1
GOALS OF TORT LAW ...................................................................................................................... 4
IDENTIFYING THOSE RESPONSIBLE FOR HARM ........................................................... 5
JOINT TORTFEASORS ..................................................................................................................... 5
JOINT AND SEVERAL LIABILITY.................................................................................................... 5
VICARIOUS LIABILITY ................................................................................................................... 5
SAGAZ TEST TO ESTABLISH EMPLOYER-EMPLOYEE RELATIONSHIP ................................................. 5
SALMOND TEST FOR VICARIOUS LIABILITY: .................................................................................... 6
ENTERPRISE RISK TEST [BAZLEY V. CURRY]..................................................................................... 6
CONTRIBUTORY NEGLIGENCE ......................................................................................................... 6
TRESPASS TORTS ...................................................................................................................... 7
DEVELOPMENT ................................................................................................................................ 7
INTENT ............................................................................................................................................. 8
TORTS OF INTENTIONAL INTERFERENCE WITH THE PERSON..................................................... 8
COMMON ELEMENTS: ...................................................................................................................... 8
BATTERY ......................................................................................................................................... 8
ASSAULT .......................................................................................................................................... 9
FALSE IMPRISONMENT..................................................................................................................... 9
HYBRID TORT: INTENTIONAL INFLICTION OF MENTAL DISTRESS ............................................ 9
DEFENCES TO TRESPASS ...................................................................................................... 10
ACCIDENT ..................................................................................................................................... 10
VOLITION ...................................................................................................................................... 10
CAPACITY ..................................................................................................................................... 10
SELF-DEFENCE ............................................................................................................................. 10
DEFENCE OF 3RD PARTY ............................................................................................................... 11
CONSENT ....................................................................................................................................... 11
MEDICAL CONSENT ....................................................................................................................... 11
ONUS OF PROOF IN TRESPASS CASES .............................................................................. 12
SEXUAL WRONGDOING AND TRESPASS TORTS ........................................................... 12
LIMITATION PERIODS: .......................................................................................................... 14
DISCOVERABILITY RULE ............................................................................................................... 14
ULTIMATE LIMITATION RULE: ....................................................................................................... 15
NEGLIGENCE ............................................................................................................................ 15
ORIGINS ......................................................................................................................................... 15
POLICY FRAMEWORK .................................................................................................................... 15
2
MODERN NEGLIGENCE .................................................................................................................. 15
CORE ELEMENTS TO PROVE: .......................................................................................................... 15
POTENTIAL DEFENCES FOR NEGLIGENCE ...................................................................................... 16
LIMITING FACTORS/CONTROL DEVICES FOR NEGLIGENCE CLAIMS ............................................. 16
DUTY OF CARE ............................................................................................................................. 16
EXPANSION OF DUTY OF CARE ...................................................................................................... 16
DUTY TEST IN CANADA ................................................................................................................. 17
MISFEASANCE VS. NONFEASANCE ................................................................................................. 17
TYPE OF DUTY: DUTY OF AFFIRMATIVE/POSITIVE ACTION.......................................................... 18
DUTY TO WARN – MANUFACTURERS ............................................................................................ 20
DUTY TO WARN – MEDICAL PRACTITIONERS ............................................................................... 20
DUTY TO RESCUE .......................................................................................................................... 21
STANDARD OF CARE .................................................................................................................... 21
INDICES OF REASONABLENESS ...................................................................................................... 22
Custom........................................................................................................................................... 22
Statutory Standards........................................................................................................................ 23
Professional Standards .................................................................................................................. 23
REASONABLE PERSON TEST .......................................................................................................... 24
SPECIAL STANDARDS: CHILDREN.................................................................................................. 24
DEFENCES ...................................................................................................................................... 25
CAUSATION ................................................................................................................................... 25
TRADITIONAL TEST: “BUT FOR” ................................................................................................... 25
WHEN ‘BUT FOR’ TEST DOESN’T APPLY: ..................................................................................... 26
Inference of Causation................................................................................................................... 26
Alternative Liability ...................................................................................................................... 26
Market Share Liability................................................................................................................... 27
Material Increase in Risk Test ....................................................................................................... 27
CAUSATION IN CONTEXT OF DUTY TO WARN ............................................................................... 27
REMOTENESS ................................................................................................................................ 28
GENERAL INFO............................................................................................................................... 28
TYPE OF DAMAGE .......................................................................................................................... 28
THIN SKULL RULE ......................................................................................................................... 29
CRUMBLING SKULL RULE ............................................................................................................. 29
INTERVENING FACTORS/EVENTS: NOVUS ACTUS INTERVENIENS ................................................ 29
Medical Errors ............................................................................................................................... 30
PURE PSYCHIATRIC HARM.................................................................................................. 30
PURE ECONOMIC LOSS ......................................................................................................... 32
NEGLIGENT MISREPRESENTATION ............................................................................................. 32
NEGLIGENT PROVISION OF SERVICES ........................................................................................ 33
NEGLIGENT SUPPLY OF DANGEROUS PRODUCTS ...................................................................... 34
GOVERNMENT LIABILITY ................................................................................................... 34
OPERATIONAL V. POLICY DECISIONS  ANNS/KAMLOOPS, REFINED IN JUST ............................. 35
Operational .................................................................................................................................... 35
Policy ............................................................................................................................................. 35
3
COOPER TEST  ANALYSIS OF GOVT. LIABILITY........................................................................... 35
THE IMMUNITY OF MOTHERS ............................................................................................ 36
INTRO TO STRICT LIABILITY ............................................................................................. 37
NUISANCE .................................................................................................................................. 39
4
Goals of Tort Law
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Compensation
o Both essentialist and instrumentalist aspects
o Corrects an imbalance in the rel’ship b/w tortfeasor and injured party, compensates for losses
and any future cost (essentialist)
o Loss Shifting
 Allocates loss to the wrongdoer (instrumentalist)
o Loss Spreading/Distribution
 Insurance
 In practice, most compensation isn’t paid by the tortious individual alone. It’s spread
to insurance companies, who use the combined assets of all insured parties (through
premiums) to cover the cost
 Increased prices
 Businesses might distribute costs thusly to the consumer
 Ensures compensation, but doesn’t necessarily restore the rel’ship
Punishment
o More instrumentalist, but can be employed by essentialists as well
o Infrequently, courts may award punitive damages in addition to compensation
o The punitive power of a damage award is questionable (given insurance etc.)
o Awarded where ∆ behaviour was particularly egregious
o Can damage ∆’s reputation – bad publicity
Deterrence
o Specific
 Preventing a specific individual from behaving this way in the future
 Effect may be mitigated by insurance
 May affect insurance premiums, or even ability to get insurance
o General
 Instill fear of tort liability in general public, thus potentially forestalling tortious acts
 Questionable, since there is additionally often the possibility of harm to oneself, and/or
criminal charges, so the addition of tort liability might not really deter someone
 Punitive damages have a definite deterrent intent
o Market
 Put the cost of accidents onto manufacturers, especially those who engage in
substandard conduct
 Force to increase prices to deal w/ costs of compensation
 Costs will hopefully lead to increase in quality (to remain competitive) or departure from
the market
 Bad implication, though, that cheaper products are actually/always safer
Psychological/public vindication
o Venue for victims of wrongdoing to get accountability without vigilantism
o Therapeutic function, theoretically
 In this sense, corrective
 Relates to essentialist view
Education
o Teaching reasonable standards of conduct
 But questionable whether this ever really works
 Maybe educational specifically for lawmakers.
Ombudsman Role
o Tort law ostensibly allows the poor and powerless to challenge the rich and powerful
5
Identifying those Responsible for Harm
Joint Tortfeasors
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Four Types (quoted from Osborne):
o “One who instigates or encourages another to commit a tort, and the person who commits it”
o “An employer and an employee…in respect of a tort committed by the employee within the
scope of his employment”
o “A principal and agent…in respect of torts committed by the agent within the actual or
apparent authority of the agent”
o “A residual fact-specific category covering other instances of a concerted action by two or
more involving the commission of a tortious act.”
 Here the basis is guilt by participation, not by association.
JTs must be acting in concert; don’t have to commit tort together
Two men hunting together (even with an agreement to share the catch) = too broad a relationship,
don’t count as joint tortfeasors when one negligently shoots someone [Cook v. Lewis (1951)]
Joint and Several Liability
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Joint tortfeasors can be held liable together, and also separately (Negligence Act)
If four tortfeasors are severally liable,  must seek appropriate percentage of damages from each
party specifically
o If one is judgement-proof, or if one won’t pay, etc., this can become problematic for the 
The Negligence Act allows all parties to be sued in one action
o Court will assign a global amount of damages, without specifying who pays what
o S. 4(2)(a) allows  to seek all compensation from one ∆
o That one ∆ can undertake enforcement proceedings, under s. 4(2)(b), to recover the amount
owed by each of the other ∆s
Policy consideration: Stops the victimization of 
o If some percentage of award can’t be recovered, it’s fairer for one of the tortfeasors to pay
more than his share, rather than  being unable to get full compensation to which he is
entitled
Cook v. Lewis  not joint tortfeasors, can’t be found jointly and severally liable
Vicarious Liability
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The responsibility of one person for the tort(s) of another by virtue of rel’ship b/w them
General Points:
o Strict Liability: no fault necessary to be held vicariously liable
o Can be intentional or non-intentional torts
o Must establish sufficient relationship with tortfeasor, i.e.
 Employer-employee (not independent contractor)
 Principal-Agent (for acts w/in “actual or apparent authority of the agent”)
Sagaz Test to establish employer-employee relationship1
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1
Distinguishes employees from independent contractors by considering 3 factors:
671122 Ontario Ltd. v. Sagaz Industries Canada Inc. [2001]: ∆ hired a consultant to promote product,
who bribed a Canadian Tire official to switch from  to ∆ as supplier for product. Consultant found to be an
independent contractor, ∆ not vicariously liable.
6
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o Level of control
o Provided own equipment?
o Degree of financial risk
Relative weight is context-specific
Salmond Test for Vicarious Liability:
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Requisite rel’ship b/w tortfeasor and party claimed to be vicariously liable?
o Commonly employer-employee [see Sagaz test above]; also principal-agent
Was the tort committed in the course of employment?
o Was act authorized by employer?
 (i.e. if an employee has a car accident when employer authorized them to drive)
o If unauthorized, was the act so connected with an authorized act that it can be regarded as a
“mode” of carrying out the authorized act?
Enterprise Risk Test [Bazley v. Curry]
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Are there precedents that allow an unambiguous decision?
Consider policy goals of vicarious liability
o Compensation (fair recovery)
o Deterrence
5 Factors enumerated to test whether the enterprise materially increased the risk of
tortfeasance:
o Opportunity the pos’n gave the employee to abuse pwr
o Extent to which the wrongful act furthered employer’s ends (thus making act more likely)
o “Extent to which the wrongful act was related to friction, confrontation or intimacy inherent
in the employer’s enterprise”
o Amount of power given to employee over victim
o Vulnerability of (potential) victims to wrongful use of employee pwr
Employed in EB v. Order of the Oblates of Mary Immaculate in the Province of British Columbia
[2005, SCC]
o Future cases will be decided with far more weight on the precedents and the 5 factors than on
the policy considerations
o Critics see Oblates as a setback from Bazley v. Curry
 Focus on specific task requirement means employers are far less likely to be found
vicariously liable
Contributory Negligence
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When failure of  to take reasonable care for own safety contributes to the accident/loss
Common Law:
o Contributory negligence used to be a potentially complete defence, leading to no liability for
∆
o Courts historically aimed to find one clear wrongdoer, and if  contributed to his injury he
might be considered undeserving of compensation
o Rule of Last Clear Chance: whoever had the last clear opportunity to avoid the accident was
held fully responsible for the accident
Current: Proportionality of Fault
o ∆ liability should be proportionate to level of culpability/wrongdoing
o Where multiple ∆s, liability assigned between ∆s according to fault, if possible to ascertain
(otherwise evenly distributed among ∆s)
7
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o When  is contributorily negligent, divide damages proportionately b/w ∆ and  (i.e.
damages are reduced by amt  found to have contributed)
o Can have serio us effects where, as often the case,  doesn’t have 1st party insurance
BC Negligence Act: if contributory negligence is found,  ability to recover is altered:
o  cannot claim all damages owed from one ∆, has to specifically go after each ∆
o BC is the only jurisdiction in Canada where this is the case
3 ways in which contributory negligence can occur:
o  negligence = cause of the accident
o  negligently puts himself in pos’n of foreseeable harm from ∆’s negligence
o  fails to take protective measures in face of foreseeable danger (i.e. not wearing an available
seatbelt) (before wearing a seat belt was req’d by law, not wearing one could still count as
contributory negligence)
If  loss would have been less severe had precautions been taken, contributory negligence will
lower damages
o Assessment is not, however, made on the basis of how much each party contributed to the
harm, but on the ‘comparative blameworthiness’ of their conduct
o i.e., in seatbelt example:  injury would have been less if wore seatbelt, but injury itself was
consequence of ∆ wrongdoing. Primary wrongdoer pays more.
Trespass Torts
Development
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Origins are in common law of Writ of Trespass
Initial Requirements:
o Needs to be intentional and direct
o Actionable without damage or fault (No concern with ∆ state of mind)
o Strict liability, proof of damage not necessary
o  merely had to prove ∆ had done the act, not prove intent.
o Consent was a defence because there was no force involved
o Claims had to be covered by the existing Writs, which didn’t cover indirect harm or acts of
what we’d now call negligence (ex. where  put themselves in care of ∆)
Trespass on the case: Origins of modern day negligence
o Developed as a new form of action for indirect/consequential injuries, non-forcible damage
o Proof of damage was required
o Loose fault requirement
o ∆ had to be found at fault either by wrongful intent or negligence
Development of Fault:
o The Highways Exception: Motorists can only sue for negligence (trespass to case), not
trespass
o The onus is on the  to prove ∆ was negligent: no liability unless ∆ was at fault, even when
the injury is directly inflicted.
o Rationale: there is reciprocal risk involved in going on the roads and it would be wrong to
hold defendant liable for an accident unless they took an unacceptable risk
o This idea spread to the rest of tort law, where fault is required even for direct injury
Canada is unique in that many differences between trespass and negligence are still relevant
o Indirect interference in Canada is only actionable in negligence
o A trespass action can be negligent or intentional
o Directness requirement stems from goal of trespass torts to protect the security of the person
8
o Explains why there is liability without damages: Action is inherently wrong
Intent
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Constructive
o Aka imputed intent
o Action committed with intent of bringing about the specific circumstance that arises
 i.e. injuries caused with actual intent
 Or, un-sought consequences which are substantially certain to arise from ∆ conduct
 i.e. if a person shoots into a crowd, and random person is injured – substantially
certain that someone would be injured.
Transferred
o When a third party, who ∆ did not actually intend to injure, is injured instead of the original
target
o Can sometimes fall under constructive, but isn’t always applicable, where ∆ couldn’t be
substantially certain the third party would be injured
o Liability is justified based on “serious moral culpability” of ∆, and complete innocence of 
o ∆ must typically understand the “nature and quality” of the act to be found liable
 If ∆ knew what he was doing but didn’t know it was wrong, still liable.
Torts of Intentional Interference with the Person
Common Elements:
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Forcible – application of force against  person/property (goods or land)
Direct – force must be directly applied to  person, land or chattels
o “Would the result have occurred had it not been for the intervention of another independent
agency?” (Lewis Klar, Tort Law, 4th ed. at 30)
Voluntary - ∆ conduct must be voluntary
Intentional or unintended/negligent
o Intent: actual or constructed including recklessness
o Or intentional contact/interference – not to cause harm/damage
Fault
o  not req’d to establish ∆ fault as part of prima facie case
Actionable per se – contact/interference inherently wrongful
Extent of liability - ∆ liable for all direct consequences of conduct
Battery
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Most common trespass action
“A direct, intentional and physical interference with the person of another that is either harmful or
offensive to a reasonable person” (Osborne)
Policy goal
o Protecting  bodily security
 does not have to be aware at time of battery – can find out later (i.e. sleeping, under
anaesthesia)
∆ liable for all consequences, not just foreseen ones
Negligent battery
o Disregarding a foreseeable risk
o i.e. errant golf ball:
9
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o Req’mt that ∆ knew or ought to have know that the golf ball might hurt someone
Contact doesn’t have to be harmful – ‘offensive’ is a contextually defined term
o Unwanted
Damages for physical harm and sexual assault survive bankruptcy
Assault
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“Reasonable apprehension of imminent battery” (Osborne)
o Doesn’t matter if ∆ can/does follow through or not
o ∆ must only appear to have the ability to follow through
Can theoretically be intentional or negligent,
o Negligent assault: rush into empty room with gun, cause someone to pass out from fear
But some intent always req’d
o Either, desire on part of ∆ to create the reasonable apprehension in 
o Or, reasonable certainty on part of ∆ that battery will occur
No fear req’d, focus on awareness/expectation
Tort exists to protect mental security, so if  unaware, no tort
Most often used as a justification (provocation) for self defence
False Imprisonment
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One person w/o legal authority to do so stops another person from going where they want to
Policy: protect personal liberty, freedom of movement
Onus of proof
o ∆ has to prove lack of intent/lack of negligence
o  only has to prove imprisonment
o ∆ has to then either disprove imprisonment or justify it
Total restraint of liberty is req’d for imprisonment; mere loss of freedom to walk in a certain
place is insufficient. [Bird v. Jones (1845)2]
o As long as  knows of a reasonable exit route (no serious risk of injury or serious
inconvenience), not imprisonment
Imprisonment can be psychological (i.e.  reasonably believed he couldn’t leave) [Jeeves
(Guardian ad Litem) v. Swanson (1995)3]
 must be aware of imprisonment, or no tort
Can falsely imprison within a jail, where legally imprisoned [Hill v. BC4]
See also Nolan v. Toronto (Metropolitan) Police Force [1996]
 wrongfully arrested, mistake would have been clear to police with minimal effort of inspection
but no effort was made to assess validity of arrest
Hybrid Tort: Intentional Infliction of Mental Distress
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(Intentional infliction of /mental suffering/nervous shock)
Bird v. Jones:  wanted to cross on the right hand side of a bridge, but it was blocked off. Snuck in but
couldn’t get out the other side – not imprisonment b/c reasonable alternative (original point of entry) was
still open to him.
3
Jeeves v. Swanson:  (mother & daughter) unsatisfied w/ quality of an engraved bracelet, male ∆ told to
leave w/o paying but female ∆ locked door and called police. Infant  not aware of situation, so no tort
against her, but mother “reasonably felt that ∆s were preventing her from leaving of her own free will” –
false imprisonment.
4
Hill v. BC:  prisoner put into segregation after riot (no evidence  was involved in riot), rules for review
not properly followed, no legal authority.
2
10
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Combines elements of trespass and case
Established in Wilkinson v. Downton [1897]
o  was told her husband had been seriously injured, she experienced a “violent shock to her
nervous system”
o No existing torts to cover, created a new one to deal with intentional conduct causing harm,
that isn’t an assault (no threat of phys. harm)
o “∆ has…willfully done an act calculated to cause physical harm to the  - that is to say, to
infringe her legal right to personal safety, and has in fact thereby caused physical harm to
her.”
Three Requirements
o Outrageous/extreme conduct
o Has to be calculated/intended to produce harm
o Has to actually produce harm
See Nolan v. Toronto Police Force
o In addition to false imprisonment, officers treated  with extreme disrespect, racism.
o Demonstrable negative effects on  (drinking problem, decline in academic performance.
Defences to Trespass
Accident
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Typically not held liable for conduct when the damage wasn’t reasonably foreseeable or
preventable
Distinct from mistake – can be liable
o If ∆ intended to produce a certain, innocent, result, they may be liable for later consequences
of their actions
o i.e. cutting down a tree, reasonably expect it to fall on your own land, but it falls on
neighbour’s: not liable. BUT – if it falls where expected and that turns out not to be your
land, liable in trespass, b/c tree was intended to fall where it did.
Volition
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Torts usually req ∆ conscious control of actions
If act was involuntary, no liability (i.e. sleepwalking or being carried onto someone else’s
property)
If you know you’re at risk and do something anyway, it’s voluntary if things go awry (i.e. feeling
chest pains and try to drive, then have a heart attack – liable for consequences)
Capacity
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If ∆ doesn’t have capacity to form req’d intent to commit act, not actionable in a fault-based
system [T.O. v. J.H.O. (2006)]5
Self-Defence
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Court will always look to reasonability
o Number of attackers, weapons, possibility of a non-violent solution
o Proportionality of violence
T.O. v. J.H.O: ∆ and  sexual contact as children; held ∆ had requisite intent, based on admission that he
“voluntarily and deliberately initiated sexual contact.”; also held  was not old enough to give valid consent
(based on criminal age of consent)
5
11
o Timing – was the threat of battery over?
Defence of 3rd Party
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Greater possibility of error on part of ∆ - not in best pos’n to determine threat, reasonability and
appropriate way to prevent
Babiuk v. Trann [2005]
o Single punch – reasonable response
o Extra violence was acceptably proportionate to the setting (rugby game)
o  stood on face of ∆ teammate – urgent situation, instinctive reaction to teammate distress
Consent
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If  consented to interference, no tort
o No need to protect autonomy when consent is given
Onus on ∆ to prove consent
Medical Consent
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Adults
o If any healthcare professional touches the body of a patient without consent, it’s battery
 Doctors must obey patients’ express wishes, even when they are not in best medical
interests, and even if they are written down instead of verbalized [Malette v. Shulman
(1990)]6
o Informed consent rule
 Exception: Emergency doctrine
 If there are no prior directives, and the patient is unconscious or otherwise
incapable of giving consent, none is required in an emergency [Health Care Act, s.
12, Malette v. Shulman]
o Patient has the right to refuse treatment [Mulloy v. HopSang (1935)7]
 Despite any potential consequences, if properly informed of risks
 This right extends to the right to discontinue treatment [Nancy B. v. Hotel Dieu de QC
(1992)8]
o If a surgery is necessary to preserve life/health, and was consented to, no liability for acting
more than the original scope of consent provided before surgery
 If situation changes, may have to assume consent and adapt – unfairness consideration
o Battery vs. Negligence
 If nature of medical procedure is misrepresented – battery
 No battery where patient consented to surgery, even if not properly informed of risks 
must sue in negligence [Reibl v. Hughes (1980)]9
Malette v. Shulman: , a Jehovah’s Witness, carried a card refusing blood transfusions. In an emergency,
Dr administered anyway, action for battery. Held: can’t ignore express wishes, even when written down
before fully informed on specific situation.
7
Mulloy v. Hopsang:  told ∆ not to amputate injured hand, but in surgery ∆ determined (correctly) that 
would get blood poisoning without amputation, and removed hand. Held: liable. Performed agst 
instructions, patient right to refuse treatment.
8
Nancy B v. Hotel Dieu de QC:  applied for injunction to force doctors to take her off ventilator. Held:
can only be treated w/ consent, once consent revoked no more treatment allowed. Allowed to withdraw mid
treatment, doctor must comply unless would cause serious/life-threatening consequences.
9
Reibl v. Hughes: for negligence, patient must prove: 1) not informed of material risks; 2) reasonable
person in circumstances would not have gone ahead w/ procedure, being properly informed
6
12
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 BUT: BC Health Care (Consent) and Care Facility (Admission) Act  legislation
suggests this situation might be actionable in battery
Minors
o Emergency doctrine applies
o Absent emergency, must get parent consent (otherwise battery)
o ‘Mature Minor’ designation
 Understand nature of treatment, risks and benefits of consenting/refusing
 At common law, can generally consent to most forms of medical treatment
 Healthcare provider must be convinced that the health care is in the child’s best
interests [see s. 17 of Infants Act]
 Mature minors can also refuse medical treatment [Region 2 Hospital Corp. v. Walker
(1994, NBCA)]
o Parens patriae doctrine
 State may seek an order to authorize beneficial treatment w/o parent consent
 Ney v. Canada (NB)
 Cannot supersede the will of a mature minor
o But the will of a mature minor can be trumped by legislation (overrides common law) [SJB
(Litigation Guardian of) v. British Columbia (Director of Child, Family and Community
Service) (2005, BCSC)]
Onus of proof in Trespass Cases
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Different b/w trespass and negligence:
o In negligence,  must prove all elements of the tort
o In trespass,  must prove interference, and if  can prove he didn't act with intent or
negligence, trespass is defensible (partial reverse onus)
Non-Marine Underwriters, Lloyd’s of London v. Scalera:
o Case was about an insurance clause
 ∆ committed sexual assault, insurance did not cover claims arising from “bodily injury
caused by an intentional act”
 Ct. found that an intentional act had to mean an intent to injure
o Onus of proof was a key issue: Should the traditional onus change for sexual batteries?
o Per McLachlin: onus should remain on ∆ for all trespass torts for 3 reasons:
 Directness requirement: In trespass actions resulting in injury, there's a direct connection
between action and injury that doesn't necessarily exist in negligent acts
 Builds on above argument: since injuries are direct, ∆ may have more evidence not
available to  and this will be uncovered in the case.
 Direct interference has high "demoralization costs" that must be considered
o Trespass is based on the right to autonomy, not fault. Compensation stems from the violation
of autonomy and supports keeping the onus of proof in its traditional form.
o Court accepts that a trespass can be intentional or negligent so long as the action was direct
o Result:  can continue to bring a suit for a direct action in either trespass or negligence
 Trespass favours them because they need only prove the action took place, and if
proven, the ∆ is liable for all damages, while in negligence cases courts can impose
limits
Sexual Wrongdoing and Trespass Torts
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Compared with Criminal Proceedings:
o Advantages over criminal proceedings:
 Lower burden of proof (balance of probabilities)
13
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 Deterrence
 Compensation
 Educational/psychological function for some s
 Public/social recognition of ∆ wrongdoing
o Disadvantages:
 Expensive
 ∆ may be judgement-proof (no assets from which to get compensation)
 Action might be undefended (esp. if ∆ judgement-proof)
Development of consent in sexual battery cases:
o Latter v. Braddell [1881]: submission due to fear of violence doesn’t constitute consent, but
submission due to “erroneous notion of law” (i.e.  believed ∆ had a legal right) still counts
as consent
o Hegarty v. Shine [1878]: consent obtained through fraud still counts as consent
Same onus of proof as in all trespass cases
o  must prove trespass, up to ∆ to prove a defence (i.e. consent) [Scalera]
Norberg v. Wynrib [1992, SCC]
o Doctor leveraged his patient’s addiction to painkillers, providing her with drugs in exchange
for sexual favours;  brought action under negligence, battery and breach of fiduciary duty.
o Issue: Was it battery? Defining acceptable consent.
o Majority per La Forest J:
 Battery
 Test for invalid consent:
 Power-dependency rel’ship
 Proof of exploitation
 Question of ex turpi causa raised at trial (law can’t be used to compensate for losses
suffered while committing a crime
 TJ Argued that since  was double-doctoring, no action
 La Forest found no causal connection b/w the double-doctoring and the harm, so this
was discounted
o Dissent per Sopinka J:
 Negligence – breach of duty to properly treat patient
 (a stretch – failure to help her overcome addiction didn’t directly cause the damage)
o Dissent per McLachlin (w/ L’Heureux-Dubé)
 No battery
 Found consent to sexual contact
 Breach of Fiduciary Duty
 Question of consent not relevant
 Only actions of fiduciary are relevant, not beneficiary
 Development of fiduciary duty:
 Equitable remedy – civil cause separate from tort or contract
 A pledge to act in the best interests of the beneficiary, who places trust in the
fiduciary
 Beneficiary gives up power, trusting that fiduciary will act in best interests 
inherently unequal rel’ship
 Quotes Frame v. Smith [1987] – 3 characteristics of fiduciary rel’ships:
 Scope for exercise of discretion/power
 Fiduciary can unilaterally exercise discretion/power (to affect beneficiary’s interests)
 Beneficiary is particularly vulnerable – at mercy of fiduciary holding discretion
14
 Although this was not the majority in Norberg v. Wynrib, this analysis has had a
significant impact on the law regarding fiduciary duty.
 Brought the focus into a tort law context – previously mainly in business (Frame test
applied to business)
 Made it easier to recover damages – focus was mainly on fiduciary actions, not
beneficiary
 Development in doctor-patient fiduciary duty  most previous cases were only
regarding patient records, not these kinds of facts
 In K(M) v. H father found liable in battery and breach of fiduciary duty
Limitation Periods:





Typically set by statute, they restrict the time frame in which a  can bring action
In BC, torts actions must be initiated within 2 years of the damage
If damage suffered as a minor, limitation period begins counting at 19
Justifications for limitation periods:
o Certainty
 Limitation acts are “Statutes of repose”
 Should be a time when ∆ is secure in knowledge that they won’t be held accountable for
past debts
 Also keeps insurance premiums down
o Evidentiary
 The longer the delay, the more likely evidence will be stale, faded, destroyed, etc.
 s shouldn’t be allowed to bring action on stale evidence
 And if no limitation period existed, people would have to keep evidence forever
o Diligence
 s should have to bring suits in a timely fashion – limitation period incentivizes this
Limitation period = defence only – not automatically invoked
o Muir v. Alberta10
Discoverability Rule


A cause of action arises for the purpose of a limitation period when the material facts on which it
is based have been discovered or ought to have been discovered by the  by the exercise of
reasonable diligence (per LeDain, J. in Central Eastern Trust Co. v. Rafuse]
K(M) v. H(M) (1992, SCC)
o  brought claim for child sexual abuse at 28, claim dismissed at trial b/c of expired limitation
period
o SCC allowed
o Application of discoverability rule: (test)
 Establish prerequisite that  has substantial awareness of harm and likely cause before
limitation period starts counting
 “at the moment when the…victim discovers the connection b/w the harm she has
suffered and her childhood history…her cause of action crystallizes”
 Presumption: typically discovered in therapy, but accept otherwise given evidence to
contrary
Muir v. Alberta: sterilization case; all limitation periods expired, but ∆ allowed action, acceded to
liability, only went to court to determine damages. Seen as a show of good faith, stopped judge from adding
extra punitive damages.
10
15
Ultimate limitation rule:



In BC 30 years
Begins when all elements of the claim are present, whether victim knows of them or not
Discoverability principle is trumped by the ultimate limitation period
Negligence
Origins






Developed from Trespass on the Case
o Strict categories under Writ of Trespass
o Negligence developed to cover situations that didn’t fit under Trespass req’mts
Mitchell v. Allestry [1676] – earliest example of modern negligence case
o No existing writ covered ∆ behaviour
o No legal basis for claim, but court ruled in  favour anyway
By 1700, becoming accepted that a person would be answerable for all damage arising from their
neglectful actions, barring issues of unavoidable necessity
Judges opened new category of Trespass on the Case that developed into modern negligence
By 1768, parameters of the tort were such that the statement of law is recognizable by modern
standards
o Concepts of reasonable care, causation
Ability to sue in negligence was very important
o Modern social safety net did not exist, proper compensation was even more important
Policy Framework



Underlying theory
o “Loss-shifting system based upon the moral imperative that wrongdoers should be
individually liable for the damage they cause”
Practical reality
o “Negligence/insurance system that spreads or distributes losses caused by negligent conduct
to a broad segment of the community”
Inherent tension b/w “loss-shifting rules and loss-spreading realities”  competing perceptions
of the purpose of negligence law
Modern Negligence





Precise/narrower sense  conduct that falls below a certain standard, i.e. of
normal/reasonable/desirable behaviour
Focus on accidents, no intent req’d (not concerned w/ ∆ state of mind)
Policy concern: conduct defined as unreasonable will vary depending on courts’ overriding
concern (deterrence v. compensation)
Must have damage (beyond de minimus range)
Burden of proof on 
Core Elements to prove:


Negligent Act – duty, breach of std of care
o Identify appropriate standard of care, apply to facts
Causation
o Show link b/w ∆ negligent act and  damage
16


Damage
o Vital component – triggers claim and launches litigation
Not too Remote
Potential Defences for Negligence



Contributory Negligence
o Partial defence, usually limits liability where  actions contributed to damage
Voluntary Assumption of Risk
o Complete defence – where  consents to ∆ negligence and consequences thereof
Illegality
o Denies claims that would “subvert the integrity of the justice system”
o Claims for future illegal earnings, e.g.
Limiting Factors/Control Devices for Negligence Claims


Duty of Care
o Donoghue v. Stevenson [1932, HL]:
 Lord Atkin creates a general duty of care
 Neighbour Principle
 “Take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour”
 Neighbours = “Persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called into question”
 Concerns: proximity, foreseeability (blurs b/w remoteness and duty)
 No longer a req’mt of contract b/w manufacturer and claimaint for liability
 ∆ doesn’t have to foresee the particular , just a class of person (i.e. drinkers of ginger
beer)
o Concept of duty can provide own limit
o Duty is a control mechanism, to help courts limit consequences of negligence by limiting
scope of ppl who can claim compensation
 Determining who is worthy of protection, and which activities are properly the subject of
negligence law
o Duty req’mt seeks to strike balance b/w ∆ freedom of action and victims’ need for
compensation
Remoteness of Damage
o The consequences of a negligent act are only actionable as long as they are not too remote
 Reasonably foreseeable
o Palsgraf v. The Long Island Railroad Company [1928, NY CA]
 Guard could not have known there were fireworks, did not owe duty of care to  at other
end of platform
 Today, railway would be liable because of the duty of care automatically owed as a
common carrier
 Dissent: Andrews wants to reject remoteness considerations
Duty of Care
Expansion of Duty of Care

After Donoghue v. Stephenson, some parties remained immune to duty of care
17



o E.g. government
Duty slowly expanded – 1960s/70s series of UK decisions expanding duty in relation to pure
economic loss
o Hedley Byrne [referenced in Home Office v. Dorset Yacht Co. (1970, HL)]
 No property/physical damage, only economic
o Cooper v. Hobart
o Historically, courts had not allowed tort recovery for pure economic loss, but Hedley Byrne
saw this change
Neighbour principle should apply unless there is justification/valid reason NOT to recognize the
duty [Anns v. Merton London Borough Council,
Home Office v. Dorset Yacht Co. (1970, HL)
o Crown policy argument (rejected): people shouldn’t be able to threaten the government with
lawsuits
Duty Test in Canada
 If there is already a recognized duty covering circumstances, move to standard of care.
 When new duty is posited, the onus is on  to prove new duty
 Anns/Cooper Test:11
 Stage 1:
  has onus of proof.
 Was it reasonably foreseeable to ∆ that the harm could have been consequence of
their actions?
 Sufficient proximity of rel’ship to ?
 Any policy reason not to enforce a duty?
o i.e. affecting proximity of rel’ship: expectations, reliance, representations,
kind of property/injury involved
 Easier to prove proximity where there has been a physical injury
 Stage 2:
 Analysis of residual policy factors
o Consider effect on society of recognizing the posited duty
 Only move on to stage 2 if successful at stage 1, and only in rare cases where
posited duty is completely new (i.e. not successful at stage one because it is
analogous to existing duty)
 ∆ must raise any residual policy considerations for this stage.
 Post-Cooper Case: Odhavji Estate v. Woodhouse12
Misfeasance vs. nonfeasance




Misfeasance = positive act that endangers others/their property
Nonfeasance = failure to act to benefit others/protect property
The primary role of negligence law is to cause people to act in a non-dangerous manner,
Thus, generally, negligence law doesn’t impose positive duties
Cooper v. Hobart: ∆ registrar of mortgage brokers,  investors in broker who went under.  claim ∆
owes private law duty of care. Claim fails at stage 1 – insufficient proximity.
12
Odhavji Estate v. Woodhouse (2003, SCC): O fatally shot by police officers, who then failed to properly
comply w/ investigation but were eventually cleared of wrongdoing. Issue of whether police chief owed
duty of care to family. Held: Reasonably foreseeable that failure to cooperate w/ investigation would harm
 (i.e. distress/anger). Sufficient proximity b/w his negligent supervision and resultant injury, consistent w/
statutory obligations & community expectations.
11
18



Unless person needs help due to your negligence
No duty to help with dangers not of own creation
Legislation sometimes overrides the general rule
o In certain situations, certain professionals are req’d to help
 In cases of misfeasance, where  is injured, reasonable foreseeability of injury is generally
sufficient to establish proximity. [established in Cooper; restated in Childs]
 In nonfeasance cases, reasonable foreseeability is not enough to ground a duty: must consider
proximity, go to the previously recognized categories of duty in nonfeasance [as laid out in Childs,
below].
Type of Duty: Duty of Affirmative/Positive Action
 History:
 Early 20th C: strict judicial policy against positive action duty
 Osterlind v. Hill13
 Vanvalkenburg v. Northern Navigation Co14
 Requisite foreseeability present, but judicial policy strongly opposed to enforcing
legal duties of affirmative action
 Shift in later 20th C: still no general duty, but now duty applied where “special relationship” exists
b/w  and ∆
 Some examples of requisite special relationship:
 Contractual/quasi-contractual, e.g. employer/employee
 Fiduciary, e.g, parent/child
 Professional, e.g. doctor/patient
 Rel’ships of authority, supervision or control, e.g. teacher/student,
custodian/prisoner
 Occupier and visitor
 Professional rescuers and ppl in danger, e.g. emergency personnel/citizens
 Common feature: person on whom duty is imposed has/had some power to limit the injury
 SCC overruled Vanvalkenburg in 1971, finding that owner/operator of pleasure boat has a
legal duty to take reasonable steps to rescue passenger who falls overboard, even through no
fault of ∆. [Horsley v. McLaren]
 Courts are more likely to impose duty where ∆ benefited from  activity [Jordan House15]
 Key characteristics to consider when assessing presence of special relationship (from Osborne,
cases):
 ∆ authority/ctrl/supervision of ∆ over  activity [Crocker v. Sundance16]
Osterlind v. Hill (Massachusetts, 1928): Osterlind, obviously intoxicated, rented canoe from ∆. Canoe
overturned, O shouted for help and ∆ ignored him for 30 mins until he drowned. Held: no legal duty – not
obliged to take reasonable steps to rescue.
14
Vanvalkenburg v. Northern Navigation Co. (1913, ONCA): Captain of a ship has no legal duty to
rescue an employee who falls overboard.
15
Jordan House v. Menow (1973, SCC): Court imposed duty of care on ∆ bar owner who ejected
intoxicated patron, who was then hit by a car. ∆ habits/circumstances were well known by bar owners/staff,
also derived benefit from serving alcohol & invited  in - which constituted the requisite special
relationship.
16
Crocker v. Sundance Northwest Resorts Ltd. (1988, SCC): ∆ held an inner tube ski-hill race; intoxicated
 participated, rendered quadriplegic. Signed waiver, but TJ found he didn’t read it.  was asked if still ok
to compete, said yes; fell down at beginning of race, lost inner tube and organizers got him another.
Manager suggested racing was a bad idea, but no positive steps taken to stop him. Held: Duty of care based
on special rel’ship.  25% contributorily negligent.
13
19
 Inherent danger, ∆ knowledge of  state (i.e. incapacity)
 ∆ commercial/promotional interest
 Implied assumption of  safety, trust/reliance expertise/competence reasonably expected of
someone in ∆ pos’n by someone in  pos’n [Horsley v. McLaren] ∆
 Close family/personal bonds
 Voluntary assumption of responsibility for  by ∆
 Commercial/economic benefits ∆ derives from rel’ship w/ 
 Reasonable reliance/dependence by  on
 Special expertise of ∆ (e.g. relating to emergency/rescue operations)
 Extent of any burden on ∆
 Direct or indirect contribution of ∆ to  peril
 Statutory obligations on ∆
 Comparison of cost to ∆ of affirmative action w/ extent of benefit conferred on 
 Commercial hosts owe a positive duty to third parties with respect to the actions of an intoxicated
person who became drunk at ∆ premises, even if harmful actions occur after person leaves
premises. [Stewart v. Pettie.17]
 Based on rel’ship of commercial host & customer, combined w/ reasonable foreseeability of
harm to innocent third parties
 Duty to take reasonable steps to control intoxicated customer, or otherwise protect innocent
parties.
 Social hosts of private, BYOB parties do not owe a duty of care to third parties injured by
intoxicated guests driving home from the party, particularly when hosts did not know guest was
intoxicated. [Childs v. Desormeaux18]
 Three views on liability of voluntary rescuers, with no initial or threshold duty
 1) it would be wrong to impose obligation – policy against penalizing altruism
 2) Liability should be restricted to times when ∆ made  situation worse
 Whether by add’l damage, or by causing other rescuers to turn away and then
abandoning the attempt
 3) Once rescue attempt is commenced, ∆ owes usual duty of care
 Most consistent w/ modern negligence law
 ‘Good Samaritan’ laws enacted to protect against this kind of liability (implying it
exists)
 Three established classes of duty of affirmative action [Childs v. Desormeaux]
o 1) ∆ intentionally invites third parties to an inherent/obvious risk they have created or
contributed to. [e.g. Crocker v. Sundance]
o 2) Paternalistic rel’ships of supervision/control, creating an imbalance of power/vulnerability
(e.g. parent/child)
o 3) ∆ offer services to general public, including responsibilities to act to minimize risk to
users of these services [e.g. Jordan House]
 Policy reasons for enforcing positive duty:
o ∆ must be materially implicated in risk to 
o Concern for autonomy of ppl affected by positive action req’mts
Stewart v. Pettie:  injured in car accident caused by her drunk brother. Action against bar that served
him. Held: duty of care owed. No breach of std:  had sufficient proximity to brother, restaurant
reasonably assumed one of the sober ppl would drive. Also no causation:  chose to get in car w/
intoxicated driver, therefore inaction on part of defendant not necessarily the cause of her injury.
18
Childs v. Desormeaux:  action against social hosts of private BYOB party at which ∆ became
intoxicated and then drove and hit her. First time the Anns/Cooper test was applied to a duty of affirmative
action.
17
20
o
“Reasonable reliance: – when  would reasonably rely on ∆ to ensure safety or undertake
rescue if problems arise
Duty to Warn – Manufacturers





Another positive obligation to act
Manufacturers have a duty to design/produce products in a safe manner
Donoghue v. Stevenson is a manufacturer’s duty case – later courts chose to apply it across
negligence law.
Product warnings
o Manufacturer has a duty to warn about products that pass through experts.
o So – must provide info both to physician and to public
Subjective test for causation in manufacturer warning cases [Hollis v. Dow.19]
o If  can show that she personally wouldn’t have agreed to procedure if she had been
properly warned, will succeed on causation question.
Duty to Warn – Medical Practitioners





Medical practitioners have a duty to perform non-negligent treatment
Also: duty to warn of risks of treatment
o Material, special, unusual.
 Anything more than a “mere” risk must be disclosed [Reibl v. Hughes20; see also
Brito v. Woolley.21]
o Greater onus on surgeon to disclose when a surgery is elective (lots of leeway given for
emergency procedures)
o Where there are multiple ways to perform procedure, must advise about all procedures, all
risks. [Van Mol.22]
Where incorrect or insufficient information is given before treatment, the  has action only in
negligence, not in battery. [Reibl v. Hughes]
To obtain damages for breach of medical duty to warn,  must prove: [Reibl v. Hughes]
o 1) Not warned of material risks
o 2) Given warning, wouldn’t have proceeded with treatment at that time.
Patient must communicate concerns and reasons to doctor before treatment if they are of a nature
not obviously foreseeable to the doctor [Videto v. Kennedy.23]
Hollis v. Dow:  got implants to correct malformed breasts. Rupture, ongoing physical and psychological
problems. Manufacturer turned out to have known about the risk, which it did not convey. Held: ∆ owed a
duty, breached std by not properly communicating it to  or a doctor (learned intermediary). Subjective
causation showed  wouldn’t have consented given proper warning, damages awarded.
20
Reibl v. Hughes (UK): 10% risk of stroke not disclosed, materialized.  argued if warned he would have
waited until his pension vested in a year and a half, before having the surgery. Held:  successfully proved
causation, damages awarded.
21
Brito v. Woolley:  not advised of 1-3% risk of umbilical cord prolapse, which if it materializes has a 510% risk of causing death/brain injury to baby due to oxygen deprivation. Materialized.  argues she would
have had C-Section instead if warned of risk. Held: Material risk, should have been disclosed, but no
causation: given risk attached to C-Section, &  situation,  would likely have followed advice of doctors.
22
Van Mol: 3 ways to perform surgery,  only advised of one. Another would have been safer, but surgeon
wasn’t as familiar because it was regularly practiced by much younger surgeons. Held:  successful on
causation argument: would have gone with safer surgery, if properly informed.
23
Videto v. Kennedy: Sterilization procedure -  catholic, wants to keep it secret so concerned about a
visible scar. Not advised of risk of bowel perforation, which materializes, resulting in larger surgery and
scar. Held: no indication doctor knew/should have known about  serious concern about scarring. Chance
19
21
o

Duty of surgeon becomes stronger when they ought to have known that the particular risk
would be important to the patient (i.e. through patient’s questioning or general knowledge of
the patient.)
Suggestion that psychological harm of disclosing risk to patient might outweigh the duty of
disclosing the risk [Reibl v. Hughes]  but no Canadian cases on this.
Duty to Rescue

Historically, boat operators were only obligated to rescue if there was misfeasance (i.e. if their
negligence had caused the person’s peril)
 SCC created a new exception to the nonfeasance rule in 1971, covering boat operators [Horsley v.
MacLaren.24]
o Boat operators, whether recreational or commercial, must rescue anyone who falls
overboard, regardless of what made them fall.
o Previous recognized duty to rescuers when ∆ through their negligence had put themselves or
a third party in danger.  Expands here to cover duty of first rescuer to second rescuer,
arising out of a negligent rescue attempt by first rescuer.
 Good Samaritan Act, 1996
o Aims to protect medical professionals and laypeople who stop and help
o Will only be found liable for damages if they were grossly negligent
o Paramedics on the job aren’t covered  i.e. doesn’t cover ppl who are employed to give the
service and working at giving the service at the time
o Off-duty professionals are covered
o Question of gross negligence depends on level of expertise
o Lowers std of care, b/c ppl weren’t rescuing due to high liability
Standard of Care




Once duty of care is established,  must prove that ∆ breached the standard of care
Did ∆ not do what a reasonable person would have done in those circumstances?   must prove ∆
departed from standard of reasonableness
Objective ‘reasonable person’ standard – was the risk of such nature and degree that a reasonable
person would have taken precautions against it? [Bolton v. Stone.25]
Unreasonable risk
o Risk of harm must be unreasonable
o Court will consider dangerousness of activity vs. social utility
o Four categories to consider:
 Probability of harm (risk of injury)
 Seriousness/gravity of loss/injury
of scar wasn’t a material risk that needed to be disclosed.  asked about risk of scar but didn’t communicate
degree of concern or reasons. Court implied  would have been successful if she had sued on bowel
perforation issue.
24
Horsley v. MacLaren (1971, SCC): ∆ and guests out on his yacht for a cruise on lake. One man fell in,
Horsley jumped in to save him. ∆ didn’t follow proper rescue procedures. Held: ∆ owed duty of care to
second rescuer due to his negligence in failing to follow proper rescue procedures.
25
Bolton v. Stone: Cricket game, ball hit out into road injures . Held: HL found ∆ cricket club not liable,
because the risk was so low that an ordinary careful person would not have taken greater remedial measures
than were already in place (had a fence).
22



When probability is low, but severity is high, cts more likely to impose
liability. [Paris v. Stepney Borough Council.26]
Cost of remedial measures [See Paris v. Stepney Borough Council]
 Remedial measures/cost-benefit analysis [see Rentway Canada v.
Laidlaw27]
 Learned Hand Formula
o P (probability of injury)
o L (degree of loss)
o B (burden – cost of precautions to prevent)
o If P x L < B, then no liability
o If P x L > B, then liability.
Usefulness of activity
 Exposing others to risk may be justifiable depending on social importance of
the activity they are undertaking, and the consequences of not pursuing that
activity [Watt v. Hertfordshire.28]
Indices of Reasonableness
Custom





Aka general/common practice.
Courts look for signs that adherence to custom is evidence that ∆ is behaving correctly.
Courts will assess whether to follow custom by looking to:
o Universality
o How long it has been followed
o Status/expertise of profession (if applicable)
o Degree of difficulty of task at issue
o Evidence of additional precautions that might have been available
Approved practices used to be inherently sufficient, but now courts will consider them as one factor
in whether behaviour was reasonable
Courts are more likely to accept industry customs/practices [Brown.29] than local customs [Waldick
v. Malcolm.30]
Paris v. Stepney Borough Council: , who had only one eye, worked in ∆ garage. ∆ did not supply
goggles (not their normal practice).  had accident and lost vision in remaining eye. Held: HL found 
known disability increased the risk of serious injury should an accident occur. Higher std of care owed to
an employee w/ only one eye. Would have been simple & inexpensive to provide goggles.
27
Rentway Canada Ltd. v. Laidlaw Transport Ltd.: Trucks crash on highway,  sues ∆ for costs of
vehicle. ∆ argues design defect in headlights caused/contributed to accident. 3 rd party mfctrer argues no
defect. Held: ∆ unable to prove defect caused/contributed to accident. Cost-benefit: risk far outweighs any
utility. Cost of fixing defect would have been relatively small cp to cost of entire tractor-trailer.
28
Watt v. Hertfordshire: ∆ fire stn had jack on loan (rarely used), and only one vehicle was fitted to use it.
That vehicle was out of the stn, and an emergency arose. While going to the rescue the jack slipped in the
unfitted car and injured a firefighter.  argues that ∆ had duty to have properly outfitted vehicles because
they had a jack. Held: Purpose of saving a life – can’t say that ∆ had a duty not to take the jack for a short
journey in unfitted vehicle.
29
Brown:  contracted dermatitis, argued it was because ∆ failed to provide him with barrier cream.  led
evidence that providing cream was industry practice. Held: Failed to prove failure to provide cream caused
the dermatitis; also ∆ had relied on medical advice not to provide barrier cream.
30
Waldick v. Malcolm:  slips and falls on ice on ∆ property, argues ∆ negligent in not salting/sanding ice.
Counter: local custom was not to salt/sand ice, rural area. Held: just because everyone does something
26
23


If  leads evidence of a custom, it will be up to ∆ to show why they didn’t follow it. [Waldick v.
Malcolm]
For parties to rely on a custom/practice, they must prove
o (a) it is a general practice, and
o (b) it is a reasonable one.
Statutory Standards




Some statutes create offences (fines) for breaching), and a private law remedy
o E.g. Business Practices and Consumer Protection Act s. 171: expressly permits
debtor to sue for damages.
o This is unusual, though – most statutes just set out the rules
There is no nominate tort of statutory breach in Canada [Canada v. Saskatchewan Wheat
Pool.31]
o However, the statutory formulation of the duty may afford a specific, and useful,
standard of reasonable conduct.
Limitations of relying on statute: [Gorris v. Scott.32]
o 1) ∆ conduct must be in violation of statute
o 2) ∆ breach must cause  loss
o 3) Statute must have been intended to safeguard the kind of loss complained of
o 4)  must be part of class of intended beneficiaries of legislative duties.
Compliance with statute does not necessarily indicate that due care was taken [Ryan v.
Victoria (City).33]
o The relevance of compliance depends on the nature and circumstances of the case.
Professional Standards


Professionals will be held to reasonable std of behaviour of a person in that
profession/vocation in those circumstances
Lawyers:
o A lawyer “must have a sufficient knowledge of the fundamental issues or principles
of law applicable to the particular work he has undertaken to enable him to perceive
the need to ascertain the law on relevant points.” [Central Trust Co. v. Rafuse]
o “Obligation of a solicitor to exercise due care in protecting the interests of a client
who is a purchaser in a real estate transaction will have been discharged if he has
acted in accordance with the general and approved practice followed by solicitors
unless such practice is inconsistent with prudent precautions against a known risk, as
where particular instructions are given which the solicitor fails to carry out…”
[Brenner v. Gregory]
negligent doesn’t make it acceptable – custom itself must be reasonable. Also, no evidence that it was a
custom, beyond ∆ claim.
31
Canada v. Saskatchewan Wheat Pool (1983, SCC):  Cdn wheat board; ∆ grain dealer delivered
infested grain, contrary to statute. No fault, so no negligence claim. Pure economic loss. Held: Breach of
the Act doesn’t confer a civil right of action. Contrary to fault-based tort system.
32
Gorris v. Scott (1874, Exch. Ct.): Sheep on ship not stored according to statute, swept overboard b/c
pens not properly secured to deck.  argues std of care was to have cages secured. Held:  cannot rely on
statute to establish liability. Object of statute doesn’t relate to damage done – negligent act has to have been
the type that the statute was meant to prevent.
33
Ryan v. Victoria (City) (1999, SCC):  injured when motorcycle tire caught in flangeway gap – sues
railway. ∆ argued met city stds, which had previously been sufficient defence. Held: Statutory and common
law are concurrent stds, both of which railway must meet.
24
o

Standard is reasonable – errors do not have to be egregious to amount to negligence.
[Folland v. Reardon.34]
Doctors
o Professionals will be held to standard of specialty – lawyers tend to focus in specific
areas, whereas doctors are supposed to have better general medical knowledge.
o If a risk is not well known, doctors may not be negligent for failing to test against it.
[Ter Neuzen v. Korn.35]
Reasonable Person Test



Objective standard – “reasonable man” [Vaughan v. Menlove.36].
Reasonable person is:
o Assumed to know that gravity will make things fall, water make things slippery, etc.
o Assessed objectively, based on circumstances
 If you have knowledge related to experience, the specialized knowledge
won’t be assessed, but people are expected to know limits of their knowledge
(i.e. can be found negligent for trying and failing to implement specialized
knowledge)
o Fictitious – not to be determined by judge/jury putting themselves in pos’n of ∆
o Amenable to good faith efforts to incorporate alternative perspectives into the
objective test.
People are expected to live up to a std of care that will protect blind people as well as sighted
people [Haley v. London Electricity Board.37]
Special Standards: Children


Mixed objective/subjective test
o Step 1) Could that specific child be negligent (i.e. given age/intelligence/experience)
o Step 2) Determine standard of care of a reasonable child of that
age/intelligence/experience [Heisler v. Moke38]
 Since children develop at different rates, must look more closely
 Young children less likely to be held to high std.
Adult activities:
Folland v. Reardon:  wrongfully convicted & imprisoned, lawyer found negligent. Std isn’t whether
lawyer was egregious, it’s a question of reasonableness.
35
Ter Neuzen v. Korn (1995, SCC):  artificially inseminated, contracted HIV from infected sperm. Risk
wasn’t well known at the time. Held: ∆ not negligent in failing to test donor sperm, as risk of HIV infection
was unforeseeable.
36
Vaughan v. Menlove: ∆ owns land on which he kept hay bricks, failed to take adequate precautions to
prevent them from catching fire. Had been warned but chose to take risk instead of taking them down.
Argued reasonable person std incorrect, should simply ask whether ∆ acted with honesty and bona fide
judgement. Held: objective, reasonable person test is appropriate.
37
Haley v. London Electricity Board (1964): Blind man, using a cane and walking a familiar route, was
injured by falling into hole due to unsafe marker put up by ∆, doing construction on street. ∆ argued 
assumed risk of injury by walking on road alone – argued std of care was for a “normal person”, and that
they had discharged this. Held: Reasonably foreseeable that a blind person could come along, std req’d to
warn blind ppl as well as sighted.
38
Heisler v. Moke: Question of contributory negligence – child had injured leg, pushed down on tractor
clutch while holding steering wheel. Held: Not negligent – couldn’t have expected him to know that this
would further injure him.
34
25
o
When children undertake adult activities, people around them expect to be dealing
with adults, so they’re held to objective adult reasonable person std. [Pope v. RGC;39
Nespolon v. Alford.40]
 E.g. driving a car – other drivers expect car drivers to be adults/behave
according to same std.
Defences




No volition [Stokes v. Carlson41; Slattery v. Haley42]
Capacity
o ∆ cannot understand/appreciate consequences of conduct
Courts often conflate volition and capacity, making distinction difficult.
Mental illness cases:
o ∆ cannot control impulse to act, but may be able to understand consequences of
action
o Sometimes conflates/confuses volition and capacity defences
o Onus on ∆ to prove their illness negated ability to act in accordance w/ std of care
o Court must consider:
 1) Whether ∆ was able to understand/appreciate duty of care
 2) Whether ∆ was able to act in accordance w/ the std of care
 Proving either of these will relieve from liability [Fiala v. Cechmanek.43]
Causation



Factual causation vs. legal causation:
o Factual: did ∆ cause damage? (Causation category)
o Legal causation: should ∆ be liable for damage they have factually caused?
(Remoteness category)
Where there is uncertainty as to factual causation, courts grapple with question of
compensation vs. fault.
Causation is important in a fault-based system – if no fault were required, then cause would
not matter, only injury.
Traditional Test: “But For”

Primary test for causation in negligence [Resurfice Corp. v. Hanke.44]
Pope v. RGC (2002, ABQB): 12 year old ∆, injured  w/ golf ball. Golf is an adult activity, ∆ given
rights of adulthood and should thus be held to the usual std.
40
Nespolon v. Alford: drunk 14 yr old asks 16 yr old friends to be let out of car. They let him out, 14 yr old
ultimately gets hit by a car. The motorist suffers PTSD, sues victim’s estate, and the friends who let him
out of car. Held: not an adult std of care – driving is, but dropping someone off is not. No reason to hold the
boys to the adult std. Not reasonable to foresee the risk of injury to  driver.
41
Stokes v. Carlson (US): ∆ in backseat pushes driver’s seat fwd, causing  to lose control of car. No
volition.
42
Slattery v. Haley: ∆ had heart attack, loses ctrl of wheel. NB: will hold ∆ responsible for this if they
knew the risk, or especially if they had felt symptoms or been told not to drive.
43
Fiala v. Cechmanek (2001, ABCA): ∆ manic behaviour – first episode one morning while running, leapt
onto passing car and attacked driver. Held: mental illness prevented ∆ from understanding
risks/consequences, and from behaving according to std.
44
Resurfice Corp. v. Hanke (2007, SCC):  worker burned when tube was attached to gas intake instead of
water intake. Argued manufacturer caused it because the inputs were too close too similar looking. Held:
failed on ‘but for’ test. Material contribution does not apply.
39
26





 must show that the injury would not have occurred, but for ∆ conduct  then ∆ has caused
the loss. [Athey v. Leonati45]
o If damage would have occurred anyway, ∆ won’t be liable.
Test:
o 1) Identify harm (damage)
o 2) Isolate acts of ∆ that were negligent
o 3) Adjust ∆ conduct to std of care
o 4) On the adjusted facts, would harm have occurred?
General Rule:  must prove causation on balance of probabilities
o If  can only prove ∆ conduct was a possible cause, will fail ‘but for’ test.
o Does not have to prove w/ scientific precision – can be common sense
 doesn’t have to show ∆ was the only cause of the damage
o Sufficient so long as ∆ is part of the cause (beyond de minimis range), even if their
act alone didn’t cause the damage (e.g. lighted match + paper in wastebasket)  
must prove ∆ caused or contributed to  injury. [Snell v. Farrell.46]
o ‘sufficient connection/contribution’
If ∆ is only tortious cause, will be liable for 100%
o If there is more than one tortious cause, then liability will be apportioned among the
tortious causes. (consider J&S liability – could be joint tortfeasors)
When ‘But For’ Test Doesn’t Apply:


Sometimes  can’t prove ‘but for’  e.g. in medical malpractice suits
o Access to evidence issues - ∆ often has the evidence.
Courts may want to find a way to shift onus to ∆ to disprove causation, but technically the
burden of proof remains on the  to prove – though it will sometimes be relaxed. [Snell v.
Farrell]
Inference of Causation  Part of But For test (a ‘relaxation’ of the usual standard)

One option is to have  show enough evidence of causation that the court can comfortably
infer causation. [Snell v. Farrell]
o Policy concern against depriving victims of relief when proving the ‘but for’ test is
too difficult  when they can’t prove causation even though it exists
o Medical causation  doctors are usually in better pos’n than patients to know cause
of injury; argument for allocating burden of proof to ∆.
Alternative Liability

When  cannot prove which of two independent wrongdoers acting simultaneously caused
the harm (when one of them caused it), both will be held liable. [Cook v. Lewis.47]
Athey v. Leonati (1966, SCC):  in two successive car accidents, then herniated a disc due to
combination of accidents & pre-existing disposition. Held: loss apportioned b/w materially (sufficiently)
contributing tortious causes. (i.e. beyond de minimis)
46
Snell v. Farrell (1990, SCC):  blind in one eye after operation by ∆ ophthalmologist. Uncertain whether
∆ actions or pre-existing cond’n caused the atrophy of optic nerve. Held: although burden of proof remains
on , relaxed: must show enough evidence of causation that court can infer causation. Based on timing of
injury, and atrophy only being in one eye, ct inferred that it was not a natural cause, more likely Dr’s fault.
47
Cook v. Lewis: ∆ hunting together, both shot in direction of , one of them accidentally shot  in face,
couldn’t determine which one. Held: both liable. If both ∆s’ acts are tainted w/ negligence, burden to prove
one or the other had sole responsibility.
45
27
Market Share Liability




Where  cannot prove which of several manufacturers caused an injury, court may assign
liability among ∆s based on proportionate market share of the injurious product. [Sindell v.
Abbott Laboratories (US)48]
Criticism: unreasonable overreaction to achieve a socially satisfactory result.
Probably not going to apply in Canada
Material Contribution Test








UK test
Never applied in Canada (though potentially possible – see Walker Estate.49]
Does not prove causation  not a framework for a balance of probabilities finding
Creates basis for finding legal causation where ∆ negligence could have been a cause
[McGhee;50 Wilsher;51 Fairchild;52 Barker v. Corus53 – all UK]
If ∆ materially increases the risk, and risk materializes, then ∆ action could have been a
cause.
Special circumstances in which material contribution test can be used: [Resurfice Corp.]
o 1) Must be impossible for  to prove ∆ causation, due to factors beyond  ctrl
o 2) ∆ must have breached a duty of care owed to , and in doing so exposed  to
unreasonable risk of injury, and  has to have suffered that injury.
  injury must fall w/in ambit of risk created by ∆.
Circular causation
o Material contribution test can still be applied if both ∆s materially increased the risk
(e.g. Cook v. Lewis)
o Question is not how much did each contribute, but which one caused
Issues of dependency causation – may be impossible to prove causal chain if ∆ hadn’t acted
as they did.
Causation in Context of Duty to Warn
Sindell v. Abbott Laboratories: Class action suit – s injured by drug, but can’t prove which of 11 mfters
caused the injury. Held: liability apportioned based on market share.
49
Walker Estate v. York Finch General Hospital: Negligent screening of blood donors,  contracted
AIDS. Ct compares Cdn pamphlet w/ equivalent US one, finds US warned properly so Cdn one breached
std of care. ‘But for’ test doesn’t apply, can’t prove what a donor would have done if warned. Considers
material contribution test and sets precedent for application in Canada, but does not technically apply.
50
McGhee (1972): Worker contracted dermatitis from dusty brick kiln. ∆ employer didn’t provide showers,
 would bike home before showering. Unclear whether added exposure from delay due to lack of onsite
showers was the cause. Held: ∆ materially increased the risk by not providing showers.
51
Wilsher (1988): Newborn baby given excessive oxygen. Could have been other causes of injury.  uses
McGhee to argue material increase in risk. Held: McGhee didn’t create new causation principle, just
allowed inference of causation. ∆ not liable, as can’t infer causation from these facts.
52
Fairchild (2002):  sequential exposure to asbestos dust at work, with more than one employer over
lifetime. Which caused mesothelioma? Held: McGhee set out new principle: liability where ∆ “materially
increases the risk”. Finds all ∆s J&S liable, on this basis. NB:  has not proved which ∆ caused injury.
53
Barker v. Corus (2006, HL): Tortious and non-tortious exposures: worked for employers who
negligently exposed them to asbestos, and also self-employed – exposed selves. Held: Fairchild exception
applied in terms of causation: ct finds all parties severally liable. Reduces  ability to recover. Public
controversy, Parliament legislated to impose J&S liability in these situations.
48
28

Risks must be communicated to  so they understand them [Martin v. Capital Health
Authority54; Chester.55]
Remoteness
General Info









∆ breach of duty must be a legal cause of  injury
o i.e. injury must not be too remote from ∆ negligent conduct
Remoteness req’mt allows courts to determine whether it is fair to hold ∆ liable for  injury,
notwithstanding established negligence
In remoteness analysis, court accepts that ∆ had duty of care, breached std of care, caused the
damage  but asks whether it is fair to hold ∆ liable for this particular injury
Courts use remoteness to limit liability
o Same way they use duty; same kind of language of foreseeability etc. in both
analyses
In Palsgraf the majority used duty to limit liability, whereas the dissent would have used
remoteness.
When ∆ not held liable due to remoteness, usually because of bizarre chain of events,
meaning that the injury was such an unreasonable consequence.
Court will consider:
o Common sense
o Pragmatics
o Politics
Historically: Directness Test [Polemis.56]
o Court held ∆ liable for all damage directly flowing from negligent act – basically
same as trespass.
Current rule: Reasonable Foreseeability Test
o Party can only be held liable for damage that was reasonably foreseeable
consequence of their negligence. [Overseas Tankship (UK) Ltd. v. Morts Dock &
Engineering Company Ltd. (The Wagon Mound No. 1)57]
Type of Damage

∆ doesn’t have to foresee the mechanics of the damage, or the precise incarnation of it, so
long as the general type of damage was foreseeable. [Hughes v. Lord Advocate.58]
Martin v. Capital Health Authority (2007, ABQB): Bleeding in brain communicated,  didn’t
understand risk of stroke. Risk materialized.  proved would have waited until after daughter’s wedding. ∆
argues that injury would thus have happened later regardless, so breach didn’t cause the injury. Held: ∆
argument assumes the risk would have materialized at the later date – can’t speculate. CA found for ∆ on
the warning issue, but causation still fails.
55
Chester: same general facts as Martin. ∆ argues similarly as to causation, but argues should only be
liable if  would never have consented to surgery.
56
Polemis (1921): Group unloading ship, caused fire by dropping plank into hole. Foreseeable that in
dropping plank they would cause some damage – doesn’t matter that fire wasn’t reasonably foreseeable.
57
The Wagon Mound No. 1 (1961, PC): ∆ damage to  wharf & equipment b/c worker negligently caused
oil spill, which was then lit on fire. Held: Damage too remote - ∆ could not have foreseen that oil on water
could light on fire.
58
Hughes v. Lord Advocate (1963, HL):  children playing, entered unattended canvas shelter. Tripped,
lamp fell over into open manhole, boy ended up in manhole and was burned by paraffin vapour explosion.
Held: Damage not too remote – foreseeable that if left unattended, children might enter tent, and get hurt
54
29

Doesn’t matter if the precise flow of events isn’t foreseeable, so long as there is a chain of
foreseeable circumstances [Assiniboine School Division No. 3 v. Hoffer.59; Lauritzen v.
Barstead60]
Thin Skull Rule



An exception to the general Reasonable Foreseeability Test
Once harm to  is foreseeable, ∆ may be liable for all consequences of negligence, even if the
injury was unexpectedly severe, or exacerbated due to  existing susceptibility.
Tortfeasor must take victim as he finds him. [Bishop v. Arts & Letters Club of Toronto.61]
Crumbling Skull Rule




Distinguishing from Thin Skull Rule
Relates to assessing damages – as opposed to Thin Skull Rule, which relates to assessing
liability
“Recognizes that the pre-existing condition was inherent in  original position” [Athey v.
Leonati – defined, not applied]
∆ does not have to put  in better than original pos’n
o i.e., ∆ liable for additional damage, but not pre-existing damage.
o ∆ does not have to compensate  for debilitating effects that  would have suffered
anyway.
Intervening Factors/Events: Novus Actus Interveniens


Scenario: ∆ negligent, but act of  or 3rd party intervenes in chain of causation
Should ∆ be held liable where a subsequent event causes/exacerbates  injury?
o Depends on whether the intervening act was a reasonably foreseeable consequence of
∆ negligence [See e.g. Bradford v. Kanellos.62]
somehow. “type/kind of accident” reasonably foreseeable. Simply one way in which  could have been
burned by the lamp.
59
Assiniboine School Division No. 3 v. Hoffer (1971, Man CA): ∆ father & 14 yr old son altered autotoboggan so son could turn it on, using own method. Son drove it into gas riser pipe servicing school. Gas
released, moved into boiler room and ultimately caused an explosion, extensive damage to school. Held:
reasonably foreseeable – sufficient “if one could foresee in a general way the sort of thing that happened.”
Extent and manner of incidence need not be foreseeable so long as the kind of physical damage was.
60
Lauritzen v. Barstead:  caught right w/ ∆ foreman, ∆ got drunk and  drove back, ∆ caused car to go
into ditch. Stuck from Saturday until Monday morning, both of  feet had to be amputated. Also, wife left
him b/c he was a cripple. Held: ∆ liable for amputation, not loss of marriage. Chain of causation - 
intervening acts were what reasonable person would have done. ∆ consequences foreseeable. Wife leaving
 too remote – no compensation for loss of consortium.
61
Bishop v. Arts and Letters Club of Toronto:  fell while leaving ∆ premises. Weighted door closer
wasn’t working, no one told  and he used considerable force to open the exit door, resulting in a fall.
Injuries exacerbated by pre-existing condition. Held: ∆ liable for all damage.  suffering directly
attributable to ∆ negligence.
62
Bradford v. Kanellos (c.o.b. Astor Delicatessen & Steak House) (1974, SCC): Grease fire negligently
started in restaurant, extinguisher set off and the noise scared people, causing a shout of “gas” and a rush to
the door, in which elderly  was trampled and injured. Held: Shout of “gas” was an intervening act, not
w/in scope of risk.
30



If people in the same context would generally be aware of something, then it will not count as
a novus actus interveniens [Smith v. Inglis Ltd.63]
Manufacturers have a duty to third parties not to sell products to someone if they know the
product will be used in an unsafe manner. [Good-Wear Treaders v. D&B Holdings Ltd.64]
If ∆ is working in a house, and leaves without locking the door, ∆ will be liable for robbery
committed while leaving house unattended. [Stansbie v. Troman.65]
Medical Errors



If a  undergoes medical treatment as a result of injury caused by ∆, and the medical
treatment is negligent, then it counts as an intervening act – not contemplated w/in scope of
risk.
However, if the errors/complications don’t meet the threshold for negligence, then they aren’t
intervening acts, and ∆ will be liable for all consequences.
See Katzman.66
Pure Psychiatric Harm



Reluctance:
o General sense that ppl are in command of psychiatric well being, and if suffer psych
harm b/c of ∆ negligent act not ∆ fault
o Much more reluctant to recognize as not  fault than physical injury
Requirements:
o Limitation: ordinary grief/sorrow not compensable
o  must suffer recognized psychiatric injury
o Scope of foreseeability: must be reasonably foreseeable to ∆ that conduct would
cause injury to person of ordinary fortitude
 If ∆ knew about  susceptibility, probably reasonably foreseeable.
Proximity:
o Test for liability nervous shock is reasonable foreseeability [King]
 Court will look for recognized psych injury and a sufficiently shocking
event.
o McLoughlin:
 Class of persons – unless exceptional situation, typically only close family
members will suffice
  must have close temporal and spatial proximity to the accident
Smith v. Inglis Ltd. (1978, NSSC):  suffered electric shock when touching fridge and oven, due to two
defects: faulty wiring, but also fridge wasn’t properly grounded – grounding prong removed by delivery
person (b/c no third hold in outlet?) independent of seller. Held: because everyone in the business knew
about the two-prong issue, not an intervening act – w/in scope of risk.
64
Good-Wear Treaders Ltd. v. D & B Holdings Ltd. et al (1979, NSCA): Wife action for death of family
in car accident. Good-Wear sold tires to truck company, knowing they would be used on public hwy
carrying load that was too heavy. Gave warning, argued thus shouldn’t be liable. Held: Warning only
protected against suit by driver or truck company, but not w/ respect to other users of the hwy. Duty to 
not to sell tires they knew were going to be used in that way.
65
Stansbie v. Troman: ∆ decorator leaves house w/ door unlocked, while ∆ is gone a thief comes and robs
the house. Held: Theft was a direct result of ∆ negligence in leaving house unlocked.
66
Katzman (1982):  in car accident, sues driver. Driver tries to establish liability on part of dentist who
treated  after the accident, arguing dentist broke chain of events, making ∆ not liable for damages flowing
from negligent dental treatment. Held: need for dental treatment caused by car accident, ct apportions J&S
liability to dentist and driver.
63
31
Shock can’t be caused by third party – must be caused by  experiencing ∆
negligence
o Three factors limiting recovery for pure psych harm: [White]
  must have close ties of affection to victim
  must be present at accident or immediate aftermath
 Psych injury must be caused by accident or immediate aftermath
o [Per Devji]
 Relational proximity
 Often restricted to close family members
 Temporal proximity
 Between negligence and psychiatric injury
 Locational proximity
 People who are informed of the accident or see it in the media are
usually excluded  must be at the scene or immediate aftermath
[Alcott.67]
Type of Harm
o In addition to proximity,  must be exposed to some experience of alarming,
horrifying, shocking or frightening nature, to merit damages (as opposed to
misfortune, sorrow or grief [Rhodes]
 Fright/terror that could leave scars on the mind
o Must be more than surprise of natural emotional responses that follow difficult
situation [Devji]
o Compensable psychological injury must be serious and prolonged and rise above
ordinary annoyances, fears, anxieties [Mustapha]
Types of Cases
o  = witness to negligent act (or aftermath) [Devji68]
o  suffers injury as result of negligent act [Mustapha69]
NB: Thin skull rule does not apply until liability has been established; it alters the quantum of
damages, not the determination of liability. [See Mustapha]
If  is a primary victim, only physical injury has to be reasonably foreseeable, and  can get
damages for psychiatric injury as well. [Page v. Smith70]
Psychiatric harm to rescuers:
o Rescuers don’t generally get compensation  floodgates concerns
o Also, if employed as a rescuer, workers’ comp will cover psych injuries as well as
physical.
o Ordinary passerby rescuer: less likely to fulfill the proximity req’mts, unless some
kind of shocking event.






67
Alcott: people who saw accident on live TV not within sight/sound of actual accident, even though
closely related to victims etc.
68
Devji v. Burnaby (District) (1999, BCCA):  daughter killed in car accident when she lost ctrl of vehicle.
(Allegedly due to ∆ negligence, not established at time of this case).  claimed for nervous shock, onset
when they saw the body (which had a small amt of blood visible). Held: Assuming reasonable fortitude,
having been told of her death before going to hospital, psych injury not a reasonably foreseeable result of
shock of seeing body. Ordinary grief & loss only. Also, fails aftermath req’mt.
69
Mustapha v. Culligan of Canada Ltd (2008, SCC):  sees dead flies in water bottle provided by ∆, and
developed major psych disorder. Held: injury too remote. Person of ordinary fortitude would not have had
any injury.
70
Page v. Smith (HL):  doesn’t suffer physical injuries, but trauma of accident triggered onset of latent
psychiatric injury  had for 20 years.
32
Pure Economic Loss



Pure vs. consequential economic loss
o Consequential: when  loses money as result of injury caused by ∆ (i.e. if  has to
take time off work, etc.)
o Pure: no physical injury or property damage – only financial loss
Generally, pure economic loss is not recoverable in tort law
o Doesn’t engage the traditional purposes of tort law
 Consequences to physical autonomy and security
o Fear of indeterminate liability
o Pure economic loss often occurs in a business context
 Should be dealt with in contract
 Blurs lines b/w tort and contract
 Free market: generally acceptable to inflict loss on competitors, shouldn’t be
liable
Categories in which  can recover for pure economic loss (exceptions to the general rule):
o 1) Negligent misrepresentation/misstatements
o 2) Negligent provision of services
o 3) Defective (dangerous) products
o 4) Relational economic loss
o 5) Government/public authority liability
Negligent Misrepresentation




Reasons to pursue in tort over K:
o In K, limitation period starts at time of breach, whereas in tort it might begin later
o Might get more damages in tort than K claim
 can recover for pure economic loss when ∆ made a negligent misrepresentation [Hedley
Byrne.71]
Where a particular breach/wrong supports an action in both negligence and K,  can sue in
either or both, unless K indicates that parties intended to limit/negate the right to sue in tort.
[BG Checo.72]
3 situations that arise where contract and tort are applied to the same wrong (BG Checo):
o A) K stipulates a more stringent obligation than tort law would impose
 Parties are hardly likely to sue in tort, since would recover more under higher
contractual duty.
 Vast majority of commercial transactions.
 May still turn to tort when suit in K is barred by expired limitation period,
etc.
o B) K stipulates a less stringent obligation than tort law would impose
 i.e. parties indicate by their K that the usual liability imposed by tort law is
not to bind them.
Hedley Byrne & Co. v. Heller & Partners Ltd. (1964, HL):  ad agency, K w/ 3rd party to place ads. 
asked its bank to ask 3rd party’s bank (∆) re credit-worthiness. ∆ supports credit-worthiness, but w/
disclaimer agst taking responsibility. Held: Not liable in this case, b/c of disclaimer, but in general a  may
be able to recover in tort for pure economic loss.
72
BG Checo Int’l v. BC Hydro:  bid for K w/ ∆, claimed ∆ represented that they would clear right of way,
which they failed to do, argued would have quoted higher price if properly informed. Held: Can bring the
claim in tort, so long as K does not expressly state nullification of tort liability.
71
33




This intention is most commonly indicated by an exemption/exclusion of
liability clause in the K.
 Generally, duty imposed by tort law can only be nullified by clear terms.
o C) The duty in K and the common law tort duty are co-extensive
  may seek to sue concurrently or alternatively in tort, to secure some
advantage peculiar to tort law, such as a more generous limitation period.
Negligence liability based on five req’mts [Queen v. Cognos Inc. (1993, SCC), adopted from
Hedley Byrne]
o 1) Special rel’ship
o 2) Statement must have been inaccurate, misleading
o 3) ∆ has to have been negligent in making the statement
o 4) Person hearing statement must have reasonably relied on it
o 5) Reliance must have caused financial detriment
Indeterminate liability is the biggest policy concern in negligent misrepresentation cases (i.e.
a reason to negate a duty) [See Hercules v. Ernst & Young.73]
o Time – as time passes, may become harder to establish liability/prove that ∆ was the
negligent actor.
o Number of s
o Cost
Contributory negligence can in some circumstances co-exist with negligent misrepresentation
[Avco v. Norman74]
Negligent Provision of Services





Negligence done through act, not statement
 has relied on ∆ to carefully perform a service
Privity of K is the biggest policy issue influencing these cases, though indeterminate liability
concerns are also present.
 can potentially recover from ∆ when the service was negligently provided to a third party
[Haskett v. Equifax75]
If  has relied on ∆ to perform a service non-negligently, but hasn’t used the service or done
anything to take advantage of it, then  may still recover if he is in the class of people that it
was reasonable for ∆ to contemplate. [BDC Ltd. v. Hofstrand Farms Ltd.76]
Hercules v. Ernst & Young:  customers relied on ∆ audited financial statements, to their detriment.
Held:  didn’t fulfill Cognos req’mts.  fails second stage of Cooper test,  didn’t use statements for
purposes for which they were prepared; would make liability too broad.
74
Avco Financial Services v. Norman (1997):  bank, ∆ second mortgage, didn’t understand the
obligations. Held: Contributory negligence could not coexist with reasonable reliance in this case. On the
facts, ∆ remained negligence after  was no longer misrepresenting anything, so ∆ had to pay deficiency.
75
Haskett v. Equifax Canada Inc. et al (2003, ONCA):  in class action lawsuit against credit reporting
agencies who negligently included pre-bankruptcy debts etc. in credit report. Motion judge threw claim out,
ONCA held: ∆ could owe duty of care, and TJ policy concerns weren’t so overwhelming as to negate any
cause of action against ∆.
76
BDC Ltd. v. Hofstrand Farms Ltd. (1986, SCC): BDC (∆) K w/ Crown to deliver parcel on time. 
needed parcel to be delivered on time to fulfill 3 rd party K. ∆ courier negligently mis-sorted parcel,
delivered late. Held: New duty, rel’ship not sufficiently proximate.  not in class of ppl reasonable for ∆ to
contemplate.
73
34

Lawyers can be liable to third parties for negligent construction of wills. [Wilhelm v.
Hickson.77]
Negligent Supply of Dangerous Products



Shoddy products will not suffice to ground negligence claim. “Real and Substantial Danger”
requirement [Winnipeg Condo Corp No 36 v. Bird Construction Co.78]
No recovery for economic loss for non-dangerous deficiencies in products [Hasegawa v.
Pepsi.79]
NB: courts in Canada have been more open than courts in other jurisdictions to creating
exceptions to the general rule against recovery for pure economic loss.
o However, a desire to avoid further expansion may be apparent in recent cases [See
Design Services Ltd. v. Canada.80]
Government Liability

Liability in negligence for government actors exercising public authority for public purposes causes
particular problems
o Tort law has extended to include government liability to private citizens:
 Hedley Byrne  recognized Pure Economic Loss
 Dorset Yacht  Government can be sued by private citizen
 Crown Proceedings Legislation  allows private parties to bring suit against
government either directly or vicariously
 Specific duties can be created by statute:
 Legislation may impose or exempt liability on the government Just
 If the government actor is created by statute (e.g. municipality) proximity factors
must be found in the statute; i.e. the statute must specify a duty to the claimant
Cooper
o Policy Concerns
 Bad govt. decisions should be dealt with through electoral system, not court
 Govt. is balancing many competing interests
 Govt. may be using special expertise that courts do not have access to in balancing
competing interests
 Govt. actors may fear making vital decisions if liable for them
Wilhelm v. Hickson (2000, SCC): ∆ lawyer didn’t investigate title to land bequest, turned out to be the
incorrect parcel of land. Held: liable, despite policy concerns of privity, indeterminacy, increasing size of
testator’s estate. Professional expectations, and actually determinate b/c ∆ knew who all potential s were
& s can’t sue for more than was in original estate.
78
Winnipeg Condo Corp. No 36 v. Bird Construction Co. (1995, SCC): Action by third party against ∆
contractor for defects in bldg resulting in part of cladding falling down and entire thing req’ing
replacement. As a general rule: ct distinguishes b/w shoddy construction and dangerous construction – must
be dangerous to ground claim. Pure economic loss recoverable in this context. Proactive – shouldn’t have
to wait for an injury.
79
M. Hasegawa & Co. v. Pepsi Bottling Group (Canada) Co. (2002, BCCA):  couldn’t sell water in
Japan b/c of mould in lid (against Japanese regulations). Water was safe for human consumption. Held: ∆
not liable, since no danger.
80
Design Services Ltd. v. Canada (2008, SCC): Tendering process, to design & build. ∆ breach of K 1 by
taking non-compliant bid. One party to K1 recovers damages as the next best.  worked with that party on
the bid, but not technically a joint venture (though needed for the design side of the bid). Held:
Foreseeability √, Proximity √, but  had opportunity to make it a joint venture and chose not to – since 
opted not to use the manner made available for protection in K, can’t in hindsight seek a tort remedy.
77
35

Floodgates argument (ole’ standby)
Operational v. Policy Decisions  Anns/Kamloops, refined in Just

Govt. agencies immune from negligence liability if statutorily exempted or if the decision arose as result
of a policy decision  Just81
Operational
o
o
o
Move to general analysis of standard of care
Action or inaction that is the product of administrative direction, expert or professional opinion,
technical standards or general standards of reasonableness
The manner and quality of an inspection system is operational: Once a policy decision has been
made, the system implementing it must be reasonable (manner) and carried out in a reasonable
and non-negligent way (quality)  Just
Policy
o
o
o
Political decisions have immunity from negligence suits (court does not find itself competent to
question policy decisions made by govt.)
 Examples: allocation of resources, determination of rules, establishment of standards,
decisions that involve economic/social/political factors  Just
However, a policy decision that is not bona fide might be tortious  Roncarelli, Kamloops
Policy decisions can exist within operational decisions
 (i.e.) By-laws = policy, enforcement and inspection = operational, decision to issue
injunction/fine/etc. = low level policy decisions
Cooper test  analysis of govt. liability
o
o

(Stage 1) determine relationship of proximity
 If it is a government actor created by statute  must look to statute (does statute impose
proximity?)
 Proximity will not be found where a private law duty conflicts with the government
body’s “overarching duty” to the public  Cooper
 An individual with a "critical personal interest" in the government’s activity is likely to
be in a proximate relationship (e.g. a suspect in a police investigation who’s been singled
out), even in the absence of representations or reliance  Hill82
(Stage 2) policy v. operational decision
Note: Just seemed to open more ground for govt. liability BUT scope seems narrow
o Brown v. BC  decision to maintain pool grounds to summer standard in winter is policy
decision
81
Just v. BC: heavy snowfall forced man to stop on road, struck by boulder rolling down hill, killed
daughter and injured appellant – Held: new trial ordered, but government can be liable here because once
they decided to spend money on road inspection, the manner of the road inspection became an operational
decision
82
Hill: H brought claim for negligent investigation which led to his wrongful imprisonment for 20 months
– Held: police liable in negligence (prima facie duty of care based on seriousness of issue at stake and
reasonable reliance on police), breach of standard of care (reasonable police officer), no sufficient policy
concerns to negate duty (quasi-judicial function of police not sufficient)
36
o

Swinnemer  decision to inspect and identify dangerous trees was a “preliminary decision”
necessary to make a policy decision
Note: Standard of Care
o once duty of care has been established, the requisite standard of care must be assessed in
light of the surrounding circumstances (budgetary restraints, availability of qualified
personnel and equipment)
The Immunity of Mothers





83
Under Canadian law, foetus and mother are considered one entity until the baby is “born
alive” [Winnipeg Family and Child Services, referenced in Dobson)
For certain purposes, though, the law may recognize that existence began before birth.
o One such instance is the ability to sue third parties for injury/disability suffered by
child as a result of a negligent act of the third party that took place before they were
born. [e.g. Brito]
o But this right only accrues to a child once they are born alive.
Third parties will owe duty of care to a foetus: [Duval v. Seguin.83]
o 1) When ∆ owes duty of care to the mother, (and it is foreseeable that a victim may
be pregnant)
o 2) The child must be born alive to take action.
 An unborn child is w/in foreseeable risk, but when it becomes a living being
with prenatal injuries as a result of ∆ negligence, cause is complete  so
cause cannot be complete until child is born.
Liability will not be imposed on mothers for prenatal injuries caused to a foetus by
negligence while pregnant.[Dobson v. Dobson.84]
o Policy concerns:
 1) Would violate privacy/autonomy rights of pregnant women
 Floodgates concern
 Pregnant women could be liable for incidents in which they didn’t
even owe a duty to third parties (e.g. when performing tasks alone at
home
 Also concern about gendered tort  could impose liability for things
men wouldn’t be liable for.
 2) Difficulty of establishing a std of care
Maternal Tort Liability Act, SA, 2005 (Alberta)
o Permits born alive children to sue their mothers for injuries they suffer as a result of
an automobile accident before they were born
o Lawsuits are limited to amt of liability insurance that the mother has
 So explicitly stating that mother can’t be personally liable
o News coverage of the legislation said the gov’t was pursuing it b/c auto insurance is
mandatory, and b/c it’s the most common way that foetuses are hurt.
o Insurance industry was a bit miffed.
Duval v. Seguin (1972, ONCA): Mother injured in car accident, child born w/ significant health
challenges. Held: 3rd parties will owe duty to foetuses when duty is owed to mother and child is born alive.
84
Dobson v. Dobson (1999, SCC): Mother in car accident while pregnant, caused injury to foetus &
premature birth. In reality, both parties wanted damages to be awarded b/c ∆ auto insurance would thus
have provided much-needed financial support for disabled child. Held: Fails at stage 2 of Anns test.
Concerns of violating privacy/autonomy rights or pregnant women (floodgates concerns), and the difficulty
of establishing a std of care.
37


Articulated their discomfort as the gov’t abdicating its responsibilities for
special needs children by putting them on the insurance industry
o Similar legislation in UK predating this, haven’t been a lot of cases
Since mothers can’t be held liable for negligence, they also can’t be held liable for
contributory negligence [Preston v. Chow.85]
Intro to Strict Liability





Liability w/o fault  for non-negligent and unintended harm
Vicarious liability, e.g.
Issue is causation, not fault.
o ∆ will be liable if their conduct caused  harm
o No analysis of whether conduct was blameworthy, or intentional/negligent
For very hazardous materials/activities, a higher std of care exists
Policy of strict liability: deterrence, education, compensation
Fault
|
Trespass


|
Negligence
|
Nuisance
|
Strict L.
No Fault
|
Absolute L.
Test –  must prove all: [Rylands v. Fletcher.]
o 1) Non-natural use of land
 Controversy as to interpretation of this phrase
 See St. Anns Brewery v. Roberts: the activity must be dangerous and unusual.
 So two possible constructions:
 Ultra-hazardous use, or
 Any non-ordinary use
o 2) An escape of sthg likely to do mischief if it escaped
 Escape
 Construed narrowly – escape from an area over which ∆ has ctrl onto
one over which ∆ does not have ctrl
 Relaxed somewhat in Canada – usually satisfactory if water running
through pipes under city, e.g.
 If escape is intentional, may have action in
trespass/nuisance/negligence, but if ∆ is at fault then can’t pursue
under this test.
 ‘anything likely to do mischief’
 Depends on interpretation of step 1
 If ‘non-natural use’ assumes a dangerous activity, don’t need add’l
consideration here
 If it means ‘any non-ordinary use’, then need sthg extra to show
possibility of mischief
o 3) Damage
Defences
o Consent of 
o ‘Act of God’ – natural, extraordinary, sthg that couldn’t have been foreseen.
Preston v. Chow: Pregnant woman had unprotected sex and caught an STD, didn’t tell her doctor. Passed
on to child, who suffered damage. Action against doctor for negligence, counter against mother for
contributory negligence. Held: Mothers can’t be contributorily negligent.
85
38
o
o
o
If  had something to do w/ the escape, complete defence (though in other areas of
tort law it would only amount to contributory negligence)
 The Rylands v. Fletcher rule stays with the historical construction under
which contributory negligence would be a full defence.
Unforeseeable act of a stranger
Statutory authority
 Many offences under Rylands v. Fletcher are covered by statute and thus not
subject to strict liability
 If a statute merely permits the activity, then more difficult for ∆ to invoke the
statutory immunity defence.
39
Nuisance



Nuisance brings in aspects of trespass, but is a distinct tort
o In nuisance, the interfering action takes place outside of land
o Damage is essential to liability in nuisance
o Nuisance is never actionable unless interference is unreasonable
o In trespass, focus is on ∆ actions/intent etc., whereas in nuisance focused on 
interests, effects on 
Private Nuisance
o Private protects use and enjoyment of occupier’s land  interference w/ occupier’s
interest in use of their own land
o Issue: whether degree of unwanted interference w/  land is too high.
o Must consist of physical act done on land
o Two broad categories:
 (1) Interference resulting in material damage to  property
 (2) Interference w/ comfort and enjoyment
 courts are more cautious about finding in  favour on this issue –
analysis of reasonableness (not every smell/sound will allow  to
recover)
 objective element – if  is unreasonably sensitive, won’t recover 
must be reasonable to a person of “plain and sober” tastes.
 Will also depend on zoning of area (e.g. farmland, won’t recover for
manure smells etc.)
Public
o (private action for public nuisance)
o Recognition & protection of rights of members of the public

Not protection of property rights

E.g. blocking a hwy
o Quite difficult to bring private action for public nuisance
o Can ask AG to bring action for public nuisance, seek injunction to restrain
o Smith v. Inco: Refinery released nickel into atmosphere, contaminated ppl’s property
when it settled on the land. Nickel levels are well above acceptable level, particularly
for children playing outside. ∆ ordered to take remedial efforts.  class action for loss
of property value. Sought remedy under Strict Liability; Nuisance; and Trespass.
Failed on trespass – indirect. Strict Liability (Rylands v. Fletcher). Though ∆ argued
escape only refers to momentary escape, not continuous release.  successful on
Nuisance