: There was no conscious choice to leave the pilot lights on; rather, it did not enter
the plaintiff’s mind that there was a probable risk of fire when the pilot lights were in the
other room. Therefore, there is no basis for attributing an error of judgment to the plaintiff.
Birch v. Thomas [1972] English CA (STATEMENT OF CAUTION)
Facts: The 19-year-old D was unable to get insurance against passenger liability and placed
a sticker on his car stating, “passengers ride at their own risk.” Before entering the car P was
told the driver was not insured. The car was in an accident and P was seriously injured.
STATEMENT OF CAUTION: The court held that, in light of the circumstances P had agreed
to the exemption from liability. The statement about the absence of insurance was equal to
a statement that the passenger rode at his own risk
Priestley v. Gilbert (1973) Ontario Court of Appeal (INFERRED CONSENT)
Facts: motor accident while P was a passenger in D’s vehicle. The intoxicated D drove on
the wrong side of the road and collided with another car killing both occupants and
seriously injuring P.
INFERRED CONSENT: P, by his voluntary acts, co-operated in creating and placing
himself in the midst of the mounting dangers. His intoxication does not qualify his
acceptance.
Dube v. Labar [1986] SCC
Facts: P and D were co-workers at a construction site. After a long drive the severely
intoxicated D began to drive P’s car. Soon after the car veered off course and overturned on
an embankment causing personal injuries to P. D argued contributory negligence and
voluntary assumption of risk.
NOTES: The voluntary assumption of risk will arise only where the circumstances are
such that it is clear that P, knowing of the virtually certain risk of harm, in essence
bargained away his right to sue for injuries incurred as a result of any negligence on
D’s part. Common sense dictates that only rarely will a P genuinely consent to accept the
risk of a D’s negligence. The appeal is dismissed in favour of P.
ILLEGALITY (EX TURPI CAUSA NON ORITUR ACTION)
Rationale:
(a) Deterrence: part of the risk of engaging in crime is if someone injuries you in an
illegal activity you will not receive damages
(b) The court does not wish to dirty its hands: If we recognize a tort claim in this
context it is as if the court is aiding the criminal activity
(c) Integrity of the legal system: We cannot take with one hand and give back with
another
Illegality’s rationale is important because depending on the rationale one emphasizes, the
scope of the defence changes. For example, deterrence leads to a much broader scope than
the integrity of the legal system.
Hall v. Hebert (1993) SCC
Facts: D owned a muscle car. He drove it to a party that P was also attending. The parties
left the party having consumed a large quantity of alcohol. The keys fell out of the car and
were lost on a gravel road. The parties tried to start the ignition with a rolling start. The car
flipped over and P suffered serious injuries. At trial D raised the defence of illegality alleging
they were engaged in a criminal enterprise and as a result, the could not be held liable.
ELIMINATE ILLEGALITY DEFENCE (DISSENT): It would be better to consider the issue as
a question to be resolved on considerations of public policy. The question of illegality
should be a factor in deciding whether D owed a duty of care to P.
RULE: Courts may disallow damages on the basis that the award would be to permit
the plaintiff to indirectly profit from his or her crime:
o A claim of damages for personal injuries under the head of loss of future earnings,
where the claimed earnings are based on an illegal occupation, will not be allowed.
o Another case where a particular type of damage may violate the rule against
profiting from wrongdoing is exemplary damages awarded to a wrongdoer because
such damages are, by definition, not compensatory.
John Bead Corp v. Soni (2002) ONCA
Ratio: Loss of earnings from an illegal activity as a result of personal injury barred
British Columbia v. Zastowny [2008] SCC
Ratio: Compensation for loss of income barred for period plaintiff is in prison
REASONS TO MAINTAIN THE DEFENCE OF ILLEGALITY:
(1) As it is a defence, the onus rests with D; in Cory’s duty of care scenario the onus
rests with P.
(2) The duty of care approach is all or nothing and cannot be applied selectively to
discrete heads of damages, eliminating the opportunity for compensatory damages
(3) There could be potential complications in mixed contract and torts claims if the
defence of illegality is eliminated
VICARIOUS LIABILITY
VICARIOUS VS. DIRECT LIABILITY
Watson v Buckley and Osborne, Garrett & Co Ltd) [1940] KB DIRECT LIABILITY
Facts: A manufacturer in Spain supplied the hair-dye and an English firm distributed it. P
used the product, which contained 10% chromic acid, and developed dermatitis. The
distributor is held liable.
RATIONALE: The negligent act of the manufacturer was putting too much acid in a solution.
The negligent acts of the distributor were various acts and omissions and representations
that intervened between the manufacture of the article and its reaching P.
THE EMPLOYMENT RELATIONSHIP
THREE GENERAL REQUIREMENTS: (when theses are met B is liable even without fault)
(1) A commits a tort
(2) A is employed by the defendant (B)
(3) A commits the tort in the course of employment
SALMOND TEST:
An employer is vicariously liable for:
(1) employee acts authorized by the employer; or
(2) unauthorized acts so connected with authorized acts that they may be
regarded as modes (albeit improper) of doing an authorized act
671122 Ontario Ltd v. Sagaz Industries Canada Inc [2000] SCC (ELEMENTS)
Facts: P sold seat covers to Canadian Tire for several years. The contract was its principle
income source. D started making a similar product and hired a third-party to market the
product. This company bribed a Canadian Tire executive and the plaintiff lost their contract
and suffered severe financial hardship.
RATIO: When determining vicarious liability Courts look at the relationship of the
parties. The central determinate is the level of control the employer has over the
workers. Secondary factors include:
o Whether the worker provides his or her own equipment
o Whether the worker hires his or her own helpers
o The degree of financial risk taken by the worker
o The degree of responsibility for investment and management held by the worker
o
The worker’s opportunity for profit in the performance of his or her tasks
Ira S. Bushey v. United States (1968) 2d Cir ATTEMPT TO CLARIFY SALMOND (2)
Facts: A seaman returns to his ship intoxicated and operates some valves that begin to flood
the ship. As a result the ship damaged the dock and the owner sued the government (his
employer). The government stated the acts were not in the scope of his employment.
BROAD FORESEEABILITY: What is reasonably foreseeable in this context is quite different
than the foreseeability of unreasonable risk of harm that spells negligence. The foresight
that should impel a prudent man to take precautions is not the same as that by which he
should perceive harm likely to flow from his long-run activity in spite of all reasonable
precautions on his own part. The employer should be held to expect risks to the public
that arise “out of the course of employment and labour.”
Application: It is foreseeable that crew members crossing the dry-dock might do damage,
negligently or even intentionally.
Lewis v. British Columbia [1997] SCC
NON-DELEGATED DUTY: There may be vicarious liability even in cases where the
agent is a contractor. Liability for negligent maintenance of highways by a contractor
cannot be delegated. Statue requires the government maintain highways.
K.L.B v. British Columbia (2001) SCC
RATIO: The state is not in an employment relationship with regard to abusive foster
parents.
Blackwater v. Plint [2005] SCC
Facts: the United Church of Canada and the government was vicariously liable for the
sexual abuse of students by and employee at a residential school. The daily management
and supervision of the school was under the United Church of Canada on behalf of the
government of Canada through an agreement through which the government retained
detailed control.
APPORTIONMENT OF DAMANGES: When there is more than one employer, liability
between them can be apportioned according to the degree of control they exert. The
trial judge apportioned the damages 75% to Canada and 25% to the church. He found
Canada was in a better position to supervise the situation and prevent the loss.
“IN THE COURSE OF EMPLOYMENT” (RESPONDEAT SUPERIOR)
Bazley v. Curry [1999] SCC
Facts: D Children’s Foundation is a non-profit operating residential care facility. They hired
Curry, a pedophile, after a reference check. He sexually abused P who sued D.
GENERAL CATEGORIES
(1) FURTHERANCE OF THE EMPLOYER’S AIMS: Relies on the agency rationale
implicit in the Salmond test. Because the employee was acting in furtherance of the
employer’s aims he or she is said to have “ostensible” or “implied” authority to do
the unauthorized act.
(2) FRICTION: If an employer’s aims or enterprise incidentally creates a situation of
friction that may give rise to employees committing tortious acts, an employee’s
intentional misconduct can be viewed as falling within the scope of the employment
and the employer is vicariously liable.
(3) DISHONEST EMPLOYEE CASES: Although these cases (such as a bank employee
stealing a client’s money) do not fall into either of the previous categories courts
have increasingly held employer’s vicariously liable (policy considerations).
In determining the sufficiency of the connection between the employer’s creation or
enhancement of the risk and the wrong complained of, subsidiary factors may be
considered:
(a) The opportunity that the enterprise afforded the employee to abuse his or her
power
(b) The extent to which the wrongful act may have furthered the employer’s aims
(c) The extent to which the wrongful act of the employee was related to a friction or
connection inherent to the employer’s enterprise
(d) The extent to which the power conferred on the employee in relation to the victim
(e) The vulnerability of the victim to wrongful acts
Held: vicarious liability is established.
Jacobi v. Griffiths [1999] SCC
Facts: D is a non-profit club for youth health promotion. The club employed Griffiths as
program director. After developing a relationship with Ps Griffiths invited them to his home
where he abused them.
NOTES: Companion case to Bazley, “Unlike Children’s Foundation the enterprise here had
only two employees and its emphasis was on developing (horizontal) relationships among
its members, not (vertical) relationships to persons of authority.
RATIO: Whatever power the Griffiths used to accomplish his criminal purpose for personal
gratification was neither conferred by the employer, nor was it characteristic of the type of
enterprise which the employer put into the community.
E.B. v. Order of the Oblates of Mary Immaculate in the Province of B.C. [2005] SCC
Facts: The appellant attended a residential school run by the defendants. He was abused by
the school’s cook in the employee residences.
RATIO: The notion of fairness to the not-for-profit organization remains compatible
with vicarious liability provided that a strong connection is established between the
job-conferred authority and the sexual assault. The strong connection test cannot be
met in this case.
INDEMNIFICATION OF EMPLOYER BY EMPLOYEE
Lister v. Romford Ice and Cold Storage [1957] HL OVERRULED
RATIO: An employer who is liable under the doctrine of respondent superior has the right
to indemnity from the employee.
London Drugs v. Keuhne and Nagle International (1992) SCC
RATIO: The majority of the court, carved out an exception to the doctrine of privity of
contract, holding that the employees were protected by the contractual provision
limiting liability if (as was the case) the clause was expressly or implicitly for the
benefit of the employees and the employees were performing the very services
provided for in the contract.
ECONOMIC/BUSINESS TORTS
GENERAL
Allen v. Flood (1897) QB
Facts: A ship, the Sam Waller, was under repair by the Ps (small woodworkers union) and
the Ds (large ironworkers union). The Ds threatened to not work unless the Ps were
dismissed. The threat worked and the Ps were dismissed.
RATIO: House of Lords held that this conduct did not constitute intimidation, conspiracy, or
interfere with contractual relations (Ps were hired day-to-day). As long as the D did not
achieve his goal by otherwise unlawful means, he is free to deliberately drive the Ps
out of business.
DECEIT
Derry v. Peek (1889) HL
Facts: D were operators of a tramway line and issued a prospectus that they would use
steam or mechanical power instead of horses, not appreciating the discretionary power of
the Board of Trade. P purchased shares on this prospectus and lost money when the Board
of Trade refused to allow D to use steam or mechanical power.
Ratio: “Making a false statement through want of care” or “false representation honestly
believed though on insufficient grounds” cannot constitute fraud.
Four Elements of Deceit:
1) D must have made a false statement
o including half-truths like reporting net profits instead of gross; a failure to
update information; or situations where the law places an obligation on the
person to speak up.
o If the director of a company makes the statement, he or she is liable for the
deceit. Liability cannot be escaped by saying the deceit was on behalf of
someone/something else.
2) D must have known that the statement was false
o onus on the P
3) D must have made the statement with the intention of misleading the P
o D could be liable to one P and not another
4) P must have suffered a loss as a result of reasonably relying on the statement
o One P establishes 1-3, the onus is on the D to prove that the P did not rely on
his/her deceit.
o Puffery, predictions and personal opinions are not deceit.
PASSING OFF
Ciba Geigy Canada Ltd v Apotext (1992) SCC
Facts: P manufactured and sold a drug. D created virtually identical drug. P brought on an
“passing off” action. Lower courts rejected the claim because the P had not shown that
doctors/pharmacists would be confused by the similarity in the drugs.
Decision: Appeal allowed; P was required to show ONLY that the Ds actions were LIKELY to
confused physicians/pharmacists/patients/consumers
Three necessary components of a passing off action are a) existence of good will; b)
deception to the public due to the misrepresentation; and c) actual or potential damage to
the P.
Purpose is to protect all persons affected by the product
 Protect manufacturers from pirating/ protect a form of ownership. Passing off is to
prevent unfair competition.
 Protect consumers: need to protect consumers’ wishes for a certain specific product
as well as from the potential of imitation in packaging, counterfeiting, etc.
INTIMIDATION
The tort of intimidation may occur if
(1) D threatened to commit an unlawful act such as a crime, breach of contract, etc.
(2) D’s threat was effective insofar as it induced someone to act in particular way and;
(3) P suffered a loss
Central Can Potash v Saskatchewan (1979) SCC
Facts: P a potash producer prohibited from producing potash in excess of the
amounts prescribed by the licenses issued to it. P unhappy with the quota and
produced more than it was allowed. Deputy Minister sent a letter of threat saying to
reduce production or face the possibility of a cancellation of its mineral lease.
DECISION: P’s claims for damages is dismissed. P was supposed to act in a specific
way according to the Potash Conservation Regulations, 1969. Thus claim of
intimidation does not work.
CONSPIRACY
(a) Conspiracy to Injure-if the conspirators agreed to execute an otherwise
lawful act, they may be held liable only if their predominant purpose was
to hurt the claimant.
(b) Conspiracy to commit an unlawful act: conspirators do an unlawful act, held
liable as long as scheme was directed to P, and they should have known that
they might hurt P.
Posluss v. Toronto Stock Exchange
Working for a firm in the TSE required any action you take to get approval. TSE
thought P was acting without approval, and told his employer. P got fired. P sues D
for conspiracy.
DECISION: No agreement to injure P or doing something that would harm him. All
the TSE did was vote in the same way, they did not agree to anything prior to voting.
They incidentally made the same decision during voting for policy reasons, voting in
the same manner cannot be conspiracy to cause harm.
INTERFERENCE WITH CONTRACTUAL RELATIONS
VARIETIES OF THE TORT
a) Direct Interference: liability may be imposed even if D’s conduct was
otherwise lawful
b) Indirect Interference: liability imposed only iF D’s behaviour was unlawful in
itself
Posluns v Toronto Stock Exchange
Second claim for interference with contractual relations: Duty on any person
extraneous to contract to refrain from interfering with its performance (unless he
has a duty or a right in law to so act).
In this case must show”
o A valid and enforceable employment contract subsisted between P and Daly
Company
o D was or can be assumed to have been aware of this contract
o Breach of that contract procured by D
o Breach effected by wrongful interference on the part of D
o P suffered damage as a result
INTENTIONAL INTERFERENCE WITH ECONOMIC RELATIONS BY UNLAWFUL MEANS
Reach MD Inc. v. Pharmaceutical Manufacturers Assn. of Canada
Facts: P sold “Herman M.D.” calendars to health care professionals that contained
advertisements purchased by drug companies. D involved in drug industry told its
members that advertisements violated code of conduct and prohibited the
calendars. Devastating impact on Reach – annual sales plummeted from $850k-200k
Inducing Breach of Contract and Intentional Interference with Economic Interests
by Unlawful Means
- these two claims often arise from the same facts
- a claim for intentional interference by unlawful means is not struck out
merely because the alleged loss may be recoverable by some other means,