Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
DUTY
Palsgraf
1928
Donaghue
1932:
 Negligent actors are only responsible for what can be
foreseen by the ordinarily prudent eye
 When do you have a new duty? The neighbour
principle.
o You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would
be likely to injure your neighbour – persons who
are so closely directly affected by my act that I
ought reasonable to have them in contemplation
o Duty of care = proximity + reasonably
foreseeability
Dorset Yacht
 HELD: liability
1970:
 Presumptively, D+S (neighbour principle) applies,
unless there’s good reason for it not to apply. Public
policy reasons are relevant
o There are clear cut cases where someone will be
foreseeably be hurt by your actions, and yet you
are not liable. What are these cases?

If someone suffers economic losses due to
my actions

Not liable for providing others a positive
benefit
o What are reasons for NOT holding the prison
officers for the harm done?

How can an autonomous person be held
directly liable for the autonomous acts of
another person?

Potentially we could think of vicarious
liability – but not this way

Prison officers owe a duty to prisoners to
protect them from other prisoners, and
therefore have responsibility since they’ve
taken control over the prisoners’ lives and
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
control what they can/ cannot do (Q. How
does this fit in – it seems contradictory)
o The danger of risk adverse decision making prison officers need to make decisions and have
discretion to do their best at their jobs, by
imposing tort liability they will become risk
adverse and then have worse political decisions
made

Lord Reid: in NY, this is accepted. But it’s
not accepted in England – the court is not
deterred from the idea of tort liability

Not willing to immunize prison officers from
tort liability, just because it interferes with
their jobs

NOTE: in the UK, however, immunized the
police from tort liability and did not hold
them liable for negligently failing to solve a
crime

Jordan
 HELD: duty
House 1973
 (Laskin)
In Canada, have not gone that route!
o Discusses factors for determining whether there’s
a duty, but doesn’t create a rule (very reluctant
– can’t articulate a general principle)

1. If someone’s on your land for a
commercial purpose and you’re engaged in a
mutually beneficial project (ex. invitorinvitee)

2. Knowledge/ awareness (ex. that the
person is inebriate)

3. Contrary to statute (ex. a public duty
not to supply alcohol to drunk people)

4. Familiarity with the particular person

5. Instructions within the institution (ex.
that no one should give more alcohol unless
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
there’s someone to take care)

6. Foreseeability (ex. bar is close to highway
and establishment knew he would have to
cross it)

7. No big burden for establishment to
provide care (ex. could put him in a taxi,
allow him to sleep in a room until her
sobers up)

8. But supplying alcohol is not enough
o Characterized the case as misfeasance, not
nonfeasance
o Therefore saying that alcohol serving
establishments owe a duty to take care of drunk
patrons, not just not throwing them out
 Car key cases: where a drunk or child asks you for
the keys and you give them, if the person hurts
themselves you HAVE breached a duty!
o Not nonfeasance – it’s misfeasance
o No explanation why
o There are cases where someone leaves keys in the
car and someone else steals it, gets hurt and
sues car owner successfully
o If you control a dangerous object, you have an
obligation to be cognizant of the potential harm
that may occur!
 Intuitively: what factors matter in considering where we have a duty to provide a
benefit?
o 1. Where you create a legit expectation that you will provide a benefit and the
person relies on you

Issue: when is an expectation legitimate?
o 2. Where you have undertaken to provide the benefit even though there’s no reliance

We agree that when you start something and take on a responsibility, you have
to finish it. But it’s not because of the undertaking – it’s because you’ve
created a negative consequence for them! No one else will help now!
o 3. If there’s a dangerous situation you create/ control and allow people to enter the
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
picture

Why?!
 Why are we wary of nonfeasance?
o We want people to be self sufficient and take precaution
o Benefits should be governed by K (less convincing
- could be struck down by duress)
(unconvincing)
o Too onerous to be on the looking for situations in which you must provide a benefit
(unconvincing)

Kamloops v.
The person building
Neilson
the house is a
1984:
member of the
city council. The
building inspector
issues a stop work
 Adopts Anns as the proper way to adopt D+S
o 1. ANNS 1: is there a neighbour relationship
(D+S)?
o 2. ANNS 2: is there a reason for limiting
liability in this case (policy reasons)?
 ISSUE: can a plaintiff hold a government official
order because the
(building inspector) liable for not ensuring that
building foundation
housing foundation was dug to municipal/ provincial
is problematic. The
standards?
owner of the
o DIGRESSION: building inspector issues are tricky.
building goes to
o Two possible issues:
city council and
1) Statutory duty: Statute/ by law gives an
tells them to stop
officer (building inspector) the duty to
interfering since he
ensure that a building is done according to
wants to be left
code = a public duty to do their job
to build the

If a badly built building causes personal
building he wants
industry, do we hold the building
on his own
inspector liable to a PRIVATE duty in
property. The
tort law when they owe a public duty to
foundation is
do their job
sagging, they sell
o YES – there’s a foreseeability and
the house to
NO REASON not to recognize a
Neilson who finds
private duty
the house is
largely worthless
and sues the city.
o Prima facie we hold people to
statutory duties
2) Statutory power: There’s a discretion given
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
in the statute, the building inspector CAN
inspect the foundation. They have a
statutory choice to examine foundations

In Kamloops: building gets built, building
falls down, personal injury. Is the
inspector liable?

The inspector may legitimately inspecting
only some cases, but not every case
o Ex. too expensive, taking too long
o Since no statutory duty, likely no
private law duty
 Why do we separate these?
There’s GOOD FAITH and BAD FAITH use of

discretion
Therefore prima facie, we hold someone with a

statutory duty AND power to a private duty
under part 1) of the Anns test
BUT under part 2) we may excuse people form

the private duty if there are good policy reasons
(ex. cost efficiency) that can trump duty if
discretion is exercised in bad faith
 HELD: Kamloops did not act in good faith, since
they just let it happened. No one was personally
injured, but there was an economic loss.
o Recognized that bad faith act of political power
means they should be privately liable.
 UK rejects the Anns test
o It’s about economic losses, and there are too many good policy reasons
to keep out economic losses (often rebutted)
o The purpose of government officials (building inspectors) is to protect
people from harm and injury, NOT TO PROTECT AGAINST
ECONOMIC LOSSES!
o Capitalism requires people to take risks, and (re: Dorset Yacht) will
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
not hold other people accountable for your economic losses! Not even
government officials!
o There are so many cases that fall into stage 2 (the economic losses
etc.) that we have to throw out the two part test – not a good
prima facie test because it’s often rebutted! Ends up just being a
balance
o In Canada – Cooper v. Hobart
Crocker v.
The defendant is
Sundance
in charge of the
1988
danger, the
an injury where there is a relationship of
activity is
economic benefit
 (Wilson)
o Commercial hosts have a positive duty to prevent
inherently

Creating a risk a failing to guard against it
dangerous, the D

In this case, could have discharged duty by
feeds alcohol to
disqualifying him, physically preventing him
the injured person
from participating, cancelling the race – this
(although not a
is the standard of care (separate from a
vital element).
duty)
Race is for profit

reasons (seems if
no money passed,
close enough that we find a duty

it’d be harder to
find liability but
Duty = questions of law: is your relationship
Standard = questions of fact: whether you
acted reasonably to discharge the duty
o Moving away from the recognized categories of
doesn’t explain
duty, towards whether it’s “just and fair” to
why). Knowledge
hold someone to a duty
here is a necessary
factor!
o Differentiates between misfeasance and
nonfeasance

Wilson: we are becoming more collectivist,
recognizing we’re not just coexisting islands!
We have social bonds – recognizing
nonfeasance?
 Note: you can K out of tort liability, but must be
done in CLEAR terms
 JUDGEMENT
o Court finds a duty
o Causation: lawyers of Sundance argue the
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
intoxication didn’t cause the accident
o This is a terrible argument! We’re not saying it
did – we’re saying they created a risk and failed
to guard against it
o ONE ISSUE: Wilson discusses “placing” another in
a position, but Galloway says there’s a difference
between placing someone vs. admitting someone
to a dangerous situation (in which there’s
personal autonomy)
Stewart v.
Commercial
 (Major)
Pettie 1995
establishments
 HELD: no duty – the establishment showed they
serving alcohol have
met their responsibilities
a duty of care to
o There were sober people at the table – therefore
their patrons
have no reason to believe the drunk would be
Nothing more than
driving (subjective knowledge)
the invitor-invitee
o It’s not foreseeable that the drunk would drive
relationships
o Galloway: it’s bizarre that the establishment can
be left off the hook by assuming the world would
operate in a certain way (wife would drive)

Major: accepts this as the standard of care
 Galloway:
o Not good authority! Go to Childs
o Just because you recognize a duty between a
commercial establishment and a patron doesn’t
mean you can extend it to 3rd parties out in the
world
o Erroneously recognizes a reliance from 3rd party
users of roads
o Pays much more attention to reasonable
foreseeability and less to proximity (problematic)
 Re: voluntary assumption of risks – did Stewart
waive her right by getting into the car with someone
she knew had consumed a lot?
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
o NO! although likely contributorily negligent
Cooper v.
Like Scalera – a
Hobart 2001
clean up!
 (MacLachlin and Major) – economic harm
o (1) For a neighbour relationship, there must be
(taking over ANNS 1):
ISSUE: whether

1. Proximity (a limiting factor) AND
investors can sue a

Certain established categories that put you
public official
in the realm of duty/ can you analogize to
(registrar of
one?
mortgage brokers)

for not
Unlikely Anns 2 will be applicable if
yes
investigating a

If not, determine if the relationship gives
fraudulent broker
rise to a duty based on (non-exhaustive
quickly enough
factors):

1) Expectations
The registrar of

2) Representations
mortgage brokers

3) Reliance (ex. if P vulnerable)
had a duty to

4) Property or other interests
inform the public
involved (ex. personal injury vs.
when they suspect
emotional/economic harms)
fraud and an

= essentially asking, is it fair to
investigation is
impose a duty of care on the
underway
defendant (policy reasons relating to
Involves 1)
the relationship in question)
economic loss AND

When will proximity be recognized? Is it
2) government
related to reasonable foreseeability or are
liability
the two separate? It depends:

Personal injury damages, creation of
risk (misfeasance)  collapsed into
one (ex. the language of injury!)

Pure economic/ psychiatric harms,
allowing risks to exist (non feasance)
 separate

o
2. Foreseeability
(2) Policy factors relating to matters beyond
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
the relationship (ANNS 2)

Indeterminate liability

Constraining government policy

Interfering with judicial decision making
 SCC: CJ Mac completely reinterprets D + S, to be
completely different than Dorset Yacht! She says
that according to p. 162 in the notes (of D + S),
there must be foreseeability AND proximity!
 HELD: no liability - nothing in the statute under
which the Registrar is appointed to state that he
would provide investors certain information or had
their interests in mind – his duty it to the public
o Galloway: govt should be held liable for their
mistakes in tort
Odhavji v.
The Defendant is
Woodhouse
chief of police.
2003
Plaintiff are family
of boy shot by
 (Iacobucci) psychiatric harm
o Treats reasonable foreseeability and proximity as
independent
o Identified 3 factors when it’s “just and fair” to
policy. Police
recognize a proximate relationship, retrospectively
officers involved

1. Immediacy
did not cooperate

2. Reasonable expectation and reliance by
with the
the public
investigation into

3. Whether the expectation is constituted
the death. Under
with the statutory duty of police
s. 451(1) of the
 HELD: Chief of police is held liable for the psychiatric
statute the Chief
harm suffered due to a failure of police to
is required to
investigate in the accidental shooting of the Odhavji’s
ensure that police
son
officers carry out
their duties.
 Judgement:
o Treats the overlap proximity and reasonable
Plaintiffs allege
foreseeability as independent since this is a case
they suffered
of psychiatric harm
psychiatric
o Is there a cause of action?
consequences
ANNS PART 1
following on the
o Flips the test and goes foreseeability 
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
investigation and
proximity, because foreseeability is harder to
sued the Chief
show in this case
o Articulates 3 factors that suggest it’s “just and
Case brought
fair” to recognize a proximate relationship:
against a chief of

police as owing a
1. Immediacy (close causal connection
between negligent supervision and injury)
duty to the family

of a victim of an
2. Reasonable reliance (since vulnerable
people are reliant)
accidental shooting

by police. Police
mortgage brokers in Cooper fall here?
have a duty to
the public (for
many reasons) to
follow their
Issue: why wouldn’t the registrar of

3. Expectation (since statutory duty)
o McLachlin’s was about justness and fairness like
Cardozo
o Iaco’s is more like Andrews: looking back, can we
responsibilities –
discern a close enough relationship?
the question is
ANNS PART 2
whether they owe
o Two reasons to not recognize duty suggest, both
a much more
rejected:
specific duty to

the Odhavji family
a) it would interfere with independence of
investigation (Iaco: no direct connection
between chief doing hob and independence of
investigation)

b) there are other avenues of remedy
available
Childs v.
Desormeaux
2006
 (McLachlin) Leading case and social hosts and alcohol
o Public establishments owe a duty to 3rd party drivers on the road
because they expect it

Galloway: this is not true - just an application of Stewart, which
is bad law and ex post factos reasoning and legal fiction!
 HELD: no duty in this case
ANNS TEST PART 1
 1. No established duty of care since alcohol at a private party
o Different than commercial hosts:
o 1. Capacity to monitor consumption
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
Keeping a tab to charge you, employees trained to recognize

Issue: clients may drink in several places, social parties are smaller
and easier to monitor
o 2. Government regulation shapes public’s expectations

Issue: don’t we still take care of ourselves at commercial
establishments? Don’t we feel like we have social expectations
that our friends wil take care of us?
o 3. Profit and K change the nature of the relationship

Incentive to oversell

Galloway: likely the strongest, but assumes instrumentalist view
of tort law! That torts are needed to prevent K from being
antisocial

Also, social host may want guests to drink and be merry
 2. Should we recognize a new duty (proximity/ foreseeability)?
o NOTE: addressing foreseeability first is problematic – how can you ask
what’s foreseeable if you haven’t established the relationship?
o 1. Foreseeability

Trial judge: social host had knowledge – knew this person had
driven drunk the past, therefore ought to have foreseen this

SCC: NO! Just because someone’s done something wrong in the
past doesn’t mean they’ll do something wrong in the future

Also, non-feasance – no duty to act
o 2. Proximity

Is it just and fair? Cases in the past that gave rise to duty of
care (not established categories, just relevant factors):

1. Intentionally inviting a person to an inherent risk that you
create/control (like in Cooper)

2. Paternalistic relationships: parent/ child, teacher/ student,
captain/ guests. One party is vulnerable – position of dependency


Must be balanced with personal autonomy
3. Public function/ commercial enterprise that includes implied
responsibilities to the public at large

Due to reasonable reliance (Stewart)

ISSUE: public function doesn’t give rise to a tort just
because people rely (Cooper)
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
 There are 2 things going on in the Childs proximity analysis:
o 1. Asking when you owe a duty to provide a benefit to another
person (Crocker, Childs)

Ex. when you owe a duty to a guest as a private host?
o 2. When are you implicated in the wrongdoing of another person?

It’s not really about nonfeasance/ providing benefits

It’s about how much you have to do to implicate yourself in the
wrongdoing of another person: like Cook v. Lewis!

If you JUST give a party – there’s no reason to hold you liable
for the wrongful consequences

BUT if you wilfully supply alcohol to a guest knowing they’re
going to drive/ failing to monitor their actions, that’s different!

If you’re more involved though, you might be liable!
o Proximity shouldn’t be based on reliance by the world, should be based
on the involvement and complicity of the host

= complicity of wrongdoing
DUTY TO WARN
Defective Products

1. The shoddy deficient (not functional, bad) product
o Should tort law be involved when the harm is purely economic?Nno

2. The dangerously defective product that causes harm
o Tort is clearly involved (Donoghue)

3a. A defective product which is dangerous because people rely on it to provide some
form of protection/ safety
o Tort is involved

3b. The product that is discovered to be dangerously defective after sale
o Getting into realm of knowledge and information

Tort law imposes a “continuing” duty to warn people about the danger
(Rivtow Marine cite on page 224)

After you warn people, your product ceases to be a dangerous product,
and is now just a shoddy product! Repairing/ replacing is pure economic
loss which isn’t covered by tort


Product is so dangerous you have a duty not to market it
4. A product that is not dangerously defective, but may cause harm unless used
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
properly
o Duty to warn consumers about how to avoid the harm, how to use something
properly so that it’s not dangerous to them

This is VERY different than 3b because it’s not dangerously defective

Although you may discover only after putting something on the market
that people are using it wrongly/ that there’s a harm of improper use

At this stage, have a continuing duty to those who’ve already
purchased it to warn them and a duty to warn future consumers

Some items are inherently dangerous, but not sufficiently so to justify a duty to not
market it (since they’re not defective)
o You just have a duty to warn about hidden (non-obvious) dangers
o But not a duty to warn about every possible danger that could happen
o What do we have to tell consumers? How much is enough information?

Need to tell consumer the dangers that the manufacturers know and that
the consumers likely won’t know (imbalance in knowledge)
o Ex. Breast implants
Lamber v.
A case of a
Lastoplex
product that
carries dangers
 The duty to warn of the inherent danger should
specify the attendant dangers
 It’s clarity and content will vary in accord with the
when used
seriousness of dangers
improperly
o This is a HIGH level of danger
Floor sealant, used
 Manufacturer has expertise (knows level of
in basements, very
highly flammable!
flammability), regular user has know expertise
 HELD: Given this is being used in basements, it’s not
good enough for manufacturers to say that it’s

flammable
o Need to say “remember your furnace” AND
“remember your pilot light”!

 The Learned Intermediary

Via learned intermediary devices, duty can be discharged by warning an intermediary
o In Stewart and Pettie – this is leaving the drunk driver with sober people

The learned intermediary rule is only applicable where:
o Product is highly technical in nature and is intended for use under supervision of
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
experts or
o Where it is unrealistic to expect a direct warning (28)
o This is a very narrow construction given by the court

This means you can only delegate to someone who approximates your own level of
expertise (between manufacturer and Dr)
o In Stewart – does the alcohol server and the alcohol consumer have the same
level of expertise? No!

Consumer has primary reliance on the judgment of the learned intermediary

This suggests that the manufacturer can discharge all their duties by contacting all the
Drs that have implanted/ will implant their products

But Dr can’t be used as a learned intermediary if they can’t answer all the questions
(have the same level of knowledge at the manufacturer)
o Ex. Obligations re: contraceptives are different than obligations re: implants

Questions about contraceptives are not just questions of health – include
questions of reproductive freedom, etc.

In this case, cannot rely on the Dr to provide all the advice
o Therefore, pharmaceutical companies have an obligation to communicate directly
with the consumer
Hollis v. Dow the duty is to
SCC 1995
protect the
consumer by
 Dow aware of unexplained ruptures to breast
implants
 We’re not saying that they can’t manufacturer this
alerting them to
(risky product but hasn’t reached a level of danger
the inherent risks
to be taken off the market – consumers can choose)
o Not so many ruptures that product needs to be
discontinued
o But manufacturer has duty to tell consumer
about risks inherent to the product
 According to Childs, this respects their autonomy to
choose whether or not to take the risks and allows
risk avoidance
o We don’t impose strict liability in realm of
consumer protection – we can protect consumers
sufficiently by letting them know the full level of
risk in cases of risky products
 Medical products have special duties
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o Extra high standard of care attaches to duty to
warn about dangers attached to medical products
(because ingested or implanted in body, so serious
level of danger)
o BUT is it proper to single out medical products
for diff treatment?
o With medical products, must include “clear
complete and current informational disclosure”
concerning the risks inherent in use and
instructions on proper use (Hollis Para 26) –
onus is heavy
 Dow: okay, maybe we failed to warn the Dr about
risks in this case, but failing to treat someone
autonomously is not a wrong in itself in tort law
o P has to prove that the Dr would actually have
passed on the warning
o Dow: this Dr is a poor Dr, and we have no
reason to believe he would’ve passed it on
 Court: NO! IF you rely on the Dr being a learned
intermediary to discharge your duty, then you are
relying on their expertise!
o Therefore you cannot demand that causation be
shown!
 Court: there are some cases where the P doesn’t
have to show a causal link between the harm
suffered and the failure to inform – this is
exceptional
Why is there a duty to warn?

1. Knowledge imbalance between manufacturer and consumer
o Inequality, dependency
o Allows consumers to make “informed decisions”

2. Is it “reasonable and just” to require a complete warning about risks (26)
o These are policy factors like in Ann’s test
o These are social expectations
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
3. Promotes public health by facilitation a more meaningful doctor-patient relationship
(26)
o This is SUPER policy factor related – this is for public health reasons
o Why should tort law be involved in this?!

4. Does not impose an onerous burden (26)
o Like Jordan House – could easily get a taxi, put the person up for the night

There’s something more missing from this analysis that makes it sufficient to justify a
duty to inform: Childs got it
 Childs (para 35): These cases are akin to those in which someone invites another person
to a danger which they control. Where you are materially implicated in the creation of a
risk you owe a duty to others “to protect against the risk materializing” (Childs 38)
o You can protect people by warning them how to avoid the risk
 Galloway: it’s NOT just due to the knowledge imbalance – that’s not enough
MEDICAL MALPRACTICE
 In Hollis, courts compare manufacturer’s duty to warn with Drs duty to inform patients
about risks
 Galloway: neither is really about the inequality in the relationship (the knowledge
imbalance)
 DR’S DUTY ARISES BCUS Drs are in control of your body – they perform the
procedure, have a hand in creating the risk!
o They’re not just giving medical advice – they’re talking about risks in a procedure
that they’ll be performing – THIS is key
 DOCTOR’S DUTY TO WARN (Reibl)
1. Duty to warn patient of all material risks
a. Compacting probability of the risk with seriousness of the consequence
i. Explained in Brito as the “low risk – bad consequences” approach
b. Mere possibilities don’t have to be disclosed
c. But serious consequences (death, paralysis), the risk is always material
2. Duty to disclose the nature of the operation
3. Duty to disclose the gravity of the proposed operation
4. Duty to disclose special or unusual risk
5. Duty to answer any specific questions posed by the patient
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= Duty to tell you the risk they know pertain to you and also the risks they ought to
know pertain to you
 Is the duty a question of law or fact?
o Brito: doesn’t differentiate duty and standard – question of law

Creates an objective Dr
o Videto, Reibl: question of fact
 Therapeutic privilege: if a Dr can justify on medical grounds not letting a patient know
the consequences of an operation because it’s medically appropriate to do so, they have
therapeutic privilege
 ISSUE: can you ask the Dr about their experience? Success rate? Can you request a new
or different Dr? Issue of patient autonomy!
RESCUERS AND GOOD SAMARITANS
 If a person exposes another to danger and a third party tries to rescue him, there will
be a finding of a duty of care owned to the rescuer
o We often this of contributory negligent: original creator of danger is negligent. The
third party may be contributorily negligent however (apportionment of damages)
o The only qualification is if the rescuer was “foolhardy” (Videan pg 249, 250-1)
 The duty the rescuer owes is quite different than the duty the original wrongdoer owes
Horsley
Operator of a ship
 HELD: not the best rescue possible, but not
(next friend
owes a duty to
of) v.
passengers falling
 Captain has a legal duty (not a good samaritan)
MacLaren
into the water, no
 Van Valkenburg - lower courts ruled that ship
negligent
matter what the
operators don’t have to come to the aid of people
danger is
who’ve gone overboard due to their own negligence
o Laskin (diss): No! Because of the necessary
dependency of the passengers on the ship
operator to return to shore, the ship’s operator
has an obligation to provide positive duty to the
passengers! Ship operator must help anyone who's
gone over board
o The statutory duty is a relevant factor (like in
Jordan House, also Laskin) and aids in supporting
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
this view, but that’s not the basis of the duty!
 Laskin (diss): someone falls overboard and ship’s
captain tries to fulfill the duty owned to passsengers
o BUT he’s doing badly (error in the rescue
procedures)
o Laskin (diss): the error is falling below the
measure of negligence
 If you elect to be the first rescuer and are terrible
and someone else has to come rescue you, the first
rescue may be liable to the second - all people who
in their actions put other people in a situation
where they take on a danger, may have an
obligation!
Videan
Railway company
 Railway company’s argument: may have breach the
did not put up
duty against the child, but did not have a duty a to
barriers to prevent
the father
children from
o Court: Absolutely not! By failing in one respect,
getting on the
you’ve created another duty
railway tracks.
o Laskin: where people negligently imperil
Child walks onto
themselves, they will owe a duty to people who
railway tracks
come to their rescue (the person creating the
(clear breach of
situation)
duty). Dad sees

child, and runs
into the danger,
saves the kid but
gets hit by the
train and is killed
 Good Samaritan Act
o A person who intercedes to render aid in an emergency will be held only to a
standard of gross negligence
o UNLESS it your job to provide aid (ex. paramedic, then you’re held to normal
standards of negligence)
o OR UNLESS you provide the person with a view to gain
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

If you ask, after the recovery, “well, what about giving me something?” we
might hold you to a lower standard of negligence
o This applies likely to the person you’re rescuing, but it doesn’t really say anything
about a second rescuer
STANDARD OF CARE
 Duty v. standard is often an artificial difference – sometimes we collapse the two
together or just assume duty so we can move onto standard (like in Bolton
o Duty = question of law
o Standard = question of fact – “reasonable care”

1) Was it justifiable to expose the plaintiff to this level of risk?

2) If it was unjustifiable, how do we deal with the claim that the D did not
appreciate the risk/ was unable to meet the standard? AKA that there’s an
objective standard but no fault
 Corrective justice theorists: we give the trier of fact the opportunity to determine
what kinds of dangers are okay

Bolton v.
 (Reid)
Stone
 Primarily we think about the rights of individuals
(what are Mrs. Stone’s expectations)
HL 1951
 Secondarily we think about the social context (what
are the social reasons we should allow the cricket club
to continue)
 And we balance them – how important is this social
relationship in the context in which we place it?
 In this case:
o Corrective justice model can’t work because the
Mts. Stone has rights but cricket is a socially
valuable entity!
o In cricket, you want to hit the ball outside the
pitch
o Cricket ground was there first, but sold part of
the land where Stone’s house was and didn’t
recentre it (found not a bit difference)
o Very few balls hit out in the firs plat
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o We will only hold those liable who show breach
the “standard of substantial risk”
o Difficulty of remedial measures is not something
we should take into account! Ex. if we require
them to put up a big net
 ISSUE: is tort creating rules of public or private
law?!
EMPLOYER/ EMPLOYEE STANDARDS
Paris v.
Appellant
 HELD: employer liable – should have provided goggles
Stevne
employed as a
 Higher standard of care to those who are vulnerable
fitter in the
 Facts: worker has one eye, so the consequences are
HL 1951
garage. At the
particularly grievous
time he was
o Does the fact that employer doesn’t give goggles
employed, had the
to other workers mean employer has no duty to
use of only one
give goggles to this particular worker?
eye. Using a
hammer to remove
a bolt on a
vehicle, chip of
metal flew into his
good eye, and he
became totally
blind. Respondent
employer did not
provide goggles for
o Don’t think of this as social utility (are we
better off as a society)
o The question is: what is the meaning of this
relationship

Corrective justice model: let’s let a jury
figure this out
 Court: there’s a relationship of dependence by the
worker on the employer
 ISSUES: employers are not going to employ one eyed
people! Costs of goggles will start to add up!
the appellant to
 Instrumentalist:
wear.
 Post 1952: legislatures get involved, now companies
can’t discriminate
 Instrumentalist view of tort law: learned hand formula
o If the costs of taking precautions are less than the cost you’re imposing, the you
should take precautions
o Ie. cheaper cost avoider must avoid the harm
o Worker should bear the cost of the goggles. Socially, it’s much more expensive to
have a system of work discrimination than a requirement that the worker provides
for their own needs greater than their own
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
o Bolton should have worn a helmet!
 Corrective justice view of tort law (Reid in Bolton)
o When you’re looking at the level of risk that you can/ can’t take, you need to take
into consideration the number of people you’re affecting: social consequences, not
just the relationship between the parties
o The likelihood of people getting hurt matters – a person’s interest in safety is more
basic (and more important) than a cricket player’s interest in playing!
o This can be about cost avoidance too – that we treat people with disrespect if we
can avoid harm to people that are no cost to us
 McLachlin in Cooper
o Rejects BOTH the corrective justice and instrumentalist views
o The relationship between the parties is primary! But sometimes we’re willing to
discount the relationship based on social reasons
Rentway
Facts: truck has a
 (Granger)
Canada v.
blowout, at night,
 ISSUE: shouldn’t the designers have thought about
Laidlaw
a bit of the tire
putting the headlights on different circuits due to
Transport
hits the headlight
this risk?
of the truck,
OCA 1989
 HELD: yes! They should! Because the cost of creating
impact causes light
a separate circuit for each headlight is so small in
to short (these
relation to the whole truck – we’re going to hold
are all normal
that they were negligent in design - instrumentalist
occurrence), both
 ISSUE (Lord Reid): in some circumstances, this
headlights are on
means you can justify your risk by the fact that you
the same circuit
cost too much! Means social utility can trump individ
rights
 Galloway: retrospectively this seems an easy fix …
Watt
Volunteer
firefighter
 HELD: no liability, volunteer firefighters have high
utility
 Balancing the risk against the end to be achieved –
it’s a reasonable risk to injury firefighting employees
in an effort to save lives
INDICES OF REASONABLENESS: CUSTOMARY PRACTICE
 Over time, customs develop that are more than just practices or habits
 It’s people trying to work out what people want to do, and how they do behave. This
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
makes sense because we want juries to make these anyway – to impose values
reasonable to the community in which they belong
 Customs can “crystallize” the vague standard of reasonableness
Waldick v.
Someone slips on
Malcolm
another person’s
property and
SCC 1991
 HELD: liable – unable to show that his practice was a
customary practice
 How can we determine if conduct based on a
injures themselves.
community standard is sufficient to meet a standard
Property owner: in
of care?
these parts, no
one shovels their
snow or salt or
sands! I’m just
 SCC: just stating that something is standard practice
will not suffice
 1. There must be expert evidence of the custom
o Courts shouldn’t take judicial notice of custom
living by normal
(34)
community
o Some obvious facts we don’t have to prove
standards
o
(Alberta)
But experts will be required, especially when it’s
a little known or contentious issue

Especially because customary evidence is so
probative that it will often decide the case
– it should be rigorous evidence

Therefore instead of asking juries to decide,
we’re asking them to look at how people
actually behave
o This means this tort action is hugely expensive

Sociologists involved – crts say this is
important!
o ISSUE 1 – the court doesn’t give a standard of
prevalence that has to be shown to establish a
practice

How prevalent must the custom be to count
as a custom? How long in duration must it
be? We leave these questions open.
 2. Not all practices will be accepted as custom
o A whole community might be negligent

Perhaps the implied principle is that only a
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
custom that reflects considered judgment
about safety should be relevant
 3. Courts will give different weight to custom
depending on the situation
o Depends: Warren = lots, Brown = little
Warren v.
Plaintiff made an
 Municipality found 40% liable, appeals
Camrose
injuring dive into
 HELD – appeal allowed, no causation –customary
ACA 1989
the swimming pool
practice established/ accepted as reasonable due to
marker – the lane
expert evidence
marker was much
 Applying common practice/ customs to indicate
closer to his
reasonableness
launching point
o Customary standard is very strong evidence in
than on earlier
this case to indicate reasonable behaviour!
visits. Experts
o If you’ve lived up to the normal conduct in your
testified that the
standard of
sphere, when you can’t be found negligent
 P relied on pool experts (water purity engineers) =
swimming pool
people who’ve never seen the pool in question before
operation changed
…
in the 1970s away
from the use of
warning signs to
 Normally we don’t expect courts to override expert
opinion (DEFERENCE to expert standards)
 Galloway: but the COA has missed something the
encourage people
trial judge picked up on
to be safer on
o Experts thinking about pools in general may not
their own
have given sufficient consideration to THIS pool
and THIS user
o Maybe social benefits of training people to use
their own judgment is not relevant in this case!
 Overall: experts cause courts to adopt more public
models of tort law!
Brown v.
Employee’s hands
Rolls Royce
constantly in
(low deference to common practice) (high deference
contact with oil in
to common practice)
the course of his
employment, and
 HELD: not at fault for not providing hand cream
 Failing to follow customs does not prima facie
establish negligence – although it may indicate it
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
contracted
 Onus does not shift onto defendant just because
dermatitis.
there’s a customary practice – it’s still on the
Respondent didn’t
plaintiff to show negligence
apply barrier
o In this case, P only has evidence that the
cream, which was
practice is common
a common
o Drs are divided about the value of the cream
practice.
o This is not sufficient evidence
 NOTE: this is very different in Warren – in that
case judges deferred to expert evidence which showed
the necessary standard
o At this early time in tort law, courts were very
confident in the power of torts and the triers of
fact. Later on much more deferential
INDICES OF REASONABLENESS: STATUTORY STANDARDS
 Statutory breach doesn’t necessarily confer a right to civil action, unless there’s an
intentional/ negligent failure to meet the statutory provisions
 Courts show much more reluctance to rely on statutory standards than on professional
or customary standards! Ex. Ryan v. Victoria
Canada v.
Wheat provider
Saskatchewan breaches statute
Wheat Pool
SCC 1983
by sending beetle
 (Dickson)
 ISSUE: wheat provider breaches statute by sending
beetle infested wheat. Liable to buyers?
infested wheat to
 HELD: no statutory breach of tort law
buyer. Is the seller
 Does a statutory breach confer a right to civil
liable in tort to
the buyer?
action?
 NO - not prima facie (Odavji), only if intentional/
negligent failure to meet statutory provisions
o No tort of breach of statutory duty
o The statutory breach is an absolute liability
offence – so there’s no fault involved and fault is
central to tort!
o Historically in Canada and UK – if the leg intends
to create a tort via legislature, then it could be
the tort of Breach of Statutory duty
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
Galloway: this is made up. There might be
an exception for only industrial statutes –
we don’t know if they exist

Dickson – let’s just use the tort of
negligence
 The statutory standard may just be useful as
evidence of breach
 No onus shift in breach of statutory standard!
Gorris v.
Sheep shipper loses
 HELD: no liability
Scott
sheep, which are
 The purpose of the statute was for disease control,
EQ 1874
washed overboard.
not for preventing the sheep being washed overboard,
Defendant didn’t
therefore the purpose of the statute was not to
comply with the
protect plaintiff against this issue, and e statutory
Contagious Diseases
standard doesn’t apply
(Animal) Act,
 In order for a statutory standard to apply
which requires
o D’s conduct must be in violation of the statute
sheep to be
o The purpose of the statute must be to protect
attached to
prevent them
persons like the P against the loss suffered
 ISSUE: this can lead to bizarre arguments of
being overcrowded.
statutory interpretation re: purpose
Complying with
o People may rely on statutory standards even
this may have
saved the sheep
being washed
where the statute is created for other reasons
o In Odavji, you can rely on statutory standards
even when they creat public expectations
overboard
Ryan v.
Flanges on railways
Victoria
wide, meet
statutory
SCC 1999
 Most authoritative case on statutory standards in
tort
 HELD: negligence – meeting statutory duty was
standards, but a
insufficient to meet CL duty. Statutes do not
Motorcyclist gets
overrule CL, but may be surrogate in some instances
a wheel caught in
 There’s a floating level of weight that statutory
it and is thrown
standards may have – there are times when some
off and injured. Is
may have much more weight than others depending
there tort liability
on the situation and the wording on the statute
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despite the fact
 PARA 28: we usually determining whether someone’s
that the railway
met a standard a care based on values not facts:
met the statutory
o 1. Likelihood of known or foreseeable harm
standard?
o 2. Gravity of Harm (Bolton and Stone)
Standard was for
o 3. Burden or cost which would be incurred by
90 deg highway
crossing whereas in
preventing the injury
o 4. External indicators of reasonable conduct
this case the

a. Custom
railways were

b. Industry practice
parallel with the

3. Statutory/ regulatory standards
road
 PARA 39-40 are very important
o 3 elements are identified as being relevant to the
Action was
brought against
the railway and
weight that statutes warrant:
o 1. Ordinary v. Unusual

Statutory compliance will have more
also against the
relevance in “ordinary” cases (ex. cases
city of Victoria
clearly within the intended scope of the
(for failing to
statute) than in cases involving special or
warn)
unusual circumstances

Ex. Gorris v. Scott!

This is an “unusual” case
o 2. Specific v. General standards

Specific standards stronger than general
standards

If legislature has involved itself to a
high degree of detail, the situation is
different than general standards
o 3. Required v. Authorized

The closer you are to statutory duty and
the farther you are away from
authorization, the greater the weight that
will be allocated to the legislation

Also, the less discretion the state permits,
the greater the weight will be allocated to
the legislation
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
Overall, where statute strictly defines the
precautions, it is ore likely that compliance
constitutes reasonable care
 NOTE: Courts are MUCH LESS deferential to
statutory standards than they are to common
practices are articulated by professionals in a field –
even though both have public policy implications
o Courts defer strongly to technocrats/ experts
o Courts want to hold onto the ability to assess
whether statutes are appropriate
 WHY is this?
o Perhaps because legislatures decide what they
think would be a good idea
o While the customs reflect what people actually
do

PROFESSIONAL STANDARDS
Brenner at
FACTS: Lawyer
al. v.
sued for failing to
Gregory et
conduct certain
al.
practices (ex. a
survey of land)
 HELD: not negligent, there was an error in judgment
but not negligence
 Lawyers are held to the standard of an ordinary and
competent solicitor (reasonableness standard)
 The standard requires “effort, knowledge and insight
HC On 1973
of the reasonable competent lawyer”
 What about where a professional works with limited
facilities? Does this reduce our expectations?
o Arguably, yes
 Ordinary approved practices will determine the
appropriate standard – unless the practice is
inconsistent with prudent precautions (ie. there are
special considerations)

 Negligence is not an error of judgment for
professionals, it’s saying that someone is not
competent to do their work

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NOTE: what about NOVICE DRs? INNOVATION?
 Courts have not explicitly lowered standards for novices
o Claim there’s a single standard across the board
o But they have tended to fudge the issue in application
 It takes time to gain competency
 Expertise: if you hold yourself out as a specialist, you will be held to the standard of
the ordinary specialist (ter Neuzen)
 This should apply in law as well as in medicine
o In the past, lawyers were immune from tort liability due the “challenging nature”
of their work
o Now holding lawyers to the same standards as other professionals
 Does this create issues re: innovation?
o What if a Dr is trying something new … if you abandon an established medical
procedure, do you have to be held negligent?
o Perhaps you can be acting as a prudent or diligent Dr, and creatures of intelligence
instead of habit

In any case, as triers of fact, courts and juries shouldn’t be wholly divested
from these situations! Because all Drs are novices every time there’s a new
innovation
o There’s a lot of conflicting values – perhaps it involves: safety, deference to
expertise
Ter Neuzen
SCC 1995
Dr was not aware
 HELD: Dr not liable for allowing patient to contract
that HIV was
HIV via AI
transmitted
o Practices can be found negligent “only where the
sexually and that
standard practice is ‘fraught with obvious risk’
it was an STD,
such that anyone is capable of finding it
but unaware what
negligent, without necessity of judging matters
the process of
requiring diagnostic or clinical expertise …”
spreading involved.

Where there’s divergent opinion by physicians
There was some
and there’s controversial questions of
preliminary medical
diagnosis/ treatment, the courts do not
evidence in
have jurisdiction to settle the dispute!
journals, but it
was unconclusive.
 In retrospect that should have realized, but this was
an error in judgement, medical profession didn’t
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
realize
 SCC: you can’t ask more than the standard of the
branch of medicine being accepted, even though the
could have known
o PARA 33 “It is well settled that physicians have
a duty to conduct their practice in accordance
with the conduct of a prudent and diligent Dr in
the same circumstances”
o Galloway: which circumstances are relevant or
irrelevant?! This allows differentiation on a case
by case basis!
o But Sopinka is talking about the ordinary Dr –
not a technical notion of average
 “In the case of a specialist, the Dr’s behavior must
be assessed in light of the conduct of other ordinary
specialists, who possess a reasonable level of
knowledge, competence, and skill expected of
professionals in Canada, in that field

DETERMINING REASONABLE BEHAVIOUR
 The law is deaf to defendant’s excuses: I did my
Vaughan v.
Def constructed a
Menlove
hay rick, warned
best, I used my bets judgment, you cannot demand
about its
any more from me
ER 1837
flammability, said
 The law is also deaf to his argument: judging me
he would chance
according to the standard of “a man of ordinary
it. He made a
prudence test” is to judge me according to a totally
chimney through
uncertain rule – therefore OBJECTIVE standard
the rick, but then
the rick burst into
flames, spread to
 WHY IS THIS? Incompetent people should take
responsibility for their lack of competence!
 Negligence is a fault standard – you can escape it by
his property and
acting like a reasonable person on an objective
then to the
standard
plaintiff’s property
(cottages). Def
acted to the best
 EXCEPTIONS that we see later on – physical/
mental disability, childhood
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
of his judgment –
is he liable for the
plaintiff’s losses?
SPECIAL STANDARDS: CHILDREN
 There are some people who are incapable of meeting the standard of care
o They can’t do what we are expecting, we can’t blame people if they don’t have
the ability
o Is this the issue of the novice? There’s a general problem: as a society, we each
have different intellectual and physical skills
 “I used my best judgment, you cannot expect anything more than that”. Courts usually
say “we don’t care” and hold you to the objective standard
o Only gradually do the courts waiver

1. If you’re a child, we’ll hold you to a lower standard

2. If you have a physical disability

3. If you are temporarily/ permanently mentally incompetent
INFANTS
 Child Stage 1: “infant”
 Children are given a grace period during which they are subject to reduced standards
 In the first part of the grace period, they are held to be “incapable of being found
negligent” because of (lack of) age, intelligence, experience general knowledge and
alertness. A very subjective test (Addy J. in Heisler at p. 48)
o No specific age that marks off this period
 Why? Because they don’t have the ability to self regulate
 Child Stage 2: “child”
 Addy J: Judging (1) this particular child (2) based on what we could expect from a
child of the same age (comparative group) = “the reasonable child of that age”
 However, the SCC has held a different and more subjective standard: child should be
judged by the care to be expected from a child of like age, intelligence and experience
(Heisler v. Moke)
o Is this like saying that this child is a beginner, and we hold them to the standard
of a beginner? Yes
o The argument “I didn’t know better, and I couldn’t have known better as a child
of my age/ experience”

We take this to be a good argument in this case, even though it was
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
deficient in Menlove
 EXCEPTION – ADULT ACTIVITIES (Nespolen)
o The adult activity exception – applies only to the Child Stage 2

Children who engage in adult activities should be given no special privileges!
o Two related questions (Pope):

1) What is an adult activity? A number of answers given (as a lawyer,
would want to argue all of these):

A) An adult activity is one where the public expects the individual to
be an adult

B) Where the activity is very dangerous (guns, snowmobiles, cars,
motor boats)

C) Where the activity is regarded as a “right of adulthood” – like golf

As a judge – is there one that appears more acceptable than the
others?

2) Why is the child held to the adult standard?

ISSUE: if we’re willing to get rid of fault – how far are we willing to
go?

Cannot know if a driver is a child and cannot take precautions to
avoid it

Dangerous to the public to hold them to a lesser standard with
dangerous activities

If you are given the rights when you assume the responsibilities

But is it fair?
o Is the law relating to the liability of children coherent or does it reflect a
haphazard compromise of policies?
Heilser v.
Child warned
Moke
against jumping.
 “Reasonable child of that age, intelligence and
experience” – no specific age
Child by jumping
OSC 1971
causes 2nd injury
to plaintiff.
Pope v. RGC
12 year old boy
 Golf is an adult activity (AKA things other than
Mgmt Inc
hits woman on a
motor vehicle driving or insured activities with
backswing using a
licences and reasonable expectation can be considered
golf club at a golf
an adult activity)
AQB 2002
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
club.
 Held: child not liable because the woman walked into
the golf club
o There was a duty but child did not breach it
Nespolon v.
Two kids are in
Alford
charge of one
drunk kid
 Held: no liability – not an adult activity therefore
standard of a child
 Abella: When deciding whether the activity is an
(Snider). Trying
adult one we need to characterize the wrongful
to drive him
action narrowly:
home, let him out
o The activity in question is not driving but is
at a house he
dropping the friend at the side of the highway
recognizes. Snider

stumbles around,
and gets hit by a
adult activity
o In this case, allowing this kid out of the car
car. Driver of the
car (innocent)
Not characterized as getting drunk – an
without helping them into the house
o ISSUE: is letting a drunk kid be by themselves
suffers from
outside where they may be in danger an adult
extreme post
activity? No it’s not – so let’s hold them to the
traumatic stress
child standard.
from hitting the
kid, sues the
friends
SPECIAL STANDARD: THE MENTALLY ILL
Fiala v.
Cechmanek
ACA 2001
 Creating a much more nuanced conception of fault than Vaughan v.
Menlove
 Instead of comparing a person with a physical disability with someone with
without that disability as a template, should routinely look into the
Wrongdoer
experiences a
manic attack
due to
personal situation of the person without a disability
 What does this mean?
o Just because you have a disability, doesn’t mean you’re absolved of
responsibility of your physical disability
bipolar
o You have to bear some of the costs of being disabled
disorder type
o BUT it’s not irrelevant that you were disabled – we want to take it
1, attacks a
person’s car,
into account to ensure we’re being fair to you

Ex. if you suddenly go blind while driving, we assess your ability
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
causes it to
to have done otherwise – whether you would have known before
move
hand that that would have happened
forward to

hit another
car, attacks
If you had no idea you’d go blind, then we don’t hold you
responsible for this
 Strict liability (liability without fault) is a notion that should have the
the first
narrowest application in the law
car’s driver.
o We should apply it when you’re engaging in profit and selfish conduct
First car’s
and exposing other people to risks while doing this – if you’re going to
driver sues.
engage for your own benefit in activities that expose other people to
excessive costs, THEN you should bear those costs!
o This is why we should only hold children to the adult standard if we
have reason to think that they can meet that adult standard, and in
the same way we should only hold disabled people to the objective
person standard if they can meet that

THE ISSUE THOUGH: were you on alert that you would be
disabled and did you prepare to account for it?

Have you taken adequate notice of your dysfunction? If you’ve
taken charge of your situation adequately, then we can ask
nothing more for you?

This is a subjective and personal inquiry
o Holding mentally ill to the strict objective standard would essential
create a no-fault regime
 Also – CAVEAT. We don’t want to relieve from responsibility those who
have minor difficulties only! Must be a complete mental incapacity!

This is obiter

You have an obligation to show that you did do enough (what
the reasonable person with that deficiency would have done) –
showing responsibility for your own weakness, not imposing your
costs on somebody else
 It comes down to our expectations from the person
 A) The modern law of negligence is founded on the principle of fault and
therefore must take account of the incapacities and (maybe) the
diminished capacities of the defendant
 B) Such a view may lead to some infelicitous consequences but we should
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
deal with these consequences through some other means
o Wittman J in Fiala: dimished capacity is in itself not enough, need a
complete mental incapacity
o This means that we might be applying our standards of fault to
people we shouldn’t apply it to (where it isn’t really fair)
o Linden (instrumentalist) – fault can be dispensed with sometimes
where it’s worthwhile to dispense with it: para 22 – “Persons
suffering from mental illness may not have to comply with the
reasonable person standard, the theory being that it is unfair to hold
people liable for accidents they are incapable of avoiding”
 C) Some argue: Where two innocent people are involved in an accident
the person who caused it should pay (24)
o Wittman: This doesn’t accord with how the law has dealt with
children and the physically disabled (32) (nicely summarizes how
physically disabled have been dealt with)!
 D) Some argue that there are practical difficulties with distinguishing
people who feign mental illness. (25)
o Wittman: But practical difficulties plague most law suits. (34)
 E) Some argue holding mentally ill liable would encourage caregivers to
take better precautions (26)
o Wittman: But this will be ineffective (35) – this social benefit would
only occur if we held care givers liable
 F) Some argue that allowing mentally ill a lower standard will reinforce
the stereotype of mentally ill as dangerous (36)
o Wittman: Don’t pander to fears “mired in ignorance” (36)
 Strict Liability v. Negligence (revisited – and v. different than in Vaughan
v. Menlove)
o Liability in Negligence is based on a fully developed modern notion of
fault
o Fault is MORE than failing to live up to an ordinary standard
 NOW WHAT ABOUT THE NOVICE DOCTOR?
o This is a difficult case to deal with! Because why don’t we hold novice doctors at a
lower standard and have more sympathy for them
o They’re engaging on this long and arduous road ahead to success … not motivated by
subsistence, but motivated by profit making and success
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
o Perhaps we’re saying that if you’re down this path going down this ambitious role,
that we’re responsible for all the costs of going down it down

Does strict liability apply?

Maybe, because you voluntarily accept the costs of going that role
o We know why it’s hard … because “I couldn’t do better” is a different claim from a
Dr than from a blind person
o In this situation, if a novice Dr asks an expert Dr to say “can you come watch me
perform surgery in case I do something wrong”, then perhaps we take that they did
take the reasonable precautions
 Overall, we want to be an inclusive society. But we just want to allocated risk to
compensate for that.
Compensation
Fault is first
Then knowledge etc.