Contents
TRESPASS ................................................................................................................................................... 4
Goshen v. Larin (Nova Scotia CA, 1974)*(pg 37) ................................................................................... 4
Garratt v. Dailey (Supreme Court of Washington, 1955)(pg. 41) ............................................................ 5
Intent (pg. 41-42) ...................................................................................................................................... 5
Carnes v. Thompson (Supreme Court of Missouri, 1932)(pg. 42) ........................................................... 5
Basely v. Clarkson (Common Pleas., 1681) (pg. 43) ................................................................................ 5
Smith v. Stone (King’s Bench, 1647) (pg. 44).......................................................................................... 6
Tillander v. Gosselin (Ontario High Court, 1967) (pg. 45) ...................................................................... 6
Lawson v. Wellesley Hospital (Ontario CA, 1975) (pg. 47) .................................................................... 6
I. De S. & Wife v. W. De S. (Year-Book, Liber Assisarum, 1348)(pg. 50) ............................................. 6
Stephens v. Myers (Nisi Prius, 1830) (pg. 51) .......................................................................................... 7
Scott v. Shepherd (1773)* (pg. 37) ........................................................................................................... 7
Tuberville v. Savage (King’s Bench, 1699)*(pg.51) ................................................................................ 7
Bruce v. Dyer (1970)(pg.53) ..................................................................................................................... 8
Cole v. Turner (Nisi Prius, 1705)* (pg. 55) .............................................................................................. 8
Bettel et al. v. Yim (Ontario County Court, 1978)* (pg. 57) .................................................................... 8
Norberg v. Wynrib (S.C.R, 1992)* (pg. 61) ............................................................................................. 9
Bird v. Jones (Queen’s Bench, 1845)* (pg. 68) ........................................................................................ 9
Chaytor et al. v. London, New York and Paris Association of Fashion Ltd. And Price (Supreme Court
of Newfoundland, 1961)* (pg. 70)............................................................................................................ 9
Robinson v. Balmain New Ferry Co. (1910)* (pg. 74)........................................................................... 10
Negligence .................................................................................................................................................. 10
Duty of Care................................................................................................................................................ 10
Donoghue v. Stevenson (House of Lords, 1932)* (pg. 281) .................................................................. 10
Palsgraf v. Long Island Railroad Co (American case, 1928)* (pg. 365) ................................................ 11
Jane Doe v. Board of Police Commissioners for the Municipality of Metropolitan Toronto (Ontario
Court of Justice, 1998) (pg. 508) ............................................................................................................ 11
Childs v. Desormeaux (S.C.R., 2006) ..................................................................................................... 12
Hill v. Hamilton-Wentworth Regional Police Service Board (S.C.R., 2007) ......................................... 12
Syl Apps Secure Treatment Centre v. B.D (S.C.R., 2007)* ................................................................... 13
Holland v. Saskatchewan (S.C.R., 2008) ................................................................................................ 14
Professional and Governmental Liability ................................................................................................... 14
Challand v. Bell (Alberta Supreme Court, 1959)* (pg. 215) .................................................................. 14
Proceeding Against the Crown Act (R.S.O., 1990) (pg. 491) ................................................................. 15
Just v. British Columbia (Supreme Court of Canada, (1989) (pg. 493) .................................................. 15
Reibl v. Hughes (S.C.R., 1980) (pg. 222) ............................................................................................... 16
Brenner v. Gregory (Ontario High Court, 1973) (pg. 237) ..................................................................... 17
Standard of Care ......................................................................................................................................... 17
Bolton & Others v. Stone (House of Lords, 1951) (pg. 167) .................................................................. 17
Vaughan v. Menlove (Common Pleas, 1837) (pg. 175) ......................................................................... 18
Blyth v. Birmingham Water Works Co. (Court of Exchequer, 1856) (pg. 177) ..................................... 18
Waldick v. Malcolm (S.C.R., 1991) (pg. 183) ........................................................................................ 18
R. In Right of Canada v. Saskatchewan Wheat Pool (S.C.R., 1983) (pg. 186) ...................................... 18
Gorris v. Scott (Exchequer Court, 1874) (pg. 193) ................................................................................. 19
Ryan v. Victoria (City) (S.C.R., 1999) (pg. 197) .................................................................................... 19
Heisler v. Moke (Ontario High Court of Justice, 1972) (pg. 201) .......................................................... 20
Fiala v. Cechmanek (Alberta Court of Appeal, 2001) (pg. 207) ............................................................. 20
Butterfield v. Forrester (King’s Bench, 1809) (pg. 409)......................................................................... 21
Davies v. Mann (Exchequer Court, 1842) (pg. 410) ............................................................................... 21
Negligence Act (R.S.O, 1990) (pg. 412)................................................................................................. 21
Three ways the plaintiff can contribute to an accident: .......................................................................... 22
Galaske v. O’Donnell (S.C.C., 1994) (pg. 421) ...................................................................................... 22
Hambley v. Shepley (Ont. Court of Appeal, 1967) (pg. 431) ................................................................. 22
Hall v. Hebert (S.C.R., 1993) (pg. 435) .................................................................................................. 23
British Columbia v. Zastowny (S.C.C., 2008) ........................................................................................ 23
Causation .................................................................................................................................................... 24
Snell v. Farrell (S.C.C., 1990)................................................................................................................. 24
Walker Estate v. York Finch General Hospital (S.C.C., 2001) .............................................................. 24
Catrelle v. Gerrard (Ont C.A., 2003) ...................................................................................................... 25
Cook v. Lewis (S.C.R., 1951) ................................................................................................................. 25
Fairchild v. Glenhaven Funeral Services Ltd. (House of Lords, 2002) .................................................. 26
Sindell v. Abbott Laboratories et al. (Supreme Court of California, 1980) ............................................ 26
Aristorenas v. Comcare Health Services (Ont. C.A., 2006) ................................................................... 27
Resurfice Corp v. Hanke (S.C.R., 2007) ................................................................................................. 28
Nervous Shock ............................................................................................................................................ 28
Mustapha v. Culligan of Canada Ltm. (S.C.C., 2008) ............................................................................ 29
Remoteness ................................................................................................................................................. 29
The Wagon Mound (No. 1) Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Co. Ltd.
(Privy Council, 1961).............................................................................................................................. 29
Smith v. Leech Brain & Co. (Queen’s Bench, 1962).............................................................................. 30
Hughes v. Lord Advocate (House of Lords, 1963) ................................................................................. 30
The Wagon Mound 2 (Privy Council, 1966) .......................................................................................... 31
Purely Economic Loss ................................................................................................................................ 31
B.D.C. Ltd. V. Hofstrand Farms Ltd. (S.C.R., 1986) ............................................................................. 31
Canadian National Railways Co. v. Norsk Pacific Steamship Co. (S.C.R., 1992) ................................. 32
Bow Valley Husky (Bermuda) Ltd. Et al. v. Saint John Shipbuilding Ltd. (S.C.R., 1997) .................... 33
Design Services v. Canada (S.C.C., 2008).............................................................................................. 33
Negligent Misrepresentation ....................................................................................................................... 34
Hedley Byrne & Co. Heller & Partners Ltd. (House of Lords, 1963) .................................................... 34
Queen v. Cognos Inc. (S.C.R., 1993) ...................................................................................................... 34
Hercules Managements Ltd. V. Ernst & Young (S.C.R., 1997) ............................................................. 35
Vicarious Liability ...................................................................................................................................... 36
Ontario Limited v. Sagaz Industries Canada Inc. (S.C.R., 2001) ........................................................... 36
Bazley v. Curry (S.C.R., 1999) ............................................................................................................... 37
Jacobi v. Griffiths (S.C.R., 1999) ........................................................................................................... 37
P.S. v. Miki (B.C. C. A., 2006) ............................................................................................................... 38
Damages...................................................................................................................................................... 38
Andrews v. Grand & Toy Alberta Ltd. (S.C.R., 1978) ........................................................................... 39
McCabe v. Westlock Roman Catholic Separate School District No. 119 (Alberta Court of Appeal,
2001) ....................................................................................................................................................... 40
Whiten v. Pilot Insurance CO. (S.C.R., 2002) ........................................................................................ 41
McIntyre v. Grigg (Ont. C.A., 2006) ...................................................................................................... 41
Rylands v. Fletcher ..................................................................................................................................... 41
Rylands v. Fletcher (House of Lords, 1868) ........................................................................................... 41
Rickards v. Lothian (Privy Council, 1913) ............................................................................................. 42
Tock v. St. John’s Metro. Area Bd. (S.C.R., 1989) ................................................................................ 42
Read v. J.Lyons (House of Lords, 1947) ................................................................................................ 43
Defences to Strict Liability in Rylands ................................................................................................... 43
Nuisance...................................................................................................................................................... 44
Hickey v. Electric Reduction Co. Of Canada (Supreme Court of Newfoundland, 1970)....................... 44
Mint v. Good (King’s Bench, 1951) ....................................................................................................... 44
Private Nuisance ......................................................................................................................................... 45
Pugliese et al. V. National Capital Commn (Ontario C.A., 1977) .......................................................... 45
Tock v. St. John’s Metropolition Area Bd. (S.C.R., 1989) ..................................................................... 45
Russell Transport Ltd. V. Ontario Malleable Iron Co. Ltd. (Ontario High Court, 1952) ....................... 46
Nor-Video Services Ltd. V. Ontario Hydro (Ontario Supreme Court, 1978) ......................................... 46
Appleby v. Erie Tobacco Co. (Supreme Court of Ontario, 1910) .......................................................... 47
Tock v. St. John’s Metropolitan Area Bd. (Part 2, s same as above) ...................................................... 47
TRESPASS
-is actionable per se as it does not require damage but negligence does
-pages 55 and 56 define what battery and assault are
Goshen v. Larin (Nova Scotia CA, 1974)*(pg 37)
Facts: Referee in wrestling match protects face while going through crowd and pushes defendant
down who suffers fractured wrist
Issues: Can trespass be done negligently? If so, who bears the onus of proof?
Ratio: In trespass, the plaintiff need only show injury resulted to him by force applied directly to
him by the defendant, then the onus is on the defendant to show he acted unintentionally and
without negligence
Decision: The defendant did not act negligently (trial judge already found his action was
unintentional)
Notes: In England from Fowler v. Lanning (1959), the onus lies on the plaintiff to show
negligence did occur whether it is framed under trespass or negligence
Garratt v. Dailey (Supreme Court of Washington, 1955)(pg. 41)
Facts: Child moved chair and when lady went to sit down she fell and injured herself
Issues: Should lack of intention to injure be enough to absolve someone from liability?
Ratio: For trespass to the person, intent includes not only the desired consequences of an act (as
discussed in the casebook pp. 40-41), but also those unintended consequences that are certain or
substantially certain to result from it.
Decision: Retrial order for clarification
Notes: Note this is a US case so it is not binding in Canada
Intent (pg. 41-42)
-intent refers to the fact that the actor desired the consequences of his act, or the actor is certain
the consequences will result from the action. Where the probability goes down from certainty it
may no longer be intent, it will go down to recklessness, and an even further decrease in
probability will bring it down to negligence.
Carnes v. Thompson (Supreme Court of Missouri, 1932)(pg. 42)
Facts: Employer gets into argument with employee and throws a pair of pliers at employee but
misses and hits employee’s wife instead.
Issues: Is intention limited to damages against only the person towards whom the damages were
intended?
Ratio: In trespass, intention refers to an intent to strike the unlawful blow, or to injure some
person by the act, and is not essential that the injury be to the one intended
Basely v. Clarkson (Common Pleas., 1681) (pg. 43)
Facts: Defendant mows plaintiff’s balk and hade by mistake, because it was right beside his
own.
Ratio: Where the consequences of an act are intended, but the legal significance of the act is
unknown, it does not absolve intent or liability.
Notes: This rule was confirmed in Canada in Costello v. Calgary (Alberta CA, 1997)
Smith v. Stone (King’s Bench, 1647) (pg. 44)
Facts: Defendant was violently and forcibly brought onto the plaintiff’s property who is now
suing under trespass
Ratio: If the trespass was done involuntarily, then there is no liability. (Involuntary means not
direct by the conscious mind, Atrens, Intentional Interference with the Person)
Tillander v. Gosselin (Ontario High Court, 1967) (pg. 45)
Facts: Three year old child removes baby from carriage and drags her 100 feet causing brain
damage
Issue: Does a three year old child have the mental capacity to commit a trespass?
Ratio: A three year old child does not have the mental capacity to form an intention for
damages, nor does it have the mental ability of a reasonable person to impute negligence.
Decision: Action dismissed without costs
Lawson v. Wellesley Hospital (Ontario CA, 1975) (pg. 47)
Facts: Plaintiff is suing hospital for letting a psychiatric patient with violent history attack him
based on a breach of contract to provide care or on negligence. Trial Court found you could not
sue the hospital due to a provision in the Mental Health Act.
Issues: Can a mentally ill person be held liable for a tort?
Ratio: When a person due to a mental illness, is unable to appreciate the nature or quality of his
acts, the person has not committed a tort because the essential element of intention is missing.
Decision: Retrial ordered because the court found that the act would be inapplicable if it were
found that the patient was incapable of intending to commit a tort (as such, the hospital then
could be found liable because the Act only protects against a tort, so if the ill person could not
commit a tort because lack of intention, then the hospital could still be liable).
I. De S. & Wife v. W. De S. (Year-Book, Liber Assisarum, 1348)(pg. 50)
Facts: Defendant wanted to buy some wine, and when the shop was closed he banged on the
door with a hatchet, and then threw the hatchet at the wife who was at the window
Issues: Can there be trespass when there are no injuries or no contact?
Ratio: There can be trespass with no injuries if an assault is made, the person shall be held
liable.
Stephens v. Myers (Nisi Prius, 1830) (pg. 51)
Facts: Defendant was approaching plaintiff who was at the head of chair in a meeting with
closed fists and appeared to be attempting to strike him before being stopped by someone else.
Issues: Can there be an assault where the defendant has no power to execute his threat?
Ratio: If a person is approaching and intending to inflict harm, the mere interference by a third
party preventing the blow does not absolve liability for an assault
Scott v. Shepherd (1773)* (pg. 37)
Facts: Defendant threw a lighted squib made of gunpowder into the stall of Y, who then threw it
to W, who then threw it to R, who then threw it to the plaintiff taking out one of his eyes.
Issues: Does trespass have to be direct?
Ratio: The tort of trespass must be committed so that there is a direct harm to the plaintiff.
Decision: Verdict for plaintiff as the heat of moment reactions of the intermediaries did not
break the chain of directness
Tuberville v. Savage (King’s Bench, 1699)*(pg.51)
Facts: Plaintiff said “If it were not assize time, I would not take such language from you”, and
the defendant went and struck him with his sword.
Issues: Does a conditional threat amount to assault?
Ratio: For a conditional threat to amount to assault, there must be an intention to commit the
assault
Decision: Verdict for plaintiff
Notes: In the three following cases: Police v. Greaves (1964), Read v. Coker (1853), Holcombe
v. Whittaker (1975), they were all convicted for assault, because they all put unreasonable
conditions onto the plaintiff, conditional threats may often found to be assault because they
heighten the conditions so that a fight may result. So the situation will determine whether there
can be a charge against conditional assault.
Bruce v. Dyer (1970)(pg.53)
Facts: Plaintiff had an altercation with defendant while driving on highway, then blocked the
defendant’s car and asked him to pull over. The defendant ended up breaking the plaintiff’s jaw
and the plaintiff is suing, the defendant is claiming self-defence.
Issues: Does blocking a person from passing constitute an assault?
Ratio: Taking active measures to block someone from passing constitutes an assault.
Decision: Decision for defendant since plaintiff assaulted him, he had a right to use force for
self-defence.
Notes: This case also shows that it is not a necessity for there to be an actual intent or power for
violence or assault to occur, it is enough that when it is reasonable for a person to think they are
in danger for violence, that is an assault and they may use force to strike back (i.e. someone
waves a fist at them).
Cole v. Turner (Nisi Prius, 1705)* (pg. 55)
-simply defines battery as even the least touching of another in anger, but if two people are
walking along and just briskly bump or touch each other that is not battery, but if someone uses
forceful force to get through that is battery. However this is not a complete definition as there
are sometimes where anger does not need to be present.
-consent can be a defense for battery (i.e. giving consent for surgery) however it does always
work, if you are unconscious and need your life saved then we assume implied consent.
Bettel et al. v. Yim (Ontario County Court, 1978)* (pg. 57)
Facts: The defendant shook the plaintiff after the plaintiff threw a firecracker into the
defendant’s store. The plaintiff’s nose then hit the defendant’s head by accident by cause injury.
Issues: Should an intentional wrongdoer be liable only for the reasonably foreseeable
consequences of his intentional application of force or should he bear responsibility for all the
consequences which flow from his intentional act?
Ratio: An intentional wrongdoer should be liable for the resulting damages to a person even if
they did not intend for those damages. The foreseeability test in negligence should not apply
here.
Notes: In class he discussed there is a limit which is called “Novus Actus Intervieus” where a
consequence is just so rare that the defendant would not be held liable, but it is a defence rarely
accepted in court
Norberg v. Wynrib (S.C.R, 1992)* (pg. 61)
Facts: The defendant was a doctor who would prescribe a drug to an addicted patient in
exchange for sexual activities.
Issues: Is consent a valid defence when the two parties are in a position of inequality?
Ratio: Consent is not a valid defence where there are two parties in a position of inequality and
the dominant party exploits that position.
Notes: Another method here used by McLachlin J. was to find a breach in fiduciary duty
Bird v. Jones (Queen’s Bench, 1845)* (pg. 68)
Facts: Plaintiff wanted to go to some area protected by a fence but the defendant hired two
policemen to prevent anyone from passing the fence. Plaintiff sues for false imprisonment.
Issues: Does blocking a certain right of way constitute a false imprisonment?
Ratio: False imprisonment constitutes more than a mere loss of the power to go where you
please, it includes the notion of restraint within some limits defined by a will or power exterior to
your own
Decision: Appeal allowed and so it did not amount to false imprisonment.
Notes: The dissenting view here was that it did amount to false imprisonment as the judge
argued it meant “any restraint of the person by force” and simply providing an alternative to your
right of way does not absolve liability
Chaytor et al. v. London, New York and Paris Association of Fashion Ltd. And Price
(Supreme Court of Newfoundland, 1961)* (pg. 70)
Facts: The plaintiffs, employees of a neighbouring department store to the defendants’ store,
went to compare prices and the defendants called the police and had them arrested.
Issues: Can false imprisonment be of a psychological nature?
Ratio: False imprisonment can be psychological when given a condition where one feels like
they hardly have a choice.
Decision: Judgment for plaintiffs as they both awarded damages.
Notes: The judge found the practice of comparing prices a normal practice within our culture
and noted that the defendants did not take proper action against the plaintiffs when they came
into the store.
Robinson v. Balmain New Ferry Co. (1910)* (pg. 74)
Facts: Plaintiff enters turnstile to go on ferry and pays 1 cent and misses ferry and wants to leave
but does not want to pay the 1 cent to leave. A sign clearly says “you must pay before entering
and leaving, no exceptions”. Plaintiff sues for false imprisonment.
Issues: Can you consent to false imprisonment?
Ratio: When you consent to enter into a location, it does not constitute false imprisonment if
before leaving the party imposes “reasonable conditions” in order for you to comply with the
conditions you had originally consented to.
Notes: There is an argument here that he was not even falsely imprisoned because he had other
options (i.e. take the ferry, jump into the water, pay the penny etc…)
Negligence
Duty of Care
Donoghue v. Stevenson (House of Lords, 1932)* (pg. 281)
Facts: Plaintiff drinks bottle of ginger beer which has a snail in it and becomes ill. Sues bottle
manufacturer for negligence.
Issues: How do we determine to whom you owe a duty of care?
Ratio: You owe a duty of care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbor. My neighbor includes those persons who are so closely
and directly affected by my act that I ought reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or omissions which are called in question.
Decision: Trial judge’s judgment overturned as a duty was found in this case.
Notes: The dissenting judge did not find a duty because he thought that if they find a duty in this
case, they should find a duty with every manufacturer-consumer case, and such law does not
exist in English law, although it did in the laws of Babylon. This case set up the modern tort of
negligence. Remember that the rule set out in this case is a broad rule and may not be sufficient
all the time. The more strict test is the Anns test and it was established in Canada in Kamloops v.
Nielsen (S.C.R, 1984):
1) Is there a sufficiently close relationship between the parties … so that, in the
reasonable contemplation of the (defendant), carelessness on it part might cause
damage to that person? If so,
2) Are there any considerations which ought to negative or limit (a) the scope of the
duty and (b) the class of persons to whom it owed or (c) the damages to which a
breach of it may give rise?
Palsgraf v. Long Island Railroad Co (American case, 1928)* (pg. 365)
Facts: Plaintiff is standing waiting for a train, another passenger is carrying a package and is
running to catch a moving train. The guard tries to help the passenger get on the train and the
package falls. The package was wrapped with newspaper so you could not see what was inside
but it had fireworks inside. The fireworks exploded and injured the plaintiff from afar.
Ratio: A duty of care can only exist for those actions whose consequences are reasonably
foreseeable.
Decision: No duty was found and the case was dismissed.
Jane Doe v. Board of Police Commissioners for the Municipality of Metropolitan Toronto
(Ontario Court of Justice, 1998) (pg. 508)
Facts: The defendants knew about a serial rapist attacking women with the plaintiffs’
characteristic living in the plaintiff’s neighbourhood. They did not warn the women in that
neighbourhood because they wanted to prevent panic from women (because the police thought
they may become “hysterical”) so the rapist would not escape. The plaintiff was then raped at
knifepoint.
Issues:
1) Do police owe a duty of care to warn and protect specific victims when the police know
those victims are in danger of a specific crime?
2) Can the complications of police work (s. 1 defence) be used as a defence to justify the
courts not getting involved in this issue?
Ratio: Police owe both a statutory and common law duty of care to warn and protect specific
victims to specific crimes they are endangered to. Discrimination against women cannot be used
as valid reasoning to use a s.1 defence.
Decision: Judgment for the plaintiff who was awarded general and special damages but not
“extra” damages for the breach of a constitutional right.
Notes: This case involved a violation of a charter right (s.7 says “Everyone has the right to life,
liberty, and security of the person”) and so it would be debatable if the same decision would be
reached if the crime was not a violation of a charter right but another crime (i.e. fraud).
Childs v. Desormeaux (S.C.R., 2006)
Facts: Defendants held social party which was BYOB. One of the guests left the party
intoxicated and got into an accident with the plaintiff killing one passenger and injuring 3 others
including the defendant.
Issues: Do social hosts where alcohol is served owe a duty of care to third party users of the
highway for the actions of their guests?
Ratio: A social host at a party where alcohol is served is not under a duty of care to members of
the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or
her in the creation or exacerbation of the risk
Reasons: The reasoning used by the court here was first that they did not find the events
foreseeable, but even if it were foreseeable their main argument was that there is no positive duty
to act on social hosts. There is not sufficient proximity between social hosts and highway drivers
to impose such a duty unless the host exacerbates the situation.
Notes: They differentiated here between a commercial host which does owe a duty of care with a
social host who does not. Commercial hosts have an easier way to monitor consumption and
they have more of an incentive to make the person drink more so a positive duty in this case
makes sense
Hill v. Hamilton-Wentworth Regional Police Service Board (S.C.R., 2007)
Facts: Plaintiff was wrongfully convicted for a crime and spent 20 months in jail. Police had
evidence that someone else may have committed the crimes but still went ahead with the arrest
and conviction. Plaintiff is suing the police under negligence.
Issues: Do police owe a duty of care to suspects they are investigating for a crime?
Ratio: Police officers do owe a public duty of care to suspects they are investigating for a crime.
Reasons: When looking at the Anns test, the foreseeability question is obvious, but when
looking at proximity (considerations between the relationship between the plaintiff and
defendant) and the court finds that a suspect would have a great interest in the actions of an
officer therefore it is reasonable for an officer to ascertain the consequences of his action on a
suspect because there is sufficient proximity between the two. They also found that there are no
policy considerations to negate this duty as they find that such a duty should not affect the work
of a police officer nor should it increase any standard of care required of a police officer. In this
particular case, the court found that the officer’s conduct did not breach any standard of care
required by another reasonable officer in the same position.
Decision: Appeal on the finding of a duty of care for police officers to their suspects dismissed
and appeal on the finding that the police officers in this case were not negligent was dismissed as
well.
Notes: This case also set out and refined the Anns test for testing whether a duty of care exists.
Also note that the dissent here believes there should be no duty of care. They believe that the
duty police officers have to investigate crimes and apprehend offenders overrules any duty they
would have towards suspects thus defeating any claim that there is sufficient proximity between
the relationship to give rise to any duty of care. Also policy considerations would negate any
duty of care as it would have large consequences on our legal system as police officers may not
go ahead and do their job properly if faced with potential civil liability.
Syl Apps Secure Treatment Centre v. B.D (S.C.R., 2007)*
Facts: The plaintiff’s child was taken away from them after the child drew picture implying her
parents sexually abused her. After an investigation, no charges were laid. With her consent the
child was put in a treatment centre. The plaintiffs claim the treatment centre and social worker
were treating their child as if they sexually abused her and thus prevented them from having a
relationship with her and thus they are suing for damages
Issues: Does a child’s court-ordered service provider owe a duty of care to the family of the
child?
Ratio: A child’s court-ordered service provider has a statutory duty to the child, which may in
turn conflict with any imposed duty to the child’s family, thus no duty can be found to the
family.
Decision: The appeal from the treatment centre was allowed and so no cause of action was
found.
Notes: Note also here that this was a treatment centre, and dealt with medical treatment, so the
issue of privacy and confidentiality was present and any duty imposed to the family would
prevent the medical professionals from doing their job properly especially in a case where the
child has been removed from the parents. As well, there were legislative reasons for not finding
a duty: first off there are legal methods for the family to get involved so a duty may not be
necessary, plus there seems to be statutory protection of people in the child protection field for
doing their job in good faith.
Holland v. Saskatchewan (S.C.R., 2008)
Facts: The plaintiffs were game farmers who objected to participate in a program to prevent
disease in their cervids. As a result the government downgraded their herd status to the lowest
possible cause loss of profit. A judicial decree found that downgrading the herd status was
unlawful but government took no action. Farmer’s are suing under negligence.
Issues:
1) Should the government be held liable for negligently acting outside the law?
2) Should the government be held liable for not implementing a judicial decree?
Ratio: The specter of indeterminate liability would negate any duty of care owed by the
government for breach of statutory duty. Implementation of a judicial decree is an “operational”
and not a policy act and therefore there is a duty of care present there.
Decision: Appeal allowed in part, the claim for the government acting outside the law was
struck, while the claim for not implanting a judicial decree was allowed.
Notes: Note that the decision here may have been limited by the fact that their first claim would
have too broad an effect on liability where the second claim limited the government’s liability to
a certain group of people, so this may have had an effect. So the difference in policy
considerations really makes the difference between the two claims.
Professional and Governmental Liability
Challand v. Bell (Alberta Supreme Court, 1959)* (pg. 215)
Facts: The plaintiff was farmer who fell and fractured his arm and one of the bones punctured
through the skin creating an open wound. The defendant was the doctor and he saw oozing
blood but upon visual inspection saw no signs of contamination. The defendant wrapped the arm
in a cast and noticed from Sunday to Tuesday that circulation within the plaintiff’s arm
deteriorated. The plaintiff was taken to see a specialist who found the arm infected by gas
gangrene bacteria which is common in farms. The plaintiff’s arm was then amputated and he is
suing under negligence.
Issues: What standards of care must there be for practicing doctors?
Ratio: The standard of care is set out as a surgeon undertakes that he possesses the skill,
knowledge and judgment of the average. The average refers to the special group the doctor
specifically belongs to (i.e. rural general practitioner or urban specialist). Also if the decision
was the result of exercising that average standard, then there is no liability for an error of
judgment.
Decision: Plaintiff’s action was dismissed as the error was an error of judgment and the doctor
had satisfactorily satisfied meeting the average standard.
Notes: When the experts disagree over an issue, then neither view will be viewed as negligent.
This is mainly due to the fact that the courts do not want to tell doctors what is the appropriate
treatment since they lack the necessary expertise. This is called the Bolam test in England. Also
note that in the last part of the ratio, if a doctor makes an error of judgment which the average
doctor would not have made, then he can be found as negligent.
Proceeding Against the Crown Act (R.S.O., 1990) (pg. 491)
5. (1) Except as otherwise provided in this Act, and despite section 11 of the Interpretation Act,
the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity,
it would be subject,
a) in respect of a tort committed by any of its servants or agent;
b) in respect of a breach of the duties that one owes to one’s servants or agents by reason
of being their employer;
c) in respect of any breach of the duties attaching to the ownership, occupation,
possession or control of property; and
d) under any statute, or under any regulation or by-law made or passed under the
authority of any statute.
Just v. British Columbia (Supreme Court of Canada, (1989) (pg. 493)
Facts: The plaintiff was driving to Whistler Mountain with his daughter when a boulder fell on
their car and killed his daughter and injured him. He is suing the provincial crown for
negligence.
Issues: Does the government owe a duty of care for its actions and if so what standard of care
must be required of them?
Ratio: The government owes a duty of care for the implementation of its policy decisions
(operations) unless negated by statutory provisions. The government does not owe a duty for its
policy decisions. The standard of car required of the government must be reasonable taking into
consideration all the surrounding circumstances.
Decision: New trial ordered as the claim for negligence referred to the implementation of a
policy decision and thus it was found to be operational in nature therefore the subsequent torts
analysis should be done in trial.
Notes: The dissent here found that the frequency and manner of implementation were actually all
policy decisions and thus was not subject to liability. So it is difficult to determine whether a
decision is policy or operational. Read note 9 on page 499 to see some questions which will help
determining whether a case deals with policy or operations. It seems as though recently the
courts are unwilling to hold the government liable.
Reibl v. Hughes (S.C.R., 1980) (pg. 222)
Facts: The patient underwent surgery and suffered a stroke thereafter. The surgery was not
immediately necessary and the patient had other special considerations (i.e. pension) and is suing
the doctor in both battery and negligence for not disclosing the appropriate risks to him before
surgery.
Issues: How should we determine whether a person would have consented to surgery if proper
disclosure was given?
Ratio: In order to determine whether a person would have consented to surgery, the test to be
used is an objective test which asks what a reasonable person would do if they were in the
position of the patient with the same reasonable concerns and circumstances.
Decision: Appeal allows so the patient did receive damages because the courts found that a
reasonable person with the same reasonable circumstance of the plaintiff would have opted to not
get the surgery
Notes: This case starts off by saying that doctors already have a preset duty to patients to give
full disclosure of material risks. White v. Turner (1981) sets out that even “unusual or special
risk”, whether or not they are common or uncommon still must be disclosed. The court does
however state that there are circumstances where due to emotional factors the patient may not be
able to handle the risks of the recommended surgery and in such an instance the doctor may be
justified in withholding or generalizing information. The court also goes on to say here that a
case in medical disclosure should only be in battery if there is no consent at all or if the surgery
performed goes beyond what was consented to, not in instances such as this.
Brenner v. Gregory (Ontario High Court, 1973) (pg. 237)
Facts: Plaintiff hires a solicitor to close the transaction for him in buying some town lots. A
building on land encroached on the street and the plaintiff is suing the solicitor. The vendor of
the lots had informed the plaintiff of the potential encroachment but the plaintiffs did not inform
the solicitor of this.
Issues: What is the proper standard of care required of a solicitor?
Ratio: The standard of care required of a solicitor is that which can be demanded from a
reasonably competent and diligent solicitor. Any action depends upon proving that the error in
judgment was such that an ordinary competent solicitor would not have made.
Decision: Action dismissed.
Notes: The court also says that a solicitor should abide by the general and approved practice
rules unless such practice is inconsistent with prudent precautions against a known risk, as where
particular instructions are given which the solicitor fails to carry out.
Standard of Care
-this just basically refers to doing and not doing what a reasonable person would do or not do
Bolton & Others v. Stone (House of Lords, 1951) (pg. 167)
Facts: The plaintiff was struck by a cricket ball while on a highway. The ball was hit from a
cricket match. The ball had been hit onto the highway about 6 times in the last 30 years, but it
has never hit anyone before. The plaintiff is suing the committee and members of the cricket
club.
Issues: What standard of care should we have for the creation of a fantastically small risk?
Ratio: When a person’s activities create a substantially small risk, because the risk is so
extremely small, the person can disregard the risk.
Decision: Judgment for the defendants.
Notes: Please note that the test described here to determine whether the risk is small enough that
it can be disregarded is set at considering 1) Remoteness (chances) of the risk occurring, 2) The
severity of the consequences and 3) Difficulty of remedial measures. This case seems to be
dependant also on 4) the social utility of the activity creating the risk (The Wagon Mound (No. 2)
overseas Tankship (U.K.) ltd. V. the Miller S.S. Co. Pty. Ltd.); had the activity been something
illegal it would have most likely been decided a different way.
Vaughan v. Menlove (Common Pleas, 1837) (pg. 175)
Facts: Plaintiff owned two cottages and defendant owned land near the cottages and hayrick
thereon. The defendant was warned that the hayrick may catch fire but he did not listen and it
did and spread to the plaintiff’s cottages. Original trial went to the plaintiff but the judge
instructed the jury “What reasonable caution would a prudent man have took”. On appeal a new
trial was order and this is the appeal to that ruling.
Ratio: In case of negligence, the caution taken should be that of a ordinary prudent (or
reasonable) man.
Decision: Ruling discharged.
Blyth v. Birmingham Water Works Co. (Court of Exchequer, 1856) (pg. 177)
Facts: Defendants had made a good fireplug. Due to the severe frost of 1855, damages resulted
in the plug resulting in the plaintiff’s home becoming flooded.
Ratio: Negligence is doing what a reasonable able would not do, or omitting to do what a
reasonable man would do.
Decision: Action dismissed, because a reasonable man could not take precaution against
something so rare and unlikely.
Waldick v. Malcolm (S.C.R., 1991) (pg. 183)
Facts: Plaintiff fell on the icy parking area rented by the defendants. The area was not salted or
sanded. The defendants claimed that it was custom in that area not to do so.
Issues: What role should custom have in determining the standard of care?
Ratio: Customs may be used as a factor in determining the appropriate standard of care, however
customs which are unreasonable in themselves, cannot absolve liability. Also, if custom is to be
used by the courts, unless truly obvious, the onus rests on the person claiming to use that custom
(to either say that person went away from or complied with the custom) to prove the custom is in
effect.
R. In Right of Canada v. Saskatchewan Wheat Pool (S.C.R., 1983) (pg. 186)
Facts: Defendants (Wheat Pool) breached a statutory provision by delivering larvae infest grains
and the plaintiffs (Wheat Board) are suing for statutory breach.
Issues: Should statutory breach in itself give rise to civil cause of action (creation of a new
statutory tort)?
Ratio: Civil consequences of breach of statute should be subsumed in the law of negligence.
Decision: Appeal dismissed as plaintiffs sued under just statutory breach (not in negligence) and
the court found that in itself is not a tort, but even if they had sued in negligence their action
would fail because the standard of care was met.
Notes: The court says that finding a tort of statutory breach would create absolute liability in that
we would make the defendants pay damages even without fault. The criminal court already has
a specific remedy for the breach. However the court does say proof of statutory breach and
damages may be some evidence of negligence. The statute may also help define what the
appropriate standard of care should be as the legislature seems to be taking a larger role in
defining civil responsibility.
Gorris v. Scott (Exchequer Court, 1874) (pg. 193)
Facts: Plaintiff is suing ship owner for not tying down his sheep going against a statutory
provision saying it was mandatory. His sheep were lost due to perils of the sea. The reasoning
behind the provision was to prevent disease from spreading.
Issues: What role does the meaning behind a statute play in determining whether negligence
would be appropriate?
Ratio: In order for a statutory breach to even be a part of negligence, the motive behind the
statute must directly or indirectly have meant to protect from the type of damages suffered.
Ryan v. Victoria (City) (S.C.R., 1999) (pg. 197)
Facts: Plaintiff was injured when thrown from his motorcycle when crossing some railway
tracts. He is suing the railway company and the city for negligence. Defendants denied liability
because they say the tracks complied with statutes, regulations, and administrative orders.
Issues: Does mere abiding by statutory regulations absolve the legal liability of reasonable
standard of care?
Ratio: Compliance with a statutory standard of care does not abrogate or supersede the
obligation to comply with the common law standard of care.
Decision: Court of Appeal’s decision overruled and the railway company and city were found
both liable.
Notes: This case referred to the historical stance in which railway companies had a lower
standard of care due to their necessity in a growing nation but how that was not necessary
anymore. They also state statutes may help determine what the proper standard of care should be
especially in cases where the statute is more specific and defines precautions and manners of
performance to be undertaken.
Heisler v. Moke (Ontario High Court of Justice, 1972) (pg. 201)
Facts: No facts, just discusses what standard of care for child should be.
Issues: What standard of care should be adopted for children in the question of negligence?
Ratio: The standard of care for children requires asking whether the child exercised the care
expected from a child of the same age, intelligence, and experience.
Notes: When a child is engaged in adult activity they are then held at the objective standard as if
they were adults (this is mainly due to the idea of children operating vehicles)(Dellwo v. Pearson
(U.S., 1961). Also note that the judge feels that the appropriate test should be a much more
objective test (this one seems rather subjective) as is the case in the cases cited from England and
Australia but he was bound to the more subjective test of the Supreme Court of Canada.
Fiala v. Cechmanek (Alberta Court of Appeal, 2001) (pg. 207)
Facts: Defendant had a sudden bipolar disorder episode which never occurred before. He broke
into Cechmanek’s car and started strangling her and she accidently hit on the accelerator and hit
the Fialas who were injured. The Fialas are suing the defendant (MacDonald) under negligence.
Issues: Should the mentally ill be liable in negligence?
Ratio: The mentally ill will not be liable if they are struck suddenly and without warning by a
mental illness and they can prove the following conditions are met:
1) As a result of the mental illness, the defendant had no capacity to understand or
appreciate the duty of care owed at the relevant time; or
2) As a result of mental illness, the defendant was unable to discharge his duty of care as
he had no meaningful control over his actions at the time the relevant conduct fell
below the objective standard of care.
Decision: Appeal dismissed as the defendant met both the preceding tests absolving him of
liability.
Notes: There is a big dispute over this issue. In Wenden v. Trika (1991) the judge found that a
mentally ill person should be judged by an objective standard. Many people argue that torts
liability should be about compensating the victim and that is why an objective test should be
used. So the big issue here is whether to compensate the victim (objective standard) or to have a
system based on fault. Also keep in mind this is an Alberta case so here in Ontario we are not
bound by this.
Defences
Butterfield v. Forrester (King’s Bench, 1809) (pg. 409)
Facts: Plaintiff was riding on horse heavily and defendant had put a pole onto the street while
doing repairs to his house. Plaintiff fell over pole and was injured.
Issue: Was the plaintiff also contributory negligent due to him riding too heavily and not taking
care to prevent injury to himself.
Ratio: A finding will be for the defendant if it is found that the plaintiff is somehow also
contributory negligent.
Notes: Keep in mind that contributory negligence is a complete defense therefore if there is any
negligence also on the part of the plaintiff whether it be 5% or 95% the plaintiff’s claim fails.
Decision: Found for defendant.
Davies v. Mann (Exchequer Court, 1842) (pg. 410)
Facts: Plaintiff had tied his donkey to the side of the road and the defendant was driving his
carriage too fast and hit the donkey and it died.
Issue: Is any type of negligence on the part of the plaintiff enough to make his or her claim fail?
Ratio: The negligence on the part of the plaintiff must be the immediate cause of the injury
caused by the defendant.
Notes: The prof says this case just basically shows that even when there is contributory
negligence on the part of the plaintiff the judge may sometimes be hesitant to apply that rule.
Negligence Act (R.S.O, 1990) (pg. 412)
Eight sections which respectively say:
1) If two or more people are at fault for the plaintiff’s claim, they will both be
responsible for the respective portion they are found at fault
2) If there are two or more people at fault, if only one gets sued, that person may sue the
other person at fault after settling with the plaintiff (victim)
3) Contributory negligence has now been apportioned to percentage of blame so now a
plaintiff will not lose their entire case in case of contributory negligence
4) If it is not practical to determine the respective blame for the negligence then all
defendants will be equally at-fault
5) A third party which is responsible may be added to the ongoing trial
6) The degree of fault is a question of fault for the juries
7) If the fault may be due to more than one party then the court has the power to make
the plaintiff bear some of the burden of fault, if it is just
Three ways the plaintiff can contribute to an accident:
1) Contribute to the accident which cause the injuries.
2) Expose themselves to a risk of being involved in an accident (i.e. going onto a
construction site without a helmet)
3) Fail to take reasonable precautions to minimize injuries should an accident occur (i.e.
going to the hospital after the accident)
Galaske v. O’Donnell (S.C.C., 1994) (pg. 421)
Facts: The plaintiff is eight years old and is suing the driver of a car for not ensuring that the
plaintiff was wearing his seatbelt even though the plaintiff father was in the car.
Issue: Does the driver of a car owe a duty of care to ensure that all children aged 6-16 are
wearing seatbelts when driving even in the presence of the child’s parents?
Ratio: There will be contributory negligence on the part of the driver for not ensuring children in
the car wear their seatbelts even if a parent of the child is present.
Decision: Appeal allowed and contributory negligence on the part of the driver was found.
Hambley v. Shepley (Ont. Court of Appeal, 1967) (pg. 431)
Facts: A police officer is the plaintiff and he was trying to stop the defendant who was a
motorist escaping arrest. The plaintiff put his police cruiser in the middle of the intersection to
block him but the defendant crashed right into him causing his injuries.
Issue: Can the defense of volenti (or voluntary assumption of risk) be used on a plaintiff who
was discharging his public duty?
Ratio: The defense of volenti can only succeed if the plaintiff consents not merely to the risk of
injury, but to the lack of reasonable care which may produce that risk.
Decision: In favour of the plaintiff.
Notes: Volenti seems to have gone out of fashion as a useable defense as it is a complete defense
and judges would rather use contributory negligence since it does not make the plaintiff’s claim
fail completely
Hall v. Hebert (S.C.R., 1993) (pg. 435)
Facts: The plaintiff and defendant were both drinking and when the car got stuck, the defendant
was pushing while the plaintiff was steering the car. The car fell and the plaintiff suffered
damages. The plaintiff is suing the defendant for allowing the plaintiff to drive while he was
impaired.
Issue: Can the defense of illegality be used to prevent a claim for compensation?
Ratio: The defense of illegality can only be used to prevent an inconsistency in the law and thus
prevent the profiting from the illegal act. It cannot be used to deny a plaintiff compensation for
injuries.
Notes: The prof gives a clear example of where you make an illegal right turn and then someone
going the wrong way on a one way street comes and hits your car. Well you should be fined for
the illegal right turn but should not be denied recovery for the damages you suffered.
British Columbia v. Zastowny (S.C.C., 2008)
Facts: In this case the plaintiff sued for the loss of earning potential due to time spent in prison
after becoming a heroin addict after being sexually assaulted by a prison official when going to
prison the first time for a break and enter to support a cocaine addiction.
Issues: Can you be compensated in tort for time spent in prison for loss of earning potential?
Ratio: One cannot be compensated for a lawfully given prison sentence because it would create
conflict within the branches of the law and negate the punishment given by the criminal courts.
Decision: Award was reduced to not include time in prison.
Notes: It is important to understand that the defence of illegality will only be available in very
rare circumstances. It is simply there to prevent a party from profiting from their illegal activity,
or permit evasion of a penalty imposed by the criminal law. It is not there to prevent
compensation for an injury or damages to property as in the case of Hall v. Hebert, there the
plaintiff should not be denied damages for his injuries, he should be punished separately for the
illegal driving while under the influence, this will not create an inconsistency within the law.
Causation
Snell v. Farrell (S.C.C., 1990)
Facts: Here the plaintiff had eye surgery and the defendant saw bleeding but continued the
operation anyways. The plaintiff ended up losing eyesight in that one eye that was bleeding.
The doctor was found negligent for that. Under the possible causes for the blindness, the
negligence of the doctor was just of the possible causes.
Issues: What is the proper method of determining causation in Canada?
Ratio: The proper method for determining causation in Canada is the but for test. So the legal
burden of proof remains on the plaintiff, but in situations where the defendant would be better
able to show causation because of his or her position, if the plaintiff simply provides minimal
proof of causation, and no evidence is brought by the defendant to disprove causation, that will
be enough to satisfy the onus.
Decision: Causation was found based on the evidence at trial.
Notes: Note that the judge says that causation is not a fixed idea that can be best understood
through some metaphysical theory, but instead many times common sense will be the
determining factor. There is also another theory where the plaintiff only has to show some
evidence of the risk of the damages on the part of the defendant, and the defendant then has the
burden of disproving causation, although the judge does not accept this theory he states that if a
situation arise where it would be unjust to not allow compensation because of the difficulties of
causation, then he would use one of these alternative theories. Also note in one of the notes here
they say that apportionment of damages will not be allowed (so if the damages were only likely
to be caused by 70% due to the defendant’s conduct, and there was a 30% chance of the damages
occurring anyways, then full damages would still be awarded, not proportioned to the causation
likelihood).
Walker Estate v. York Finch General Hospital (S.C.C., 2001)
Facts: The plaintiff’s estate sued because the plaintiff contracted aids from contaminated blood
from the red cross.
Issues: Is the “but-for” test the standard of causation in all cases?
Ratio: The but-for test is not useable in cases where multiple independent causes may bring
about a single harm. The proper test to use in these “multiple independent causes” (in cases of
negligent donor screening) cases is to determine whether the defendant’s negligence materially
contributed to the occurrence of the injury beyond the de minimis range.
Decision: Causation was found and verdict for the plaintiffs.
Note: Note that the issue in this case was the fact that even if the red cross had put out the
appropriate pamphlets identifying high risk groups, the donor may have still donated, so there is
also the cause of the donor choice in this matter. The prof thinks there is also the issue of being
infected by another done.
Catrelle v. Gerrard (Ont C.A., 2003)
Facts: In this case the plaintiff suffered an amputated foot due to gangrene because her
artherosclerosis in her leg prevented her body from fighting the infection. The plaintiff had
visited the defendant before hand when she noticed an issue with her foot and thus sued in
negligence.
Issues: What is the correct test of causation to use in Canada.
Ratio: The correct test of causation in Canada remains the but for test, the material contribution
test is only needed in circumstances where the actual cause of the injury cannot be proven by the
plaintiff because there exists several independent causes.
Decision: The court found that the doctor’s negligence only made the plaintiff lose a chance at
saving her leg and thus the causation test had not been met so judgment went to the plaintiff.
Notes: Note here that the judge says that you need to prove on a balance of probabilities that the
defendant’s negligence caused the injury. The judge distinguishes this case from Snell v. Farrell
by saying that this case the cause of the injury was clear, it was the infection, but in Farrell the
cause of the actual loss of eyesight was not clear and that is why they needed the material
contribution test there.
Cook v. Lewis (S.C.R., 1951)
Facts: The defendants here both were hunting for grouse in one party, and the plaintiff was also
hunting for grouse in another party. The defendants were aware of the plaintiff’s presence but
when shooting at a bird one of them shot and injured the plaintiff. The plaintiff sued in
negligence.
Issues: If it is certain that one of two people caused the injury on the plaintiff but it is not
possible to determine whom amongst them did so, has causation been met?
Ratio: In a case where the injury is definitely caused by the negligence of two possible people
but due to the circumstances it is impossible to determine which one is responsible for the injury,
the court will shift the burden onto both defendants assuming both their responsibility and
putting the burden on them to exculpate themselves.
Notes: Note that it is relevant in this case that the jury found that both defendants were guilty of
negligence and that is why shifting the onus onto them to disprove the injury was caused by them
is appropriate.
Fairchild v. Glenhaven Funeral Services Ltd. (House of Lords, 2002)
Facts: The plaintiffs here contracted mesothelioma because of asbestos dust exposure from two
different places of employment where each had a duty to make sure there was no exposure. The
scientific evidence could not determine from which of the two places of employment the
mesothelioma was caused by, but it was evident that the condition was caused by the asbestos
exposure.
Issues: Under what circumstances would it be appropriate to not use the “but for” test?
Ratio: Where C has been injured by either the conduct of A or B or by both’s conduct, C will
not be denied compensation due to the lack of science’s ability to identify the exact perpetrator
of the injury when both A and B have exposed C to the risk of the injury.
Decision: Plaintiff was allowed recovery.
Notes: The case of Resurfice v. Hanke they list some conditions where the material contribution
test should be applied rather than the traditional “but for” test: Where there are multiple
independent causes and the limits of science do not enable the discovery of the precise cause of
the injury.
Sindell v. Abbott Laboratories et al. (Supreme Court of California, 1980)
Facts: The plaintiffs mother took the drug DES during her pregnancy with the plaintiff and as a
result the plaintiff later in life developed a disease due to her mother taking that drug. The
plaintiff did not know exactly which company manufactured the drug her mother had taken so
she sued several of the big name companies that had manufactured that drug during the time of
the plaintiff’s mother’s pregnancy.
Issues: If an injury is caused by the actions of one of several defendants can causation be
proved?
Ratio: In this type of scenario since the plaintiff is innocent and all the manufacturers are
negligent, all the manufacturers will be held liable and will pay for the percentage and market
share at the time the item was selling.
Decision: Judgment for plaintiff.
Notes: Note that it was important that the defendants here constituted 90% of the market share
sellers of the drug, so that shifting the burden to the defendants to disprove liability avoids much
injustice since there is only a 10% chance that one of the defendants is not guilty of selling the
actual drug. The court states that a substantial share percentage of the market is required before
the court would agree to do this again (they say about 75%-80%).
Aristorenas v. Comcare Health Services (Ont. C.A., 2006)
Facts: The plaintiff after having a cesarian section to deliver her child she had some
complication in terms of an infection in the area of the incision. The doctor looked at her several
times and had advised that several nurses look after her and help cleaning the wound. The
wound ended up becoming very infected with a condition called necrotizing faciitis which is a
flesh-eating disease and as a result the plaintiff lost an abdomen muscle and had it replaced with
a leg muscle.
Issues: How do you reconcile the “robust and pragmatic” approach to causation with the “but
for” and “material contribution” test?
Ratio: The robust and pragmatic approach to causation merely says that causation need not be
proved to an absolute scientific certainty and that rather evidence need only be looked at its
entirety and allow the judge to make an inference of whether causation had been met on a
balance of probability (Did the negligent conduct cause or contribute to the injury towards the
plaintiff?).
Decision: Judgment for the defendant for lack of causation.
Notes: Note that it is important that the “matter of common sense” spoken of in Snell does not
mean that causation can be found without the appropriate evidence. In this case what was
important was that the negligence by the doctor and nurses caused a delay of three days in
treatment. The proper question to ask was whether that delay of three days caused or contributed
to the injury towards the plaintiff. No evidence had been shown to infer such a conclusion by the
plaintiffs and as such, the causation requirement had not been met.
Resurfice Corp v. Hanke (S.C.R., 2007)
Facts: The plaintiff was driving an ice resurfacing machine was injured due to an explosion
because water had been put into the gasoline tank. The plaintiff sued the manufacturer of the
resurfacing machine stating that the two tanks had been negligently been put too close together
making them confusing and without warning.
Issues: Can the material contribution test be applied in all circumstances?
Ratio: The material contribution test is only to be used where there are several independent
causes and it would be almost impossible for the plaintiff to prove that fault was attributable to
one specific cause.
Decision: The judgment went to the defendant for lack of causation.
Notes: The but for test is stated in this case as the prominent test for causation in Canada. It is
there because it prevents holding the defendant liable in situations where the injury is not the
fault of anyone. This case gives some criteria to determine when the material contribution test
should be applied: 1) It must be impossible to prove causation using the “but for” test due to
circumstances outside the plaintiff’s control (i.e. limits of scientific knowledge), 2) The
defendant must have breached a duty of care owed to the plaintiff. Two specific examples of this
are when it is impossible to know which one of several possible defendants actually caused the
injury (Cook v. Lewis) and if it would be impossible to know what a certain person would do in
the chain of causation (Walker Estate v. York Finch General Hospital).
Nervous Shock
-the main test for establishing a duty is foreseeability of shock (Marshall v. Lionel Enterprises
Inc.)
-it is necessary for the plaintiff to have been endangered themselves or to have seen the accident
or aftermath with their own unaided eyes
-there must be a recognizable psychological illness however, not a mere emotional upset (Dumyn
v. Kaprielian)
-usually the class of people who can recover include close relatives and loved ones, rescuers,
workers or people involved someway in the accident, mere bystanders however usually are not
able to recover
-reasonableness, robustness, and fortitude is expected of all Canadians (Vanek v. Great Atlantic
& Pacific Co. of Canada)
Mustapha v. Culligan of Canada Ltm. (S.C.C., 2008)
Facts: Here the plaintiff while replacing an empty bottle of drinking water with a full one the
plaintiff noticed a fly in the water and disgusted with the health implications it would have on
his family he developed serious psychological problems and sued fore negligence.
Issues: Is reasonable foreseeability of damages assessed on a subjective or objective state of
mind.
Ratio: Reasonable foreseeability of damages is an objective measure. In the present case it
would be necessary to prove that a person of ordinary fortitude would suffer the injury before it
would be reasonably foreseeable.
Decision: Judgment went to the defendant.
Notes: This case also sets the standard for reasonable foreseeability in cases of nervous shock
and mental disorders. This is a higher standard than that of normal damages.
Remoteness
The Wagon Mound (No. 1) Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering
Co. Ltd. (Privy Council, 1961)
Facts: The plaintiffs here were shipbuilders and ship-repairers and the defendants were
charterers on an oil-burning vessel and they negligently spilled some oil in the water while they
were close to the plaintiffs. The oil later caught fire by the welding processes going on by the
plaintiffs and cause much damage to the plaintiffs.
Issues: What test for remoteness is appropriate for assessing damages?
Ratio: When assessing remoteness, the proper test to be used is whether the damages were
reasonably foreseeable, whether they were directly or indirectly caused is not of importance.
Decision: The damages were too remote as the defendants could not reasonably have foreseen
the oil would catch fire in open water.
Notes: It is important here that the decision here overrules the decision in Polemis which
referred to damages as requiring to be direct. Also the judgment here says that reasonable
foreseeability of a small damage does not entail foreseeability of all the subsequent damages.
Smith v. Leech Brain & Co. (Queen’s Bench, 1962)
Facts: In this case the plaintiff suffered a burn on the lip due to the defendant’s negligence and
as a result, it ended up becoming cancerous and the plaintiff died.
Issues: Does the rule of reasonable foreseeability set out in the Wagon Mound apply to all
cases?
Ratio: The rule when it comes to the “thin-skulled” cases is that the defendant must take his
victim as he finds him.
Decision: The court ruled in favour of the plaintiff.
Notes: Here the court says that the question was note whether it was reasonably foreseeable for
the burn to become cancerous, but rather whether the employers could reasonably foresee the
burn. However in the notes they refer to the “crumbling-skull” rule which comes from the case
of Athey v. Leonati which states that if the plaintiff already had a pre-existing predisposition for a
certain injury, you do not have to put him in a position better than he would have been (as in if
the person was going to lose his eye-sight in 2012 and do to the negligence he loses it in 2010,
the award for damages would not include damages beyond the 2012 mark).
Hughes v. Lord Advocate (House of Lords, 1963)
Facts: Here the plaintiff was an eight year old boy and the defendants were post office workmen
who had dug a hole in the ground to do some work. While the workers were away from the hole
the plaintiff went to explore the hole with one of the lamps left by the workers and the lamp fell
and broke in the hole causing an explosion which made the plaintiff fall into the hole and suffer
damages.
Issues: What exactly needs to be reasonably foreseen?
Ratio: Only the type of damages or the type of occurrence needs to be reasonably foreseen, the
fact that the features and the developments of the accident could not be reasonably foreseen is of
no importance.
Decision: Judgment for the plaintiff.
Notes: The judge also says that if the damages are of a degree that is greater than expected or
that could be foreseen that will not be a valid defence. The only time remoteness can work as a
defence is if the damages are of a completely different type than can be foreseen (i.e. a
motorcyclist runs you over and then because of those damages you miss a call from the radio
station giving out a million dollar reward). In the notes, the case of Doughty v. Turner
Manufacturing Co. Ltd. was discussed and there the plaintiffs accidently spilt a cement
compound into a bath of molten liquid and the cement compound went through an abnormal
reaction which caused an explosion and caused the injuries. However, the explosion here was
not foreseeable at all, all that was foreseeable would be the splashing of the liquid when the
cement dropped and that would have not injured the plaintiff so the damages are too remote. The
notes here also discuss the case of Lauritzen v. Barstead and in that case the plaintiff was driving
the defendant’s car and the defendant grabbed the wheel and as a result the car got stuck in a
ditch. The plaintiff later went to look for help and due to the cold amputation of both parts of his
feet were necessary. The judge here found that in fact the defendant was liable as the defendant
should have reasonably foreseen the dangerous consequences of grabbing the steering wheel and
the precise harm or mechanism of how it results does not have to be foreseeable.
The Wagon Mound 2 (Privy Council, 1966)
Facts: The facts of this case are the same as The Wagon Mound 1 except that the plaintiffs here
are the owners of ships which were at the Sheerlogs Wharf being worked on by the plaintiffs of
The Wagon Mound 1 and as such do not have the problem of proving it was reasonably
foreseeable for the fire to start (as in The Wagon Mound 1 if it was reasonably foreseeable the the
plaintiff would have had contributory negligence)
Issues: How reasonably foreseeable must the possibility of injury be for it to be too remote?
Ratio: A risk can only be neglected by a reasonable person if the risk is sufficiently small and
the person is justified as would any reasonable person in neglecting the risk. It is no defence to
say the risk was so small that it would be reasonable to neglect it.
Purely Economic Loss
-there are five classes of purely economic loss: negligent misrepresentation, negligent
performance of a service, defective products or structures, relational losses, and public authority
liability
B.D.C. Ltd. V. Hofstrand Farms Ltd. (S.C.R., 1986)
Facts: Here the plaintiff was a company trying to sell their land however they were waiting for a
Crown grant to be delivered by the defendants in order for the land to be sold. The crown had
hired the defendants (a courier company) to deliver the crown grant however the courier
company was late and as a result the plaintiffs lost their contract to sell the land. The plaintiffs
sued the courier company for the loss of profits.
Issues: When can damages be awarded in purely economic loss?
Ratio: The requirements are that that the defendant must know of the class of people that may
be affected by their actions and that there must be reliance by the plaintiff on the voluntary
assumption of risk taken by the defendant.
Decision: Judgment for the defendants.
Notes: Here the judges say that the courier company could not assume any risk nor did they
know of the existence of the plaintiffs since they did not know what was in the package they
were to deliver and thus they also could not assume any risk. Also note the case of Whittingham
v. Crease & Co. in which the defendant was a solicitor who negligently prepared a will and as a
result the beneficiary who was the plaintiff ended up losing what he was entitled to get. The
difference in that case was that the solicitor did know of the class of people who would be
affected by his negligent conduct (namely the plaintiff) and as such the solicitor was found
liable.
Canadian National Railways Co. v. Norsk Pacific Steamship Co. (S.C.R., 1992)
Facts: In this case the plaintiffs were CN Railway and they had contracted the use of a certain
bridge by the owner Public Works Canada. The defendants were operating a tugboat which hit
the bridge and damaged it making it unfit for use for a period of time. The owners of the bridge
were able to get compensation however the question was could CN get damages for its loss of
use of the bridge which it had a contractual right to use.
Issue: Can a company which contractually has the right to use property owned by a third party
sue for the loss of use of the property if it is damaged by the plaintiff (this is called relational
economic loss)?
Ratio: Normally damages for relational economic loss are not obtainable however one of the
exceptions to that is when the defendant is so close to the actual property owner in business
terms that it can be considered a “joint venture” by both parties. The factors which determined
that CN was in “joint venture” was the fact that CN paid for many repairs, CN was the bridge’s
primary user, was recognized during periodic negotiations for the closure of the bridge, and CN’s
own property was close to the bridge and as a result the loss of use of the bridge prevented CN’s
enjoyment of its own property.
Decision: The judgment went to the plaintiff (4-3 split decision).
Notes: Here some of the arguments brought forth by La Forest for the dissent were: deterrence
would already be there since the owner can already obtain damages so allowing damages in
relational economic loss would not deter anymore, C.N. could also insure against the damages,
indeterminacy would be huge, C.N. was in a better position to bear the loss, and C.N. could have
contracted against Public Works Canada against the loss. McLachlin J says that many times the
company cannot contract its way into protection, and that insurance itself may not be the best
measure for this, she also says that indeterminacy will not be a problem since there are only a
few exceptions to the general rule.
Bow Valley Husky (Bermuda) Ltd. Et al. v. Saint John Shipbuilding Ltd. (S.C.R., 1997)
Facts: Here the facts of the case basically are that the plaintiffs were in a contract with a third
party to pay for the use of a rig regardless if it was damaged. Now the defendants were hired to
make the rig and it caught on fire. The plaintiffs sued to obtain the money it had to pay for the
use of the rig.
Issues: What is the exact rule and its exceptions in cases of relational economic loss?
Ratio: There are three categories where relational economic loss can be recovered (the
exclusionary rule): 1) Cases where the claimant has a possessory or proprietary interest in the
damaged property, 2) general average cases, 3) cases where the relationship between the
claimant and the property owner constitute a joint venture. These categories are not exhaustive
and any new category will have to go through the Anns test.
Decision: Here the court found in favour of the defendants.
Notes: The main issue here was that of policy considerations which would negate the duty
because of the possibility of indeterminate liability.
Design Services v. Canada (S.C.C., 2008)
Facts: Here the plaintiffs were sub-contractors and they as well as the contractors O sent in a
bid for a tender put out by the defendant. The defendant selected a non-compliant bid and as a
result both O and the plaintiffs sued as they should have been the bid that was chosen. Now O
settled early, however the plaintiffs continued this suit.
Issues: Does the issuer of a tender have a duty of care to the sub-contractor of a bidder to that
tender?
Ratio: If a case of purely economic loss is to succeed it must first be one of the five identified
categories of purely economic loss where a duty has been found, and if not, the situation must be
put through the Anns test to determine if the finding of a duty should be warranted.
Decision: The judgment went to the defendants.
Notes: Note that the court says that this case does not fall within the category of relational
economic loss because there is no damage to property or the person and that is a requirement for
relational economic loss. Also the big issues in this case for the court was that the sub-
contractors had the opportunity to enter into the contract in a joint venture and so be allowed
recovery in contract however they decided not to do that and tort should not be used as an
alternative to a right that should have been secured in contract. Also the issue here is the fact
that there would be an indeterminate amount of liability here because all the sub-contractors
were not identified and so many groups may be able to claim damages if the court allows
damages to these sub-contractors.
Negligent Misrepresentation
Hedley Byrne & Co. Heller & Partners Ltd. (House of Lords, 1963)
Facts: Here the plaintiffs placed advertisements on behalf of a third party and agreed that they
would be liable if the third party defaulted in payment. The plaintiffs became uneasy about the
third party’s credit so they asked their bank to investigate and the plaintiff’s bank requested the
credit information from the third party’s bank, which are the defendants here. The defendants
made a statement stating that the third party’s credit was fine but that they are not taking any
responsibility for the statement. The plaintiffs lost money when the third party went into
liquidation.
Issues: Can a negligently made statement constitute grounds for a claim in damages in tort?
Ratio: A duty of care will be found in cases where a statement is made by a reasonable man
who ought to know that he was being trusted or that his skill and judgment were being relied
upon if that person assumes responsibility for that statement. If that person makes the statement
without any attached disclaimer of liability then it will be assumed that he has accepted to
assume responsibility.
Decision: In this case the judgment went to the defendant because of the disclaimer.
Notes: It is important to note that in this case they say that an innocent misstatement will not be
taken to impose any sort of liability. That is why they use the phrase “reasonable”.
Queen v. Cognos Inc. (S.C.R., 1993)
Facts: In this case the plaintiff in an interview was told that he had a bright future in the
defendant’s company and as a result the plaintiff quite his current job and moved. The
defendants however were not sure that the project was actually going to be permanent but they
did not disclose that to the plaintiff. The plaintiff was later let go because the project was
cancelled and the plaintiff sued in negligent misrepresentation.
Issues: What are the criteria which will allow for a successful negligent misrepresentation
claim?
Ratio: There are five requirements for a successful claim: 1) There must be a duty of care based
on a “special relationship” between the representor and the representee, 2) The representation in
question must be untrue, inaccurate, or misleading, 3) The representor must have acted
negligently in making said misrepresentation, 4) The representee must have relied, in a
reasonable manner, on said misrepresentation, 5) The reliance must have been detrimental to the
representee in the sense that damages resulted.
Decision: The judgment was in favour of the plaintiff.
Notes: This case is mainly about whether the duty of care existed in the first part of the five part
test. The duty of care and its existence has been through much debate and they just mention that
it has to do with foreseeability and reasonable reliance. The important part is whether a special
relationship has been created between the plaintiff and the defendant. The judge here thinks that
this relationship and whether a duty of care is established depends on whether the reliance was
reasonable and foreseeable, and whether the defendant voluntarily took assumption of
responsibility. Note that this case differs from Design Services because 1) This is a person and
not a company and 2) This did not involve something that could be put into a contract (namely
his bright future) and as a result this case was decided differently.
Hercules Managements Ltd. V. Ernst & Young (S.C.R., 1997)
Facts: Here the shareholders in a corporation were the plaintiffs and they were suing the
auditors because of their negligently made audit reports which caused them financial loss.
Issues: What is the proper test to determine whether a duty of care exists in the case of negligent
misrepresentation?
Ratio: The proper test remains the Anns test however in order to determine the prima facie duty
of care, you must determine that 1) The defendant ought reasonably have foreseen that the
plaintiff would have relied on his representation and 2) The reliance by the plaintiff, in the
circumstance, would be reasonable. For policy considerations the questions which are important
to ask are: 1) Whether the defendants had knowledge of the identity of the plaintiffs (or class of
plaintiffs) and 2) Whether the plaintiff used the statements at issues for the particular transaction
for which they were provided for.
Decision: Judgment went to the defendants here because the statements were not used for their
intended purpose (informing shareholders to make executive decisions concerning the company).
Notes: This case also nicely sets out some guidelines to determine whether the reliance was
reasonable: 1) The defendant had a direct or indirect financial interest in the transaction in
respect of which the representation was made, 2) The defendant was a professional or someone
who possessed special skill, judgment or knowledge, 3) The advice or information was provided
in the course of the defendant’s business, 5) The information or advice was given in response to
a specific enquiry or request.
Vicarious Liability
-note that this is a strict liability offence
Ontario Limited v. Sagaz Industries Canada Inc. (S.C.R., 2001)
Facts: Here the plaintiff lost a contract to provide automotive seat covers to Canadian tire by a
rival company (the defendants) because their agent bribed Canadian Tire. They sued to find the
defendants vicariously liable.
Issues: How do you determine whether someone is an employee or an independent contractor
and what difference does this make to vicarious liability?
Ratio: Only an employee can make the employer vicarious liable, not an independent
contractor. To determine whether someone is an independent contractor you must ask whether
the person is performing the services as a person in business on his own account. Factors to
consider in making this analysis include: 1) The level of control the employer has over the
activities, 2) whether the worker provides his or her own equipment, 3) whether the worker hires
his or her own helpers, 4) the degree of financial risk taken by the worker, 5) the degree of
responsibility taken of investment and management by the worker, and 6) the worker’s
opportunity for profit in the performance of his or her tasks.
Decision: The judgment went to the defendants because the agent hired was found to be a
subcontractor.
Notes: It is important to know that vicarious liability is there due to policy considerations.
Some of them are: the employer is advancing their own economic interests and therefore should
be held liable, they also can better spread the loss, deterrence, and employer has control over the
employee’s actions. It is also important that in order for vicarious liability to apply two
conditions must be met: 1) The two parties must have an employee-employer relationship, and
the employee must have committed the tort in the course of employment.
Bazley v. Curry (S.C.R., 1999)
Facts: Here the plaintiff was a young boy who was sexually assault by the employee of the
defendant non-profit organization who would provide support for abused children.
Issues: For what actions of an employee can an employer be held vicarious liable for?
Ratio: The appropriate test to apply is the Salmond test which states that an employer will be
vicariously liable for: 1) Employee acts the employer authorizes, 2) Unauthorized acts so
connected with authorized acts that they may be regarded as modes (albeit improper modes) of
doing an authorized act. However the court here says the better approach for the second branch
is considering whether the wrongful act is sufficiently related to conduct authorized by the
employer to justify the imposition of vicarious liability. So there must be a significant
connection between the creation or enhancement of a risk and the wrong that accrues therefrom,
even if unrelated to the employer’s desires.
Decision: The court decided to favour the plaintiff as they found the risk the employer created
met the test above.
Notes: The court also gives some guidance in determining whether there is a connection
between the creation of the risk and the wrong committed: 1) the opportunity that the enterprise
afforded the employee to abuse his or her power, 2) the extent to which the wrongful act may
have furthered the employer’s aims (and hence be more likely to have been committed by the
employee), 3) the extent to which the wrongful act was related to friction, confrontation or
intimacy inherent in the employer’s enterprise, 4) the extent of power conferred on the employee
in relation to the victim, 5) the vulnerability of potential victims to wrongful exercise of the
employee’s power. It is also important to note that these criteria are for the employee’s
unauthorized acts where precedent for liability has not been found. Also important that time and
space when and where the act occurred may be important but is not the sole criteria.
Jacobi v. Griffiths (S.C.R., 1999)
Facts: Here the defendants operated an after-school activity center which employed a man who
sexually assaulted several of the children who took part in the program. He would lure them to
his home to find times when he could be alone with them t assault them.
Issues: How remote can the “creation of risk” be from the actual wrong committed?
Ratio: If the wrong actually took place alongside the employee conduct rather than part of it
then no liability can be imposed.
Decision: Judgment for the defendants.
Notes: It is important here that the assaults took place in the abuser’s home and not as part of
the program, and also the fact that the mother here allowed her children to go to this man’s
house. The club also did not encourage the children to spend outside time with the abuser and
this practice was actually prohibited after 1988, so it appears that the club activity did not do
much more to create or enhance the risk other than really introducing the people together.
P.S. v. Miki (B.C. C. A., 2006)
-this case is an example of a case where an employee conduct will not have vicarious liability
-a landlord was told of a problem in the premises by a tenant, and the landlord sent a relative (an
employee) (it does not matter that it was a relative) to fix the problem, and the employee sexually
assaulted the tent
-the question is whether the landlord is responsible through vicarious liability of the sexual
assault of the tenant
-the answer is no because under the Bazley v. Curry test, there was no policy reason for imposing
liability in this case, the sexual assault had no significant connection to the job the tortfeasor was
employed to do, he had simply exploited an opportunity that had simply come along, it was not
something that was part of his job, he had added something on, rather than change something
that was already there
-the court also says that had the landlord known that the employee had this tendency, then the
landlord could have been negligent, but here the landlord did not know of this tendency, so the
landlord was not negligent himself either
Damages
Special and General Damages
-this basically means the damages that can actually be calculated (i.e. hospital bills, costs of
repair) which are special damages and general damages are those which cannot be immediately
calculated but are going to arise in the future, (i.e. loss of future earning potential)
-punitive damages are designed to punish and deter
-the general purpose for damages in torts is compensatory, so it tries to put you in the position had the
tort not occurred
-there are three types of damages: compensatory, aggravated, and punitive or exemplary damages
-aggravated damages are awarded to you in recognition in outrage to you for your feelings in response
to the defendant’s conduct
-then there are punitive damages which are awarded to punish the defendant’s conduct. It is also called
exemplary damages because the court wishes to deter the activity in a community, and to make an
example out of the person
-The type of conduct required to attract punitive damages has been described in many ways, such as:
malicious, oppressive, arbitrary and high-handed that offends the court’s sense of decency, a marked
departure from ordinary standards of decent behaviour , harsh, vindictive, reprehensible and malicious,
offends the ordinary standards of morality or decency, arrogant and callous, egregious, high-handed
and callous, arrogant, callous of the plaintiff’s rights and deliberate, harsh, reprehensible and malicious,
outrageous or extreme, highly unethical conduct which disregards the plaintiff’s rights and recklessly
exposing a vulnerable plaintiff to substantial risk of harm without any justification (McIntyre v. Grigg)
-now keep in mind that many insurance companies refuse to pay punitive or exemplary damages
-some people say that the law of torts is only for compensation, and punitive damages (especially in
civil law people) is only for criminal law, and torts should be for compensation. The people against
punitive damages say that it is pointless and should be fined in the criminal law, but people who like
punitive damages in torts say that you should allow the law of torts to act in deterrence. Now note that
is a large amount of disagreement here
-note that in the case of whiten v. Pilot Insurance you should see that if the legislature enacted a law,
prevent unreasonably not paying an insurance claim that would be really hard to prove so maybe the
law of tort is the better place for this.
Andrews v. Grand & Toy Alberta Ltd. (S.C.R., 1978)
Facts: Here the plaintiff was disabled for life for the tortuous conduct of the defendant.
Issues: Question of how damages are to be calculated.
-the plaintiffs claims must be reasonable but the mitigation of loss principle need not apply to
personal injury claims
-the plaintiff must be put in as good a position as possible as money can provide as if the tort had
not been committed
-so between home care and institutional care, and since both courts found that home care was
better for the plaintiff, it would be reasonable to allow for home care as that is what is expected
in societies, reasonable means reasonable in terms of him living at home, not meaning that he has
to live in an institution
-contingencies of life also reduce the award by a certain amount depending on whether the
plaintiff is likely to meet a certain hazard in life
-to calculate loss of future earning, you need to take the earning capacity and subtract the cost of
basic necessities which will leave you with the net earnings
-when calculating the loss of future earning you must take into account that the plaintiff’s present
salary will not be indicative of his future salary, so you must take his current salary and then look
at the maximum someone of his or her occupation would make and then find an average
-note the way damages are calculated: damages are calculated in a once for all system (so they
are calculated on the basis of the facts right at the trial), instead of asking him to come back
every year to determine the sum of money to give. There are two disadvantage to this approach:
we do not know what the damages will be exactly and we have to estimate a lot of things when
many different things can happen in his lifetime. He can die sooner than we expected or later
than we expected so it Is not precise. Another bad problem here is that all the money may be
taken by the plaintiff and all lost right away and then he does not have money for later. This is
why Canada has gone and approach a structured settlement process
-note that the estimation of non-pecuniary losses (losses which cannot really be determined as in
loss of happiness of life). Here the issue is that any estimation will be arbitrary. This is where
there have large and inappropriate claims. Now it must be considered that large claims in this
area will cost a big social burden as everyone’s insurance premiums will be too high
McCabe v. Westlock Roman Catholic Separate School District No. 119 (Alberta Court of
Appeal, 2001)
Facts: A woman here is suing for damages
Issues: Here the issue here is whether the loss of future income should be measured according
to the earning tables for men or for women (equality issue).
Ratio: Here the law must award damages considering the current situation in society and is not
there to fix gender equalities should be fixed.
Notes: The problem here is that damages in the law of tort is to put you in the position had the
wrong not occurred. Now it should not be proper for the law of torts should correct inequalities
in the society. Now the plaintiff here wanted to have children and stay at home, and if the court
ignored this issue then this would inflate her damages and put her in a better position than she
would have been if the tort did not occur.
Whiten v. Pilot Insurance CO. (S.C.R., 2002)
Facts: Here the plaintiff’s house burnt down and the insurance company would refuse to pay for
the house as they felt arson had occurred contrary to all the available evidence.
Ratio: The punitive damages are a valid force of the torts law and not just the criminal law. The
main purpose behind punitive damages are meant for deterrence, rather than punishment by
itself, which is part of the criminal system. So the general purpose is for denunciation,
deterrence, and retribution.
Decision: The original judgment was reaffirmed (1000000 dollars was given)
Notes: The court says that the whole point of insurance is that you do not need to worry about
these accidents that occur in your life, and the actions of this company basically took away that
general purpose. Keep in mind that the general purpose of the punitive damages is to deter, now
an award of 100000 would have been so small that it would not really affect the insurance
company much, but the one million would.
McIntyre v. Grigg (Ont. C.A., 2006)
Facts: In this case the plaintiff was walking home from a McMaster pub and the defendant went
and injured her with his car because he was over the limit after drinking at the same pub.
Issues: In what situation will an award of punitive damages be warranted?
Ratio: Negligent conduct can only attract punitive damages if the misconduct in question was
intentional and deliberate and was “extreme in nature and such that by any reasonable standard it
is deserving of full condemnation and punishment.
Notes: Note that the dissent in this case states that punitive damages should only be awarded for
the exceptional case and injuries resulting from drinking and driving are not rare and how would
you distinguish this case from the rest?
Rylands v. Fletcher
Rylands v. Fletcher (House of Lords, 1868)
Facts: The defendant was working coal mines with the permission of the landowners. The
plaintiff owned a mill near the land where the defendant was working the mines. The defendant
constructed a water reservoir. The plaintiff’s mine was flooded when the water from the
reservoir burst through an adjacent shaft. There was no negligence on the part of the defendant.
Ratio: A person who brings onto his own land and collects and keeps there anything likely to do
mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie (as in
strict liability) answerable for all the damage which is the natural consequence of its escape. It is
important that the item that he brings on is not naturally there.
Decision: The judgment went to the plaintiff.
Notes: The court does mention here that the defendant can absolve himself by showing it was an
act of |God or that it was through the plaintiff’s default.
Justification: The neighbour who suffers as a result of the escape is damaged through no fault
of his own, and the person who brought something onto his property which was not naturally
there and escapes should be obliged to fix the damage which ensues
o but for his act of bringing the thing onto the land, mischief would not have happened, so
he should have to pay for the damage
Lord Cranworth: “For when one person, in managing his own affairs, causes, however
innocently, damage to another, it is obviously only just that he should be the party to suffer.
Rickards v. Lothian (Privy Council, 1913)
Facts: The defendant was the occupier of a business building and leased part of the second floor
to the plaintiff. On the fourth floor was a men’s lavatory containing a basin, which was provided
for the use of the tenants and persons in their employ. The plaintiff’s property was damaged by
the escape of water from the basin, which had been plugged up by a third party. The defendant’s
caretaker had found the basin in proper order at 10:20 the evening before.
Ratio: Where the escape is caused by the unforeseeable actions of a third party, and not of the
defendant, there is no liability under Rylands. A Rylands action requires an unnatural use of
land.
Decision: The judgment went to the defendant.
Notes: Lord Moulton: Rylands requires some sort of unnatural use which results in increased
danger to others, not merely the ordinary use of the land.
Tock v. St. John’s Metro. Area Bd. (S.C.R., 1989)
Facts: The facts of this case were that the defendant Board was maintaining a storm sewer and it
became flooded during a heavy storm. The water overflowed and as a result the plaintiff’s house
was flooded.
Issues: What type of non-natural use must it be?
Ratio: It is not every use to which land is put that brings into play that principle. It must be
some special use bringing with it increase danger to others, and must not merely be the ordinary
use of the land or such a use as is proper for the general benefit of the community.
Decision: Judgment for the defendants.
Notes: Here the court decided that the activity and sewer were not a non-natural use. They also
say here that the no-natural use will depend on what the state of society is today.
Read v. J.Lyons (House of Lords, 1947)
Facts: The defendants operated a factory on behalf of the Ministry of Supply for the
manufacture of explosive shells. The plaintiff was employed as an inspector, and was at the
factory when an explosion took place, injuring her. The defendant was not negligent, and the
plaintiff sought to recover on the basis of Rylands v. Fletcher.
Ratio: There is no general principle of strict liability based by dangerous activities; there must
be an escape.
Decision: The judgment went to the defendants.
Notes: In this case, there was no escape; the plaintiff was on the defendant’s property. The case
of Ekstrom v. Deagon and Montgomery state that it does not even have to be on the defendant’s
land that the escape occur. Here the defendant brought an extension cord to the plaintiff’s garage
while the plaintiff was fixing the defendant’s truck, while the gas tank was being drained the
fumes took fire and damaged the plaintiff’s garage.
Defences to Strict Liability in Rylands
- consent
o D must prove that P implicitly/explicitly consented to the presnce of danger
o Also, mutual benefit: P agreed upon it and it is of the benefit of both P and D
- default of P (contributory negligence)
o P cannot recover if he voluntarily and unreasonable encounters a known danger
o It has not yet been determined whether this can act as a complete defence or
simply to apportion the damages
- act of God (rarely applied)
o a force of nature that arises without human intervention; extraordinary (rainfall)
- unforeseeable and deliberate act of third party
o as in Rickards; onus on D to prove that he could not have prevented escape with
reasonable care
o Note that it must be a deliberate or malicious act and cannot be due to negligence
-
-
statutory authority – applies only if D is a public actor pursuant to statutory authorization
o must be shown that escape was an inevitable result of performing act authorized
by statute
statutory immunity – if statute specifies no liability
o i.e. municipalities cannot be sued in nuisance
Nuisance
Hickey v. Electric Reduction Co. Of Canada (Supreme Court of Newfoundland, 1970)
Facts: In this case, the defendants polluted the waters and as a result, the plaintiffs suffered in
their loss of ability to fish which was part of their livelihood because the fish died.
Issues: Can a private citizen bring an action in public nuisance against the offender?
Ratio: A private citizen can only bring an action in public nuisance only when they suffer a
peculiar damage, insofar as the damage is not common to all persons of the same class.
Decision: Action dismissed.
Notes: The judge says that if the plaintiffs had owned the adjacent land by the water, and access
to the public waters was obstructed due to the pollution, then that would be an action peculiar to
them. The judge also mentions here that economic loss without direct damages cannot be
maintained. The prof mentions the case of Gagnier v. Canadian Forest Products which basically
says that the case of Hickey was decided to narrowly and that it does not matter if you are of the
same class of others, but that you have suffered particularly more damage than others, so the
volume of damaged suffered is also important.
Mint v. Good (King’s Bench, 1951)
Facts: The plaintiff was injured b the collapse of a wall adjoining the highway. The wall was
owned by the defendant who had leased the premises to a tenant.
Ratio: The owner of some premises is responsible for any dangerous disrepair to any part of his
or her premises if it causes a nuisance by falling onto a highway.
Decision: Judgment for the plaintiff.
Notes: Note that the judge says here that whether or not the tenant actually can be responsible
depends on how much control the landlord has over the repairs of the premises. Usually
however the landlord cannot delegate the duty of repairs to the tenant. The judge also says that
the landlord would not be responsible if even with reasonable care a professional would not be
able to detect any problems within the structure, but here it was decided that had the wall been
checked the defects would have been discovered. In the notes it gives a nice little list of some
factors to consider when trying to consider whether or not something is a public nuisance:
1)Inconvenience caused by the activity, 2) the difficulty involved in lessening or avoiding the
risk, 3) the utility of the activity, 4) the general practice of others, and 5) the character of the
neighbourhood.
Private Nuisance
Pugliese et al. V. National Capital Commn (Ontario C.A., 1977)
Facts: Here the plaintiffs were complaining that their property was damaged because of sewer
construction in nearby property by the defendants.
Ratio: The test to determine if something is a private nuisance is whether the defendant acted in
a reasonable matter considering the fact that he has a neighbour.
Decision: The judge decided the plaintiff did have a potential claim in nuisance (and
negligence).
Notes: The judge says that nuisances arising from the ordinary use of property if done
reasonably and not to an excessive degree will not be actionable. The facts of this case really
have to do with whether a person has the absolute right to the support of water beneath his land
not flowing in a defined channel. It also says that in private nuisance there must be an
interference of the enjoyment of property.
Tock v. St. John’s Metropolition Area Bd. (S.C.R., 1989)
Facts: Here the basement of the plaintiff’s was flooded by water which came from the
defendant Board’s obstructed storm sewer system after an exceptionally heavy rainfall.
Issues: Under what situations can a claim in nuisance succeed?
Ratio: The plaintiff must shows that when looking at the nature of the locality in question,
would the ordinary and reasonable resident of that locality view the disturbance as a substantial
interference with the enjoyment of land.
Notes: In cases where there is actually physical damage to the land the answer to this question is
easy, however when it is just mental nuisance then there are some factors you need to consider:
1) Considerations based on the severity of the harm, the character of the neighbourhood, the
utility of the defendant’s conduct, and the question whether the plaintiff displayed abnormal
sensitivity?
Russell Transport Ltd. V. Ontario Malleable Iron Co. Ltd. (Ontario High Court, 1952)
Facts: Here the plaintiffs started a business in the transportation of new cars by truck and they
would store the cars in the land they purchased in Oshawa. Their cars were damaged by the iron
oxide released by the defendant’s foundry business and the plaintiffs are sued for damages and
an injunction.
Issues: Does an action in nuisance apply when the action being complained over is part of the
regular trade in that community?
Ratio: If a man lives in a town he must necessarily accept those operations of trade that occur in
his immediate locality, which are actually necessary for trade and commerce, and also for the
enjoyment of property, and for the benefit of the community at large. However if as a result of
the trade or occupation, there is a material injury to property, then this rule no longer applies.
Decision: Found in favour of the plaintiffs.
Notes: This case also lists some defences to nuisance which do not work: 1) It is no defence that
the plaintiffs came to the nuisance, 2) Although injuries to the plaintiff, it is beneficial to the
community at large, 3) The location of the nuisance is a suitable one and no where else will there
be less mischief, 4) All possible care is used to prevent the nuisance (although this may help
persuade judges it is not an absolute rule), 5) The defendant cannot claim that the nuisance
would not happen unless other parties were doing the same activity at the same time, 6) No
defence can lie on the presumption that the defendant is merely making reasonable use of his
property.
Nor-Video Services Ltd. V. Ontario Hydro (Ontario Supreme Court, 1978)
Facts: Here the plaintiffs were a cable television company and the defendants went and built an
electrical power installation in an area where it would interfere with the transmission and
reception of TV broadcast signals.
Issues: Does television reception constitute an interest in the use and enjoyment of land
recognized in the law of nuisance and how sensitive can a plaintiff make it property to
interference before the court denies liability to the interfering party?
Ratio: What deserves protection in the law of nuisance is that which is an ordinary enjoyment
of property and television has become ordinary and prevalent within our society. Although there
is a possibility that a plaintiff can expose themselves by doing something so out of the ordinary
to make themselves exceptionally sensitive to interference, watching television and television
waves do not constitute something so exceptional, but on the contrary has become something
very ordinary in our society.
Decision: Judgment for the plaintiff.
Notes: It is also relevant here that the defendants knew their conduct would result or could
reasonably have foreseen that the conduct would result in the said damages. Remember that
exceptional sensitivity to the nuisance may negate the nuisance claim. Although foreseeability
may have been a factor here, it is not in most nuisance claims since nuisance is a strict liability
offence and does not look at the conduct of the defendant but rather its effects on the accused.
Appleby v. Erie Tobacco Co. (Supreme Court of Ontario, 1910)
Facts: In this case the plaintiffs were complaining of a bad odour coming from a tobacco
manufacturing company.
Issue: Can a smell constitute a nuisance?
Ratio: Although a claimant cannot expect an atmosphere free of smells, an excessively strong
odour may constitute a cause of action in nuisance, but it is mainly a question of degree
depending on the location.
Decision: An injunction granted for the plaintiffs making the tobacco company stop producing
the odour.
Tock v. St. John’s Metropolitan Area Bd. (Part 2, s same as above)
Facts: Same as above.
Issue: How should the defence of statutory authority affect the tort of nuisance?
Ratio: The court majority found that if the legislation is permissive in its content, and the
defendants have some leeway in terms of how the legislative duty is to be carried out, they will
still be liable, however if the legislation is mandatory and has strict requirements on the
defendants making the damages as a result inevitable, then the defence will be valid.
Decision: The judgment went to the plaintiff.
Notes: Note that in the opinion by La Forest and Dickson concurring, they state that it may be
better since a large part of the population benefit from these services and these damages are
many time inevitable, it would be better if the large number of people who benefit from it bear
the loss equally rather than the poor victim who just happens to be the subject of the inevitability.
So they suggest the main test should be “Would it be reasonable to deny the plaintiff
compensation for the damages suffered?”. In the final opinion by Sopinka J, he states that La
Forest effectively gets rid of the defence of statutory authority, and to a lessor degree so does in
her opinion because most legislation in these types of area are permissive so maybe the law in
terms of statutory authority should stay the same because the burden to prove this defence is
really high since the defendants already have to prove that there was no practical alternative they
could have taken