Page 1 of 85
Two types of tort liability, one requiring proof of harm, the other harmful in itself . 8
Criminal vs. Civil suits ..................................................................................................... 8
Who can be legally held liable for a tort? ....................................................................... 8
Joint Tortfeasors ............................................................................................................... 9
Cook v. Lewis [1951] S.C.R. 830 (merely going out with others who have a lawful
common objective does equate to joint tortfeasors)................................................... 9
Vicarious Liability (VL) ................................................................................................... 9
671122 Ontario Ltd. V. Sagaz Industries Canada Inc. (2001) SCC 59 (policy
justification for VL, objective test for VL, no VL for independent contractors, the
test to find if the def is an employee or independent contractor) ........................... 10
Test for Vicarious Liability ........................................................................................ 10
Bazley test for VL in the course of employment ...................................................... 11
Exceptions to freedom from Vicarious Liability – non-delegable duties and
vicarious liability imposed by statute ........................................................................ 11
EB v. Order of the Oblates of Mary Immaculate in the Province of British
Columbia, [2005] 3 S.C.R. 45 (merely providing an opportunity for a tort is not
sufficient to impose VL against employer) ............................................................... 11
Joint and Several Liability ............................................................................................. 12
Negligence ........................................................................................................................ 12
Intro with the “four components” ............................................................................. 12
Origins of Duty of Care .............................................................................................. 13
Donoghue v. Stevenson, [1932] A.C. 562 (House of Lords) (duty of care based on
reasonable foreseeability and proximity) .................................................................. 13
Home Office v. Dorset Yacht Co. Ltd., [1970] AC 1004 (House of Lords) (liability
of government bodies is acceptable for public policy reasons, neighbour principle
articulated in Donoghue is law, liability for omissions) ........................................... 14
Kamloops (City) v. Nielson, [1984] 2 S.C.R. 2 (“Kamloops” test (Canadian form of
the Anns test) for finding a duty of care when one is not established by case law) . 14
The Current Approach to Finding a Duty of Care .................................................. 15
Proximity................................................................................................................... 15
Cooper v. Hobart (refinement of Kamloops test, now the Anns/Cooper Test, use this
one, proximity and residual policy factors, public body not liable for pure economic
loss) ........................................................................................................................... 15
Examples of Proximity ............................................................................................... 16
Odhavji Estate v. Woodhouse (public body liable for psychiatric injury, tort of
negligent investigation) ............................................................................................. 16
The Duty to Act (misfeasance/nonfeasance distinction) .......................................... 17
Three broad classes established by Childs (SCC) where a duty of care might be
owed for nonfeasance: .............................................................................................. 17
Crocker v. Sundance (Liability of Commercial hosts to their intoxicated guests) ... 18
Stewart v. Pettie (liability of commercial hosts to third parties injured by their
intoxicated guests, reasonable care, also a reasonably foreseeability issue) ............ 18
Childs v. Desormeaux (Social hosts are not liable for their intoxicated guests) ...... 19
Manufacturers and Doctors Duty to Warn .............................................................. 19
Important Intro .......................................................................................................... 19
Medical products and Learned Intermediary rule (Hollis v. Dow Corning) ........ 20
Page 2 of 85
Rescuers and Good Samaritans ................................................................................. 20
Horsley (Next friend of) v. MacLaren (comments on liability of victims to their
rescuers, and second rescuers, a boat captain owes a duty to take reasonable care to
rescue a passenger who falls overboard) .................................................................. 21
Good Samaritan Acts – Medical Assistance, and non-medical aid .......................... 22
Expansion of Negligence Law to Other Interests ......................................................... 22
Psychiatric Injury ....................................................................................................... 22
Control Mechanisms ................................................................................................. 22
Devji v. Burnaby (District) (nervous shock is compensable when it arises from
exposure to the defendant’s negligence and not just one of its consequences) ........ 23
Pure Economic Loss ........................................................................................................ 23
Intro .............................................................................................................................. 23
Five categories of pure economic loss claims recognized by SCC (Winnipeg) -CITE THIS ALWAYS................................................................................................ 24
Overlap of tort and contract ...................................................................................... 24
Negligent Misrepresentation/statement (Important intro) ..................................... 24
Hedley Byrne (duty of care exists in providing information, opinion, or advice, if
a special rel’ship is found, use of a disclaimer to limit liability) ......................... 25
BG Checo International v. BC Hydro & Power Authority (concurrency of actions
in tort and contract, reasonable reliance) ............................................................ 25
Queen v. Cognos Inc (Reasonable reliance, no contract – having to sue in tort) 26
Requirements for negligent misrepresentation outlined in Cognos .................. 27
How do you find a special relationship? Establishing liability for Negligent
Misrepresentation: ................................................................................................ 27
Hercules Mgt. Ltd. v. Ernst & Young (liability of professional for his service,
using information not for its intended purpose) ................................................... 28
Contributory Negligence and Pure Economic Loss ................................................. 29
Avco Financial Services Realty Ltd. (respondent) v. Norman (appellant) (distinguish
liability for negligent misrepresentation and its defence to it, this case also regards
contributory negligence and pure economic loss) .................................................... 29
Negligent Provision of Services .................................................................................. 30
negligent performance of gratuitous service causing financial loss ......................... 30
Negligent provision of services – when a 3rd party incurs financial loss because of a
breach of contract between the defendant and another person ................................. 30
BDC Ltd. v. Hofstrand Farms (no liability for neg. proviso of services for delivery
company due to indeterminacy concerns)................................................................. 30
Wilhelm v. Hickson (liability found for professional lawyer to beneficiaries) ........ 31
Hybrid case of Negligent Misrepresentation and Negligent Performance of
Service .......................................................................................................................... 32
Haskett v. Equifax Canada Inc (pure economic loss, negligent misrep despite no
reasonable reliance by the plaintiff) .......................................................................... 32
Negligent Supply of Dangerous (Shoddy?) Products ............................................... 33
Winnipeg Condominium Corp. v. Bird Construction (negligent performance of
service, liability for product to non-contracting parties, found if the defect is
dangerous and not just poor) ..................................................................................... 33
Page 3 of 85
M. Hasegawa & Co v. Pepsi Bottling Group (Canada) (negligent performance of
service, no liability for non-dangerous defects) ........................................................ 34
Side note case – Hughes v. Sunbeam Corporation (potential liability for reliance on
a defective product)................................................................................................... 34
Side note case – there is no need for the danger to be “imminent” (Roy v. Thiessen).
................................................................................................................................... 35
General comments on shoddy products – defining real and substantial risk, and nondangerous defects in residential housing .................................................................. 35
Relational Economic Loss .......................................................................................... 35
Bow Valley Husky Bermuda v. St John Shipbuilding (contains the test for finding
relational economic loss) .......................................................................................... 35
A Summary: Recognizing New Duties Relating to Economic Losses ................... 37
Design Services v. Canada (Public Works) (an owner doesn’t owe a duty of care to
subcontractors in a bid process) ................................................................................ 37
Government Liability ..................................................................................................... 38
Introduction, also contains info on statutes imposing/removing liability:............. 39
How is a duty of care established?............................................................................. 40
Kamloops (City of) v. Nielsen (operational decisions are subject to tort liability,
policy/discretionary decisions are not, subject to liability for bad-faith exercise of
discretion) ................................................................................................................. 40
Just v. BC (distinction between operational and policy/planning decision) ............. 41
Brown v. British Columbia (Ministry of Transportation & Highways) (distinction
between operational and policy/planning decision) .................................................. 41
Post-Just: Incremental expansion of gov’t liability .................................................. 42
Gov’t liability Post-Cooper ....................................................................................... 42
Consider Holtslag v. Alberta – courts are no longer open to new categories of
gov’t liability ......................................................................................................... 42
Prevention of Criminal Violence ................................................................................... 43
Why claim against the police? ................................................................................... 43
Jane Doe v. Toronto Commissioners of Police (police failure to warn of danger of
rapist to specified group = liability) .......................................................................... 43
Hill v. Hamilton Wentworth Regional Police Services Board (recognition of tort of
negligent investigation) ............................................................................................... 44
Immunity of Mothers ...................................................................................................... 45
Is there a duty of care from a mother or a doctor to an unborn child? ................. 45
Dobson v. Dobson (maternal tort immunity for pre-natal injuries) ...................... 45
Legislative Response – Maternal tort Liability Act of Alberta............................... 46
Preston v. Chow (when both a third party and mother are negligent towards the
unborn child, the third party must pay the mother’s portion) ............................... 47
Paxton v. Ramji (exception for doctors for liability towards unborn children) ... 47
Standard of Care ............................................................................................................. 48
Unreasonable Risk ...................................................................................................... 49
PROBABILITY OF HARM: Bolton & Others v. Stone (one doesn’t have to guard
against risks of injury that are very remote) ............................................................. 49
Page 4 of 85
SEVERITY OF HARM: Paris v. Stepney Borough Council (likelihood of harm
must be balanced against the seriousness of harm. If harm is very serious, one must
guard against it even if the chances of it occurring are low) .................................... 49
Economic Analysis -- The Learned Hand Formula .................................................. 50
COST OF RISK AVOIDANCE: Rentway Canada Ltd. v. Laidlaw Transport Ltd.
(application of the Learned Hand Formula) ........................................................ 50
UTILITY OF DEFENDANT’S CONDUCT: Watt v. Hertfordshire (utility of the
defendant’s conduct) ............................................................................................. 51
Indices of Reasonableness .......................................................................................... 51
Warren v. Camrose (City) (conduct consistent with the usual practice of persons
similarly situated to the defendant can be indicative of due care) ............................ 52
Waldick v. Malcolm (customs not necessarily indicative of due care, eg,
unreasonable customs or customs against “common sense”) ................................... 52
Roberge v. Bolduc (unassigned reading but important as it’s a SCC decision.
L’Heureux Dube states that a professional custom, which is not shown to be
demonstrably reasonable, cannot be an answer to a claim of professional negligence)
................................................................................................................................... 53
On the other hand, see Girard v. General Hospital of Port Arthur (use this case as a
counter argument to ter Neuzen)............................................................................... 53
Brown v. Rolls Royce (departure from custom may be OK if not unreasonable in the
circumstances. Departure from custom is a rebuttable presumption of negligence) 53
Statutory Standards .................................................................................................... 54
Canada v. Saskatchewan Wheat Pool (breach of a statutory standard does not
necessarily give rise to tort liability [some exceptions, see below]) ......................... 54
Gorris v. Scott (Caution: Ancient non-Canadian case from 1874. Limit on reliance
on stat. breach of reasonable conduct. If the statute was not intended to safeguard
the kind of loss in question, it probably cannot be used as evidence of not having
taken due care) .......................................................................................................... 55
Ryan v. Victoria (City) (SCC, better to use this case, includes a test. Limit on
reliance of complying with statute when the circumstances are unusual) ................ 55
Professional Standards ............................................................................................... 56
Brenner et al. v. Gregory et al (Professional standard for lawyers and other
professionals in general) ........................................................................................... 56
Folland v. Reardon (Reasonableness standard applies to all lawyers, not just
solicitors)................................................................................................................... 56
ter Neuzen v. Korn (Professional standard for doctors – specialists – beginners –
professional standards in general [important case]).................................................. 57
Other final notes on professional standards: ............................................................. 58
Determining Reasonable Behaviour – Standard of Care Part Two ........................... 58
Introduction to the concept of the “reasonable person” ......................................... 58
Rationale for objective test ....................................................................................... 58
Critique of reasonable person standard ..................................................................... 58
Vaughan v. Menlove (rejection of a subjective test, objective reasonable person
standard is the law) ..................................................................................................... 59
Exceptions: Special Standards .................................................................................. 59
Children..................................................................................................................... 59
Page 5 of 85
Heisler et al. v. Moke et al. (exemption of liability for very young children,
creation of the subjective/objective test for children) ........................................... 59
Nespolon v. Alford et al (adult activity is restricted to the event that led to harm)
............................................................................................................................... 61
Ending comments – the problems with suing a child: .......................................... 61
Mental Illness .............................................................................................................. 61
Slattery v. Haley (no liability when lack of volition) ............................................... 62
Buckley v. Smith Transport Ltd. (“landmark” case dealing with mental illness – no
liability) ..................................................................................................................... 62
Fiala v. Cechmanek (“predominant test” applied for mental disability – use this case.
Presumably applies for contributory negligence as well) ......................................... 62
Wenden v. Trikha (exception to mental illness exemption – when the def knew
about his illness) ....................................................................................................... 63
Physical Disability ....................................................................................................... 63
Causation ......................................................................................................................... 64
Cause-in-fact................................................................................................................ 64
Intro to the “but for” test ........................................................................................... 64
Athey v. Leonati (defs negligence need not be the sole cause of the injury to satisfy
“but for” test) ............................................................................................................ 65
Inferring Causation .................................................................................................... 65
Snell v. Farrell (test for inferring causation, rather than applying the “but for” test,
used commonly for medical malpractice or industrial disease cases) ...................... 65
Material Contribution ................................................................................................ 66
BM v. British Columbia (AG) (material contribution, where precise cause is
known/unknown, beyond the “de minimis” range) .................................................. 67
Resurfice Corp. v. Hanke (detailed info about the “but for” versus the “material
contribution” test when there are more than one potential causes of an injury. How
to apply the material contribution test) ..................................................................... 67
What’s the difference between inferring causation and material contribution? .. 68
Multiple Wrongdoers.................................................................................................. 68
Cook v. Lewis (where two or more wrongdoers, acting independently, only one
caused pltf’s loss = presumption of fault against both def’s and joint + several
liability) ..................................................................................................................... 69
Lange v. Bennett (Ont HCJ case. Cook principle not applicable when pltf is
contributory negligent).............................................................................................. 69
Fairchild v Glenhaven (exposure to hazardous substances in the workplace. Where
the pltf worked for multiple employers at different times) ....................................... 69
Barker v. Corus (limits of Fairchild – where pltf is contributory negligent) ............ 70
UK’s response to Barker – UK Compensation Act ............................................... 71
Remoteness ...................................................................................................................... 71
Reasonable Foreseeability and Remoteness ............................................................. 71
Pre-Wagon Mound No 1: The “Polemis Directness rule” ....................................... 71
Wagon Mound No 1 (Reasonable foreseeability rule for remoteness) ..................... 71
Hughes v. Lord Advocate (not necessary to show that the manner in which the
accident occurred or the mechanics were RF, just that the type of harm suffered was
RF) ............................................................................................................................ 72
Page 6 of 85
Assiniboine School Division No. 3 v. Hoffer (breaking down the causal sequence to
find RF) ..................................................................................................................... 72
Lauritzen v. Barstead (another example of breaking down the causal sequence to
find RF. This case appears to suggest that once you do something dangerous, you
can be liable for all ensuing consequences, even those that may appear far-fetched…
with one exception) ................................................................................................... 73
Special Remoteness Issues .......................................................................................... 73
Bishop v. Arts & Letters Club of Toronto et al. (thin skull rule. Def is liable for full
extent of damage if harm was reasonably foreseeable) ............................................ 73
Athey v. Leonati (crumbling skull rule. Def only liable for the extent he/she
aggravates or accelerates a pre-existing condition. However, there must be
measurable risk that it would have occurred any way) ............................................. 73
Psychiatric Injury and Remoteness ........................................................................... 74
Mustapha v. Culligan of Canada Ltd. (thin skull rule applies, but psychiatric shock
in an ordinary person must be reasonably foreseeable) ............................................ 74
Intervening Acts (Novus Actus Interveniens)............................................................... 75
Bradford v. Kanellos (intervening acts, not liable if the external event was not a
reasonably foreseeable consequence, note on causal chain of causation leading to a
finding of remoteness)................................................................................................. 75
Smith v. Inglis Ltd. (product liability, manufacturers and intervening events –
how reasonable foreseeability applies – if the intervention was RF, one court’s
rejection of the “either or” approach to intervening events [e.g., either the
intervening event broke the chain or it did not]) ..................................................... 76
Defences to Negligence Action ....................................................................................... 77
Complete defences ....................................................................................................... 77
Voluntary assumption of risk (volenti non fit injuria) .............................................. 77
Illegality .................................................................................................................... 78
Inevitable Accident ................................................................................................... 78
Partial Defences ........................................................................................................... 78
Contributory Negligence ........................................................................................... 78
Medical Malpractice ....................................................................................................... 79
A summary: Duty to warn and Doctrine of Informed Consent in Medical
treatment (Reibl v. Hughes) ....................................................................................... 79
Other issues – track record, health status of doctor, temporal element of causation
....................................................................................................................................... 80
Remoteness: Subsequent medical errors that aggravate the plaintiff’s original
injuries from a different defendant. An intervening act? ......................................... 81
Medical Treatment and Consent ................................................................................... 81
Adults ........................................................................................................................... 82
Exceptions .................................................................................................................... 82
Children – mature minor rule ................................................................................... 82
Other bases of liability: Intentional torts – trespass (assault, battery, etc) .............. 83
Trespass: ...................................................................................................................... 83
Battery: ........................................................................................................................ 84
Extent of def’s liability ............................................................................................. 85
Elements of trespass unique to Canada ..................................................................... 85
Page 7 of 85
Onus shift .............................................................................................................. 85
Page 8 of 85
Two types of tort liability, one requiring proof of harm,
the other harmful in itself
One requires plaintiff to show proof of harm e.g., negligence (product liability)
- intentional infliction of mental suffering requires proof of harm (despite the
act being intentional
The second does not require proof of harm as the act is considered harmful in itself. For
instance, trespass, battery, assault, false imprisonment, defamation.
- tangible evidence of harm will increase damages – no proof of harm could
mean nominal award only
Criminal vs. Civil suits
Tort law runs parallel to criminal, compensation (torts) vs punishment (criminal), Sect.
11 of the CCC allows one to bring a civil tort suit against someone while a criminal suit
is pending
Who can be legally held liable for a tort?
-
all persons, including artificial persons (e.g., gov’t, corps), even children can
be responsible
Government
- tort suits against gov’t have a time period limit for giving notice of intent to
sue
- limitation period for suits against gov’t can be shorter as well
- gov’t is responsible for operational failures only and not for policy decision
failures (e.g., can’t sue based on decision to have residential schools, therefore
sue based on its operational failure)
Children
- can’t sue those under 6 years old
- age, intelligence level, ability to understand and appreciate risks can all affect
liability
- liability for tort of children may fall on others such as caregivers and parents
Mentally ill
- liable for torts, unless illness rises to a certain (high) threshold
Liability of parents
-
no vicarious liability for parents. Liability must be grounded in parents’
wrong doing – negligence usually. Onus of proving fault rests with the
plaintiff
Page 9 of 85
-
statutory liability assigns the presumption of fault on the parents, and the
damage cap may be limited
BC Parental Responsibility Act, caps this responsibility at $10,000 for
property damage
Joint Tortfeasors
Tortfeasor = someone who commits a tort, so Joint Tortfeasor = 2 or more ppl jointly
liable for a tort against someone. Joint tortfeasors have mental concurrence or work
together towards a common end.
Several tortfeasors on the otherhand act independently – concurrence only in causation of
wrong. No prior agreement to commit wrong. Tort is often incidental to a lawful act.
Cook v. Lewis [1951] S.C.R. 830 (merely going out with others
who have a lawful common objective does equate to joint
tortfeasors)
Facts: Plaintiff and brother JL, and friend DF – one hunting group
Defs. JW, C. and A. – another hunting group, hunting separate of Plaintiff’s group
C. and A. both fire guns and accidentally harm Plaintiff (negligence). Uncertain who it
was who hit Plaintiff. Plaintiff sues, wants defs. all jointly liable
Holding: Defs. hunting party is not jointly liable to plaintiff. Case dismissed
Reasons: 1. Merely going out in a group with lawful common objective should not cause
all members of the group to be vicariously liable if one member is negligent 2.
Insufficient evidence of a partnership/joint enterprise 3. Floodgates
What the case stands for: Judge narrowly defines joint tortfeasors – joint tortfeasor
may occur in master/servant relationship, principal/agent, or when a partnership/joint
enterprise arrangement is clearly shown, though implicitly leaves possible the idea that a
group engaged in unlawful activity may be found jointly liable. In Cook v. Lewis,
plaintiffs were acting independently – concurrence only in causation of harm.
Vicarious Liability (VL)
A form of “strict liability” – where someone is liable for the actions of employee or agent
even if proof of wrongdoing on part of employer or principal cannot be shown. Tort
must occur within course of employment for vicarious liability against the employer to be
found.
Page 10 of 85
671122 Ontario Ltd. V. Sagaz Industries Canada Inc. (2001) SCC
59 (policy justification for VL, objective test for VL, no VL for
independent contractors, the test to find if the def is an
employee or independent contractor)
Facts: AIM – consultant to Sagaz
Sagaz – def. automotive supplier
671122 Ontario Ltd. – plaintiff automotive supplier (competitor)
AIM pays bribe to Canadian Tire. Sagaz in turn secures contract. 671122 Ontario Ltd
loses contract as a result and incurs substantial financial losses. 671122 Ontario Ltd.
wants to hold Sagaz vicariously liable for the tortious actions of AIM.
Holding: Relationship between AIM and Sagaz is that of independent contractor and
employer. No vicarious liability in such a case. Case dismissed
Reasons: 1. Policy considerations, AIM was found to be in business on its own account,
Sagaz had little to no control over his conduct, thus judge didn’t want to drag Sagaz into
AIM’s wrongdoing. As judge said “If employer does not control the activities of the
worker, the policy justifications underlying vicarious liability will not be satisfied” That
policy justification being that the hazards of a business should be borne by the business
itself.
What the case stands for: Employers should not be vicariously liable for the actions of
independent contractors. In finding an employer/independent contractor rel’ship, one
must consider level of control, whether worker provided own equipment, whether worker
hires his/her own helpers, degree of financial risk taken by worker, degree of
responsibility for investment and management, and worker’s opportunity for profit in the
performance of his/her tasks. In other words “saying it doesn’t make it so”.
Why not impose VL? Employer of independent contractor doesn’t control how work is
done, has no opportunity to deter future harms and hence VL is not warranted. Also, fair
and efficient compensation can be achieved without imposing liability on the employer –
e.g., independent contractors should have their own insurance coverage.
Test for Vicarious Liability
-
in order to establish vicarious liability (VL), tort must have occurred within
the scope of the employee’s employment
VL does not arise merely because the employment granted the opportunity for
the tort, the nature of the enterprise and the power given to the employee must
have materially increased the risk of wrongdoing
Enterprise Risk
Page 11 of 85
-
Very strong connection between employment and wrong
o Risk of abuse significantly enhanced by employment
o Indicators include”
 Duties entail power and authority over vulnerable people
 Direct access and intimacy between employee and victim, e.g., parentlike or role model relationship materially increases risk of abuse
Bazley test for VL in the course of employment
Used extensively in “Oblates” SCC case
- the opportunity that the enterprise afforded the employee to abuse his or her
power
- 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)
- the extent to which the wrongful act was related to friction, confrontation or
intimacy inherent in the employer’s enterprise
- the extent of power conferred on the employee in relation to the victim
- the vulnerability of potential victims to wrongful exercise of the employee’s
power
- Precedent and Policy guide this test
- Use for “course of employment” only – to determine if an employer should be
VL to his employee
Exceptions to freedom from Vicarious Liability – non-delegable
duties and vicarious liability imposed by statute
-
-
-
employer normally not liable for actions of independent contractor, but there
are cases where the independent contractor was engaged in non-delegable
duties
Lewis (Guardian ad litem of) v. British Columbia, case where independent
contractor working for gov’t failed to remove protruding rocks above a road,
rocks fell and killed a motorist. Court found that gov’t had a strict statutory
duty to see that the work was performed carefully, and that the reasonable
expectation of the public was that the gov’t is responsible for highway safety
This case is unusual and generally only found when statutory obligations are
in place (VL can be imposed by statute when VL is normally not found,
such as found here and found with parents, or the Motor Vehicle Act, etc)
EB v. Order of the Oblates of Mary Immaculate in the Province of
British Columbia, [2005] 3 S.C.R. 45 (merely providing an
opportunity for a tort is not sufficient to impose VL against
employer)
Facts: Def --- ran the residential school the Pltf. attended
Page 12 of 85
Saxey --- employee of the residential school, responsible for odd jobs only
Pltf. --- attended the residential school
Pltf. sexually abused by Saxey for 4 years while he attended residential school. Pltf.
claims Def is vicariously liable
Holding: Def. is not vicariously liable for Saxey’s tortious conduct. Issue of direct
liability remains open (but that’s a separate issue)
Reasons: Def. provided an opportunity for the tort to occur, but providing an
opportunity is not adequate to show vicarious liability. Saxey was not delegated power
over the children at the school, his duties did not require significant contact with them
either. His tortious act was too remote from his work to make vicarious liability
reasonable.
What this case stands for: New, more narrowly defined interpretation of “course of
employment.” Extensive use of the Bazley case. The Bazley test factors should all be
considered when deciding if the employer is vicariously liable. DISSENT: Believed
“operational characteristics” created vicarious liability – arguably, they did not though
but there could have been a claim for strict liability.
Joint and Several Liability
-
arises in cases of multiple tortfeasors, whether joint or concurrent
plaintiff can sue any or all tortfeasors in same or successive actions
all tortfeasors liable for harm caused
each tortfeasor also liable for plaintiffs entire losses
-
province may have a statute requiring judge to apportion liability between the
defendants. For instance, A is 80% liable, B is 20% liable. This is done only
to assist the defendant’s in spreading the cost amongst themselves. Each
defendant is still liable for 100% of plaintiffs losses, even if judge says
defendant was only 5% at fault.
-
BC Negligence Act – s. 4(2) all def’s jointly and severally liable, fully liable,
franco is entitled to sue any one of the def’s for 100% of his losses
In BC, joint and several liability is broken if plaintiff is contributory negligent
(see Spring term notes for contributory negligence)
-
Negligence
Intro with the “four components”
-
plaintiff must show four components to his negligence claim to succeed
Page 13 of 85
o defendant must owe the plaintiff a duty to take care not to diminish the
plaintiff’s well being. Interest must be worthy of protection, and
defendant must have duty to protect it or not infringe on it
o defendant must have failed to accord to the plaintiff the proper
standard of care required by duty
o defendant’s breach of duty must have caused the harm suffered
o breach of duty will not ground liability if it is determined to be too
remote
-
Donoghue v. Stevenson established a general principle of negligence that
could be applied to any sort of case. Previously, cases were examined
“incrementally” – prior authority and surrounding circumstances taken into
account only. Thus, very limited circumstances back then when liability
could be found
Origins of Duty of Care
Donoghue v. Stevenson, [1932] A.C. 562 (House of Lords) (duty of
care based on reasonable foreseeability and proximity)
Facts: Stevenson – manufacturer of ginger beer
Friend of P. – purchaser of ginger beer
Plaintiff – ultimate user of ginger beer
Friend of Plaintiff buys ginger beer for Plaintiff. Bottle is opaque and contents cannot be
inspected. Plaintiff begins drinking ginger beer and finds a snail inside and becomes ill.
Plaintiff sues, claims Stevenson is negligent.
Holding: Stevenson’s manufacturing of the beer was negligent and he is liable to
plaintiff.
Reasons: No possibility for preliminary inspection, and it was reasonably foreseeable
for the manufacturer to expect someone like Donoghue would drink it, and it was
reasonably foreseeable that the absence of reasonable care in preparing the substance
would cause injury – thus a duty is owed to the plaintiff to take reasonable care.
Stevenson failed to do so and is liable.
What this case stands for: Revolutionary case, brought forth the principle of duty of
care based on reasonable foreseeability or relationship of proximity whether or not a duty
has been previously been recognized in law to inhere in that particular relationship. Also
brought forth the “neighbour principle” – the idea that individuals are responsible to take
reasonable care to avoid foreseeable tortious acts against those who can be reasonably
contemplated as going to be affected by the tortious act (proximity).
Page 14 of 85
Home Office v. Dorset Yacht Co. Ltd., [1970] AC 1004 (House of
Lords) (liability of government bodies is acceptable for public policy
reasons, neighbour principle articulated in Donoghue is law, liability
for omissions)
Facts: Trainees --- under responsibility of officers working for def.
Officers --- employees of def. responsible for trainees
Plaintiff = respondent
Defendant = appellant
Seven trainees escaped from control of officers, proceeded to damage and vandalism the
plaintiff’s yacht. Plaintiff sues, claims def. owed him a duty of care and that the damage
was reasonably foreseeable.
Holding: Defendant is liable, plaintiff’s original successful claim upheld. Appeal
dismissed
Reasons: Foreseeable that neglect of officers duty would cause plaintiff’s yacht to be
damaged. Officers ought to have known that trainees would try to escape – proximity is
established. Lord Atkin’s neighbour principle stated in Donoghue applies here, in fact,
the judge found the principle was applicable in all cases unless there is good reason not to
recognize the duty in particular circumstances, for example, pure economic loss would
require consideration of different rules.
What this case stands for: It is a House of Lords decision on negligence and marked
the start of a rapid expansion in the scope of negligence in the United Kingdom by
widening the circumstances in which a court was likely to find a duty of care. The case
also addressed the liability of government bodies (they should be liable), a person's
liability for the acts of third parties that he has facilitated, and liability for omissions.
Kamloops (City) v. Nielson, [1984] 2 S.C.R. 2 (“Kamloops” test
(Canadian form of the Anns test) for finding a duty of care when one
is not established by case law)
Facts: Kamloops (defendant/appellant) – city where house was built
Nielsen (plaintiff/respondent) – eventual owner of home
Hughes Jr. – builder of home
Hughes Sr – first owner of home, seller to Nielsen
Hughes Jr. negligently builds home with improper foundation, despite warnings from the
city to cease doing so. Hughes Sr buys home from Son, proceeds to live in home despite
warnings from city and despite there being no occupancy permit. Hughes Sr sells home
to Nielsen two years later and Nielsen is not informed of the structural problems. Nielsen
discovers expensive upgrades are immediately required. Nielsen sues City, claiming it is
negligent.
Holding: City is liable for its negligence to Nielsen. Appeal dismissed
Page 15 of 85
Reasons: City had a duty to see that the defects in the home were dealt with. City failed
to protect the plaintiff against builder’s negligence.
What this case stands for: Leading SCC case. Adopts the English Anns case for
establishing liability. Two questions must be asked
1. is there a sufficiently close relationship between the parties so that in the
reasonable contemplation of the defendant, carelessness on its part might cause
damage to the plaintiff? If so,
2. are there any considerations which ought to negate or limit the scope of the duty
and the class of plaintiffs to whom it’s owed or the damage to which a breach of it
may give rise? One might have to refer to legislation and policy to answer
these questions.
Specific to Kamloops, the city had a bylaw requirement to vet the work of the builder and
protect the plaintiff against the consequences of negligence in the performance of it
(creation of a private law duty – statute must create proximity). It was reasonably
foreseeable that the City’s negligence would create a risk of harm to Nielsen. Also
notably, this case regarded pure economic loss only.
The Current Approach to Finding a Duty of Care
Proximity
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a consideration of factual closeness and policy factors
factors such as physical, social, circumstantial, causal, representative
closeness, and an assumption of responsibility, reliance, and reasonable
expectations
Cooper: insufficient proximity between mortgage broker registrar and
investors. Also, residual policy factors – don’t want this gov’t body paying
for bad investments, would have a negative impact on the community who
would ultimately be left with the bill
Cooper v. Hobart (refinement of Kamloops test, now the Anns/Cooper
Test, use this one, proximity and residual policy factors, public body
not liable for pure economic loss)
Facts: Investors lost money because of fraudulent mortgage broker. Registrar allegedly
didn’t act fast enough to pull the broker’s license.
Holding: Registrar not liable for the investors losses
Page 16 of 85
Reasons: Cooper: insufficient proximity between mortgage broker registrar and
investors. Also, residual policy factors – don’t want this gov’t body paying for bad
investments, would have a negative impact on the community who would ultimately be
left with the bill
What this case stands for: Refinement of the “Anns” test – there is a difference
between reasonable foreseeability and proximity. The modified “Cooper” test:
Stage one: Prima facie duty
a) was harm to pltf reasonably foreseeable from def’s conduct?
b) Proximity: are there reasons why it might be unfair or unjust to impose a duty of
care?
a. Generally, proximity established thru previously recognized or analogous
case law
b. In new situations, proximity established by referring to policy WRT
rel’ship between parties – were parties sufficiently close to make it fair
just and reasonable to impose a duty?
c. When def is a statutory authority – refer to statute to find factors pointing
to proximity
d. Factors that may show proximity include expectations representations
reliance and nature of property or type of interests involved (e.g., pure
economic loss)
Stage two: Residual Policy Considerations
- are there policy considerations to justify denying or restricting liability?
o Consider factors such as:
o Whether law already provides a remedy
o Indeterminacy concerns (“floodgates”)
o Whether loss resulted from policy or operational decision if a gov’t
body
o Broad policy reasons – unreasonable effect on taxpayers for instance
Examples of Proximity
Odhavji Estate v. Woodhouse (public body liable for psychiatric
injury, tort of negligent investigation)
Facts: Odhavji shot dead by police. Investigation into shooting was botched and chief
of police did not ensure his police officers would comply with investigation as they are
statutory required to do so. Family of Odhavji claims for mental distress.
Holding: Family can claim provided they can prove their injury was a reasonably
foreseeable consequence of Chief’s actions.
Page 17 of 85
Reasons: extremely close causal connection between negligent supervision and resultant
injury, members of the public expect a police chief to be mindful of injuries that may
result from police misconduct, STATUTORY obligations imposed on chief to ensure his
subordinates comply with investigations,
Residual policy: chief already under statutory duty (no new duty imposed), no sufficient
alternative remedies available to plaintiff (complaint to chief’s regulatory body deemed
inadequate, no monetary compensation available)
What this case stands for: Other comments: It is up to the plaintiff to prove the various
elements of duty analysis. RECONCILE WITH COOPER: Odhavji emphasizes
reasonable expectations of the public, especially the interests of vulnerable people. Also,
unlike Cooper, Odhavji did not involve purely economic losses.
Other interesting comment: Hill v. Hamilton-Wentworth police – recognized tort of
negligent investigation by police officers
The Duty to Act (misfeasance/nonfeasance distinction)
Misfeasance – positive misconduct that endangers others. Duty not to expose others to
unreasonable risk of injury; avoid injury from materializing or safeguard interests of
those endangered
Nonfeasance – failure to take positive steps to protect others. Unlike misfeasance, no
affirmative duty to assist others in need – general purpose of negligence law is remedy
for misfeasance, not nonfeasance
However. “special relationships” have been created to establish when one has a duty to
act to protect another, for example employer to his employee, parent to his child, doctor
to his patient and generally, person of authority to someone subject to that person.
Three broad classes established by Childs (SCC) where a duty of
care might be owed for nonfeasance:
1. When def. intentionally attracts third parties to inherently or
obviously risky events
2. Paternalistic rel’ships of supervising and control producing an
imbalance of power and vulnerability
3. Defs offer services to public for financial gain that include
attendant responsibilities to act with special care to minimize risk
to users of the service
Page 18 of 85
Crocker v. Sundance (Liability of Commercial hosts to their
intoxicated guests)
Facts: Ski hill owners let an intoxicated man participate in an event involving ski hills
and inner tubes. Continued to let him drink during the event and continued to let him
participate even after he got injured. In the end, plaintiff got injured so badly that he
became paralyzed.
Holding: Def owed the pltf a duty to take reasonable steps to protect pltf
Reasons: Authority and control def had over race, inherent danger in the contest, def’s
knowledge of pltfs drunkenness, def’s commercial interest in the event, heightened
danger of racing while intoxicated
What this case stands for: Commercial host liability. Bar owners and suppliers of
alcoholic beverages in commercial settings owe an affirmative duty of care to their
patrons who become intoxicated. That’s because proximity is grounded in the economic
relationship and the financial benefit (doesn’t have to be money, could be publicity, etc)
the def. receives.
Also, re: inherent danger: When one intentionally attracts third parties to dangerous
events, they are expected to look after the well being of those they attract.
Stewart v. Pettie (liability of commercial hosts to third parties injured
by their intoxicated guests, reasonable care, also a reasonably
foreseeability issue)
Facts: Defendant drives home drunk from a commercial event, gets into accident which
injures pltf, a passenger, seriously.
Holding: Commercial host is not liable for the injuries
Reasons: Reasonably foreseeable that patrons of a bar who drive home drunk could
injure other third parties on the road. Proximate relationship exists in these
circumstances. However, pltf failed to show that def’s negligence caused the injuries.
The def took reasonable care. The pltf was accompanied by sober individuals and it was
reasonable to assume they would be designated drivers.
What this case stands for: Establishes that someone owing an affirmative duty to an
individual may end up owing affirmative duties to third parties injured by that individual
depending on the fact situation. With commercial hosts and alcohol – bar owes
affirmative duty to its patrons, and to those who may be injured by the patrons while they
are intoxicated.
Page 19 of 85
Childs v. Desormeaux (Social hosts are not liable for their intoxicated
guests)
What this case stands for: No liability for social hosts whose guests drive home drunk
and get injured. The court did not see this situation as analogous to commercial hosts.
This was a “novel” case so the Anns/Cooper test was applied. Difficult for social hosts to
monitor their guests (particularly when they BYOB). Social hosts are merely providing
the venue. Parties are not “inherently dangerous”.
Further, there was no evidence that the hosts knew that their guest was impaired. Thus,
injury was not reasonably foreseeable to them.
This case did not modify anns/cooper test. It did clarify three broad categories where a
duty of care may be owed (see above).
Manufacturers and Doctors Duty to Warn
Important Intro
Manufacturers and (to a brief extent) retailers
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products to be safe and free of defects, Duty to Warn of risks inherent in
intended or ordinary use of product
A duty to warn arises where (Lastoplex)
o The product is placed on the market for use by the general public
o The product is dangerous when used for its intended purpose
o The manufacturer knew or ought to have known of the danger
o The public does not have the same awareness of the danger as the
manufacturer
manufacturers have objective knowledge of risks – risks known or ought to be
known. Retailers often lack this knowledge. There is an informational
imbalance in that regard. For instance, the retailer in Donoghue v. Stevenson
had no way of knowing there was a snail in the bottle
nature and extent of warning depends on the product and the extent of danger
involved (Lastoplex Chemicals. Great danger involved here – sealer used in
basement, pilot light ignites.), how it is marketed, practice of other
manufacturers, and target customers (e.g., if it’s sold primarily to expert
electricians, a product normally extremely dangerous for general public might
not be as dangerous to them, and there won’t be as many warnings required)
manufacturers aren’t expected to warn of common risks (e.g., careful, knives
are sharp) or risk of abuse unless manufacturer has actual or constructive
knowledge of possibility of misuse (e.g,. sniffing glue)
o if a retailer has knowledge that the product is going to be misused in
an improper and dangerous way, that may oblige the retailer not to sell
to that person (Good Wear Treaders)
Page 20 of 85
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compliance with statutory rules/regs is not sufficient to discharge duty to
warn. Legislators haven’t predicted everything. There is a statutory and
common law duty to warn
duty to warn is a continuing one: if manufacturer subsequently learns of
defects in his products after it’s sold, he must take reasonable steps to warn
consumers
o what is considered reasonable depends on the manner in which the
warning given depends on the product, the number in circulation, and
the power to locate and contact the customers
Medical products and Learned Intermediary rule (Hollis v. Dow
Corning)
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medical product manufacturers under heightened duty to warn because of the
nature of the product – massive information imbalance btwn manufacturer and
customer, bodily integrity, etc
they must provide clear complete and current information regarding risks,
including unexplained risk
Learned intermediary
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when direct communication between manufacturer and patient is impossible,
manufacturers may discharge of their duty through a learned intermediary
(who then warns the patient)
the rule is applicable when it’s a highly technical product used under
supervision of experts, and when direct warning is unrealistic (primary
reliance on health care professional)
intermediary’s knowledge of product must approximate manufacturer’s
knowledge
can use this to satisfy continuing duty to warn but prudent to provide public
warning. After all, this principle is an exception to the general duty to warn –
manufacturer must do what he must to discharge this duty
-
Hollis v. Dow Corning. Learned intermediary rule applied here. But Dow
didn’t disclose quickly enough and didn’t disclose everything. Learned
intermediary (doctor)’s knowledge did not approximate that of manufacturer.
-
Another note re: dow. Court applied a “subjective test”. I.e., what does Court
believe Hollis would have personally done if she had been informed? They
found that she wouldn’t have proceeded
Rescuers and Good Samaritans
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no duty to assist others when def. is unconnected with risk – nonfeasance
Page 21 of 85
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duty to assist arises in certain rel’ships even if def. not responsible for risk of
harm (e.g., the “prudent parent”)
Horsley (Next friend of) v. MacLaren (comments on liability of victims
to their rescuers, and second rescuers, a boat captain owes a duty to
take reasonable care to rescue a passenger who falls overboard)
Facts: Matthew falls overboard the ship, MacLaren (ship captain) initiates unsuccessful
attempt to rescue using improper technique, Horsley tries to rescue Matthew on his own
in the meantime. Both Horsley and Matthew die.
Holding: MacLaren is not liable to Horsley for his death.
Reasons: Liability of first rescuer to a second can only be imposed if first rescuer was
negligent. Court found that defendant made mistake in his choice of rescue technique,
but it was in the “heat of the moment” and not negligent.
What this case stands for and comments on rescuers in general:
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A rescuer who is killed or injured in his rescue attempt may recover damages
from the one whose fault has been the cause of it (Videan)
MacLaren was not a “good Samaritan” as ship operator he had a duty to
rescue passengers (a “pre-existing” rel’ship)
When someone imperils himself and someone comes to rescue him, as long as
the rescuer isn’t foolhardy in his intervention, the victim is liable to the
rescuer if the rescuer is hurt
This liability is owed even if the “victim” wasn’t really in trouble – as long as
it was reasonable to believe the “victim” was in danger
The basis of this duty to rescuer is independent of duty to person rescued.
Victim’s negligence caused rescuer to encounter danger
Horsley could have sued Matthew (rescuer to victim). Matthew could have
then sued MacLaren. The actual Horsley case raised the odd issue of second
rescuer suing a first, allowing court to articulate principle that liability in that
case is imposed only if first rescuer was negligent in his rescue attempt
It’s irrelevant if the rescue attempt is futile, provided it is reasonable and not
negligent
Also rescuer’s claim against victim is not dependent on if victim’s claim
against other person who caused him to be imperiled (if there was another
person) succeeds
If some individual created the risk that caused the victim to be imperiled and
both victim and rescuer are harmed, both rescuer and victim may claim
against the individual. The rescuer might not be able to claim against the
victim if the victim didn’t put himself in peril in a negligent way. (In
Maclaren, the boat captain did not create the risk and thus the rescuer could
not sue him)
Page 22 of 85
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If rescuer is “sloppy” in his attempt, provided that’s because of “instinct” and
the “heat of the moment”, he will not be found negligent
Good Samaritan Acts – Medical Assistance, and non-medical aid
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putting a duty of care not to be negligence on rescuers deters altruistic conduct
which is favored in society. That’s why many jurisdictions have created
“Good Samaritan Acts” which state that when someone offers gratuitous
medical assistance or non-medical aid to another, they are not liable if
intervention resulted in injury or death as long as rescuer wasn’t grossly
negligent (a higher standard)
all people (including off duty medical professionals) fall under this act.
the act doesn’t compel one to rescue, but it encourages action
Expansion of Negligence Law to Other Interests
Psychiatric Injury
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no liability for any psychiatric injury other than nervous shock. Nervous
shock is a recognizable psychiatric illness resulting from emotional trauma. It
does not include anxiety, upset, annoyance and other transient (minor) injuries
courts are cautious to recognize psychiatric injury for fear of floodgates –
indeterminacy concerns, social cost, hard to determine causation, etc
defendants conduct must have a direct consequence on the plaintiff (easy to
prove)
or, relational plaintiffs – suffer psychiatric injury b/c of injury or death or 3rd
party caused by def’s wrongdoing (much harder to prove, pltf is a step
removed from def’s wrong)
also for REMOTENESS, see the MUSTAPHA case in the spring term outline
Control Mechanisms
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type of harm – must be serious and recognizable illness, physical disorder that
“leaves scar on the mind” (Devji)
does not include fear, mental distress or grief, anger, upset etc that results
from “reflecting” on the injury that occurred
grief compensable under some provincial legislation
reasonably foreseeability of psychiatric injury to a person of normal fortitude
(objective test) (Mustapha)
must be caused by the direct perception of the accident and not upon hearing
about it from someone else (Alcock v. Chief Constable of the South Yorkshire
Police)
plaintiff must establish proximity
Page 23 of 85
o relational proximity – close family members, rel’ships of
love/affection preferred, extended family members scrutinized.
Friends, acquaintances, etc are exempt
o Locational proximity – pltf witness shocking, horrifying, or gruesome
event. How close was pltf to accident scene? Hinz v. Berry – pltf saw
family members die first hand in an accident and was compensated vs
Rhodes v. CNR (railway) who only found out about her son’s death
days after the accident and was not compensated – locational
proximity was too weak. Also, seeing the immediate aftermath of an
accident or loved ones suffering at hospital soon after accident
(McLouglin v. O’Brian)
o Temporal proximity – relation btwn time of incident and onset of pltf’s
psychiatric injury. Shock must be induced by direct exposure to
horrific event – this is distinguished from reaction upon learning about
incident ‘reflecting’ on it and becoming depressed. (comment: what
about delayed onset post traumatic stress disorder?)
Devji v. Burnaby (District) (nervous shock is compensable when it
arises from exposure to the defendant’s negligence and not just one
of its consequences)
Facts: Daughter dies in accident, family is asked to view body the following day after it
has been prepared for viewing. All family members suffer various forms of psychiatric
injury.
Holding: Hospital not liable
Reasons: Strong relational proximity, but locational and temporal proximity was weak.
Family did not see the accident or its immediate aftermath. By the time the family got to
the hospital the following day, the body had been prepared for viewing – viewing it was
not a “horrific” scene
Also see Alcock v. Chief Constable of South Yorkshire Police where plaintiffs saw the
stadium disaster live on TV but did not see specific family members injured (or anyone
specifically for that matter) – claim was denied. Unclear what result would have been if
specific people or family members had been seen injured.
Pure Economic Loss
Intro
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financial loss not accompanied by or arising from personal or property
damage
Page 24 of 85
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distinguish from consequential economic loss (e.g., inability to work due to
car accident), pure economic loss is a claim of financial/economic interference
with the plaintiff’s own economic interests and no antecedent (previous)
rel’ship btwn parties is required
general reluctance to recognize tortious pure economic loss because of
indeterminacy concerns, “liability in an indeterminate amount for an
indeterminate time to an indeterminate class” (Cardozo) – e.g., a power outage
now starting to be recognized in key areas, i.e., negligent misrepresentation
Five categories of pure economic loss claims recognized by
SCC (Winnipeg) -- CITE THIS ALWAYS
1.
2.
3.
4.
Negligent statement/representation
Negligent performance of service
defective products
relational economic loss (def. causes dmg to another person, which financially
dmgs a 3rd party, eg a bridge collapse)
5. Liability of public authorities
Not technically “closed” to these 5 categories, but courts have expressed great reluctance
to expand upon it
Overlap of tort and contract
Tort liability for negligent statements is not confined to non-contracting parties
- someone party to a contract may choose to sue in contract or in tort
- generally, one sues under contract. Contracts can impose higher duties than
tort (easier to win a claim)
- but suing in tort can be more beneficial – different handling of statute of
limitations, warranty under contract might have expired
- most importantly, suing under tort might lead to better damages. Can sue for
reliance damages under tort and receive a monetary award that exceeds
expectation damages (prohibited in contract law). The idea is that even if the
business opportunity was a bad one, you are entitled to ‘break even’ when you
sue under tort
- the ability to sue in tort can be limited by the contract (exclusionary clauses,
etc). so one can sue concurrently in tort and contract or alternatively in tort
subject to terms of contract
Negligent Misrepresentation/statement (Important intro)
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found when a “special relationship” exists btwn parties, determined on the
circumstances of each case
the courts emphasize whether the reliance by the plaintiff on the information
given is reasonable and foreseeable
Page 25 of 85
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pre Hedley Byrne, no tort liability for inaccurate statements causing financial
losses absent fraud
the Anns/Cooper test still applies for novel cases though it is modified. To
satisfy the reasonable foreseeability requirement, the pltf must not only show
that a) the defendant ought reasonably to have foreseen that the plaintiff
would rely on his representation and b) that reliance by the plaintiff, in the
circumstances, would be reasonable
proximity issue is hard to overcome however: indeterminate liability
frequently results
Hedley Byrne (duty of care exists in providing information, opinion, or
advice, if a special rel’ship is found, use of a disclaimer to limit liability)
Facts: Bank negligently provided an incorrect (positive) credit report to the plaintiff in
respect of one of plaintiff’s customers – suffered economic loss as a result. The bank
included a written disclaimer with the report absolving itself of responsibility for the
credit report.
Holding: Bank was not liable to pltf for negligent misrepresentation
Reasons: No contract btwn pltf and def b/c def provided report free of charge (cannot
rely on implied warranty then). Could not allege deceit or fraudulent misrepresentation
b/c deceit requires proof of fraud. Pltf succeeded based on tort of negligent
misrepresentation. Bank failed to take care in preparing the report. However, disclaimer
absolved bank of liability
What this case stands for: House of Lords found that in certain circumstances, a duty
of care exists in providing “information, opinion or advice” Duty of care doesn’t arise
only b/c it’s reasonably foreseeable however. Also, the claim is not dependent on a
contractual rel’ship between the parties. In Hedley, a “special relationship” existed b/c of
the expertise of the bank in such matters, the seriousness of the occasion when the report
was requested, and because of the foreseeable reliance on it by the plaintiff. The
disclaimer was adequate to absolve liability however future cases likely wouldn’t
agree with this finding.
BG Checo International v. BC Hydro & Power Authority (concurrency
of actions in tort and contract, reasonable reliance)
Facts: The tender docs supplied by BC Hydro (pre-contractual disclosures) stated that the
right of way would be cleared before construction. Checo made an offer to construct
based on this representation which was accepted. In fact, def failed to clear the right of
way and pltf lost considerable money clearing the right of way.
Holding: Def is liable for negligent misrepresentation (tort)
Page 26 of 85
Reasons: Representation could be claimed in both tort or contract. One is not mutually
exclusive to the other unless the contract specifically excludes tort liability in this regard.
What this case stands for: Plaintiffs have a right to concurrency of actions. The right
to sue in tort is not taken away by the contract merely because a contract exists.
However, the contract can limit the scope or waive the right to sue in tort through express
wording/disclaimers.
Pre-contractual statements that do not become a term of the contract
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plaintiff is limited to tort claim in this case
the tort duty can be modified by express terms (disclaimers) communicated to
plaintiff before reasonable reliance
But if the pre-contractual statements ARE incorporated into the contract, the
plaintiff can sue in contract only, not tort (para 39)
Queen v. Cognos Inc (Reasonable reliance, no contract – having to sue
in tort)
Facts: The pltf was advised by the def’s employee that the job he was applying for
would be lucrative and long term. Def’s employee did not inform of the true nature of
the job – that it was for a project which hadn’t been finalized yet. Pltf accepts job, signs
employment contract that states nothing about nature of job and states that he can be fired
without cause with proper notice. Soon after accepting job, pltf is terminated without
cause with proper notice.
Holding: Def liable to pltf for negligent misrepresentation
Reasons: “Special rel’ship btwn pltf and def”. Ability to terminate employment under
written clauses in employment contract did not extinguish tort liability. Pltf reasonably
relied upon the def’s assertions about the nature and existence of the job. Reliance was
foreseeable.
What this case stands for: Unlike Checo, the representations were not part of the
employment contract so the pltf had to sue in tort. He was able to do so on the basis that
it was foreseeable that he would sustain damages should the representations he relied on
be found to be false and negligently made.
Other comments from Cognos: Liability may arise from failure to disclose relevant
information (Spinks v. Canada (1996) FCA)
Liability may arise from misleading information in university’s promotional materials –
Olar v. Laurentian University (Advertising material claimed credits were easily
transferrable when they were not. The university knew they were not. Fraud not found
because university did not intend to deceive in a fraudulent way)
Page 27 of 85
Requirements for negligent misrepresentation outlined in Cognos
Duty based on “special relationship” between representor and the representee
Untrue, inaccurate, or misleading statement
Representation negligently made
Representee must have relied, in a reasonable manner, on said negligent
misrepresentation; and
5. Representee relied on misrepresentation to their detriment
1.
2.
3.
4.
Defendant’s Standard of Care arising from Cognos – what would a reasonable person
do to ensure the accuracy of the information in the circumstances?
How do you find a special relationship? Establishing liability for
Negligent Misrepresentation:
-
applicable test that comes out of Hercules: modified version of the
anns/Kamloops two-part test (this is pre-cooper)
o was it reasonably foreseeable that defendant’s negligence would cause
financial loss?
 a) the defendant ought reasonably to have foreseen that the
plaintiff would rely on his representation and
 b) that reliance by the plaintiff, in the circumstances, would be
reasonable
 How to find reasonable reliance? Note, not a strict test,
just used to help guide the process (Hercules)
o 1. Defendant had a direct or indirect financial
interest in the transaction in respect of which the
representation was made
o 2. Defendant was a professional or someone
who possessed special skill, judgment, or
knowledge
o 3. Advice or information was provided in the
course of the defendant’s business
o 4. Information was given deliberately, and not
on a social occasion
o 5. Information was given in response to a
specific enquiry or request
o Is it fair and just to impose a duty on defendant for the plaintiff’s
benefit (proximity)?
Page 28 of 85

There must be a special relationship. Special relationship
depends on foreseeable and reasonable reliance. Defendant
must assume responsibility for reliability of advice
Factors pointing to a special relationship – contextual analysis required – fact driven
1. Expertise and knowledge of the advisor
a. Knowledge imbalance between def and pltf. def has superior skills,
knowledge, expertise, or access to information
b. Not limited to professional advisors
2. Expertise and knowledge of the advisee
a. No reasonable reliance if pltf’s knowledge approximates def’s. Pltf
should “know better” (can’t sue b/c of what receptionist said)
3. Nature of the occasion
a. Was advice offered in a formal or informal setting? If formal, more likely
to find reasonable reliance and foreseeability, absent a disclaimer.
4. Was the information solicited?
a. If info was in response to a request, more likely to create a special rel’ship.
b. No reasonable reliance where def volunteers info unless reliance was
reasonably foreseeable
5. Pecuniary interest
a. Did advisor expect to gain financially, directly or indirectly? Probably a
special rel’ship
6. Disclaimer
a. If clearly communicated before reasonable reliance, liability may be
negated. But if pltf had no alternative other than reliance and/or no
opportunity to verify information, liability may remain.
Part two of modified test: Overriding Policy Considerations
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prima facie duty can be negated by public policy considerations
a particular concern is indeterminacy
Liability is negated unless
o Foreseeable reliance on statement by a limited class of persons
known to def; and
o Information used for its intended purpose (Hercules)
DON’T FORGET TO CONSIDER CAUSATION AND REMOTENESS
Hercules Mgt. Ltd. v. Ernst & Young (liability of professional for his
service, using information not for its intended purpose)
Facts: The def’s, accountants, negligently audited financial statements used by the
plaintiff as a basis to further invest in the company.
Holding: Def. not liable to Pltf
Page 29 of 85
Reasons: Failed step 2 of the modified anns/Kamloops test. While a special relationship
existed, and while the reliance on statement was foreseeable to a limited class of persons
known to def., the intention of the audit was not to provide investment advice. It was to
allow the corporation to comply with its statutory duty to audit its financial statements.
What this case stands for: Plaintiffs must show actual reliance on representations, not
just reasonable reliance. In other words, it must be reasonable on the facts of the case.
This case also shows the courts response to indeterminacy concerns – audited financial
statements can be used by an unlimited number of people and the courts did not want to
expose accountants to such a liability.
Comment: What if the shareholders collectively sued as a group for failing to provide
proper financial statements? The case might have gone differently. While the auditors
had no duty of care to individual shareholders, they did have a duty to the corporation as
a whole.
Contributory Negligence and Pure Economic Loss
-
-
even if pltf reasonably relies on def who is negligible, if pltf is negligent in
relying on def, contributory negligence can be found
general rule however is that if reasonable reliance is found, contributory
negligence cannot exist. Pltf cannot act unreasonably on one hand and yet
reasonably rely on the other
some exceptions where pltf may be found contributory negligent, for instance,
negligently exacerbating losses or unreasonably failing to mitigate them
Avco Financial Services Realty Ltd. (respondent) v. Norman
(appellant) (distinguish liability for negligent misrepresentation and
its defence to it, this case also regards contributory negligence and
pure economic loss)
Facts: Norman – original plaintiff, the insured
Avco – original def., the insurer and mortgagee
Pltf has mortgage and life insurance with def. Mortgage terms are unusual in that life
insurance must be renewed every time mortgage is renewed. Pltf fails to renew life
insurance. Wife dies, pltf tries to claim, finds he’s uninsured. Pltf claims def was
negligent in failing to inform him of the need to renew. Trial court splits liability 50/50.
Holding: Appeal dismissed.
Reasons: Liability for negligent misrepresentation and its defence must be distinguished.
Pltf should have known an error was possible and shouldn’t have solely relied on def.
Pltf signed insurance forms every time he renewed – he should have inquired further into
the term of the insurance.
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What this case stands for: Reasonable reliance and contributory negligence can coexist when liability and defence are distinguished. This is consistent with the use of
contributory negligence in other areas (e.g., failing to wear a seatbelt). Good example –
relying on a realtor’s negligent statement regarding the condition of a home yet failing to
get a home inspector as well. Contributory negligence was not found at the case at bar
because the facts causing liability were used as the same facts to establish contributory
negligence.
Negligent Provision of Services
-
privity of contract no longer a bar to tort remedies (Donoghue v. Stevenson).
This tort arises in 2 situations
negligent performance of gratuitous service causing financial loss

in this case a compelling evidence of assumption of
responsibility and reliance will be required. Also, liability is
limited to intended beneficiary of the particular service. In
Maxey v. Canada Permanent Trust Co the bank took out fire
insurance when the home owner failed to do so. When the
house burned down, the homeowner assumed the bank took out
insurance to protect his interest too when in fact the bank took
out insurance to protect its own interest only. The homeowners
assumption did not result in liability for the bank b/c the bank
had not clearly assumed a responsibility and reasonable
reliance was not found.
Negligent provision of services – when a 3rd party incurs financial
loss because of a breach of contract between the defendant and
another person

Potential indeterminacy concerns. Court will consider factors
such as number of potential plaintiffs, purpose of the contract,
whether the 3rd party was an intended beneficiary of the
contract, and if plaintiff reasonably relied on the def’s
undertaking to his/her detriment. Also, there is a concern that
the def cannot limit his liability
BDC Ltd. v. Hofstrand Farms (no liability for neg. proviso of services
for delivery company due to indeterminacy concerns)
Facts: The City required the plaintiff to use the city’s courier to deliver land title
documents. The courier did not deliver on time and the pltf incurred considerable
financial loss.
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Holding: Courier was not liable
Reasons: No duty of care owed to pltf. Courier did not know what was in the package
or who the pltf even was. No contract. No basis to conclude that the courier assumed
responsibility to the plaintiff, or that the contract btwn the City and the Courier was
intended to benefit the plaintiff. No reliance. Indeterminacy concerns weakened the
proximity link too much.
What this case stands for: Policy issues and indeterminacy concerns will play a
significant role in finding of negligent provision of services to third parties.
Wilhelm v. Hickson (liability found for professional lawyer to
beneficiaries)
Facts: The lawyer defendant failed to prepare a will on time causing the wrong people to
benefit from the will and causing the plaintiff to lose out.
Holding: The lawyer was liable to the beneficiary pltf who missed out.
Reasons: Reasonable foreseeability of loss to intended beneficiaries should lawyer be
negligent and neither testator nor beneficiary has a contractual remedy against negligent
lawyer. The public relies on lawyers to carry out their duties properly and the negligent
lawyer should bear responsibility for his negligence.
What this case stands for: Negligent provision of services and how third parties can be
affected – if the beneficiaries are part of a limited class of persons known by the def,
liability may be found.
Other comments:
- if the estate had a remedy against the lawyer, the third party pltf would have
been unable to sue
- liability was found despite concerns such as
o work done for testator not beneficiary (reconcile with Hercules!)
o no reliance by beneficiary
o privity of K, no opportunity for lawyer to limit liability
o beneficiary’s claim based on loss of expectation and not existing right
o potential indeterminacy
o testator owed no duty to beneficiary – so why should lawyer?
o A successful lawsuit essentially increases the size of the estate
-
regardless, liability found because
o not allowing beneficiary’s claim likely would allow lawyer to get
away with negligence
o respect wishes of testator
o reliance by public on lawyers to provide good service
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o no injustice to lawyer – he should bear responsibility for his
negligence
Hybrid case of Negligent Misrepresentation and Negligent
Performance of Service
Haskett v. Equifax Canada Inc (pure economic loss, negligent misrep
despite no reasonable reliance by the plaintiff)
Facts: Pltf underwent a bankruptcy. After discharge, his previous bad debts still show on
his credit report for years when they should have been cleared. This prevented him from
obtaining new credit. Pltf sues as part of a class action against credit bureau.
Holding: Def did owe Pltf a duty of care.
Reasons:
Pltf does not directly use credit report himself; it is relied upon by others. No direct
connection and no reasonable reliance in that regard.
Court had to either fit the claim within a previously recognized category (remember the 5
existing categories for pure economic loss) or recognize this as a new duty.
Court finds this case analogous to negligent misrepresentation. Applies Anns/Cooper:
Reasonably foreseeable that an inaccurate credit report would cause harm to pltf. Relies
on Spring v. Guardian (reference letter claim not limited to pltf’s detrimental reliance on
statement).
Proximity and policy factors: Credit important in modern economy, court refers to
legislation – the objective of which is to treat consumers fairly, and so recognizing a duty
would further that objective. If a duty were not recognized, there wouldn’t be any
adequate remedy (defamation too difficult to prove, penalties under legislation too small)
and credit bureaus could be free to be very sloppy in their reporting.
No indeterminacy because credit bureaus know who their consumers are. The class may
be large, but not indeterminate.
Criticism: Court glosses over indeterminacy problem. What if a consumer lost out on a
massive business opportunity? Could Equifax be on the hook? Wouldn’t that be
unreasonable?
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Reasonable reliance is an essential part of negligent misrepresentation, yet none of that is
found here. Is this case really that analogous in that regard?
What this case stands for: A person “one step removed” who is detrimentally affected
by a negligent misrepresentation might be owed a duty of care and might claim damages.
Negligent Supply of Dangerous (Shoddy?) Products
Winnipeg Condominium Corp. v. Bird Construction (negligent
performance of service, liability for product to non-contracting
parties, found if the defect is dangerous and not just poor)
Facts: Def created poorly constructed cladding developer. Pltf lives in building but did
not contract with def. Large chunk of cladding falls off the building (high rise). Pltf has
to replace def’s shoddy work to prevent further danger. Pltf sues.
Holding: Def is liable to pltf
Reasons:
Reasonably foreseeability of harm to subsequent owners/occupiers.
Proximity: Referred to Rivtow Marine Ltd. v. Washington Iron Works. Found it
analogous to cost of mitigation to prevent subsequent damage to person/property.
Contractors should be liable to construct buildings safely. This encourages socially
responsible behaviour by contractors and builders. Also, buyers are unable to protect
themselves through their own due diligence b/c such defects are often latent (for this
reason, traditional “caveat emptor” claims cannot apply) Also, builders/contractors better
able to predict and insure against risk.
If a duty of care were found, pltfs could repair damage before it gets serious and injures
person/property.
Policy considerations (part 2): No indeterminacy (limited group of people). Limited to
cost of repairing building to a non-dangerous state. Liability limited to useful life of
building.
HOWEVER: Tort law has no interest in protecting plaintiffs against purely shoddy nondangerous work.
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NOTE: Better to sue the contractor/manufacturer than the retailer in most cases as the
retailer often has done nothing wrong and could not have known about the latent defect in
the product.
What this case stands for: Manufacturers are liable to non-contracting third parties for
dangerous defects in their products. They are not liable if the defect is merely shoddy
and non-dangerous.
M. Hasegawa & Co v. Pepsi Bottling Group (Canada) (negligent
performance of service, no liability for non-dangerous defects)
Facts: Pltf buys water from third party. Def contracts with third party to bottle it. Some
bottles found to contain mold and the entire batch is unsaleable (pltf tries to mitigate by
trying to sell water to another country where health code is more lax but fails).
Holding: Def is not liable to pltf.
Reasons:
(The pltf should have sued Aqua in contract, not the def in tort)
No duty of care owed.
Product was not dangerous (pltf’s attempt to sell water elsewhere used against it).
Pltf did not seek an assurance of any kind of def, not did def provide any in return. Tort
law should not be used as an after-the-fact insurer to disrupt the contractual allocation of
risk.
BCCA relies on Winnipeg condo as well. No liability for non-dangerous defects is a
principle of Canadian tort law.
Interesting comment: House of Lords said in Junior Books that non-dangerous defects
could result in liability to third parties in tort. The SCC accepted this idea, however, in
obiter. BCCA finds this not binding and doesn’t follow it.
Side note case – Hughes v. Sunbeam Corporation (potential liability
for reliance on a defective product)
See Osborne pg 203. The def sold various defective smoke detectors. The detectors
themselves were not dangerous, but reliance on them was. A prima facie duty of care to
third parties was found (safety rationale consistent with Bird). However, the case later
failed due to indeterminacy concerns, the unusual nature of the proposed remedy (refund,
removal, replacement), practical concerns, etc.
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What this case stands for: Reliance on a defective product can be dangerous and could
possibly result in liability to non-contracting third parties.
Side note case – there is no need for the danger to be “imminent”
(Roy v. Thiessen).
General comments on shoddy products – defining real and
substantial risk, and non-dangerous defects in residential housing
What constitutes real and substantial risk to justify recovery? Should it be immediately
dangerous? Courts suggest no – liability is being found against builders in leaky condo
litigation (where danger occurs over a long period if not repaired). Liability may be
found as long as danger was inevitable. (Strata Plan VR 1534 v. Regent Development
Corp.)
Australia allows recovery for non-dangerous defects in residential housing? Good idea?
What about mixed commercial/res buildings? Perhaps justified in the case of latent
defects. In the meantime, the law is clear – no recovery for non-dangerous defects.
Relational Economic Loss
Occurs when a defendant damages property owned by another, used by the plaintiff.
Plaintiff suffers economic loss as a result. E.g., damaging a bridge owned by the gov’t
that a private party needs for his business. Severe indeterminacy concerns, obviously.
Bow Valley Husky Bermuda v. St John Shipbuilding (contains the test
for finding relational economic loss)
Facts: Defect in heating system caused the oil rig to be unusable for weeks. Pltf who
leased rig claims def had a duty to warn about defect (def was not manufacturer, def is
builder of rig). Pltf claims for contractual relational economic loss.
Holding: Pltf’s claim dismissed
Reasons:
For relational economic loss, the “exclusionary approach” is used, the way it works is as
follows.
Four recognized category of loss:
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i.
-
ii.
-
iii.
-
iv.
-
-
Plaintiff has a possessory or proprietary interest in the damaged
property
Plaintiff must have more than a contractual relationship with the property
owner who actually owns the damaged property. Plaintiff must have some
kind of proprietary/possessory interest in the property
This eliminates indeterminacy concerns because this kind of relationship is
unusual
General Average Contribution
occurs in maritime transport. When a ship carrying cargo owned by various
other people is imperiled, the cargo owners share the cost of keeping the ship
safe. If the ship was imperiled because of a third party, the cargo owners can
sue the third party to recover their costs
Joint Venture
occurs when a number of people use property owned by one of them for a
joint business enterprise
when a third party negligently damages or destroys the property, all members
of the joint venture may sue
financial losses are recoverable directly from the tortfeasor by the owners and
non-owners of the property
example: various fishermen sharing a trawler owned by one person, agree to
split the profits earned from the expedition. If a third party screws up the
expedition, all the fishermen may sue
Transferred Loss
limited to property/physical damage, not for instance, lost profits or cost of
breaching contract
this occurs commonly in the sale of goods. When a contract allocates risk of
damage to the buyer before the ownership of goods passes from the seller. If
goods are damaged during this period, the buyer can sue even though he has
no ownership at the time
claim is supported on the grounds of fairness, need for deterrence, and the
lack of indeterminacy problems
If the claim does not fall within these categories, use Anns/Cooper. But recognize that
courts are extremely reluctant to recognize new categories for fear of indeterminacy.
If the claim does fall within these categories, consider reasonable foreseeability only.
The rationale guiding this rule is that often both parties are engaged in useful activities, the event causing
the loss was accidental and the allocation or risk can be dealt with through contract.
For the case at bar, the court found that it did not fall within any of the recognized
categories. Anns/Cooper was applied.
Reasonably foreseeable. But policy considerations – indeterminacy – negated a duty of
care. If liability was found to pltf, then why not liability to a host of other people who
Page 37 of 85
foreseeably lost money? Other investors in the project for instance, or the employees of
corporations?
What this case stands for: For relational economic loss, refer to the four categories. If
not within those categories, apply Anns/Cooper, keeping in mind the spectre of
indeterminacy.
Comment: When might a duty of care be found? Perhaps if finding a duty served as a
deterrence. Or if, in fairness, pltf was unable to allocate risk to actual property owner by
contract. Unusual, however, and unlikely to work.
Other comment: The court in CNR v. Norsk (case not mentioned here) held that a
“pragmatic” rule should apply – case-by-case consideration using Anns/Cooper when no
serious indeterminacy concerns exist. That was since overruled by Bow Valley –
exclusionary rule is the law in Canada).
Note that relational economic loss isn’t possible whatsoever in UK.
A Summary: Recognizing New Duties Relating to Economic
Losses
5 recognized categories of economic loss.
Categories not closed, but courts are very cautious in recognizing new ones.
Factors that constrain expansion of tort liability for economic loss:
-
indeterminate liability
opportunities for contractual protection
-
tort law should only be a fall back mechanism for protection of financial
interests
tort law must respect contractual arrangements, esp. among commercial
entities
Courts do _not_ want ex post facto allocation of contractual risk through torts:
no relief for plaintiffs who fail to seek contractual protection when they
should and could have
Why?
-
Design Services v. Canada (Public Works) (an owner doesn’t owe a
duty of care to subcontractors in a bid process)
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Facts: General contractor and various architects, etc, working with the gen. contractor
bid on a job offered by def. They should have gotten the job, but didn’t. Def settles with
contractor, the others file suit.
Holding: Claim dismissed.
Reasons: Does an owner owe a duty of care to subcontractors? No.
Claim does not fit into existing categories for economic loss. Anns/Cooper test to be
applied:
Reasonable foreseeable that subcontractors would suffer a loss.
Factors that support proximity:
- design-build model – members of the team could not be easily substituted
(argument against indeterminacy)
- Cost of preparing bid was high
- Expectation of fairness in selection process
Proximity is negated however.
“The fact that the appellants had the opportunity to form a joint venture… is an
overriding policy reason that tort liability should not be recognized in these
circumstances.”
-
ability for the plaintiffs to have foreseen and secured protection against losses
crucial
commercial entities should seek protection through contract. “Tort law should
not be used as an after-the-fact insurer”
Case negated at this stage. But court indulges itself with Stage Two analysis and says it
would have been negated at that point any way:
Reason: Huge indeterminacy concern. Some appellants were subsidiaries of the general
contractor. The number of parties was not tightly controlled. Unknown number of
people with legitimate claims.
What this case stands for: For pure economic loss, look to the 5 recognized categories.
If claim doesn’t fall within those categories, apply Anns/Cooper. But as you apply it,
recognize that indeterminacy is a primary concern and that courts will likely not
recognize a new category unless this is overcome (and that’s unlikely).
Government Liability
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Introduction, also contains info on statutes imposing/removing
liability:
Why the reluctance to find government authorities liable?
-
separation of powers
unwillingness to second-guess public authorities
court is not competent to evaluate public actors
historical factors – crown immunity at CL
discretion re: ability to allocate limit resources, set priorities and deliver
public services
most legislation does not impose a duty of care. It is permissive in nature only
– gives the gov’t permission to act
Crown Proceedings Legislation
-
S2(c) gov’t is subject to all the liabilities to which it would be liable as if it
were a person
S2(d) the law relating to indemnity and contribution is enforceable by and
against the government for any liability to which it is subject, as if the gov’t
were a person
Remnants of Crown Immunity
- no tort liability for policy or planning decisions, discretionary matters
- no tort liability for legislative, judicial or quasi-judicial functions
Express immunity
- crown can legislate itself out of tort liability
- No liability in nuisance arising from breakdown of sewage system, water or
drainage, road or dryke – BC Local Gov’t Act, s. 288
- No liability for failure to enforce by-laws – s. 289
- No liability for issuing building permits that violate building codes or other
safety legislation – s. 290 (added after Kamloops)
Immunity inferred from statute
- Cooper – the BC Mortgage Brokers Act of BC does not expressly provide
immunity from liability to private investors, SCC found that a private law
duty of care could not be found under that legislation
- Look at the overall scheme of the Act. Lots of discretion? Probably owes a
duty to the public in general, but not individual investors
Procedural Limitations
- limitation period: 6 months after cause of action first arose subject to
municipal council’s discretion to extend limitation period – BC Local Gov’t
Act s. 285
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-
Notice of Damage: City must be notified of action against it within 2 months
from time of damage – Local Gov’t Act s. 286
Basis of Gov’t Liability
-
Negligent performance of public duties, e.g., exercise of discretionary powers;
law enforcement; inspection of homes and roads
Abuse of power/nonfeasance in public office
How is a duty of care established?
If an existing category such as negligent performance of public duties, reasonable
foreseeability only. Otherwise, apply Anns/Cooper test
Proximity: Were the parties in a close and direct rel’ship to make it fair and just to
impose a duty of care?
- If def is statutory authority, Cooper for instance, refer to governing statute –
Para. 43 of Cooper
o In Cooper, proximity could not be established
- does def owe a duty to public generally or is def also under private law duty
vis-à-vis individuals like pltf? See Cooper. Cooper was not
Residual Policy Considerations:
Policy/operational distinction
-
did loss arise from policy/planning decision or implementation of policy?
No tort liability for policy/planning decisions
Implementation of policy, ie, actual delivery of gov’t service may be subject
to tort duty
See course materials pg 219-220 for an example of policy/operational
distinctions
Kamloops (City of) v. Nielsen (operational decisions are subject to
tort liability, policy/discretionary decisions are not, subject to liability
for bad-faith exercise of discretion)
Facts: See Fall outline for fact summary.
Holding: City was liable
Reasons:
-
decision not to enforce bylaw principally operational
Page 41 of 85
-
motivated by improper reasons: not bona fide exercise of discretion (didn’t
want to stop the son of an alderman)
found to be an operational decision, SCC affirmed that policy/discretionary
decisions are not subject to tort liability
Exception: However, there will be liability for bad-faith exercises of discretion. Also,
liability for a total failure of gov’t body to consider whether or not the statutory power
should be exercised.
Comment: After this case, BC Local Gov’t Act legislated away liability for issuing
building permits for structures that violate building codes. Often, city won’t grant a
permit now without certification by architect/engineer. This professional will then be
liable if the structure is not sound.
Just v. BC (distinction between operational and policy/planning
decision)
Facts: Rock fell from slope above highway and struck pltfs car, killing his daughter and
injuring him severely. Pltf alleges negligence in govt’s system of monitoring and
maintaining rock safety on the highway.
Holding: New trial should be ordered to find if gov’t was negligent
Reasons: Manner and quality of inspection system an operational decision
Court restricts tort immunity to “true” policy decisions. E.g., policy decisions re: broad
allocation of funding at a high level of gov’t. System of road inspection that province
implemented was open to judicial scrutiny as an operational matter.
However, in considering road inspection systems, courts will assess the surrounding
circumstances – budgetary constraints and the availability of qualified personnel and
equipment.
Comment: This widens the scope of gov’t liability.
Brown v. British Columbia (Ministry of Transportation & Highways)
(distinction between operational and policy/planning decision)
Facts: Car slips on black ice on a BC highway. At the time, province was operating
under its summer system of highway inspection which involved fewer resources and
fewer effort.
Holding: Gov’t is not liable
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Reasons: Policy decisions are not necessarily made at the highest level of gov’t. One
must consider the nature of the decision. In this case, the decision to operate under a
summer schedule was a true policy decision involving political, economic and social
factors.
Comment: Seems to backtrack a bit from Just. Perhaps because someone was killed in
Just and court felt sympathetic?
Post-Just: Incremental expansion of gov’t liability
Swanson & Peever v. canada: Family members of passengers kille din airplane crash
successfully sued feds for failure of Transport canada employees to enforce safety regs
against aviation company.
Ingles v. Tutaluk construction: Failure of gov’t to ensure compliance with building
codes and negligent issuance of permits
Gov’t liability Post-Cooper
-
the proximity requirement in Cooper and reference to controlling legislation
considerably reduces scope of liability
more than 90% of gov’t liability cases have failed post-Cooper because of
proximity requirement
Courts are reluctant to find private law duties to individuals – only duties to
the public at large
Consider Holtslag v. Alberta – courts are no longer open to new
categories of gov’t liability
-
homeowners used untreated pine shakes for roofing. Unsuitable for the
climate, wore down very quickly
no health risk, no existing duty, homes weren’t leaking, doesn’t fit under
Winnipeg Condo
no tort liability – building director’s statutory duty owed to public generally
and not individuals
the listing of the pine shakes product was a policy decision
Final Comments:
- courts seem more sympathetic to cases involving personal harm
- most cases now rejected at policy stage of Anns/Cooper test
- policy/operational distinction was insufficient control mechanism,
Anns/Cooper test was needed
Page 43 of 85
-
Osborne claims that emphasis on proximity and statutory duty unnecessary:
he believes policy/operational test is sufficient, however, policy/operational
test arguably gives too much discretion to trial courts
Prevention of Criminal Violence
Why claim against the police?
-
perp unknown
no personal justice in criminal justice system
perp usually judgment proof
inadequate compensation under BC Crime Victim Assistance Act. Only
allows financial loss and not pain/suffering
Comment: Could seek compensation from employer, vicarious liability. But that’s
limited to crimes done during course of employment, a finding that’s hard to make.
Jane Doe v. Toronto Commissioners of Police (police failure to
warn of danger of rapist to specified group = liability)
Note: A Pre-Cooper decision
Facts: Police knew the balcony rapist targeted only young women and only in a span of
several city blocks. Failed to warn the women any way despite this knowledge.
Holding: Police were liable
Reasons:
-
-
statutory and common law duty to protect life and property
common law duty consistent with statutory duty
proximity established in that regard
failure to protect or warn identifiable group of women (no indeterminacy in
that regard) from specific and foreseeable risk of harm deprived these women
of the opportunity to protect themselves
policing decisions may be discretionary, but actual implementation of the
policies are operational
Comment: Would Jane Doe have succeeded under Cooper framework? Probably, see
Odhavji v. Woodhouse Estate. Courts are sympathetic to those put at risk of physical
harm. Also, the fact that there was no indeterminacy was essential to this case.
Page 44 of 85
Hill v. Hamilton Wentworth Regional Police Services Board
(recognition of tort of negligent investigation)
Facts: Despite being innocent, pltf was investigated, arrested, and imprisoned and
generally mistreated during the process because of his aboriginal background. Pltf
alleges negligence.
Holding: Police are not immune from liability, tort of negligent investigation exists,
standard is that of the “reasonable officer”
Reasons:
Reasonably foreseeable that harm would result from negligent investigation
Proximity established:
- rel’ship between police and particularized suspect sufficiently close to justify
duty; Cooper distinguished as the mortgage broker registrar dealt with third
parties (mortgage brokers) and not the plaintiffs directly
- Suspect has personal interest in investigation – freedom and reputation at
stake
- Matter of justice – no other effective tort remedy for wrongful conviction and
institutional racism. False imprisonment/false arrest require direct and
intentional conduct, malicious prosecution requires malice. Hard to establish
– negligent is very different
- Public interest in competent investigation supports duty
- Duty consistent with Charter values – liberty and due process
- Suspects expect competent investigations
- Duty consistent with officers’ general duty to investigate and prevent crime
- No negative consequences on police resources
Residual Policy Considerations
No overriding policy to negate prima facie duty; no real negative consequences
- investigation of crimes not a quasi-judicial function; discretion re
investigation is an appropriate consideration under standard of care
- no chilling effect on investigation of crimes and crime prevention
- no risk of indeterminate liability (particularized suspects)
- no risk of guilty persons acquitted unjustly recovering in tort
Outcome: No liability in this case because police conduct consistent with reasonable
police standards at the time.
Comment: Must also show compensable harm – requirement of negligence.
Refresher: Difference between proximity and residual policy – “micro” vs “macro”
policy considerations
Page 45 of 85
This tort of negligent investigation apparently hasn’t improved police procedures.
Immunity of Mothers
Is there a duty of care from a mother or a doctor to an unborn
child? Sort of.
-
Foetus not entitled to legal rights – Winnipeg Child & Family Services v. G
(DF)
Liability of 3rd parties re pre-natal injuries
o Child CAN sue third parties for pre-natal injuries
o Cause of action is permitted at time of birth – Duval v. Seguin
o Stillborn child = no action permitted
Rationale
- pregnancy fact of life; harm to pregnant mother & foetus RF
- protect children from negligent conduct
- compensation
Likely defendants
- motorists
- drug manufacturers
Extent of duty
- not limited to foetus in existence
- includes future children yet to be conceived
Exceptions
Maternal tort immunity for pre-natal injuries
-
pre-natal injuries caused by mother’s negligence – mother is immune from
liability
examples: mother undergoes treatment fully aware that there is a high chance
it will damage her foetus
injury to child from dangers of mother’s work
injury caused by mother’s habits/interests – e.g., smoking and drinking
Dobson v. Dobson (maternal tort immunity for pre-natal injuries)
Facts: Mother negligently gets in car accident thereby damaging her foetus. Child born
with defects.
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Holding: Mother is immune from liability
Reasons: Anns/Cooper test applied:
Damage to foetus reasonably foreseeable.
Proximity established: “a pregnant woman and her foetus are within the closest possible
physical proximity that two “legal persons” could be.”
Claim fails due to residual policy considerations:
-
-
rel’ship btwn foetus and mother unique. Not analogous to rel’ship btwn
foetus and 3rd parties
Autonomy and privacy rights
o Importance of pregnancy re human existence
o Potential equality concerns for all women
o Unnecessary scrutiny re women’s choices
o Interference autonomy and privacy rights
o Pregnancy not to affect mother’s individuality and bodily integrity,
privacy and autonomy
Standard of care
o Reasonable pregnant woman standard difficult to ascertain
o Potential lifestyle implications for pregnant women
o Psychological and emotional repercussions
o Duty detrimental to family harmony (kid suing mother)
Court says it wants to defer to legislature on this one.
Dissent:
-
no overriding policy considerations
o mother already under a duty not to be negligent
Comment: If allowed to continue, a gender based tort would exist. This would raise a
Charter issue.
Who “won” in Dobson? The insurance company.
Legislative Response – Maternal tort Liability Act of Alberta
Alberta – Maternal Tort Liability Act
- limited exception
- mother IS liable when injury is from operation of motor vehicle, s. 3
- mother must be insured s. 4
- liability limited to policy limit s. 5
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UK – Congenital Disabilities (Civil Liability) Act 1976
- s. 1(7) – if a mother was shown to have contributed to the child being born
disabled, the damages against the defendant are to be reduced as the court
thinks just and equitable to the extent of the parent’s responsibility
Preston v. Chow (when both a third party and mother are
negligent towards the unborn child, the third party must pay the
mother’s portion)
Facts: The mother negligently failed to tell the doctor that she likely had genital herpes.
The doctor negligently failed to conduct a herpes examination. Child contracted genital
herpes and suffered brain damage.
Holding: Both mother and doctor liable. Doctor must pay all of the damage costs.
Reasons:
Mother enjoys maternal tort immunity.
Doctor must pay 100% of damages, including the mother’s portion. Doctor claims this is
unfair as doctor cannot collect from mother.
Court finds this is no different than the situation where one insured party and one
judgment proof party are both negligent. Doesn’t find it to be unfair that the doctor has
to pay the entire amount.
Comments: Some regions have legislated away this responsibility. In the UK, the
Disabilities (Civil Liability) Act modifies the joint and several liability rule. The damage
award is reduced by the percentage the mother was responsible.
Paxton v. Ramji (exception for doctors for liability towards
unborn children)
Facts: Doctor thought pltf was not going to be pregnant. Prescribes accutane. Pltf was
in fact pregnant, child born with defects because of accutane.
Holding: Doctor not liable
Reasons:
-
distinguish between doctors and other third parties. The relationship the
doctor has with the mother is entirely different
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Apply Anns/Cooper:
Reasonable foreseeability of harm to future child.
Duty negated on proximity grounds:
-
no proximity between doctor and future child
Why? Potential for conflicting duties – the doctor’s duty to the mother must
trump that duty towards the unborn child
The mother and foetus, at law, are not separate entities
Also negated under residual policy concerns:
-
doctor already owes legal duty to mother
societal implications: a duty would interfere with mom’s right to make
decisions about their pregnancy (ie., abortion)
conflict with mom’s bodily integrity, privacy and autonomy rights
Comment: The court’s solution is that the mother should sue the doctor for ongoing care
costs. This is feasible, but the damage award will be much smaller (unable to claim loss
of future income for instance)
Implications of Paxton:
-
-
Doctor owes no duty of care to patient’s future child whether foetus in
existence or not
Rationale re future conception – no reasonable foreseeability because
existence not contemplated
Critical thoughts: What if effects of treatment post risk re child conceived in
future? Is it fair not to owe duty to foetus in existence? Why should mother’s
interest always trump well being of foetus (e.g., accutane was prescribed for
cosmetic reasons)?
Is this consistent with law prior to Paxton?
Standard of Care
-
-
establishing a duty of care is insufficient to impose liability. A plaintiff must
show that the “standard of care” required by the defendant was not met as well
did the defendant expose the pltf to an unreasonable risk of injury? This
question is answered through an objective examination of the def’s conduct
and based on how a reasonable person would behave in similar circumstances
benefit of an objective standard: much easier to find liability. This way, one
doesn’t have to speculate as to what was going through the mind of the
defendant, nor show that the def was a conscious risk taker
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Unreasonable Risk
PROBABILITY OF HARM: Bolton & Others v. Stone (one doesn’t have
to guard against risks of injury that are very remote)
Facts: Pltf was hit by a cricket ball after it was hit out of a nearby field. Cricket balls
flew out of this field only six times in over thirty years and this was a very rare
occurrence. The road the ball flew into was not greatly frequented either. The chance of
this injury occurring was extremely small.
Holding: Def is not liable
Reasons: The injury was not reasonably foreseeable. One must guard only against
injuries that are reasonably foreseeable. While the def probably knew that it was
technically possible for the ball to fly out of the field, one is not expected to guard against
every possibility, no matter how remote.
There was a history in the past of balls flying out of the field.
What this case stands for: Remoteness is an element of standard of care. “People must
guard against reasonable probabilities, but they are not bound to guard against fantastic
possibilities.”
SEVERITY OF HARM: Paris v. Stepney Borough Council (likelihood
of harm must be balanced against the seriousness of harm. If harm
is very serious, one must guard against it even if the chances of it
occurring are low)
Facts: The def employed the pltf to work in its vehicle garage as a fitter. Pltf only had
one eye. Pltf’s job involved using a hammer to remove bolts on vehicles and this
occasionally caused pieces of metal to fly off. One piece of metal flew off and hit the pltf
in the eye, blinding him permanently.
Holding: The def is liable to the pltf
Reasons: It was not an industry practice to supply mechanics with goggles. The chance
of a two eyed person being blinded was thought to be exceedingly low after all.
However, the def should have known that the pltf was a unique case and that a shard of
metal hitting his one good eye would have disastrous results. The chances of this
occurring was low, but “the amount of care (is) proportionate to the degree of risk run,
and to the magnitude of the mischief that may be occasioned.”
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An ordinarily prudent employer would have supplied a workman like the pltf with
goggles.
What this case stands for: The likelihood of the harm must be balanced against its
severity. If the potential harm is very severe, one likely must guard against it or risk
breaching a standard of care.
Economic Analysis -- The Learned Hand Formula
-
-
influenced by Richard Posner, articulated by Justice Learned Hand in United
States v. Carroll Towing
straightforward concept of considering the economically efficient level of
accident prevention
if the cost of the precautionary measures is less than the likelihood of the
injury multiplied by the magnitude of the loss, it is negligent to fail to take the
precautionary measure
if the cost of the precautionary measure exceeds the likelihood of the injury
multiplied by the magnitude of the loss, failing to take the measures is
justified and no negligence is found
COST OF RISK AVOIDANCE: Rentway Canada Ltd. v. Laidlaw
Transport Ltd. (application of the Learned Hand Formula)
Facts: The def drove a vehicle in which the front headlights were on the same circuit,
therefore, if one light went out, both would go out. This allegedly occurred because the
tire treads separated and a piece of tire damaged one of the headlights. This led to a
crash, killing both drivers.
Holding: The design of the truck was defective and should have been remedied
Reasons: Simply put, “the utility in having the headlights on the same circuit is far
outweighed by the potential risk which was foreseeable by (the manufacturer)” The
design was defective; putting the headlights on two separate circuits would not have been
onerous. Each truck cost over $50,000 so the extra cost of the parallel circuit was
nominal.
What this case stands for: Canadian application of the Learned Hand formula
(although it is not called as such, what the judge did was functionally the same).
Comment: The pltf was unable to establish that the defect caused the crash and the case
later failed on that basis.
Other comment: Consider Latimer v. AEC Ltd (House of Lords case). The factory was
flooded during a storm. Water mixed with oil leaving the factory floor in a very slippery
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state. Cost of closing down the factory to clean the mess would have been very high, and
the factory owner chose not to. An employee slipped and broke his ankle. Court found
that the small risk to the employees was insufficient to justify the expense and
inconvenience of closing the factory on a temporary basis.
Utility of the Defendant’s Conduct
-
applies only in the case of public services, eg, police and firefighters. Never
found in the commercial context
however, private persons responding to emergency situations may also enjoy
leniency
if the def is performing something of good utility, he or she may be justified in
exposing the pltf to higher risk of injury
good example – police car chases
that being said, emergency personnel don’t have carte blanche to act as they
please. It’s just that they are held to a lower standard of care
factors considered include
o the danger created,
o the nature and purpose of the defendant’s conduct,
o the urgency of the situation,
o any alternate means of achieving the same purpose, and
o the surrounding circumstances of time and place
UTILITY OF DEFENDANT’S CONDUCT: Watt v. Hertfordshire
(utility of the defendant’s conduct)
Facts: The pltf firefighter was injured when his truck, in responding to an emergency,
stopped suddenly causing an improperly loaded piece of equipment (a jack) to slide into
him.
Holding: Defendant is not liable
Reasons: Given the circumstances at the time (emergency) and the limited equipment
available, the conduct of the firefighters was reasonable. The pltf, by being employed as
a firefighter, was prepared to take of the risk on injury similar to that which he received.
The firefighters had to respond to an emergency where life was at risk.
What this case stands for: Utility of the conduct may lower a standard of care, but it’s
still essential to “balance the risk against the end.” Still a valid argument that the risk
taken wasn’t worth it for the end purpose.
Indices of Reasonableness
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Warren v. Camrose (City) (conduct consistent with the usual practice
of persons similarly situated to the defendant can be indicative of due
care)
Facts: Pltf dove into def’s swimming pool and was injured after hitting a very visible
marker near the diving board. The lane marker was much closer to the diving board than
it had been on previous visits. Experts testified that the standard for pool operation was
not to use rigid rules and warning signs.
Holding: The def is not liable
Reasons:
-
city used a customary practice
no pool in Alberta gives a warning about lane markers
its use was reasonable in the circumstances
not enough for a pltf to show that other precautions were possible, particularly
if they were not commonly used by the profession or trade in question
the test is what was generally accepted practice at the time of the accident;
precautions that were followed before or after are not relevant
What this case stands for: Following a customary practice, if reasonable in the
circumstances, affords “very strong” evidence of due care. Note: Burden is on the
defendant to show existence of and reasonableness of custom in circumstances.
Other note: Whether compliance with custom is evidence of due care depends on
-
-
duration of practice/custom
status and reputation of profession or trade and its members
currency of practice
universality of practice; widespread within the community, used by the
majority, can’t rely on a single expert’s belief, etc
degree of difficulty of the conduct in question (e.g., does it regard a technical
matter? More deference. Is it against common sense and non-technical? Less
deference.)
whether the custom is specific or general in nature; eg., a custom that only
gives broad direction may not suffice
Waldick v. Malcolm (customs not necessarily indicative of due care,
eg, unreasonable customs or customs against “common sense”)
Facts: Pltf slipped, fell and injured himself on the def’s property. Def did not sand or
ice the sidewalk, claiming it was not a custom practice in the area to do so.
Holding: The def is liable
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Reasons: Burden was on the def to prove that the custom existed and that it was
reasonable. The def failed on both counts.
What this case stands for: Even if a custom exists, it is not “reasonable in all
circumstances.” “Customary practices which are unreasonable in themselves, or which
are not otherwise acceptable to courts, in no way ousts the duty of care owed by
occupiers…” –para 37
Roberge v. Bolduc (unassigned reading but important as it’s a SCC
decision. L’Heureux Dube states that a professional custom, which is
not shown to be demonstrably reasonable, cannot be an answer to a
claim of professional negligence)
On the other hand, see Girard v. General Hospital of Port Arthur (use
this case as a counter argument to ter Neuzen)
-
-
doctor conducted a gait assessment, patient fell (duh) and hurt herself
despite the common sense nature of the problem (the doctor should have had a
nurse watch to make sure the patient didn’t fall) the Ontario divisional court
said the def’s conduct was consistent with approved practice and that there
was no reason to suspect the patient would fall, not open to the court to reject
that professional opinion even if it seemed unreasonable to a lay observer
unusual/excessive deference to the “expertise” of the medical community?
Brown v. Rolls Royce (departure from custom may be OK if not
unreasonable in the circumstances. Departure from custom is a
rebuttable presumption of negligence)
Facts: The pltf contracted dermatitis due to excessive contact with motor oil in his job.
Custom was to provide workers with barrier cream, the employer did not. The employer
showed that he contacted a doctor about the practice and was advised such cream would
be ineffective. It was also shown that the effectiveness of barrier cream was not a proven
fact.
Holding: The def is not liable
Reasons: The def was reasonable. He sought medical advice. The pltf, argued that the
def needed to disprove the barrier cream’s effectiveness, but the judges did not agree,
stating that the primary onus lay on the person alleging negligence (the pltf).
What this case stands for: Departure from custom is prima facie evidence of
negligence. But if the def can show that it was not unreasonable for him to have departed
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from the accepted practice in the industry, he is off the hook. The ultimate test is lack of
reasonable care for the safety of the workers in the circumstances.
Statutory Standards
Canada v. Saskatchewan Wheat Pool (breach of a statutory standard
does not necessarily give rise to tort liability [some exceptions, see
below])
Facts: Despite taking reasonable efforts, the def failed to screen out a rusty beetle larvae
infestation in the grain. The pltf sued for damages, based on statutory breach, not
negligence.
Holding: The def is not civilly liable
Reasons: After considering extensive case law in UK, Canada, and elsewhere, SCC
finds that a statutory breach does not necessarily lead to civil liability, that the two
systems are distinct, and one must find negligence the normal way if one wishes to sue in
tort.
Why? For one, tort law and negligence in particular is based around fault. But with
absolute liability (found with some statutory offences), one is punished regardless if due
care was taken. This is inconsistent.
Court noted however that proof of statutory breach, causative of damages, may be
evidence of negligence. The case at bar failed b/c negligence was not pleaded nor
proven.
What this case stands for: Breach of statutory standard does not necessarily give rise to
tort liability. Two separate systems.
Exceptions: If the statute specifically imposes civil liability for its breach (pltf merely
must prove statutory breach). Or if the legislation incorporates a common law duty
and/or standard of care, violation of the statute may support tort action even if it’s found
that the def did not breach the statute itself.
Note: Most statutes are silent as to civil remedy for victim.
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Gorris v. Scott (Caution: Ancient non-Canadian case from 1874.
Limit on reliance on stat. breach of reasonable conduct. If the statute
was not intended to safeguard the kind of loss in question, it
probably cannot be used as evidence of not having taken due care)
Facts: The def, in breach of a statute intended to minimize overcrowding of sheep, failed
to put up fences on his boat. The sheep were washed away allegedly as a result of there
not being fences.
Holding: The def is not liable
Reasons: That the regulation was breached does not give rise to civil liability. The
regulation in question was drafted for a different purpose; no purpose direct or indirect to
protect against such damage. Purpose of regulation was to minimize disease; nothing to
do with “perils at sea.”
What this case stands for: Limitation on reliance on stat. breach to find reasonable
conduct. If the statute was not intended to safeguard the kind of loss in question, it
probably cannot be used as evidence of not having taken due care.
Ryan v. Victoria (City) (SCC, better to use this case, includes a test.
Limit on reliance of complying with statute when the circumstances
are unusual)
Facts: Pltf was thrown from his motorcycle when a wheel was caught in a railway
flange. The def constructed the railway flanges pursuant to the statutory standards, but
the road in question was unusual and so the flanges should have been wider.
Holding: The def is liable
Reasons and what this case stands for:
Compliance with statutory standards not necessarily indicative of due care
Compliance may be evidence of due care but def’s conduct must ultimately be reasonable
Depends on:
1.
Nature of statute; and
2.
circumstances of case
In ordinary cases, compliance may be a complete defence.
Why? Because that’s what the statute was designed to deal with normally.
In special cases, compliance is not a complete defence.
Why? Because special circumstances are unforeseen by the statute.
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In the case at bar, the statute was designed to consider “normal” roads, unlike the road in
question where the pltf was hurt.
Other comment: How specific/broad the direction given by the statute is a consideration
as well. If it gives broad deference to the def, abiding by it is unlikely to succeed as a
complete defence (para. 40).
Professional Standards
Brenner et al. v. Gregory et al (Professional standard for lawyers and
other professionals in general)
Facts: The pltf purchased land without a survey certificate and found they got less than
they expected in the deal. The pltfs alleged that their lawyer should have known to order
a survey certificate or at least warn them about the need for one. Expert evidence showed
that ordering a survey certificate or warning of the need for one was not a standard
practice in the legal profession.
Holding: The def is not liable
Reasons: “… it is not enough to say that he has made an error of judgment or shown
ignorance of some particular part of the law, but he will be liable in damages if his error
or ignorance was such that an ordinarily competent solicitor would not have made or
shown it…”
What this case stands for: Lawyers, and other professionals, are held to a higher
standard than the average person and they must exercise due care. They are held to the
standard of “a reasonably competent and diligent” member of their profession. They
must follow the general and approved practice in their profession unless such practice is
inconsistent with prudent precautions against a known risk.
Folland v. Reardon (Reasonableness standard applies to all lawyers,
not just solicitors)
Facts: The def claimed that, as a barrister, he should be held to a lower standard than
solicitors because litigation requires “thinking fast” and so a greater allowance for error
must be given.
Holding: The court rejects this claim
Reasons: No justification for departing from the reasonableness standard. That standard
is flexible and fact sensitive. Judgment calls made by barristers are no more difficult than
those made by other professionals.
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What this case stands for: An affirmation that the “reasonableness” standard applies to
all professionals. The standard is, what is reasonable for a normal member of the
profession.
ter Neuzen v. Korn (Professional standard for doctors – specialists –
beginners – professional standards in general [important case])
Facts: The pltf contracted HIV from tainted sperm sample. The def took measures to
minimize exposure to HIV, including prohibiting homosexuals from donating sperm.
The def’s questionnaire was flawed – it asked if one was either hetero or homosexual –
and a bisexual man with HIV ended up donating sperm.
Also, at the time, it was not certain in the medical community that one could get HIV
from sperm. It was believed that it resulted from sexual activity (and the resultant “small
abrasions”) primarily.
The def’s practice was in keeping with general practices across Canada.
Holding: The def is not liable
Reasons: Def’s practice was keeping with normal practice – reasonableness standard
applied.
What this case stands for: Doctors are held to the “reasonable doctor” standard. But
specialist doctors are held to a “reasonable specialist doctor” standard – presumably an
even higher one. As a result, non-specialist doctors must be aware of their own
limitations when faced with matters better dealt with by a specialist.
Beginning doctors/professionals are held to the same standard as experienced
doctors/professionals. (Criticism: So shouldn’t novice doctors be required to disclose
their inexperience to patients so that they can decide whether to allow them to perform
the necessary procedure?)
Courts look at the standards in place at the time of the accident and not what they used to
be or what they are afterwards. – para. 34
If allegedly negligent practice is complex, scientific, or technical, compliance with the
standard is conclusive evidence of due care in medical cases. Consequently, expert
evidence is relied on heavily.
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Other final notes on professional standards:
-
courts will likely not support locality variations in standards of care. That
means the rural doctor is held to the same standard as the urban one
Not all medical practices are immune from judicial scrunity. Consider
Anderson v. Chasney where a doctor left a sponge in a child’s throat after
surgery (child died). Court found that, while not counting sponges was
standard practice, the “ordinary man” was positioned in this case to use
common sense and find the practice negligent
Determining Reasonable Behaviour – Standard of Care
Part Two
Introduction to the concept of the “reasonable person”
-
def’s personal characteristics, thought process or subjective awareness is
irrelevant in a reasonable person test
reasonable person objective test depends on prudent conduct in circumstances
base don accepted/ordinary community standards
foresight, not hindsight; knowledge that could be attributed to def at the time
of accident is relevant only
accident may call for more precautions in the future, but hindsight should not
be applied
no liability for error in judgment; no expectation of perfection
learn to conform to minimum societal standard
superior knowledge, skill, and intelligence demanded of experts
Rationale for objective test
-
minimum standard for everyone regardless of personal characteristics
necessary in light of infinite varieties of individual temperaments
consistent and predictable
promotes public safety
pltf favoured – pltfs need for compensation trumps def’s subjective
characteristic
ensures flexibility in negligence law – community standards can change – and
guards against anachronism
Critique of reasonable person standard
Page 59 of 85
-
-
the judge/counsel’s personal experience invariably gets mixed into this
supposedly objective test
in that regard, given who judges/counsel tend to be, does the objective
standard adequately reflect the position of historically marginalized groups in
society? Are legal actors sensitive to lived experiences of marginalized
people?
Example: a very poor person letting their child go unattended while they
work. Child gets hurt or in trouble. Perhaps this was unreasonable at one
level, but consider the perspective of the very poor person who has to work
Vaughan v. Menlove (rejection of a subjective test, objective
reasonable person standard is the law)
Facts: The def build a large haystack near the pltfs home. The haystack was a fire
hazard and the def. was made aware of this fact, however, the def. said that he would
“chance it.” The haystack caught fire and burned down the pltfs home.
The def argued that a subjective test should apply. An objective test is too abstract and is
unfair to apply when the def acted honestly and had good intentions. The def also
argued, essentially, that he was “too stupid” to know better.
Holding: The def is liable and an objective test should be applied
Reasons: An objective reasonable person test should be used because it promotes
certainty and predictability. A subjective test would make it too difficult for pltfs to gain
compensation as the “reasonable standard” would differ from person to person.
Objectively, a court must find what was ordinarily prudent in the circumstances.
What this case stands for: Use an objective reasonable person test regardless of the
variability of human capabilities, skill levels, intelligence, etc.
Exceptions: Special Standards
Children
Heisler et al. v. Moke et al. (exemption of liability for very young
children, creation of the subjective/objective test for children)
Facts: The def, a 9 year old child, jumped on a tractor despite being warned not to. It set
the tractor in motion, injuring the pltf.
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Holding: The def is not liable
Reasons:
Court used a “subjective/objective” test:
1. Subjective: Is the child capable of being found liable in negligence?
a. Consider his age, intelligence, his general knowledge and his alertness.
Children have a diminished capacity to appreciate and safeguard against
risk
2. Objective: Was the child negligent in the circumstances?
a. How would a reasonable child of similar age, experience and intelligence
have behaved in similar circumstances?
This test allows for individualized assessment without compromising consistency in law.
The court applied this test and found that while the child was capable of being found
negligent (bright kid, etc) he could not be expected to realize or foresee the consequences
of his act. No negligence in that regard. (continued)
What this case stands for: The test to apply when finding if a child can be found
negligent. This test is also used when trying to determine if the child is contributorily
negligent to his own injuries.
Children of “tender age”
-
definition of “tender age” varies, but its never more than 7 years old
children who are of tender age cannot be found liable
Exception: Adult Activities
-
children who engage in adult activities (driving, etc) are held to the same
reasonable person standard as anyone else
“adult activities” not restricted to activities with minimum age requirements.
It could include a sport like golfing for instance. Generally, what adults
normally do (Pope v. RGC)
Rationale
- adult activities are a privilege and not a right
- responsibilities of maturity
- public safety, especially in the case of driving. One cannot tell if the driver is
young and adjust their conduct accordingly
- Insured activities
Authorities: Pope v. RGC (child was golfing, hit someone with his golf ball. Child was
held to the adult reasonable person standard)
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Nespolon v. Alford et al (adult activity is restricted to the event that led
to harm)
Facts: Teenage defendants were told by a cop to take their drunken friend home. They
did, they dropped him off, but the kid wandered off and was killed by a car. Pltf, who hit
the kid, suffered nervous shock.
Holding: The defs are not liable
Reasons: Adult standard applies, but it’s restricted to the actual event that led to harm.
Driving is an adult activity, but dropping off a friend is not a particularly adult activity.
In that regard, adult standard not applicable. No liability based on child test: given their
experience, it’s not foreseeable the deceased was at risk of being run over and of causing
nervous shock to the driver when they dropped the deceased off.
What this case stands for: Adult standard applies to children for adult activities, but
restrict it to the event that actually caused the injury.
Ending comments – the problems with suing a child:
-
is it worth suing a child?
Likely judgment proof
Possibility of insurance from parents – ICBC, liability insurance from
homeowners insurance, etc
Keep judgment alive and renewed every 10 years
o Realistic? Not really. Child may move, etc
Other sources of compensation
- parental fault (no vicarious liability)
- parental responsibility legislation (however: monetary cap, parent can raise
defence of due care)
Mental Illness
Intro and development of law in this area
-
the problem: balancing the pltf’s compensatory needs while being fair to the
def
keeping in mind that torts is a fault based system. No fault = no liability in
theory
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Slattery v. Haley (no liability when lack of volition)
Summary: (case wasn’t assigned reading) Def was driving, suddenly taken ill and lost
consciousness. Car left the road and killed someone. Def was not held responsible
because of lack of volition.
Buckley v. Smith Transport Ltd. (“landmark” case dealing with mental
illness – no liability)
Summary: (case wasn’t assigned reading) def was suffering from syphilis, thought that
his truck was under control remotely and crashed it into a tram, injuring the pltf. No
liability because def’s mental illness was such as to prevent him both from understanding
the duty of care rested upon him and from discharging that obligation. He could not, in
fairness, be found negligent.
Fiala v. Cechmanek (“predominant test” applied for mental disability
– use this case. Presumably applies for contributory negligence as
well)
Facts: Def was jogging, suddenly had a manic episode. It was unknown to him
previously that he had this condition. He jumped onto someone’s car, broke in and
started choking the driver. Driver involuntarily stepped on the gas, driving into the pltf.
Holding: Def is not liable because of his mental illness
Reasons:
Court applies a subjective standard to mentally ill individuals
Def must prove that he was:
1. inability to appreciate duty of care imposed on him/her; or
2. incapable of discharging duty due to mental illness
The fault based nature of tort system trumps the pltfs need for compensation. The def
was robbed of his ability to understand or appreciate his duty of care by the sudden onset
of serious mental illness and he could not be found liable in negligence.
Comments:
Justification for this standard:
-
consistent with special standard for children and physically disabled persons
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Limited application
- mental illness exception narrowly construed
- limited to conditions of serious mental illness (“very few cases” according to
professor)
Threshold issue
- what exactly is “serious mental illness?” How do we know the def truly had
it?
What this case stands for: Apply this test for a mentally ill tortfeasor
Wenden v. Trikha (exception to mental illness exemption – when the
def knew about his illness)
Summary: (wasn’t assigned reading) The def was found liable despite having a mental
illness. Here the def knew about his mental illness and the risk he posed beforehand.
Comments: Does this put a “duty” on mentally ill persons to take their medicine? Is that
right? On the other hand, why should someone else pay for your decision not to take
your medicine?
Was this decision motivated by the fact that compulsory third party liability insurance is
now in effect for drivers?
Physical Disability
(no assigned cases, all of this is taken from Osborne)
-
-
-
the law accommodates those who suffer from a serious physical disability
with a standard of care compatible with their condition
the blind are not required to see, the deaf are not required to hear, etc
this advances the policy of encouraging the full integration of disabled people
in society
corresponding obligation on the part of disabled to adjust their conduct so that
no avoidable risk is created and to refrain from activities that are beyond their
abilities
this standard is applicable to major physical disabilities. Elderly people are
excluded (unless they suffer from a major physical disability like dementia, a
stroke, etc)
obligation to take precautions to prevent foreseeable injuries to the disabled,
e.g., those persons who are responsible for public sidewalks and commercial
buildings must take care for disabled persons
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reasonable limit to this requirement however. See Ryall v. Alsa Road
Construction – no liability to a visually impaired jogger who tripped over a
wooden barrier warning about sidewalk repairs. No requirement on the def to
have put blinking lights on the wooden barrier
Causation
Cause-in-fact
Intro to the “but for” test
“But-for” Test
As the primary test for establishing causation, the “but-for” test applies where there is a single
possible cause (Horsley) or where the defendant’s conduct was one of multiple but necessary causes of the
injury (Athey). The purpose of the “but-for” test is to impose liability only where the defendant is at fault
(Hanke). According to section 4 of the BC Negligence Act, in a case of multiple causes each defendant will
be held jointly and severally liable for the entire loss.
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1.
2.
3.
4.
5.
traditional test, burden of proof is on the pltf
“would the plaintiff’s damage have occurred but for the defendant’s
negligence?” If “yes” then the defendant is not liable. If “no” the defendant is
liable
- Application is as follows (process is outlined by DW Robertson’s “The
Common Sense of Cause In Fact”
Harm that is alleged to have been caused by the def must be identified
The specific act or acts of negligence by the def must be isolated
The trier of fact must mentally adjust the facts so that the def’s conduct statisfies
the standard of care of the reasonable person, being sure to leave all other facts
the same
It must be asked if the pltfs harm would have occurred if the defs had ben acting
with reasonable care
The judge must answer the but for question
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speculative test, its purpose is to promote the fault principle. Liability only
where substantial connection btwn def’s negligence and harm (Resurface v.
Hanke, 2007 SCC)
-
Consider these two contrasting decisions. Marek v. Southern Enterprises Inc
– unknown persons began throwing firecrackers in a movie theatre. One of
the crackers lands near pltfs head causing hearing loss. Court said that if def
immediately turned on lights and interrupted the movie, the pltfs injury would
not have occurred. But for test satisfied
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East Texas Theatres Inc v. Rutledge – unknown persons became rowdy,
started throwing bottles, one of which hits pltf. court found that even if the
theatre owners acted to eject the rowdy persons, it was not established that the
bottle thrower would have been ejected and so the injury might have occurred
any way. But for test not satisfied (comment: but wouldn’t have kicking out
some parties at least stopped the rowdy behaviour in general?)
Athey v. Leonati (defs negligence need not be the sole cause of the
injury to satisfy “but for” test)
Facts: Pltf suffered back injuries in two motor vehicle accidents and soon after suffered
a disc herniation during a mild stretching exercise. The herniation was caused by a
combination of the car accident injuries and a pre-existing disposition.
Holding: Def liable despite mix of tortious/non-tortious causes
Reasons: As long as a def is part of the cause of an injury, the def is liable, even though
his act alone was not enough to create the injury (para 17). No basis for a reduction of
liability because of the existence of other preconditions: defendants remain liable for all
injuries caused or contributed to by their negligence (para 17).
(note: the trial judge gave 25% of the liability to the def. the SCC overturned this and
found the defs negligence was the cause of the loss and assigned 100% liability to the
def)
Other note: Non-tortious causes are not ignored as they were in this case if they would
have resulted in the pltf suffering the same or similar injury at some point. Consider case
of crumbling skull and liability will be apportioned equally in these cases.
What this case stands for: Multiple factors may lead to an injury, and as long as the def
is one of the causes, he will be liable. However, the def’s cause must extend beyond the
de minimis range.
Inferring Causation
Snell v. Farrell (test for inferring causation, rather than applying the
“but for” test, used commonly for medical malpractice or industrial
disease cases)
Facts: The def was a doctor who performed eye surgery on the pltf. During eye surgery,
the eye started to show signs of retrobulbar haemorrhage. The def should have
discontinued the surgery but went ahead any way. Afterwards, the pltf was rendered
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permanently blind in that eye. However, it was uncertain what caused the blindness as
the pltf also had a stroke that could have caused the blindness.
Holding: The def is liable, despite the “but for” test not being proven
Reasons:
When there is causal uncertainty, particularly when it involves complicated, inconclusive
medical evidence, a court may infer causation instead.
The burden of proof rests on the pltf at all times. Reversing the onus (requiring the def to
show that he didn’t cause the injury) unnecessary to do justice. It creates policy concerns
as well, such as increased medical liability and a potential insurance crisis as a result.
When there is:
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causal uncertainty
facts lying uniquely within the def’s knowledge (as is often the case with a
doctor)
adverse inference of causation against def even absent probably causal
connection btwn def’s negligence and pltf’s injury unless def adduces
evidence to contrary
where the def’s typically have superior knowledge than the pltf
Causation may be established by inference, despite the pltf’s evidence not meeting a BOP
threshold. Inference of causation intended to balance information/knowledge inequality.
“the legal or ultimate burden may lie with the pltf, but in the absence of evidence to the
contrary adduced by the def, an inference of causation may be drawn even without
positive or scientific proof of causation…”
In the case at bar, the def doctor was the only person positioned to know the degree of
bleeding the pltf was suffering at the time of operation. It was open to the judge to infer
causation. Def’s rebuttal evidence was insufficient.
What this case stands for: An inference of causation may be drawn against the def in
cases of causal uncertainty where the def’s wrongful conduct is one of the possible causes
of the pltf’s injury and where there is inconclusive evidence that any of the possible
causes was a probable or necessary factor of the loss.
Remember, in law, BOP is a much lower threshold than scientific precision.
Material Contribution
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BM v. British Columbia (AG) (material contribution, where precise
cause is known/unknown, beyond the “de minimis” range)
Facts: Pltf’s ex-husband had a history of violence against the family despite repeated
warnings by the court and despite being sent to jail on several occasions. Pltf suspected
another violent act would occur but the police said they could do nothing about it. Pltf’s
husband shoots her best friend, severely injures their daughter, and then shoots himself.
Def police force is claimed to be negligent.
Holding: The police force is not liable
Reasons: The material contribution test isn’t applicable in this case. The “but for” test
should have been applied.
Material contribution test is applied only when the precise cause of the harm was
unknown. Here the cause of the harm was obvious – the ex-husband’s murderous
rampage.
No evidence that police interference would have done anything – in fact, history showed
that the ex-husband committed violent acts despite police intervention and court orders.
Also, it was unlikely that the police would be able to deport or incarcerate the exhusband.
Dissent (important to prof): By not dealing with the pltf’s complaint, the police failed to
reduce the risk of more violence. In turn, this should be treated as increasing the risk of
violence. The police’s failure to act added to the risk of occurrence beyond the de
minimis range. This was a material contribution and so causation should be found.
What this case stands for: Material contribution test is applied only when the precise
cause of the harm is unknown. But what if the negligence materially increased the risk of
harm occurring?
Resurfice Corp. v. Hanke (detailed info about the “but for” versus the
“material contribution” test when there are more than one potential
causes of an injury. How to apply the material contribution test)
Facts: The pltf injured himself when he accidently put hot water in the gas tank instead
of the water tank of the ice-resurfacing machine. Pltf alleged that the gas tank and water
tank were too similar in appearance – a design flaw – and that the def was liable for
negligent design of its product.
Holding: Appeal dismissed (reasons not relevant)
Reasons:
What this case stands for:
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Clarification of the material contribution test:
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“the court of appeal (this was a SCC case) erred in suggesting that, where
there is more than one potential cause of an injury, “the material contribution”
test should be used” (that would virtually do away with the “but for” test)
The base test for determining causation is the “but for” test and it applies to
multi-cause injuries
Material contribution test is to be used in two cases:
o First it must be impossible for the pltf to prove that the def’s
negligence caused the pltf’s injury using the “but for” test. Impossible
due to factors outside the pltf’s control; for example, limits of
scientific knowledge.
o Second, it must be clear that the def breached a duty of care to the pltf,
thereby exposing the pltf to an unreasonable risk of injury, and the pltf
must have suffered that form of injury
examples of where this might be applied
o when there are two tortious sources of injury, but it’s impossible to say
which one actually caused the injury. Provided each def was negligent
(per part two of the above test), the material contribution test may be
applied
o when it’s impossible to prove what a particular person in the causal
chain would have done had the def not committed a negligent act or
omission. Example, Walker Estate v. York Finch Hospital (2001
SCC) where it was impossible to prove that the donor of tainted blood
would not have given blood if the def had properly warned him against
donating blood
What’s the difference between inferring causation and material
contribution?
Both share causal uncertainty
Inference of causation
- informational/knowledge inequality btwn pltf and def
Material Contribution
- no information/knowledge inequality
- pltf and def equally uncertain about causation: see BM para 81 per Donald JA
(Dissenting)
Multiple Wrongdoers
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Cook v. Lewis (where two or more wrongdoers, acting independently,
only one caused pltf’s loss = presumption of fault against both def’s
and joint + several liability)
Facts: Both def’s fired guns in the direction of the pltf. The question of which bullet
actually hit the pltf is unknown.
Holding: Both def’s are joint and severally liable
Reasons:
Both def’s wrongdoers: normally have better information about accident than pltf
Def’s destroyed pltf’s ability to prove causation
Fair to shift burden onto def’s to prove they had not been negligent
Small number of def’s involved. High probability any one of them caused the pltf’s loss,
and all it takes in law is a balance of probabilities.
Avoids possibility of each def escaping liability based on traditional causation principles.
What this case stands for:
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where there are two or more wrongdoers acting independently, only one
actually causing pltf’s loss
o presumption of fault against both def’s unless each wrongdoer can
show on a BOP that s/he did not cause pltf’s injury
o both tortfeasors joint and severally liable
Lange v. Bennett (Ont HCJ case. Cook principle not applicable when
pltf is contributory negligent)
Summary: If the pltf is also found to have been contributory negligent, the Cook
principle doesn’t apply and all tortfeasors escape liability. The rationale is that it’s unfair
to impose liability on one of the two def’s that did not actually cause pltf’s injury in this
circumstance.
Fairchild v Glenhaven (exposure to hazardous substances in the
workplace. Where the pltf worked for multiple employers at different
times)
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Facts: Each pltf worked for more than one employer at different times and for different
durations. Employers negligently exposed pltfs to asbestos dust and pltf contracted
cancer. Disease could have been triggered by limited or prolonged exposure.
It was unknown when the pltf got the cancer and which employer did it.
Pltf unable to prove defs negligence caused their injury on a BOP. But defs breach
exposed pltfs to an unreasonable risk of injury.
Holding: The defs negligence materially increased the risk of cancer and that will
suffice to show material contribution (causation) to the pltfs injuries.
Reasons:
1. pltfs employed by defs at different times and for different periods
2. employers were under a duty to protect pltf from offending substance because of
the known risk of causing the injury in question
3. employers breached their duty of care towards pltf
4. pltf suffers injury for which employers were to take all reasonable measures to
protect him
5. all other causes of pltfs illness other than employers’ breach of duty have been
ruled out
6. current limits on human science prevent pltf from establishing on a BOP that
injury was caused by exposure to the offending substance when s/he worked for
either def
This type of circumstance is applicable in limited situations.
Barker v. Corus (limits of Fairchild – where pltf is contributory
negligent)
Facts: Same as above case except the pltf was also self-employed at times and was
exposed to asbestos dust.
Holding: No joint and several liability between the employers. Apportionment of
liability based on length of employment.
Reasons:
- causation being stretched to its limits
- to do otherwise would hold people of limited liability (e.g., someone who
employed the pltf for only a few months) to great financial loss even though it
was uncertain how the injury was created
Comment: This holding denies pltf full compensation. If the pltf was employed with
someone who is now insolvent for most of career, he will receive almost nothing.
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UK’s response to Barker – UK Compensation Act
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joint and several liability restored
apportionment: default position is duration of exposure, but parties may agree
otherwise
compensation to pltf is paramount
How is SCC likely to deal with such cases? Keep in mind that Workers’ compensation
will handle employer/employee related cases. Otherwise, refer to York Hospital (tainted
blood) case for guidance.
Remoteness
Reasonable Foreseeability and Remoteness
No single test, but “reasonable foreseeability” is common.
RF at duty of care stage – was it RF that the def’s negligence would cause the pltf harm?
RF at remoteness stage – was it RF that the particular consequences would have occurred
because of the def’s negligence?
Pre-Wagon Mound No 1: The “Polemis Directness rule”
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def liable for all direct consequences, no matter how remote
RF of type/extent of injury irrelevant
Pro plaintiff
o Greater scope of liability. No correlation btwn fault and liability
Wagon Mound No 1 (Reasonable foreseeability rule for remoteness)
Summary: An oil spill polluted the pltf’s wharf. Def’s were welders, advised that they
could continue work b/c oil spill was not a fire hazard. Fire occurs because the debris in
the water caught fire and caused the oil in the water to ignite as well.
The privy council rejects the polemis directness rule and adopts the principle that the
pltf’s damage must be RF from def’s negligence. This is thought to be more fair to
defendant’s, to be simple, and consistent with the duty of care re RF.
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The pltf’s claim is dismissed because the damage by fire was not RF. Def could not have
been RF to have known that the oil was capable of being set afire when spread on water.
(Privy council case but the rule was adopted by Canadian courts)
Hughes v. Lord Advocate (not necessary to show that the manner in
which the accident occurred or the mechanics were RF, just that the
type of harm suffered was RF)
Summary: Def municipality workers left a manhole open with paraffin lamps nearby.
Children pltf’s take the lamps and climb into the hole. One of the pltf’s falls while
inside, breaking the lamp and causing it to explode, causing serious injuries.
Court holds that it was RF that the pltf’s could have hurt themselves by being burned by
the lamps. While the injury may not have been expected to be by explosion, that it was
RF that the pltfs could burn themselves was good enough to establish liability. The
manner of the injury is irrelevant. “The cause of this accident was a known source of
danger, the lamp, but it behaved in an unpredictable way.” (and that unpredictability is
irrelevant)
Comment: This broadens the scope for RF test, pltf favourable. Indirect consequences
can be included as long as they are RF. Arguably, more punishing than the polemis
directness rule in that regard.
Assiniboine School Division No. 3 v. Hoffer (breaking down the
causal sequence to find RF)
Summary: The def’s father modified a snowmobile in a dangerous way so that his
underage child could operate it. Because of the modification, the snowmobile is
activated and on its own accord, drives into the nearby school and hits gas pipes, causing
an explosion.
The court finds this was RF by breaking down the causal sequence. I.e., if it was RF that
the snowmobile would move on its own accord, it was RF that it could hit a school, and
therefore it was RF that it could hit exterior gas pipes and so it was RF that they could
explode.
Breaking down the causal sequence this way means the court accepts the possibility of
the eventual outcome as being sufficient to find RF. It needn’t be probable.
Comment: This further expands the scope of liability for def’s. Why are the courts doing
this? Arguably in this particular case, they wanted to punish the def for his highly
negligent behaviour in modifying the snowmobile. But more generally, when a pltf has
gone through the extensive process of showing damage, a breached duty of care, and a
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breached standard of care, courts are reluctant to dismiss their case at such a late stage
unless there are compelling reasons to do so (Trevison v. Springman)
Lauritzen v. Barstead (another example of breaking down the causal
sequence to find RF. This case appears to suggest that once you do
something dangerous, you can be liable for all ensuing
consequences, even those that may appear far-fetched… with one
exception)
Note: The court does find the pltf’s claim that the dangerous conduct ruined his marriage
to be too remote however.
Special Remoteness Issues
Thin Skull
Bishop v. Arts & Letters Club of Toronto et al. (thin skull rule. Def is
liable for full extent of damage if harm was reasonably foreseeable)
Facts: The pltf fell down at the front entrance of def’s bldg because of defect with door.
Pltf suffered unusually traumatic injuries because of a pre-existing condition.
Holding: The def is liable for the full extent of damages
Reasons: Thin skull rule. If the harm itself (i.e., someone falling down in this case) was
RF, then the def must compensate the pltf in full, even if the damage is unusually bad.
This is consistent with the compensatory role of the tort system and with emphasizing
protection for bodily security.
What this case stands for: Use this case for the thin skull rule.
Crumbling skull
Athey v. Leonati (crumbling skull rule. Def only liable for the extent
he/she aggravates or accelerates a pre-existing condition. However,
there must be measurable risk that it would have occurred any way)
Facts: The pltf got in an accident with def. Pltf had a pre-existing condition with his
back. Later on, during a normal stretching exercise, pltf injures his back even worse.
Holding: For different fact specific reasons, def remains fully liable, but…
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Reasons: There must be measurable risk that the pre-existing condition would have
occurred any way. If no measurable risk, full liability.
What this case stands for: SCC affirms the crumbling skull rule. A def is only liable to
the extent that his negligence aggravates or accelerates a pre-existing condition. This
defence has the effect of reducing the damage award. The def must show there was
measurable risk that the pre-existing condition would have occurred any way. This is
because tort law merely restores pltfs to their original position. It doesn’t allow them to
profit.
Comment: Also see Smith v. Leech Brain. Def’s negligence caused pltf to suffer a burn.
Pltf had pre-existing susceptibility to cancer and was diagnosed with it after and then
died. Court found that the pltf likely would have gotten cancer any way, and that def’s
negligence merely accelerated the inevitable. The result was a reduction in the damage
award that would have normally been received.
Psychiatric Injury and Remoteness
Mustapha v. Culligan of Canada Ltd. (thin skull rule applies, but
psychiatric shock in an ordinary person must be reasonably
foreseeable)
Facts: Pltf sees a fly in his water bottle. Suffers an extraordinary and serious psychiatric
reaction.
Holding: The def escapes liability because the damage was too remote
Reasons: The def owed the pltf a duty of care, it breached that duty, and the pltf suffered
psychiatric damage (extending beyond mere transitory annoyance, etc) as a result.
However, the thin skull rule does not apply. It was not reasonably foreseeable that a
person of ordinary mental fortitude would have suffered psychiatric shock. The case is
dismissed as being too remote.
Reasonable fortitude often assumed unless situation appears outrageous (Vanek)
What this case stands for: Psychiatric shock in an ordinary person must be reasonably
foreseeable for damages to be awarded.
Comments: Remember to distinguish between annoyance and disappointment and true
tortious psychiatric injury. See term 1 notes for psychiatric shock definition.
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Does the reasonable person standard fail to respect cultural differences? Prof suggested it
did, but I would argue no. It’s true that in some cultures, seeing a fly or something like
that might be more offensive than in others. But can it be said that people in those other
cultures suffer full blown psychiatric shock that is compensable at law and not just
increased annoyance?
What this case could stand for though is the inability of the tort system to compensate
seriously mentally ill individuals because of the reasonable foreseeability concept.
Essentially, tort law tells us that it is not reasonably foreseeable for a victim to be
mentally ill.
Is a standard of psyche normalcy scientifically possible? Does that matter, given that
courts do not deal with scientific absolutes, but with balances of probability?
If the pltf communicated his special circumstances to the def beforehand, the def’s injury
might have been reasonably foreseeable (para 17). But think of the ramifications of that.
Def’s might refuse to provide services to those of certain cultural backgrounds because of
increased liability.
Intervening Acts (Novus Actus Interveniens)
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def’s are not liable for damage caused by events that occur before or after the
tortious event that worsen the pltf’s damage
If the intervening act was broadly within the scope of the foreseeable risk
created by the defendant’s negligence, he remains liable for the damage
caused by it (Bradford)
NOTE: For medical procedures intended to repair damage caused by the def
that cause further damage, refer to the medical malpractice section
Bradford v. Kanellos (intervening acts, not liable if the external
event was not a reasonably foreseeable consequence, note on
causal chain of causation leading to a finding of remoteness)
Facts: The def negligently let a grease fire start in his kitchen. The fire extinguisher
system activated, creating a hissing sound. Unidentified patron yells out a warning that
gas is leaking, causing everyone to run out. Pltf is pushed over in the chaos and suffered
injury.
Holding: The def is not liable
Reasons: The intervening act was not reasonably foreseeable. Def’s shouldn’t be liable
for irrational acts that fall from the negligent activity and that are out of their control. As
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a matter of policy, the def should be rewarded for having a proper fire extinguishing
system in place.
Note: The dissent would have held that the panic was reasonably foreseeable. Upon
hearing the hissing sound, it was natural for someone to yell out “Gas!”
What this case stands for: Intervening acts must be reasonably foreseeable, otherwise,
the defendant will not be liable for the full extent of the damage. In fact, they might be
freed from all liability.
Comment: If you break down the causal chain (an accepted practice in some courts),
perhaps the result would have been considered reasonably foreseeable. If it was RF that
the fire extinguisher would have activated, then it was RF that a hissing sound would
have occurred and so it was arguably RF that someone would have yelled out “gas”.
Courts nowadays are likely to impose joint and several liability in such circumstances
(page 99 of Osborne text).
Criticism: Just because a def has good intentions (i.e., with this fire system) shouldn’t
mean they’re off the hook (maybe a fire system that makes a hissing sound isn’t such a
great idea). Court was influenced by policy factors, perhaps in an unfortunately unjust
way.
On the other hand, is it fair to hold def’s liable for risks so different from what they
created?
Comment on suicide
Per Osborne, page 102, weight of authority is against liability for def is pltf chooses to
commit suicide. See Wright Estate v. Davidson for instance (BCCA case)
Smith v. Inglis Ltd. (product liability, manufacturers and
intervening events – how reasonable foreseeability applies – if
the intervention was RF, one court’s rejection of the “either or”
approach to intervening events [e.g., either the intervening event
broke the chain or it did not])
Facts: The pltf severely shocked himself because of the def’s appliance. When installed,
the installer cut off the grounding plug as it didn’t fit in the fall.
Holding: Def was liable
Reasons: Despite the fact that intermediaries handled the plug, the manufacturer is
liable. That’s because “everyone in the business” knew or should have known that
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intermediaries often handle the product (ie cut off the prongs) in a negligent way. The
def should have foreseen this and provided a warning.
What this case stands for: If it is RF that an intermediary will handle the product in a
negligent way, the manufacturer remains liable even if the actions of the 3rd party were
the true cause of the accident. When you know a 3rd party is likely to intervene, you will
be liable. Perhaps even in the case of first parties (ie the pltf himself)
Note: The court broke new ground here, rejecting the “either or” approach (either the
new act breaks the chain of causation or not).
Defences to Negligence Action
Once def’s liability has been established with all elements proven, the def may bring
forth defences such as these:
Complete defences
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relieve the def of all liability
given the compensatory role of tort law and the harshness of these def’s to the
pltf, there is a lack of judicial support for these defences
Voluntary assumption of risk (volenti non fit injuria)
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pltf knowingly consented to risk of injury and waived right to compensation
pltf must accept both the physical risk AND the legal risk
agreement may be express (contractual waiver) or implied (getting in a car
with someone you know is drunk)
defence usually failures for lack of evidence re: acceptance of legal risk. For
example, implied acceptance is likely to be held as contributory negligence
only
Continues to be relevance in context of sports/recreational activities
o Consent to legal risk through written waiver
o Pltf fully informed and consents to legal risk
o Narrowly construed against def
also might be relevant in cases of joint planning and participation of both pltf
and def in a night of heavy drinking and driving, or the active encouragement
of the pltf in the def’s use of alcohol
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Illegality
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the principle that pltfs involved in illegal conduct should not be permitted to
engage the legal system to gain a remedy
harsh on pltf, given the def’s negligence
inconsistent with loss spreading and the compensatory role of tort law
inconsistent with apportionment legislation
After Hall v. Herbert (1991, SCC), illegality can apply only in the following
two ultra limited circumstances (when the integrity of the legal system is
threatened by allowing the claim) namely:
o To prevent pltf from profiting from illegal conduct
o When the pltf seeks damage to evade, subvert, or negate a criminal
penalty
normally a court will find contributory negligence
Inevitable Accident
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see page 113 of Osborne for the unlikely event this defence is applicable in an
exam
Partial Defences
Contributory Negligence
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LOOK TO TABLE OF CONTENTS FOR CONTRIBUTORY
NEGLIGENCE AND PURE ECONOMIC LOSS
partial defence for defendant
found by applying the objective standard of a reasonably prudent person
arises in three ways, 1. plaintiffs negligent can be cause of accident, (Cork) 2.
plaintiff has put himself in a position of foreseeable harm (passenger gets in
car with someone whom he knows is drunk), 3. plaintiff may fail to take
common sense safety measures (seat belt) (page 105 of Osborne)
the test applied is the objective standard of the reasonably prudent person
if it was common sense, common practice, affordable, and effective, more
likely to find contributory negligence
the utility of the plaintiff’s conduct (e.g., policeman) is a factor that may
weigh against a finding of contributory negligence (pg 105 of Osborne)
compensation reduced by amount corresponding to plaintiff’s fault
general rule is that if plaintiff is found to have contributed to his injury and if
degree of fault cannot be determined, award is reduced equally between the
plaintiffs and defendants, BC Negligence Act states that fault must be
apportioned (s. 4(1))
however, policy considerations have caused contributory negligence rewards
to tend to be small (e.g., only 25% if plaintiff didn’t wear a seatbelt, Stewart v.
Pettie. Same 25% found in Crocker). Courts reject the notion that had
plaintiff taken safety precautions, injury would have been less, therefore
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plaintiff should be largely responsible for his own loss. (see page 107 of
Osborne). Rarely over 50%
Since defendants are normally insured, judges prefer not to impose significant
contributory negligence on plaintiffs
In BC, under our negligence act s. 2, if there are multiple defendants and the
plaintiff is found contributory negligent, the joint liability between the
defendants is broken and the plaintiff must pursue each one individually for
his claim
causation must be shown too – pltf’s negligence contributed to or exacerbated
the injuries
Medical Malpractice
Content of duty pre-reibl and Hughes (1980, SCC):
- paternalistic professional/authoritarian standard
- doctor subjectively determined nature and extent of disclosure
- what reasonable patient would want to know irrelevant
o criticisms: patients not treated with respect; limited information
without incurring liability; discriminatory effect on marginalized
groups
A summary: Duty to warn and Doctrine of Informed Consent in
Medical treatment (Reibl v. Hughes)
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doctors must disclose risks and benefits before obtaining consent for treatment
cosmetic and experimental treatments require greater disclosure
a modified objective test is used – what a reasonable person in patient’s
position would want to know
Dr must disclose
o Answer patient’s specific questions re treatment and the nature of
treatment, likelihood of success, gravity, material risks, and special or
unusual risks (disclose without being asked) (Hopp v. Lepp SCC)
EXCEPTION: Therapeutic privilege. Doctors may withhold information re
risks if disclose may harm patient psychologically. But this exception is
narrowly interpreted – cannot justify non-disclosure re physical harm
Manner of communication: Communication must be made in a manner
appropriate to his/her intelligence, skills and abilities and with the use of an
interpreter if necessary. Saying risk of paralysis and tissue damage instead of
simply saying stroke may not be adequate (Martin HOWEVER, court of
appeal said telling just the symptoms was OK)
o Remote communication e.g., video, pamphlet may be insufficient even
if dr asks if video was watched and if patient had any further questions
(Byciuk v. Hollingsworth, Alberta case)
what are material risks? (important! Read closely)
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Significant risks that threaten patient’s life, health or comfort include:
Probable risks
Remote risks with serious consequences
Frequent minor risks
Remote risks of minor consequence and common risks need not be
disclosed
 Examples of material risks: 10% chance of stroke or paralysis
(Reibl v. Hughes); 1% chance of death/infection, 4-5% chance
of neurological deficit (Martin v. Capital Health Authority);
1-3% of cord prolapse leading to serious damage to child
(Brito v. Woolley)
must disclose alternate treatments and their risks and benefits (Van Mol)
relevance of information to be disclosed objectively assessed based on
doctor’s actual or constructive knowledge – Videto v. Kennedy. For instance,
if surgery is elective and if patient may be better off waiting, doctor should
disclose this fact (Martin and Reibl)
CAUSATION: Reibl v. Hughes: Patient undertakes elective surgery that
goes awry. Patient was year away from retirement at max pension. Surgery
was not essential. Doctor did not disclose the material risks. Court applied
modified objective test – what would someone in the patient’s situation (one
year from retirement at max pension) do if properly informed? Answer: They
would not have done the surgery. Doctor is liable.
o Brito v. Woolley. The doctor failed to disclose a material risk of cord
prolapse during pregnancy. But because the other alternative,
caesarean section had even greater risk, the court in applying the
modified objective test found that the pltf would have gone with the
procedure that resulted in a cord prolapse any way.
Disclosure during procedure: Once disclosure has been made, it need not be
repeated during procedure or with temporary interruptions absent significant
change in risk (Ciarlariello)
o
o
o
o
o
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-
-
Other issues – track record, health status of doctor, temporal
element of causation
-
-
Doctor’s track record: Should it be disclosed that the doctor has had many
failures or is new? Balance of doctor’s privacy versus the patient’s interest.
In my opinion the principle of disclosure of material risks requires a doctor to
disclose (if his newness/track record indicates a higher risk of harm) if that
principle is to be doctrinally coherent.
How about disclosing the doctor’s health status? Not if it doesn’t have a
material risk of harming the patient. See Halkyard v. Mathew – doctor
didn’t disclose his epilepsy and that was OK because it was well under control
with medication
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Temporal Element of Causation: It has been argued that if proper
disclosure would have only caused the patient to delay the surgery, he/she
would have suffered the same fate any way. This claim was rejected as
irrelevant in Reibl and Martin, and in the HoL case of Chester. The judges
opted to uphold patient autonomy and the right of free choice for the patient.
-
Loss of a chance: A mis or non-diagnosis deprives the patient of the chance
of a favourable outcome. Is this “loss of a chance” compensable? According
to Cottrelle v. Gerrard (2003, Ontario, applied in Laferriere, SCC) it is not.
Loss of chance must refer to future events that can no longer occur, e.g., the
chance of success of a business venture that never occurred b/c of the
defendant. Once the ultimate effect has occurred, loss of a chance claims
must failure unless the Pltf shows on a BOP a probable causal connection
btwn the doctor’s negligence and her injury. NOTE: This applies primarily to
cases where the medical evidence points to possibilities and not likelihoods of
favorable outcomes
Remoteness: Subsequent medical errors that aggravate the
plaintiff’s original injuries from a different defendant. An intervening
act?
o The traditional approach under Mercer v. Gray is that if the genuine
medical complication/error was a reasonably foreseeable consequence
of the def’s negligent conduct, then the def is completely on the hook
and the doctor escapes liability.
o If the doctor was negligent however, the defendant must prove this on
a BOP. In that case, the doctor will be liable for the additional
injuries.
o This approach has been criticized for giving doctors a “free ride.” The
case law is now uncertain. In Katzman v. Taeck, the court held that
if the doctor was negligent, and if this negligence was a reasonably
foreseeable result from the def’s wrongdoing, the def and the doctor
will be jointly and severally liable with damages apportioned
according to degree of fault
 Criticism: Given that doctors are performing the surgery under
good intentions, is it a good practice to treat doctors the same
way as the original tortfeasor who may have committed the tort
intentionally (e.g., assault)?
Medical Treatment and Consent
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consent is a complete defence to an intentional tort (battery) in medical
treatment
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Adults
-
Malette v. Shulman: BC Health Care (Consent) and Care Facility
(Admission) Act s. 4
o Adults of sound mind entitled to make their own health care decisions.
Includes a right to choose particular form of treatment or service
provider on any ground
o No treatment to be provided without first obtaining their consent
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consent of others not required
o if a patient has necessary capacity, consent of others not required for
medical treatment
-
patients have the right to withhold (refuse) or withdraw consent to treatment
o this includes medically necessary procedures to preserve patient’s life
or health, regardless of consequences
o decision must be voluntary and free of external influence
o refusal need not be informed – Malette v. Shulman
Respect for patient’s wishes
- no liability for healthcare professionals for respecting patient’s wishes re
treatment even if it results in death
The SCC emphasizes the value of autonomy over the value of effective medical treatment
(Starson v. Swayze)
Exceptions
Emergencies
- person needs life saving treatment and is incapable of giving or refusing
consent (the doctor may proceed)
- e.g., patient is impaired, unconscious, etc, an authorized substitute decision
maker not available, and the procedure is necessary to save life or preserve
health
- danger to health must be immediate; prompt action required to avoid bodily
injury or even death
- apply reasonable person standard – reasonable person would consent to health
care in circumstances
Children – mature minor rule
Mature minor rule: Common law – a minor can give valid consent to health care when
he/she is intelligent and mature enough to understand the nature and consequences of
proposed treatment, regardless of age (Now codified in BC Infants Act s. 17)
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This means children have the right to refuse treatment.
Overriding a child’s refusal to medical treatment
- mature minor’s refusal of treatment may be overridden under legislation – BC
Child, Family & Community Services Act s. 29
- Comment: Is this discrimination based on age? If the child refuses for
religious regions, does this violate his Charter rights?
Manitoba v. AC – the legislation overriding the mature minor rule does violate the
Charter, but it’s saved under s. 1 as a reasonable limit (appealed to the SCC, decision
pending)
Other bases of liability: Intentional torts – trespass
(assault, battery, etc)
Protection of specific interests:
Trespass to the person
- battery: protect personal/bodily integrity and autonomy
- assault: freedom from threat of violence
- false imprisonment: protect personal liberty or freedom of action
Trespass to property – land and chattels
- protect property interests
Trespass:
-
specific rules and requirements
actionable without proof of damage
no liability insurance for intentional conduct: defendants must pay out of
pocket
o promotes accountability for wrongdoing and deterrence
o on the other hand, undermines compensatory goals and to some extent,
personal accountability
o (NOTE: plaintiff’s might be able to collect from alternative sources,
parents/employers who will be liable in negligence)
-
why sue if chance of recovery low? Therapeutic benefit – pltf may be
interested in public recognition of his/her victimization
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Battery:
Requires
- positive and affirmative act
- intention is not the same as criminal law: intention means either the def
desired the conduct (A stabs B) or that the consequences are substantially
certain to result from the conduct (A shoots into a crowd, hitting B even
though target was C. this example also known as transferred intent.)
o def may be excused because of mental disability or infancy.
Predominant view is that the def must understand the nature and
quality of the act (Gerigs v. Rose)
- direct and offensive contact
Meaning of “direct” – Scalera, para 8
- force set in motion by def notwithstanding interventions: Scott v. Shepherd
- rolling an object towards pltf
- snatching object from pltf
- hitting someone with a golf ball – both negligence and battery?
Not necessary for def to physical touch pltf’s body.
What form of contact must suffice for battery?
- Scalera: Mclachlin requires “contact plus something”
- Trivial and non-violent contacts excluded (e.g., tapping someone on the
shoulder to get their attention)
- But interfering physically with someone in a way that’s offensive to one’s
ordinary sense of dignity and honour is battery. For example, cutting
someone’s hair, spitting on someone, throwing a cream pie, taking a person’s
fingerprint, are all batteries
Consent is a complete defence.
Pltf not required to prove that he did not consent to contact (in Canada at least, in UK,
pltf must prove lack of consent).
Pltf needn’t be aware of contact when it occurred. Raping someone who is in a coma will
count as sexual battery.
Actionable without proof of injury.
Contact intended for pltf’s benefit IS battery if pltf did not consent. E.g., unwanted
medical examination.
Battery can occur without assault when person is unconscious, when it occurs suddenly,
etc.
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Extent of def’s liability
-
not limited by reasonable foreseeability
thus, there is potential for def’s liability being disproportionate to extent of
fault
Elements of trespass unique to Canada
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intent can be actual or constructive (shooting into a crowd)
example of negligent battery Cook v. Lewis
o in this case, pltf can sue based on negligence and on tort
o it’s a negligent battery because it was direct. As long as it’s direct, it
can be trespass
o modern pltfs may resort to tort of battery to secure a win if it’s thought
that a suit based in negligence might fail
 procedural advantages include not having to show damage,
placing burden of disproving fault on defendant, etc
 not available in motor vehicle accidents (Klar)
Onus shift
-
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def is liable unless he can disprove fault – that conduct was not intentional or
negligent. The pltf need only prove direct interference in a harmful or
offensive way
valid defences/excuses include consent, self-defence, mental disability,
infancy, accident
Mistake is not a valid defence in Canada
Comment: direct/indirect distinction, negligent battery and onus shift abolished in USA
and UK making battery harder for pltf’s to prove. In Scalera the SCC disagrees – it
emphasizes protecting individuals’ rights to personal autonomy. Personal autonomy
trumps the principle of fault.
When a person directly interferes with another, a prima facie case is automatically made
out and the def ought to put forth a defence. It’s not up to the pltf to prove that, in
addition to directly interfering with her body, the defendant was also at fault. Direct
interference automatically equals fault according to the SCC.