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LAW 430
TORTS
SLUTSKY (GENERIC)
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Intentional Torts – Chapter 2
Britain in 1200’s as a society was worried about criminal not civil activity = tort law when it emerged was very technical
(you need a cause of action=writs). One writ was: Writ of trespass: The Historical Context
a) You needed to prove was the act was forcible and direct interference
b) One did not have to prove damage or fault (wrongdoing).
c) Reverse onus of proof.
Three forms of Trespass:
1) of land
2) of the person (assault, battery, false imprisonment)
3) of goods
Case – notion created by the Chancery court (there job was to provide justice where common law did not have a
remedy).
1) Remedies "consequential" or "indirect" injuries
2) Required "wrongful" conduct = defendant had to do something wrongful.
3) Requires damage
4) Led to action for negligence – page 39.
Trespass Today:
a) Still have to prove forcible and direct interference
b) Now have to prove fault (wrongdoing) is now required.
c) And damage is still not required.
d) Reverse onus of proof
5 Trespass torts: land, person (assault, battery, false imprisonment), and chattels.
Goshin v. Larin: Defendants actions were neither negligent nor intentional, as he was shielding his face from angry fans and
thus had no alternative. = Accident not actionable as wrongfulness is required in tort law.
Questions that will be Examined
(a) These torts can be committed either intentionally or negligently
(b) Is the "directness" requirement still adhered to?
Yes it is.
The fundamental difference is: Indirect requires intervening actions/events of someone/something else.
Advantages of suing for trespass over negligence: Trespass does not require you to prove damage. And, under Trespass fault
is assumed (defendant had to counter that he did not trespass) as opposed to negligence whereby the plaintiff has to prove the
defendant was at fault. In early times if the action was not direct the wronged had no action = this seemed unfair and the
special action called case emerged.
Definition (P.36 note 5) of trespass/directness.
(c) Damage is not required.
(d) Presumption of wrongdoing – reverse onus of proof.
Definitions
(a) Accident: Not reasonably foreseeable or reasonably preventable.
(b) Negligent: I did not want to do that, but I was acting stupid (out to have foreseen and ought to have prevented). By
driving in a careless way you do not intend to hit someone but your actions caused the accident.
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(c) Intention: Where defendant acts either with knowing with substantial certainty what the consequences of his act
would have; or desires them = the consequences are intended.
Garret v. Daly: 5 year old child moved a chair; judge ruled that the mere absence of intent does not absolve one from
liability (child did not desire consequences). Intent: is extended to people who know with substantial certainty the
consequences of their act.
Carnes v. Thompson: The court ruled that even though the defendant was attempting to hit someone other than the person he
hit that he was still liable. Doctrine of Transferred Intent: If D intended to commit an intentional tort he is liable for all
intentional torts he “accidentally” causes.
Basely v. Clarkson: D mowed his neighbor’s lawn accidentally and took clippings. Court said mistake is not a defense, as
defendant’s actions were voluntary and he intended the consequences.
(d) Capacity – you have to have capacity to be sued.

Able to understand and appreciate the idea of consequences:
o Physical nature of one's act (knowledge that rock will break the window) or
o Qualitative nature of one's act (needs to know its wrong) or both?
o Children/Mentally Disabled: same test?
Test for capacity in children: Generally speaking courts argue that child must know right from wrong, (needs to know both
elements) (test in tort law is subjective, as it varies from child to child, if child understands then they are capable, usually
examined in children under 6). Tillander v. Gosselin: Child did not have capacity to form intent.
Mentally disabled only have to have capacity for physical consequences. Lawson v. Wellesley Hospital: asks whether
patient had the capacity to form intent, and found patient only needs to know physical nature of one’s act.
(e) Volition- act has to be voluntary in order to be actionable.

Able to physically control one's movements
o Duress? Not an excuse.
o Drunkenness? Could be an excuse hypothetically but not practically.
Main categories are sleepwalking, seizures, or when someone takes control of your movements.
Ex. Smith v. Stone: man not liable for trespass, as he was carried onto land.
f) Mistake = Did not know that consequences of act would be legally wrongful. Mistake is not a defense, because you were
unreasonable/wanted the consequences so you are liable.
Ex. Basely v. Clarkson: P cut D’s lawn by mistake. No intention but act was voluntary = P was liable. Same principle
holds in Costello v. Calgary regarding land expropriation.
g) Motive = Reason why the person committed the act. Generally speaking tort law does not care about a person’s motives.
Intentional Torts
Elements are very specifically defined. In trespass torts damage is not required and fault is assumed. Need to have proof of
intention/negligence – only things that can disprove intention are capacity and volition. (Mistake and motive are irrelevant).
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1) Assault – different than the crime of assault, assault in tort law is a threat of imminent physical harm (threat of a
battery = physical harm not required). Stems back to 1348 I. DES & Wife v. W. DE S.
Interest Protected



Peace of mind
Security of the Person
Ensure that people feel safe (mind) = assault occurs prior to the battery. Stems back to 1348 I. DES & Wife v. W. DE
S. Man swung a hatchet at a women = assault.
Requirement:
Reasonable apprehension of direct physical harm: generally need to be aware.
I. DES & Wife v. W. DE S: D wanted into a tavern, P stuck her head out a window and D swung a hatchet at her but missed.
Court said liability still existed = physical contact is not required.
Stephens v. Myers: Even though Myers could not physically reach Stephens, Stephens objectively had to feel harm, so
assault was committed.
Tuberville v. Savage: Case where P said if the judge was not in town right now I would attack you. In response D attacked
P. Court ruled that P’s comments were not an assault, and thus D’s actions were not in self-defense, as P’s comments could
not have created reasonable apprehension = on needs more than just words alone to cause an assault.
Bruce v. Dyer: D tried to pass P, but P prevented this. Then P pulled over and gestured for D to join him. Fight ensued and
P had his jaw broken. Judge ruled P’s actions on the road were assault (as D had reasonable apprehension of direct physical
harm) + he emerged from his vehicle shaking his fist; so, D was acting in self defense.
Issue of awareness – sleeping person is assaulted, and is later informed: Do not need to have means to get person – but this is
unreasonable apprehension of direct physical harm.
2) Battery
Interest Protected: Freedom from offensive physical contact.
Requires:
1) Offensive contact: Non-everyday contact; contact that a person should not have to endure.
2) Physical contact: does not have to be harmful/cause injury
3) Directly caused by the defendant: Klar says directness still exists but law should be reformed.
Awareness is not required (kissed while asleep).
Blowing smoke in someone’s face most likely a battery.
Cole v. Turner: The courts define “offensive” contact (as per Klar) = if it not offensive contact one cannot sue for battery
even if contact is unwanted.
How far can liability extend? Bettel et al. v. Yim: Yim grabbed the kid, shook the kid, and then his head butted the kid broke
the nose of the kid. Judge said once you commit a battery (or intentional tort in general) you are liable for all future
consequences, regardless of directness of consequences (shows Battery needs a consequence test). Australia limits
intentional tort liability (Mayfair Ltd. V. Pears: trespassing car on lit of fire). While negligence means you are only liable for
reasonably foreseeable consequences.
Crime compensation schemes
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Negligent Battery: exists in Canada: (Aiming for a duck and hit a person) = same responsibilities and onus’ as intentional
battery. Unsure about how far liability will extend – most likely what can be reasonably foreseen unlike “normal”
intentional torts.
3) Sexual Wrongs (rape, incest, abuse, sexual harassment – harder to fit into tort law). = mainly battery actions (direct,
physical, and offensive), but also assault and intentional infliction of emotional distress.
Advantages: action controlled by the plaintiff, burden of proof less onerous (v. criminal), damages are available, can be
empowering, vindication.
Disadvantages: can be time-consuming and costly, possible that accused will not be able to compensate financially, victim
has to relive incident, evidence might be difficult, limitations periods exist (usually 2 years).
Vicarious Liability: employers/churches/government (residential schools, many sexual assaults in specific schools) = not
only are perpetrators being sued but so to are the runners of the institutions. = have to prove person was an employee and
the tort he committed was during the course of his employment. The more bad the act the less likely it was during the
course of employment. Negligence (failure to properly screen or supervise employees), but some statutory immunities exist.
Breach or Fiduciary Duty (trust) = government had a fiduciary duty to Abos. Notion of non-delegable Duties: alternative to
vicarious liability.
SCC says when there is a strong connection between a persons job and the wrongful act = still treated as though you were at
work. (Klar takes me out for drinks and hits me).
Norberg v. Wynrib: Consent not a valid defense when parties are of unequal power.
M. (K.) v. M. (H.): Allowed person to sue for incest even though it was claimed for 18 years (person discovered it during
therapy). Now use doctrine of reasonable discoverability: = limitation period extended but this notion depends on statute.
4) False Imprisonment:
Interest Protected: Right to go/be where one has the lawful right to be.
Requires:
1) Imprisonment: by force, threat, or psychological coercion
2) False: Separate because P has to prove he was imprisoned and D has to prove it was lawful.
Bird v. Jones: P was prevented by police from walking on a public footway that was closed to the public. Court said no
false imprisonment as P could go any other direction except on walkway.
Total restraint is required; if “another” way exists it has to be reasonable in order to not constitute imprisonment (14th floor
window is not a viable option).
Chaytor v. London: Psychological form of false imprisonment (women were comparison shopping at a store). Store keeper
did not want comparison shoppers and thus detained them. Women agreed to leave with the police in order to avoid
embarrassment. Judge said this was false imprisonment.
Coercion imprisonment by agreement should not be taken too far (shoplifters) as store has rights to protect their stuff.
Imprisonment by agreement: (on a bus vs on a plane) depends on reasonableness.
Need not be conscious that you are being imprisoned.
Since it is an intentional tort, false imprisonment requires DIRECTNESS. However, what about false information that leads
to my false arrest (testimony not directly related to my arrest, and police arrest only bad if it was unlawful). Turn to the tort
of:
Malicious Prosecution: Nells v. Ontario established what constitutes malicious prosecution:
1) Proceedings must be initiated by the defendant
2) Proceedings must terminate in plaintiffs favor.
3) Proceedings cannot have been instituted without reasonable cause.
4) Defendant must have been malicious (generally considered bad faith, corruption, spite).
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And tort of abuse of process is also available: where the legal process is being used improperly to achieve a goal that is not
an intention of the legal process.
5) Intentional Infliction of Mental Suffering: Not a trespass tort.
Interests Protected: Freedom from emotional distress.
Requirements:
1) Act or statement has to be calculated to produce harm.
2) Harm: generally have to cause an illness/disease.
3) Can be either direct or indirect + liability extended to all those that it impacts.
Wilkinson v. Downton: established the tort of IIMS. D told P that her husband had been in a car accident and had received
two broken legs causing P to have a violent shock to her nervous system.
Act or statement is required. Defendant has to have intended to cause P harm.
Unsure as to whether true statements can lead to liability.
6) Trespass to Land:
Interests Protected: Occupation of land against wrongful interference.
Requirements:
1) Direct
2) Intentional or Negligent
3) Physical Interference
4) No damage
5) Presumption of fault.
Entick v. Carrington: Every invasion of private property however minuet is a trespass (even if no damage is caused).
Atlantic Aviation v. Nova Scotia: P sued D for erecting towers that interfered with his flight school. Court ruled airspace is
limited to what one can occupy (use and enjoyment). Subsurface not usually limited.
Trespass Legislation: Compliment the common law doctrine, these are used to give someone an immediate remedy (removal
+ some damages).
Trespass (direct interference with occupation of land) differs with nuisance (unreasonable interference with use and
enjoyment) in directness.
7) Interference with Chattels: 3 torts under this heading only 1 is a trespass.
A) Trespass to Goods:
Interest Protected: Protects possession of goods against wrongful interferences. Possession does not mean lawful
owner or title. Only possessor can sue under trespass to goods (stolen car).
Requirements:
1) Direct
2) Intentional (or negligent?)
3) Possession: 1) Mental component: Do I intend to exclude others (parking your car at the dump says no). 2)
Physical Control: exert as much control as possible when not possessing the object.
4) No damage: Arguable no damage required.
Everitt v. Martin: Coat was accidentally caught in car + did no damage = court said event was not actionable. Shows
trespass to goods cannot be accidental.
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B) Conversion: P is saying that the object is altered to such an extent it can no longer be recovered.
Interests Protected: Protects your right to possession of goods.
Requirements:
1) Immediate right of possession: visa vi the D you are the better possessor.
2) Denial of right to possession serious enough to constitute “sale.”
3) Intentional ONLY: one cannot have negligent conversion.
Extent and duration of time, damage done, expense, and inconvenience determine whether conversion has been committed.
Hollins v. Fowler: cotton sold at auction, but court said that innocence/mistake was no defense for conversion.
Steiman v. Steiman: P argued at trial in conversion of her jewelry which her husband’s parents had taken. From the date of
conversion to the date of the trial the jewelry tripled in value, and trial judge assessed $ at date of the trial. Appeal court said
this was wrong as conversion damages are calculated at the time conversion takes place.
C) Detinue:
Interest Protected: Your right to immediate possession that is being withheld from you (Do not have to be in
possession like trespass to chattels).
Requirements:
1) Immediate right to possession: You are better possessor than the defendant.
2) Wrongful Detention: not being held with justification.
3) Most often you must request good be returned and request be rejected.
Detinue is only tort that gets you the good back, and generally speaking you must first request that the object be returned.
Detinue v. Conversion
Detinue suit means that you want the object back, conversion you want compensation.
Detinue damages (if any) are awarded at time of trial, as tort is committed the whole time the goods are withheld.
Conversion damages are awarded at time of conversion, as tort is committed at instant the conversion takes place.
If price increases you want to use detinue; while if price falls you want to sue for conversion.
Steiman v. Steiman: Illustrates the point that P cannot seek both and get the “better one,” Instead if you want the good back
you are stuck with detinue, or if you want damages you are stuck with conversion.
8) Invasion of Privacy
Privacy: Right to be secure in your house, land, etc.; right to use and enjoyment of your property; right to security of person;
right to reputation. The problem is privacy means different things to different people in different contexts.
Existing Torts: Trespass to land; Nuisance: reasonable use and enjoyment of your land; battery: protects you physically; false
imprisonment; defamation; negligence; intentional infliction of emotional distress etc.
Thus, we probably do not need a separate tort for invasion of privacy.
Roth v. Roth: D engaged in a number of harassing activities, P sued for invasion of privacy and judge accepted argument.
Klar thinks only extend this tort to areas in tort law that slip through the cracks (taking pictures at a public pool and
disseminating them) + keep definition narrow.
Defences
Onus of proof on Defendant to prove defences.
Primary burden: Must prove defenses on the balance of probabilities: (50%+1).
Defenses can:
1) Deny that a wrong took place
e.g. imprisonment not "false" but “lawful.” OR contact not unwanted
2) Admit wrong, but seek to excuse it
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e.g. self-defence. OR Defence of property. OR Necessity.
3) Seek to mitigate damages
e.g. provocation, contributory negligence
Denying that wrong occurred + excuses are complete defences, while seeking to mitigate damages are incomplete defenses
as plaintiffs action still goes through – just for less $.
1) Consent:
a) Consent is the main defence against most batteries.
b) It is proven on the balance of probabilities.
c) And it is the defendants burden to prove consent was present if P proves tort occurred.
Requirements:
1) Free and voluntary act: no fraud, duress, or impaired judgment.
2) Informed: consenter has to “know” what they are agreeing to (capacity).
Can Silence be consent? Yes, but only if it is accompanied by action or lack of action.
O’Brien v. Cunard S.S. Co: Immigrants coming to America were required to be vaccinated; women claimed she was
battered as she had not given consent. Court said her silence + her participation and lack of rejection = consent. Case today
would probably say woman was under duress and thus no consent, but due to power imbalances at the time defendant was
successful.
“Unconscionability” unequal power imbalance where the imbalance is exploited.
In breach of trust cases sometimes consent is not accepted – foster father and daughter; while in others student – teacher is
sometimes allowed.
Norberg v. Wynrib: SCC said no consent, because of power inequality as doctor had given a drug addict drugs in exchange
for sex.
Sports: Individuals who engage in physical contact sports implicitly consent to that degree of physical contact that is part of
the game as it is ordinarily played. Penalized play (frequent or familiar infractions of the rules), within reasonable bounds, is
not a trespass. Contact that goes outside of reasonable bounds is actionable both criminally and civilly. However, those who
engage in mutual fights cannot complain of injuries unless force used is excessive or unnecessary.
Fans also consent to something’s: through contract (depends what they say in order to be binding), but cannot consent to
negligence.
Medical Treatment:
Start with proposition that people control what is done to their bodies = need consent prior to performing any procedure
(exception is emergency).
Scenario One: Competent, adult patient consents to medical treatment: “Consent” explain what procedure is and what the
risks are, you agree = NO BATTERY. Doctor has to prove on the balance of probabilities that consent was given.
Scenario Two: Competent, adult patient refuses medical treatment.
Malette v. Schulman: Jehovah’s Witness had a no-blood transfusion card, doctor ignored it and was found to be liable for
the battery. Even though it was an emergency, because she had expressly denied the treatment with the card; question then
was whether the card was valid (card may be old, he may no longer be a member of the group, etc.).
Does doctor have to know person is refusing in an emergency (he had not seen the card in the above case), Klar thinks that
there would be no liability. Has to be knowledge of the refusal – but it is most likely negligent if the doctor did not look in
the wallet.
Scenario Three: Unconscious patient unable to consent or reject emergency treatment, but
(a) has rejected while conscious: No
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(b) has card which rejects treatment: No treatment as per Mallette v. Shulman
(c) never rejected or consented: Doctor can proceed without consent if: patient is unconscious/ without capacity; procedure
has to lifesaving or very important to their health; and time must be of the essence.
Marshal v. Curry: Had a hernia operation and during the procedure the doctor removed a troubled testicle = doctors given
broad consent for unforeseen circumstances related to original procedure. Health consent forms generally cover doctors
when doing a procedure and finds something else wrong with the patient – so, doctor has consent for everything.
AB Dependent Adults Act: legislates emergency situation = doctors can proceed if they follow proper procedure.
Scenario Four: Minor wants (or does not want) treatment: Is ther e an age of consent in tort law (NO – unlike criminal law
which is age 12). Common law says depends on the maturity of the minor and the nature of the treatment + ability to
appreciate the treatment. However, legislation (Child Welfare Act) has in many cases superseded this – general rule is what
is best for the child (so, may or may not recognize wishes of the child). Guardianship: most often guardians have control over
consent of children. However, in cases where parents will not consent, and government feels treatment is IN THE BEST
INTEREST OF THE CHILD (Note 10, 124) they can seek to become the legal guardian to consent to the treatment and then
following treatment the child is returned to the parents.
Scenario Five: Adult wishes to terminate treatment: Yes if they can give informed consent (even if it leads to their death) –
Nancy B case on 118.
Scenario Six: Adult wishes to commit suicide but is unable to, seeks medical assistance: Susan Rodriguez case (119), where
she was incapable of doing it. In Canada it is illegal to assist in suicide, she challenged this on Charter principles, but
prohibition was upheld. Ultimately she did die with the assistance of Sven Robinson.
Informed consent: Doctor says you need a procedure and describes it, but fails to inform person of risks and even though the
treatment was good; can you sue for battery of the risks you did not know of? You can sue doctor for negligence (not
battery) if doctor fails to inform you of risks, while if doctor fails to inform you of the procedure you can sue for battery
2) Self Defence – balance of probabilities.
Requirements:
1) Force must be necessary
2) Force must be reasonably proportionate to the threat.
Cockroft v. Smith: Plaintiff and defendant were fighting. Plaintiff ran her fingers towards defentant’s eyes; defendant bit off
plaintiff’s finger. Self-defence must be an immediate response to an attack and it must be proportional to the threat.
Do not confuse self defense with provocation. Provocation is when you used force that was not necessary (punch someone
who verbally attacks you). Provocation is only a partial defense (mitigates damages), because victim provoked defendant.
3) Defense of Third Person
Essentially the same as self defence. However, it is more open to improper interpretations so have to be quite sure when
acting.
Gambriell v. Caparelli: Mother though child was being chocked = not liable for he whacking the plaintiff. Thus, need
reasonable belief person is in trouble.
This defense use to just apply to family; however, now has been extended but the farther removed on is from the victim the
more sure you should be.
4) Defense of Property
1) Can use force to defend property if necessary
2) Usually must request one to leave before applying force (depending on threat)
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3) Proportionate
Property is not as valuable as life, thus, courts less lenient for unreasonable force = harder to justify force for defending
property (can maim a crook or even kill but hard to justify). In AB there is common law duty to prevent people from
willfully and recklessly injuring trespassers – SCC calls this “common humility.”
Defense vs. Punishment: Example if you have guard dogs post a sign, because if you do not it seems to show that you have
the dog because you want to hurt invaders not protect yourself or your property.
Bird v. Holbrook: D had installed spring guns behind entry points to “prevent” theft. However, as guns used in daytime
without warning court said he was trying to punish = liable as this is an inhumane act.
Green v. Goddard: Defendant must ask a trespasser to leave before force can be used. If burglary is in the process you do
not have to ask them to leave before using force.
5) Necessity
Requirements:
1) Situation of great and imminent danger that
2) “Forces” one to sacrifice other’s rights to preserve themselves, as
3) No reasonable alternative exists
4) Situation cannot be of P’s own making.
5) P can only take/use what is absolutely necessary
Vincent v. Lake Erie Transportation Co.: Very dangerous storm caused the captain to remain docked to the dock. Damage
to the dock resulted. Court ruled that the ship’s actions were lawful and yet they still had to pay damages (an
INCOMPLETE PRIVLIDGE).
Dwyer v. Staunton: Defendant had to drive on P’s land as snow had made highway impassible. Court agreed, and stated that
public purpose superseded P’s right to not be trespassed against in times of necessity.
Southwark London Borough Council v. Williams and Anderson: Defendants (squatters) claimed a right to live in houses
owned by the public authority that were awaiting renovations. Court said homelessness is not a defence of necessity, as if
homelessness or hunger were admitted as a defence to trespass, it would open the door to all sorts of wrongdoing. Although
hunger and homelessness are serious social problems, for the sake of law and order, they must be denied as necessity.
Necessity can protect defendants interests (cabin example), public interest (road example), P’s interest (force feeding), or
third party interest.
If government or someone else acts to protect the public interest = no compensation (general rule) – Dwyer.
6) Legal Authority
Existence of legislative authority which entitles defendant to engage in conduct which otherwise would be considered
tortuous and actionable.
Sources come from either common law or statute (Criminal code outlines the majority). Got to first see if the provision is
constitutional and then determine what it means.
Legal Authority for Police: if acting on reasonable grounds, police are justified in using force
Legal Authority for Private Persons (s. 494 (1) and (2) of Criminal Code): narrower; can only arrest a person if that
person is found committing an indictable offence or if there are reasonable grounds to suspect that person has committed an
indictable offence or is escaping lawful authorities.
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Reynen v. Antonenko et al.: Plaintiff was arrested under suspicion of possession of narcotics. He was taken to the hospital
for an anal cavity search. Search resulted in two condoms containing heroine. Plaintiff brought action for assault and battery
against doctor who performed the anal cavity search.
Ratio: Co-operation by a suspect in a body cavity search by a doctor constitutes consent.
Reasons: The police had reasonable grounds to request that a cavity search be performed on the plaintiff (common law).
They did not use unreasonable force, and showed proper care and attention in performing that search. The plaintiff cooperated fully with the exam, which constitutes consent on his part. Had the plaintiff not co-operated with the exam, the
doctor would have not performed it.
Important Exam Things to Remember
1) Tort has to be proven by P on a balance of probabilities
2) D has to prove defense on a balance of probabilities
3) Evaluate all material facts
4) Raise the issue
5) Relate them to the facts
6) Be sure to examine Intention, Negligence, Accident, Volition, Capacity, Motive, Mistake.
7) Conclude
Chapter 4: Introduction to Negligence
Negligence does not have defined elements like intentional torts, it is very ambiguous = best definition is that they were
unreasonable (but this term too is ambiguous). However, not everything you do that is unreasonable that hurts people is
actionable. Thus, the lawyer’s task is to determine which unreasonable acts are actionable and which are not.
Plaintiff has to establish certain things (as presumption in society is to let loss be absorbed naturally, and only in exceptional
circumstances is loss (cost) shifted to another person) =
Causation: Elements of Negligence Action (All have to proven by the Plaintiff).
1) Does a duty of care exist? If no duty to that person, you do not have to take reasonable care so you do not have to
worry about anything else (it being reasonable foreseeable for example).
2) If yes, was the duty breached? Strict liability law makes you liable even if it was an accident, while negligence is
only liable if what you did was unreasonable. So, if while walking your dog the leash breaks and then the dog
injures someone, (potentially) no liability depending on whether it was reasonably foreseeable.
3) If yes, was there damage caused? A concrete loss/damage/Damage or injury is necessary, not trying to protect
responsibility.
4) If yes, was the damage caused, as a matter of fact, by the breach? Assuming 1-3 is proven, then have to prove
that the breach of the duty caused the injury (was my broken arm caused by the dog on the loose because of Klar’s
negligence). But what if you fall, and then have a heart attack and die: was the heart attack caused by the fall or for
something else = MOST TRICKY PART OF THE NEGLIGENCE ACTION.
5) If yes, was the damage caused, as a matter of law, by the breach? This is also called proximate cause. Example:
assume dog causes a broken arm, when I am sitting in the hospital waiting for treatment, I get an infectious disease
from a patient there. So, I sue for both the broken arm and the infectious disease (on a factual test (but for test) you
caused my infectious disease), but it was not the legal cause because your negligence is too remote (not the
proximate cause anymore).
Limitation periods
Use to be absolute limitations period then the action would be extinguished:
Wait too long = witnesses and evidence less accurate (forget and lose).
People require finality/closure to specific issues.
In AB these are found in the Limitations Act + sometimes more specific limitations can be found in other statute. Thus, as it
is provincial area every province has different limitation periods.
Be very careful in regards to limitations period = negligence and costly.
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1) For tort law you need to know both how long the period is and when it begins: Generally the time lasts two years
from the time the cause of action arouse. Cause of action arises when DAMAGE is occurred (generally).
2) However, when you do not know damage has occurred, the doctrine of reasonable discoverability arises. This
doctrine applies mostly to sexual assaults with children (also happens when lawyers draft a bad will, asbestos in a
building for 30 years, and bad engineering). Generally speaking the provinces have accepted that the limitation
period does not begin running until the cause of action (damage) is reasonably discoverable. M.(K) v. M. (H)
3) There are also postponement provisions: if a child commits a negligent act the limitation period does not start
running until the child reaches the age of majority.
4) Some provinces have ultimate limitation periods: Range in length greatly (10-30 years). Thus, if damage is not
reasonably discoverable for 30 years the action is dead.
Causation
Question for factual causation: Was the negligence (breach of the duty of care – the first two steps from above) the factual
cause; yes or no.
What does cause mean and how do you prove it? Some cases are very hard to prove cause (on the balance of probabilities).
Once you establish 50%+1 that the injury was caused by the defendant then you have proved factual causation.
What is cause?
Proof of Cause: There are some cases in which P can never prove causation: can either abandon the action, or you can
redefine what cause is, or you can loosen the proof requirement. Very complicated issue.
Two types of cause:
1) Whether the negligence caused the injury? If he has not then there is no liability, if yes then there is liability.
2) What losses flowed from the injury? (Assess damages)
Kauffman v. TTC: P is on an escalator and two youths are scuffling and they fall backwards into a man who in turn fell
backwards on the P. P is claiming negligence against the subway. P has to prove: station owed her a duty of care to take
reasonable care (yes they do/did), was the duty breached – P argued the hand rails were not adequate, injury easy as she fell,
then she has to prove that the inadequate hand rails (negligence) CAUSED her injury. But for the inadequate hand rails
would the damage have occurred? Yes means that the injury would have occurred anyways (regardless of how good the hand
rails were) if the answer is no then good hand rails would have prevented the injury. In this case the inadequate hand rails
did not cause the injury because she did not use the hand rails.
The But For Test
Would the injury have occurred but for the defendant's negligent act?
If the injury would have occurred anyway, the defendant's act was not its cause.
If the injury would not have occurred but for the defendant's act, the defendant's act was its cause.
Athey v. Leonati: very important case:
Leonati was involved in two accidents; he had existing back problems before. He began feeling better following the last
accident; however, following doctor’s orders he herniated his disk doing simple exercises. Both drivers were insured by the
same company so which driver “caused” the accident was not relevant. Court assumed there was one single accident. So,
were the drivers who caused the accident liable for the herniated disk?
Trial judge found that there were various factors that combined to cause the injury, and car accident was at best 25% cause of
the herniated disk; so, 25% of the damage was awarded.
SCC was asked whether a proportional damage could be awarded, because courts look at causation either as the cause or not
a cause. (Tortious cause = car accident; non-tortious act = stretching and old injury).
Major says D in law is liable for all damages, regardless of non-tortious contributions, if they caused them. = YOU
CANNOT %IZE DAMAGE.
Problems with But For
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Major says that the test is unworkable in some circumstances. He says replace it with material contribution test: But when is
but for test not applicable, and what is the material contribution test????
Snell v. Farrell: was a medical negligence cause where no doctor would say the doctor was the probable cause, only a
possible cause; so but for did not work. = SCC said these are questions that is best answered by ordinary common sense
“Inferred Causation Test” = basic but for test but watered down evidence,” because scientific evidence is not always
present or capable of determining the question. Klar calls this is the soft causation test – we create causation when we want
it.
All actions have more than one cause. Many evidential factors have to have occurred for a consequence to happen. =
Many factual things have to happen: I was driving negligently, the pedestrian had to be walking at that time; I had to be on
that road, etc, etc. However, most of these factors can be eliminated because no duty of care existed or the act was not
negligent.
However, AS LONG AS D IS A CAUSE THERE IS NO REDUCTION OF LIABILITY.
Other concepts and explanations come out of this case:
1) Assume I go through a green light at 120 km/h and another car runs the red light = two wrongful acts, as if either had
been “proper” no damage would have been caused. In this case you can proportion damages based on damage and
fault.
2) Divisible injuries: I run a red light and break a pedestrians arm, and the guy behind me breaks her leg = two
wrongdoers causing different injuries.
3) Adjustment for contingencies: talking about things that would have happened anyway (essentially talking about
assessment of damages). How did this injury affect this persons life? Because tort trials are held only once and all
damages have to be determined at that moment; so, judges have to predict the future (how long will injury last, how
much will affect overall life (example how long will he be off work, etc)). Contingency would be something like –
the back injury would have resulted regardless of whether the accident occurred (this test is a % and damages can be
reduced accordingly).
4) Suppose I am injured in a car accident, and doctor predicts I will be in the hospital for 16 months. However, after 9
months a disease surfaces that would have put me in the hospital for 7 months. Judge should not award 16 months
damages because person is only entitled to be put in position where he would have been without the injury.
5) What if after the life long injury was sustained to an arm someone shoots you in the injured arm = intervening event
which has to be dealt with in a different way.
6) Thin and crumbiling skull rules: A normal person would have just sustained a bruise, but I have a thin skull and I get
a cracked skull. Court says you take your victim as you find them. Crumbling skull doctrine is were the skull is
already falling apart and my action just finished it off = all P did was accelerate the injury.
Breach of Duty:
Requires D to be negligent to be liable. This is largely a question of fact, whether what the person did was reasonable or
unreasonable. However, usually rules/principles must be followed so law is mixed in as well = Court of Appeal will not
overturn unless the finding of fact is grossly incorrect.
Standard of Care
Proposition One: The reasonable person undertakes activities which involve a "reasonable risk" of injury and avoids
activities which involve an "unreasonable risk" of injury. Only unreasonable risks are negligent. Question: How do you
determine whether a risk is "reasonable" or "unreasonable"? You use the:
Bolton v. Stone:
People are playing cricket, and one whacks the ball out of the pitch (goal of the batter). However, the ball lands on Mrs.
Stone = sues the group that runs the cricket field alleging that playing cricket beside a pedestrian walkway and since the
injury was caused by this they should be liable.
How does a judge determine whether the actions were unreasonable or not (negligent) or not? Is using the field as a cricket
field negligent?
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1) Foreseeable risk of injury? Not talking about foreseeable in hindsight instead have to look from reasonable person at
the time of the injury, instead judge behavior at the time of the activity. In this case yes it was foreseeable.
2) Probability or the injury.
3) Gravity of the injury.
4) Remedial measures to avoid injury: you can avoid injuries by refraining from the activity (driving a car one can
foresee an injury, although it is not that probable = you could not drive and guarantee that an injury will not result, or
you could start driving really slow). However, you have to factor in the utility of the activity (the costs of not doing
that activity in the way you really want). This means you have to do a cost benefit analysis = if an activity is highly
useful you must continue (firefighters have to be on time, while me meeting my friends is less useful).
Court decided that the ball had only exited the field 6 times in 30 years and no one had ever been hit before = a very
improbable injury. Defendant’s job to show how rare or unexpected the injury was. Court did not examine the remedial
measures as they argued that if cricket cannot be played with a low injury rate then it should not be played at all.
Learned Hand Formula
B = Cost of burden of avoiding the risk (remedial measure = depends on utility)
L = Gravity of the injury which is risked (Risk).
P = Probability of the injury occurring
If B is greater than P x L, the reasonable person would not avoid the risk. As a matter of economic efficiency.
If B is less than P x L., the reasonable person would avoid the risk. As a matter of economic efficiency.
Questions:
(1) How do you realistically measure the variables in economic or statistical terms? You don’t because it is practically
impossible. Easier if the question is actually economic. Example a fire detector costs 25 dollars, but usually too abstract.
(2) Is the formula useful as a way of approaching the issue of negligence? Yes Klar says it is.
(3) What is the "feminist" critique of this approach?
Leslie Bender says this does not apply to feminine side of the equation. It is wrong to think about cost-benefit instead you
should be talking about compassion (not what reasonable person should do but what should the caring/compassionate person
do). Critique is that men and women think differently as to what is reasonable.
Others Lucinda Finley says not all men or all women think alike so this would just replace one stereotype with another.
(4) How does the "utility" of an activity fit into the equation?
Proposition Two: The issue of reasonableness is seen from the perspective of the "reasonable person"?
The reasonable person does not exist in any one person. Not concerned with what the actors in the situation thought (or did
not think). Thus, reasonable person is a fiction that creates flexibility for negligence law to create a standard that the law
feels is the minimum standard of care. However, where does the standard come from? The judge cannot be the reasonable
person either so he too has to find the reasonable person = this is a major argument for diversity on the bench.
Vaughn v. Menlove: creating a subjective standard would vary from case to case which is not consistent; so, reasonable
person better as it creates some consistency.
Blyth v. Birmingham Water Works Co.: Reasonable person takes into account normal factors. Frost was very rare in the
region so it would be unreasonable to make fire hydrant frost proof.
Proposition Three: To determine whether conduct is reasonable or unreasonable you can look to what the "custom" or
"generally approved practice" is in relation to that activity.
When activities are repeated a certain custom/practice develops in regards to how to do that the activity which becomes part
of the decision (driving for example = actors look to see how the activity is generally done by other people in similar
circumstance).
Have to distinguish between professional/technical activities and ordinary activities = the more professional the activity the
more important custom is.
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Custom:
If you want to claim a custom you have to define it (hard to know when/how something becomes a custom) and then you
have to prove it. Klar prefers “generally approved practice,” because custom in law is more historical. In this case it is
examining whether it was reasonable for the current activity.
If custom is bad, judges simply ignore (no one salting icy steps will not remove liability). However, open heart surgery
means custom basically expert testimony is the truth (very hard to overrule expert testimony.
Neuzen v. Korn: SCC got a case where the jury had ignored the testimony of experts. SCC said you cannot do that in cases
of professional expertise, as they consider this an area of law (instead of an area of fact), because people do not have the
competence to find the facts. Problem is that both sides will find experts to make their arguments.
Waldwick v. Malcolm: P went for a haircut and forgot his cigarettes and ran out and slipped = he sued his sister in law for
failing to remove the ice from the driveway (occupier’s liability has same standard as negligence actions). D argued that no
one in the area sanded or salted their driveways; so, they should not be liable. = (both P and D can use custom in depending
on who it betters).
Proposition Four: If there are standards of conduct prescribed for in legislation, regulations, or other written codes, these
standards can be useful guides to determining whether the defendant's conduct was reasonable.
Three Kinds of Statutes:
1) Standard with explicit liability
2) Standard with Explicit Immunity
3) Standards that remain silent (these are the difficult ones)
R. v. Saskatchewan Wheat Pool: Wheat board (farmer’s agent) had the Pool hold grain for shipment. The entire shipment
was taken from the Pool and on the ship it was found that the grain had a fungus. The Board sued the Pool, because there
was duty under the Canada Grain Act to prevent the fungus (an actual statutory offense, but it only provided for a fine). The
Pool had not been negligent. Thus, Board sued the Pool for breach of statutory duty.
Board argued that the breach of the statue was a cause of civil action in itself. Up until this case how statutes interacted with
common law actions was unclear – most statutes have enforcement provision, but they do not create torts expressly.
Example: Health and Safety legislation, Motor Vehicle, etc. do not talk about liability. Most people have unsafe city
sidewalks – but bylaws stipulates that homeowner is required to shovel to the pavement or else following a warning you will
be fined. What if someone slips and falls and injures themselves on your city sidewalk = can they sue for breach of
legislative duty?
Justice Dixon talks about English (look to statute to see if a civil action was intended , American (no action for this), and
Canadian positions (using both).
SCC rejected the British approach, because it is an artificial approach – legislature had no intention (if they did they would
have expressly included or excluded a civil action). Thus, Canada has rejected tort of breach of statutory duty. The one
exception is industrial penal statues (safety of workers, etc) where a breach would create a duty = these may create a tort for
breach of statutory duty; however, most industrial accidents are covered by Workers Compensation and not tort law.
However:
1) The SCC said that statutory duties of care are incorporated in regards to evidence for common law notion of
negligence (or a defense to negligence). = breach of statue is evidence for negligence (not a cause of action).
2) SCC said it is up to court’s to determine how to use the evidence that a statutory standard has been breached.
3) The court should look to the type of statue and its purpose when considering it.
4) The breach of the statue must be causally connected to injury
5) Compliance with a statue can be useful evidence of reasonable care.
Since this case many courts have assumed that a statutory duty of care = a common law duty of care. Thus, they are
indirectly creating a statutory duty of care tort in Canada (this has really impacted governments).
(2000) Cooper v. Hobart (Register of Mortgage Brokers in BC): Cooper and Hobart sued Register in negligence, for failure
to follow their statute. The SCC looked to the duty if any owed to investors by Registers. SCC said there was no duty.
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Edwards v. Law Society Upper Canada: clients were suing as society had no disciplined a lawyer involved in dishonesty.
SCC looked to see if there was a duty; P argued they had breached the statute so there should be liability. SCC said no duty
existed.
Since these above cases courts have thrown out many cases dealing with suits against the government (SARS in Ontario,
West nile, etc). Klar says these cases are finally living up to their decision in Saskatchewan Wheat Pools. Klar says
common law duties of care are created by interactions between parties, but statutes themselves cannot create a common law
duty of care – because Saskatchewan Wheat Pool tells us so.
Limitations on Statutory Use: The statutory standard must have been created to prevent the type of accident that was
actually caused.
Gorris v. Scott: under statute animals were to be segregated when being transported to prevent disease. Animals were not
segregated, and sheep feel overboard and drowned. Court said the purpose of the act was to prevent infected animals from
spreading disease; so, the purpose of the statute did not support P’s claims. The purpose of the act will determine whether
liability will be extended.
In addition the accident must have been caused by the breach of the statute.
If you have improper working lights, etc on your vehicle this is only evidence for negligence if they caused the damage. If
accident would have occurred anyways then this would not be evidence for negligence.
Compliance with Statutory Duty:
State of the Art Defense: if your practice/good/etc. complied with the state of the art practice then this is evidence of
reasonableness. However, this does not mean that you were not negligent.
Example: Suppose speed limit is 60 and you are driving 59 in a blizzard does not mean your action was reasonable.
Ryan v. Victoria (City): A biker was injured when his tire got stuck in a railway track, who then sued the Railway and the
city. Action is based on public nuisance and negligence. Railway said the tracks conformed to the regulations that governed
railways. Historically there was a defense for railways that said that if they complied with legislation then this was
conclusive proof that they were not negligent (unless there was an extraordinary circumstance). This case abolished this
special provision for railways = up to the trier of fact to determine how much weight to give the fact that the railway
complied with legislation (now Railways just like everyone else).
The Reasonable Person
Start with the premise that we use the objective standard; so, that everyone is entitled to the assurance that people around
them are living up to reasonable standards of care (against both people who are overly cautious and overly reckless).
However, the law accepts variations in the reasonable person into subgroups of reasonable people.
Children Two Stage Test:
1) Subjective: Did this particular child have the "capacity" to be found negligent? If yes:
2) Objective: Did the child live up to the standard of care expected of a child of like age, intelligence and experience?
Comparing the child with other children of similar age, intelligence and experience (this is also a subjective test).
Klar says we lower the standard for policy reasons: children are more often than not plaintiffs in negligent actions than
defendants (they get hurt a lot), and the principle defense in a negligent action is contributory negligence – tort law wants to
find as many people liable as possible.
Adult Activity Doctrine: If child engaged in an adult activity (golfing, dirt biking) then he/she has to live up to the same
standard of care as their adult counterparts. Klar says that these activities increase the odds of children becoming defendants
so we stop protecting them. We want to compensate victims.
Why sue a child? A child may be covered by parents liability insurance (at home or renting) which usually protects all
people that live in their home. At common law parents are not vicariously liable for their children.
Note 11: Parents can be liable for torts of their children if they themselves have been negligent (just like hospitals/prisons =
supervisors responsible for supervising the people they are in charge of). Thus, parents liability hinges on parents being
negligent – and often courts say parents could not stop activity (unless there is a history/parent was being outrageous).
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Many provinces have statutes that hold parents liable for their children. However, these are essentially the same as the
common law. Only main difference is that the onus of proof is reversed onto parents to prove they were reasonable (not
negligent).
Standard for the Elderly: Depends on what you believe the purpose of tort law is to determine whether elderly should be
held to a different standard of care. Courts in practice cannot help but take a relaxed standard, although there is not an
official doctrine.
Mental and Physical Disabilities
1) Act must be voluntary in order for the defendant to be held liable (this is a narrow test that is hard to establish).
2) Assuming volition, a defendant, even if insane, is required to live up to the standard of reasonable person.
Fiala v. Cechmanek: McDonald thought he was god, made several strange requests, and then attacked Cechmanek who
gunned her car and crashed into Fiala. McDonald became the main D because Cechmanek’s action not really voluntary.
Judge said that compensation is the purpose of tort law, and that there would be practical problems determining whether
person actually had a mental illness. Further, not deviating from RP creates incentive to make people take proper care of
patients/family, and society needs a normative standard.
However, judge acknowledges that Klar and others say strict liability should be our standard if there is no moral culpability
(need to be able to live up to standard) = fault still has to be present to impose liability. If you are going to hold someone to
be negligent when he is having an episode then fault means nothing.
CA dismissed the action. However, make sure you realize that P’s insurance company would have covered P – most likely
cases like these are insurance companies fighting to see who is going to have to pay.
Wenden v. Trinka: person thought he was in a spaceship and was trying to recover his soul and ran a red light. Justice
Murray said tort is about compensation (not fault) so D was held liable. CA upheld the decision because D should have
known he was going to have a problem.
Physical disability: heart attacks/seizures: depends on whether you knew this was possible – should you have been taking
meds/etc.
Some expectations – blind person should not be liable for not seeing; however, can be held to be liable for doing an activity
he should not have been doing.
Professionals and the Reasonable Person: Standard is that of the "reasonably prudent practitioner operating in like
circumstances". Professionals (anybody who is part of a group that represents itself to have special training) are held to a
higher standard of care (they are not reasonable people in their jobs).
Do the Following Imact?
1) Generalist or specialist? Specialists are held to a higher standard of care, and a generalist does not have to live up to
the standard created by a specialist in that field. What about law? A small firm does everything – should they have
to do taxes as well as large firms with specialists, and does a generalist have to be as good as a tax lawyer. If you
advertise/undertake to acquire a specialist mentality regarding tax = higher standard of care. However, if they say I
am just a generalist = not the same standard of care (probably). Of course generalist should not take on work beyond
their capacity + must refer to specialists.
2) Beginner or experienced? Doesn’t matter
3) Rural or urban? In general this notion is being abolished, but not all rural hospitals have CAT scan machines.
What About Generally Approved Practices:
When dealing with professionals, generally approved practice is more relevant than ordinary custom. Court very reliant on
experts when the issue is above the court.
Der Heuzen v. Korn: did screening blood live up the standard of care = D met the standard of care for the time. However,
jury ignored the testimony and held D liable. SCC said that the trier of fact is bound to follow the evidence of experts and
come to an opposite conclusion (on technical know how). However, jury can disagree with professionals when it is an area
of common sense, but the line is ambiguous.
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Challand v. Bell: Laid out the general law regarding professionals, based on a 3 part test:
1) Surgeon undertakes that he possesses the skill, knowledge, and judgment of the average
2) When judging the average court must consider the group the person belongs (a general rural practitioner is held to
different standard than urban specialist
3) No liability if decision based on the reasonable standard.
One issue that we will examine later is, are you suing for negligence or contract – depends on who is suing the professional.
Lawyers historically = contract, everyone else in tort. Now we say either depending on the facts. Concurrent Liability
Doctrine says you can sue in both.
Reibl v. Hughes: Consent need be free, full, and informed. However, how much need the patient know to meet this
standard.
SCC said two forms of information (for battery cases):
1) Nature of the procedure (what doctor intends to do): A doctor cannot remove an arm when the patient consented to
removal of a leg = invalid as consent not informed.
2) Other facts (side effects, possible outcomes): Patient likes to know the risks that the procedure has (even if treatment
is preformed properly). If treatment was bad then patient can use negligent.
Reibel had a surgical operation, and he understood the operation, but he became paralyzed in the operation (no negligence by
the doctor).
SCC decided that where a patient is claiming that he/she consented without knowing the risk, then this is a negligence action
(informing patient of the risk falls under duty of care to inform of risks). = now most failure to inform cases are negligence
actions (unless doctor goes ahead without consent at all).
Negligence = patient has to prove damage which is very difficult for patients to prove.
What information has to given in regard to risks/ What is the test? The test is objective:
1) The Full Disclosure Standard: What doctors must disclose what the courts determine a reasonable patient would like
to know, not what the reasonable doctor would like to tell. Thus, courts put themselves in the shoes of the
reasonable patient to determine whether doctor has breached his/her duty of care.
There was a 2% risk of being paralyzed; SCC said reasonable person would want to know this. Other information that now
must be given: alternative procedures being the main one, inform of results of tests, and answer any questions.
Proving Damage
1) Objective Standard based on the patient: Would a reasonable person consent to the procedure. The court picked this
option, which is better for doctors. The reason court chose this option because it would make it too easy for P to
win, as all they would have to say is I would never have consented.
Klar says it is a modified reasonable person test, because it is a reasonable patient in the position of the person
(circumstances of the patient). So, as Reibel was one year away from retirement and the operation was not immediately
required. However, courts rarely find that a reasonable person would refuse a reasonable treatment.
2) Subjective: what would the patient have done had he been informed – this option was not chosen by the SCC.
It is more likely that in an elective/cosmetic procedure that court’s will extend liability to doctors. And it is very unlikely
when it is a required procedure.
Klar says that courts should assess damages based on what would have happened if the patient had not had the treatment at
all. Not where he is now vs. a normal person. And just because you would not have had the surgery then does not mean you
would not have had it at all, and when you get the surgery the risks remain the same.
Risks:
1)
2)
3)
4)
Material: a risk which any reasonable person would want to know
Special: Important for some people.
Unusual: Not normal, patients would not care.
Therapeutic privilege: can doctor withhold info for the betterment of the patient (when it is the patients best interest
can doctor withhold information). It has never been applied in court. Need to show damage – missed Limitation
Period is problematic (court must guess the outcome of the case had lawyer been able to take it to trial).
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Hlushka v. U of S: U of S student volunteered to be experimented on, a new anesthetic was used – it was injected into his
heart = cardiac arrest. Court said it was battery. But Reibel would apply now (negligence as he was not informed of risks).
Arndt v. Smith: Ethical issue. Pregnant women had chicken pox and there is a risk of harm to the fetus. Doctor failed to
inform women of risks (breached his duty), and child was born with disabilities. What would the reasonable person have
done (which test do you use objective/subjective – abortion is very subjective)? Majority used a modified objective person
test (reasonable person with the knowledge of the P), and was dismissed.
Lawyers
Brenner v. Gregory (ONHC 1973): Lawyers only liable if their conduct falls below the standard of a reasonably competent
lawyer.
Limitations Period: P has to prove if suit was filed in time P would have won.
Lawyers owe standard of care to clients and 3rd parties (in a will for example).
Chapter 6 Proof
Most problems relate to proving cause. What caused the injury/damage, and was this cause a negligent act.
1) The person who alleges something must prove, on a balance of probabilities = P has the burden of proof (if it is a
“tie” P loses).
a) Primary burden is on P (prove negligence). Although legislation Highway Traffic Act (Ontario) can switch the
onus.
b) Secondary (evidentiary) burden: if P is winning, D must prove an error in judgment for example.
2) You prove facts not law.
Wakelin v. The London & SW Railway Co.: Man found dead beside a railway track. Did the train hit him because of mans
negligence or was the train negligent. Court said they could not determine what happened – P had not proven what happened
that should not have happened. Therefore, there was no liability.
This case shows there are many sympathetic P that lose, which they should.
Inferring Negligence
Res isbsi ilocotur. Some injuries were there is no direct/positive evidence of negligent but the injury is such that one can
infer.
Byrne v. Boadle: Barrels being loaded from the second story – lowered them down on carts. However, one barrel of flour hit
P and knocked him out. Nobody knew how the barrel hit him, or how it hit him. Judge said res isbsi ilocotur – barrel rolling
out has to be negligent, because if everyone was doing what they should be doing then barrels would not roll out of the
window.
When do you imply this inference or presumption? Presumption is something that is assumed and has to be disproved (onus
of proofs shifts to D):
1) rebuttable presumptions
2) irrebutable presumptions: something that cannot be dis-proven
3) Inference is just evidence that you can make connections, but burden of proof does not shift.
Fontaine v. ICBC: SCC addressed res isbsi. Two hunters went out on a bad day = they did not return, eventually found dead
in their truck which had crashed into a creek. They knew who was driving because he still had his seat belt on. D’s estate
sued driver’s estate for negligent driving. Know the truck went off the road, but no one knew why. P argued res isbis. Both
trial and appeal court said case should be dismissed.
General Rules for res isbsi
1) Cause of accident unknown – depends on how deeply the court wants to dig.
2) Accident is one that does not normally happen unless there is negligence.
3) D must have been in control of the thing that led to the event. (Negligence from #2 must point to D).
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SCC said that res isbsi was too confusing, but it is only an example of circumstantial/indirect evidence (alone) can be
reasonable evidence to meet P’s burden of proof. However, trier of fact can decide whether or not to draw inferences
(infernence can be neutralized). So, res isbsi no longer (or perhaps never was) a doctrine of law. However, all SCC said
about res isbsi that it was an example of allowing circumstantial evidence = so it still applies.
Court held that on facts there was no liability. Klar thinks it was negligent to be driving in this case (he thinks the fact that
the road conditions are evidence of negligence) – but what were the parties options.
Klar says circumstantial evidence can still win – inference of negligence (means there is an evidentiary burden (although D
can sit and say nothing but this is not smart) on D to make an equally plausible solution to the problem that P has raised).
Old regime of Res isbsi
Products liability - when toys/bottles malfunction.
Automobile cases like the one above.
Fire cases, where causes cannot be determined.
Medical malpractice – courts generally rejected res isbsi but it was often raised.
Still remains important in these areas, but no longer called res isbsi.
Multiple Defendants: Leaman v. Rea: Two cars collided on an icy road. Both claimed the other was negligent for crossing
median. Court found both parties negligent = 50% of the damages and costs to each party. In order to infer negligence the
evidence must point to one person.
Inferring Causation
Issue in all these cases is why did the courts flex causation principles in these cases and how far can they be extended to
other cases.
McGee v. National Coal Board: Early 1970’s House of Lords decision. Workplace injury – worker was working in a stone
quarry. Dermatitis developed in worker, he alleged he got this because employers failed to provide showers following work,
and then the bicycle rid home combined with the dust = dermatitis.
1) Duty of Care – care for worker
2) Duty of Care breached – no showers.
3) He sustained an injury
Was it the cause of the injury? Medical evidence said if he had showered before going home, the risk of contracting
dermatitis would be lessened but it would not be probable that he would not have gotten it = Major problem because tort is
proven (negligence proven) and there was a possible link, but not a probable link.
House of Lords thought it to be unfair to dismiss the action, because P could never prove the link, only a possible link.
1) They said it was not scientifically possible to prove causation in this case.
2) There was a negligent defendant.
3) The negligence increased the odds for a certain type of injury (maybe not 50% but more than de minimus) and the
risk actually contributed to an injury.
4) Injury Resulted
So House of Lords held liability. One judge said if above criteria met there should be a presumption of cause = D must rebut
presumption if they feel their negligence did not contribute to the injury. Other judges said if 3 points proven then liability
automatically. However, Klar says no difference because presumption cannot be rebutted because no scientific evidence.
This case was ground breaking – because if you applied McGee rule to all cases causation would no longer have to be proven
in negligence. Scholars jumped on this, and try to ensure that this was only an exception and not the standard. Some courts
followed McGee, others ignored it, and others reinterpreted it. (Canada took another path).
Snell v. Farrell (SCC 1990): First Canadian case after McGee. P was having a cataract operation, his eye began to bleed
but doctor proceeded after a temporary suspension.
1) Duty of care – doctor has a duty of care
2) Breach of duty – competent doctor would have stopped when bleeding started
3) Injury – blindness
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Causation – hard to determine: Other doctors said bleeding was not the probable cause of blindness, although it increased the
odds.
SCC upheld liability but not on the basis of McGee. SCC said causation is what justifies us for picking the wrongdoer (goal
of corrective justice), and that Canada’s current problem with causation is too rigid of an application (stop worrying about
scientific evidence and start using common sense). So, since P created an inference of causation, there was liability.
Fact finders have always drawn inferences so this was not ground breaking, the problem is where was the evidence
for the inference in this case? Klar says neither trial judge (finder of fact) nor the CA found this inference, so liability
probably should not have been extended in this case.
Case rejected McGee for Canada, and applied soft causation (maintained theory of causation but fudged the margins) to
extend liability. Usually P loses this kind of case.
Laferiere v. Lawson: a patient had a tumor in her breast that was removed (early 70’s). The tumor was malignant but she
was not told this or further treatments to prevent it from spreading. Three years later she died, before she did, she launched a
suit against doctor for failing to inform her of her condition. Duty of care, and breach was easy, what about injury? She
could have had treatment – at time it gave a 25% chance of survival = D argued there was not damage caused because
probable cause of death was not the lack of treatment. Courts accepted this argument = no liability.
You could say what she lost was the chance of life – the chance at a possible recovery = liability for a loss of a chance to
avoid an injury. But the court rejected this argument. Klar likes this doctrine, but fears it would be applied too much and
water down the system too much.
Walker Estate v. York Finch General Hospital (SCC 2001): P given tainted blood (HIV) = P got aids. They sued Canadian
Red Cross for improper screening. Negligence in screening – US had a better system – which prevented high risk donors.
Causation question: would the HIV donor have donated blood had the better screening procedure been in place?
Major said in some cases the but for test is unworkable, particularly where there are multiple independent causes that led to
the harm.
Sufficient condition: more onerous
Necessary condition: less onerous
Major introduced “materially contributed” test: Thus, case raises two questions – when is but for test unworkable, and what
is materially contributed test. The SCC never answered these questions because the found a link based on traditional tort law
theory. Since this case numerous attempts have been made to answer these questions – as of yet it is has not been
definitively answered.
Fairchild v. Glehha Ven (House of Lords 2002): Cancer was caused by asbestos. Claimants worked in industries were they
were exposed to asbestos, but they worked for more than one employer. They were able to prove that employers were
negligent in exposing them and that this negligence caused cancer. However, they could not prove which employers
exposure caused their cancer – one exposure to asbestos for some people.
Following McGee there was a lot of distinguishing of the case, but in Fairchild HL’s revived McGee. However, this was a
different type of causation problem.
1) All employers were negligent,
2) But scientific evidence could not determine the probable cause.
3) However, there was injury and there was no possible way to contract the cancer without the negligence of the
employers (which makes this case different that McGee).
HL said all employers 100% liable. This offends corrective justice idea of tort law.
Sindell v. Abbott Laboratories et al.(SC California 1980): Mothers were given a drug (DES) to prevent miscarriages. The
problem was children (mostly daughters) developed cancer. So daughter sued pharmaceutical companies. Problem was
daughters could not prove which company had made the drug that their mother had taken (no causal connection).
Court created “market share liability” = company responsible for the % of the market that the drug company had at the time.
It was a very controversial decision, because it seemed to ignore traditional causation principles. This doctrine has never
been used in Canada. Note that US has strict liability so negligence is not even at issue there.
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Cook v. Lewis (SCC 1951): Three people go duck hunting, and two people shoot at a grouse at the same time. P gets hit by
the pellets, but he cannot prove which hunter’s pellets shot P. The court created “the rule of Cook and Lewis” = they should
both be responsible and if they do not want to be responsible then they have to prove it was not their shot.
Thus, both were held liable as both were negligent and this negligence made it impossible to prove causation. (Problematic
from a corrective justice standpoint).
Important Miscellaneous Factors
Concurrent Wrongdoers: More than one negligent defendant who is responsible for an injury - faulty breaks caused by
mechanic, and driver is speeding causing an accident (had driver not been speeding the faulty breaks would have been
adequate), and neither caused alone, and both contribute to the injury.
Tortfeasors Act: AB say when you have a P and concurrent wrongdoers: P can sue either wrongdoer or both. If you choose
both you have to prove both, and if you do you can collect 100% from either party. At common law party that had to pay
100% was stuck with the bill because he was a wrongdoer – legislation now allows for contribution compensation from the
party who did not have to pay the judgment to the party who had to pay the judgment (court examines their relative degree of
fault and award damages on this %).
If P is also negligent (crossing on a red light) = the Contributory Negligence Act: P can collect damages minus his/her
degree of fault. At common law when P was contributory negligent then he got nothing.
It seems easy on paper, but in real life situations multiple parties make it very messy. Example P settles with one D, but the
other D does not. P may choose to only sue one person – however, the D can bring the other D into the action. What if
limitations period for P for D2 has expired before D1 brings D2 into the action. What if actions are different (contract, tort,
negligence, etc.)? Questions are answered in the legislation.
Joint tortfeasors: two or more parties who are acting together in concert when a tort is committed. Example three young
people vandalize a school. Who is responsible for what? If you can say they are joint tortfeasors they are each responsible
for the whole thing. Cook v. Lewis: argument was made that they were joint tortfeasors, as then P would not have to prove
which party caused his injury (but this failed on the facts). The problem is that joint tortfeasor principle rarely happens in
reality.
Chapter 7: Duty of Care
You have to prove a duty (to not be negligent) to have a successful action. This implies that there are times that you do not
owe certain people a duty of care.
A. Duty: to whom do you owe a duty of care? Question asked who can be a P against you.
B. Remoteness: With respect to which injuries do you owe a duty of care? Which injuries do you owe/do not owe a
duty of care to. Duty and remoteness are very similar = very easy for courts to confuse the two. Thus, you can owe
someone a duty of care but not for the injury they incurred.
C. Purpose of duty concept: To limit the application of negligence law. Limited because negligence is limited to people
who owe you a duty of care.
a) The existence of a duty is a mixed question of law and fact. Purpose of this is to allow judge without the fact
finders to prevent the growth of negligence.
D. Why will duty be limited? Why should negligent D’s be exempt from liability
a) To protect certain types of activities (e.g. governmental activities, judicial activities) from liability: Restrict
for policy reasons.
b) To reflect purposes of tort, and other important judicial policies: Would not serve corrective justice function
if innocent people liable for example.
c) To ensure that liability will be owed only to those who are within the risk of danger created by the
defendant's conduct. For example I speed and run over a pedestrian (I am liable); however, neighbor is
watching accident and has a nervous breakdown = driver is not liable for the neighbors action, because
neighbor was not in the risk of danger that should have been contemplated by the driver.
Frontier Areas
1. Liability Against Public Authorities: those performing statutory functions.
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2. Liability for Failing to Act (Assist/Rescue for example)
3. Liability for Pure Economic Losses
History of Duty
Winterbottom v. Wright: In 1842 P was a postal service worker and the horse’s bridal broke and caused him an injury. He
found that the service company had been negligent in maintaining the cart. So, they breached the contract = postmaster was
only party that could sue under the contract (privity) and since person worker was outside = no negligence action or contract
action. Court accepted this argument = severe limitation to negligence action.
Over time this rule got cut down. A person bought hair die for this wife, and the die caused damage to her hair (negligent
manufacturing). Company said only obligation was to purchaser and not to user. Court said Winterbottom v. Wright did not
apply here.
Language v. Levy: Father had a gun, child used it and it exploded causing child an injury. Court said the product was
inherently dangerous = there was liability.
Ship worker fell off a scaffold that collapsed. Court did not accept Winterbottom.
McAlister (or Donoghue) v. Stevenson (HL 1932): Case did not create negligence, but it did do something special.
Donoghue went to a pub in Scotland with her friend and he bought her a bottle of ginger beer. As she began drinking she
saw the body of decomposed snail and she incurred an injury.
Atkins drew on the good neighbor principle: Reasonable ginger beer manufacturer contemplates who could be injured
(categories of people – consumers for example) and these people are owed a duty of care, but people whom person does not
contemplate could be injured by negligence are not owed a duty of care. This case killed Winterbottom as contract was
irrelevant and was replaced with reasonable foreseeability, but did not mean all things that are reasonably foreseeable create
a duty.
Hedley Byrne & Co v Heller [1963] 2 All ER 575 (H.L.)
Hedley established notion that pure economic losses could be available for tort. Negligent misstatement cases = economic
losses recoverable in tort.
Home Office v Dorset Yacht [1970] AC 1004 (H.L.)
Allowed recovery against public authority: Opened door for governmental liability. Lord Reid previewed result in Anns v.
Merton
Anns v Merton (HL 1978)
People had purchased flats, and claimed that they had been built negligently (foundation was not as deep as plans specified).
However, either building inspectors (government actors) either never inspected or they never inspected properly = case
against a public authority.
Two stage test
1) Requires foreseeability of plaintiff as likely victim of harm from unreasonable conduct (Donoghue v Stevenson).
And,
2) There can be no policy reasons to limit, or negate the duty: Exceptions come mostly from the big 3 (duty to assist,
government, and …).
This basically assumes a duty – Klar says this creates pressure to expand tort law. Only when policy concerns exist will the
liability not be extended – judges are human and thus quite likely to not want to say sorry buddy you are out of luck.
Was the first step merely about foreseeability or is there something more? Lots of debate about this question. Klar says that
the first step is only a question of foreseeability (as defined by Lord Atkin in Donoghue v. Stevenson). But, tort law
expanded so much that in the 1980’s England began refining Anns formula – so, the first stage of Anns is foreseeability and
proximity, and proximity is determined by whether it would be just and fair in the circumstances. However, Canada stuck
with Ann’s (Kamloops), and thus governments were held liable, pure economic losses got liability, and duty to assist was
also (somewhat) expanded.
City of Kamloops v. Neilson (SCC 1985): Affirmed Anns 2 stage test in Canada, and extended liability to a public authority.
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Odjaujy v. Woodhouse: Police fatally shot a suspect. Legislation in Ontario said any shooting by police had to be
investigated. Police were accused that they were not properly participating in the investigation. Odjaujy reaffirmed the 3
stage test of Cooper.
Cooper v Hobart / Edwards v LSUC (SCC 2001) Refinement of Anns
Cooper v. Hobart: People had invested $ with a dishonest mortgage broker. BC has a mortgage broker registry to
license/oversee registers. Claim was that the register had been negligent. It was purely economic loss, and involved a
government agency. Determined there was foreseeability, but that there was no proximity between register and the investors.
Court looked to the statute to “see” if a proximate relationship existed but this contradicts Wheat Pool, as common law duty
of care should be found in the interactions between the parties. The SCC uses same reasons for proximate test and public
policy (want register to look out for the public and not individual people). Edwards v. LSUC: lawyer had been dishonest and
caused people to lose money, due to his dishonesty clients lost money – sued LSUC for negligence, for failure to supervise
lawyers (another government agency).
Three Stage Test: Applies in all cases, but especially when it is a new category. First two must be met before examining
policy considerations.
1) Requires foreseeability of plaintiff as likely victim of harm from unreasonable conduct
2) Requires sufficient "relational proximity" to create prima facie duty: deals with policy that arises between P and D,
and it has to be “just and fair” to recognize proximity.
3) Policy considerations external to parties can then negate prima facie duty: deals with policy that affects society as a
whole – will it create tax problems/insurance problems/extend liability too far/etc.
Now cases dismissed routinely, and rarely do they ever get to the third step. No liability in either case for lack of proximity.
The Unforeseeable Plaintiff:
Hay (or Bourhill) v. Young (HL 1943): Women is standing on the sidewalk and she hears a crash (motorcycle and car), but
she does not see the actual accident. She sees aftermath, which leads to a nervous breakdown + a stillborn child. So, she
sued motorcyclist’s estate for negligence. Court dismissed the action, because you cannot be negligent unless you could
reasonably foresee the Plaintiff and/or the injury.
In nervous shock cases the only injury a P could incur is nervous shock = the P and the injury become the same thing. Klar
says nervous shock better analyzed as a remoteness issue, but the test for remoteness and foreseeability is the same one
(injury was not reasonably foreseeable [remoteness] vs. P was not reasonably foreseeable [foreseeability].
Palsgraf v. Railway Company (NYCA 1928): A women was waiting for a train. She was standing next to a weigh scale.
Man was entering the train and he was carrying fireworks – he got pushed and the fireworks were dropped and went off. The
vibrations caused the scale to falll = she sued Railway for the workers negligent push. Court held no liability because P was
outside reasonably foreseeable risk zone.
Cooper v. Hobart: We no longer have use foreseeability as an excuse for not finding liability. Now we just use policy =
proximity and policy now determine liability.
Unborn Children: Duval v. Seiguin (ONHCJ 1972):
Fetus cannot sue you in court – not because of foreseeability, instead it is a question of policy. However, if a child can sue
after it is born with disabilities caused by pre-birth circumstances. Court said fetus is foreseeable = child can sue for its
injuries when it is born.
Dobson v. Dobson SCC 1999): Mother caused the injury to her fetus by negligent driving = baby born with disabilities.
Issue was whether the above principle applied to mothers and not just 3rd parties. SCC held that the action failed, based on
policy (did not want to interfere with autonomy of mothers, making unequal standards, and the slipperly slope). But it was a
pre-Cooper case = it was a 2 stage test (today may have failed on proximity).
Major (dissent): Argued negligence could be confined – only give liability when the women could negligently harm their
fetus and someone else (thus not infringing autonomy).
Maternal Tort Liability Act (AB): Now extends liability for negligent driving to mother’s who are insured. .
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Liability for Nervous Shock/Doctrine Psychiatric Damage
Recovery for nervous shock has always been a problem in the common law (uneasiness towards mental problems). Initially
there was no liability for nervous shock (had to be a physical injury) – 1900: worried about fraud, not a serious injury,
slippery slope argument (one accident but 50 Plaintiffs), distrust of the psychiatric profession. However, this got expanded –
can recover for nervous shock if it was a result of you fearing you would incur a physical injury. Then extended to where
fear of physical injury is aimed at someone you love (child takes place of oneself for example). Finally nervous shock
recoverable as long as it is reasonably foreseeable and there has to be an actual psychiatric injury (or physical injury).
However, too many claimaints problem still exists. So, courts have created artificial foreseeability elements. Reasonable if
you see accident (or its aftermath) – have to have seen something, then extended to the hospital (if you see family on
stretchers with blood oozing out of them).
CNR train crash in Hinton
England’s big case was a riot following a soccer game. Had many P’s, some where in the stadium, some outside, some
watched on TV, other found out after the game = they all sued the police for failure to properly safeguard the stadium
(negligent for maintaining order). Police admitted they were negligent. House of Lords dismissed most of the claimants
who were not actually at the game (on foreseeability).
Two actions were launched: Public against the police, and the police against the police for nervous shock (rescuers treated
differently than ordinary people, and they were employees so there bosses had to provide safe working conditions). Police
actions were dismissed.
Primary vs. Secondary victims: Primary = people who were actually threatened with physical harm and incurred shock as a
result. Secondary = someone else in the range of danger that led to nervous shock.
Notion of foreseeability has not yet been firmly defined in nervous shock. Klar thinks it is better dealt with as a remoteness
issue.
Failure to Act:
The Holy Bible: a person was left on the road and was dying. Three individuals pass by, the holiest man the priest does
nothing, the priests helper passes by, and finally the Samaritan (from a bad background) stops and helps the person. And
message is 3rd person will go to heaven.
The legal issue is, if the man had not been assisted by anyone – could a legal action be brought against the people who failed
to act. Under the common law there is no duty to assist or rescue (even if there is no danger, and even if it is reasonably
foreseeable that the person will die).
Horsley et al. v. Maclean et al.: There is no duty, despite the moral outrage. “Can smoke a cigarette and watch someone
drown, etc.”
Childs v. Demaroux: concurred with this opinion.
Why is this the law? Learned hand or any other formula says this is an irrational law, but the law persists. Klar thinks the
reason has to do with the purpose of tort law (Corrective Justice) and it says you are not required to make the world better,
only leave it the way it was when you arrived.
You are liable for misfeasece (had a duty that you did not do properly) and not liable for non-feasance (when you have no
duty and you do not act).
Klar says judges rarely find a duty to act, but there are 5 Exceptions:
1) Relationships of Economic Benefit (Jordan House).
2) Relationships of Control or supervision
3) Creators of Dangerous Situations
4) Reliance relationships
5) Statutory Duties:
Relationship Requiring Action:
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Jordan House Ltd. v. Menow and Honsberger (SCC 1973): Duty was imposed on the bar to assist their clients in getting
home. The court held that the commercial house was responsible for client getting hit by a vehicle while he was walking
home. Why was this not a failure to assist (no liability)? The answer is that the bar was making $ off the client (so they
were not just like everybody else) = they have a duty to assist.
Stewart and Petite: SCC said the duty was extended to prevent one’s drunk client from injuring others. Two couples went to
Mayfair Diner Theater – men got drunk women did not drink. One of the men drove and someone got injured in his
accident. SCC said there was a duty on D to prevent person from driving. However, the action was dismissed because the
employees could reasonably assume that the drunk person would not be driving (because there were 2 sober people in the
party).
Crocker v. Sundance: Ski resort and an oversized inner tube – man got drunk. His second trip down the hill he was warned
not to go – he did anyway and got injured. Liability on the ski resort was extended. All these examples are economic benefit
determinative.
What about a social (friendly) host:
Childs v. Desmoreaux: There had been social host cases before this case, but never a SCC and liability was never actually
extended (although courts had said in previous cases liability could be extended if the facts had been different). Both lower
courts dismissed the action, it was BYOB party. Host was not serving, and guest had a severe drinking problem – he went
home and seriously injured P on the road.
SCC said this is a duty case = used the 3 stage test. Once P has established a prima-facie duty of care (first 2 steps) then D
has an evidentiary burden (policy concerns must be proven by D to prevent liability). SCC said it was a new category (not a
commercial host). Being a social host matters, because commercial hosts are professionals so they have a higher duty, and
servers just want to sell as much as possible to make $, but this presumes they do not have a consciences or statutory
obligations.
Since there is a new category:
1) Was it foreseeable: Not foreseeable, because the guest was not visibly intoxicated. Klar says this is a foreseeablity
question that should be asked under proximity foreseeability stage. This step should either be yes or no – and on the
facts it should have been foreseeable (at this stage). Trial judge found that hosts did not or did not ought to know he
was too drunk too drive (this is dubious because the trial judge and CA found foreseeabiltiy and trial judge found
proximity).
2) Proximity: When conduct is a failure to act the nature of the relationship must establish a nexus between the parties
(difference between positive acts, and failures to act). Three areas where liability extended:
a) When you invite someone to participate in a risky situation (Sundance).
b) Paternalistic relationship of control and supervision (parent – child, teacher – student, landowners,
prisoners).
c) Where people provide a public function, where you do something that creates risks.
SCC says the common thread in the three is a material link where people reasonable rely on someone else. Ultimately based
on the facts hosts not liable because they were not materially linked to the drunk in such a way to create reasonable reliance
= unless someone is active in creating the harm (host was not linked in any of the 3 categories) there is no duty to assist –
need a special relationship/link to impose duty to assist.
3) Social Policy
Case stands for:
1) Common law does not extend liability to people unless there is a nexus (special link) between parties to assist others
that you have not injured.
2) Then have to decide if the host/passer by/etc has acted in such a way to fit into the three categories the SCC has
established.
3) This has not removed liability from social hosts – it was very fact specific.
Relationships of Control/Supervision
There is a duty to control people under your supervision, because supervisor by definition has control over the person they
supervise = have to help them.
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Creation of Danger: Childs and Desmeroux – merely hosting a party does not create a dangerous situation. Oke v. Wiede
Transport Ltd. and Carra: D accidentally struck a road sign – leaving pole exposed, and did not notify anyone. Next day
another driver was impaled. MBCA said no liability for lack of foreseeability.
Reliance Relationships: Childs and Desmoreaux – when someone relies on you to do something then you have to do it.
Promises that are not enforceable under contract (due to lack of consideration) but a gratuitous promise may be enforceable
in tort law – if the other person relies on you to do it. Zelenko v. Gimbel Bros.: restates principle that if you take on
responsibility to act then you must act.
The Emergency Medical Aid Act: Act says if you cannot be sued for helping someone who falls under the Act then you
cannot be sued unless you are grossly negligent (makes it harder to be sued).
Statutory Duties: Wheat Pool says no tort for breach of statutory duty, but …
O’Rourke v. Schat (SCC 1973): Cops have a duty from both statute and common law to assist the public.
Jan Doe (337): Police were trying to catch a serial rapist and police believed they knew who was the doing it. However, they
did not warn the community and a women was raped. So, women sued police department. She won – police created danger
by not informing the public (hope he did it again to catch him). Others say it is a breach of statutory duty.
Bhadauria v. Bd of Governors: Can the existence of a statutory regime prevent a tort (duty). P was suing based on
discrimination – she sued for discrimination (could have gone to Ontario Human Rights Commission). SCC said there was
no tort of discrimination, because there was a parallel system – HRC to deal with discrimination and the court did not want to
undermine the Ontario government’s regime.
Chapter 8 Remoteness of Injury
Duty Question: Did defendant owe this person a duty to take reasonable care?
Remoteness Question: Did defendant's duty extend to this type of injury?
Most cases foreseeability is found – because the damage/injury actually did happen (should not matter but it does).
Wagon Mound One:
Liable only for those types of injuries which are foreseeable
Why? Not just to hold person liable for injuries which he could not have reasonably foreseen
Wagon Mound (No. 1) v. Morts Dock & Engineering Co. Ltd.: A ship (Wagon Mound) was moored in a harbor in Sydney.
The ship had negligently discharged bunker oil to leek from the ship into the water. The oil coated the dock and shore. The
owners of the dock used welding torches they determined there was a minute risk of fire. However, a rag was ignited
sparking lots of damage to the dock and other ships. The owner of the dock sued the Charter of Wagon Mound for
negligence.
Re. Polenis and Furness, Withy & Co. Ltd (1921): Had been the definitive remoteness case; so, court examined it. P
dropped a plank of wood into hull of boat, the spark ignited gases that had accumulated causing the ship to blow. Ship sued
company for negligence – D said the injury was very unforeseeable, but court said D is liable for all injuries which flow
directly from negligence (regardless of foreseeability). The court said Polenis no longer good law. Court said a principle of
justice/fault people should only be liable for things that they could prevent (reasonable foresee). Case reasserts the fault
requirement of tort law.
Retreat from Wagon Mound: Following judgments tried to clarify Wagon Mound, and ultimately expanded the
boundaries of remoteness (foreseeability). Liability expanded so far some argued it was less restricting than the directness
test of Polenis.
Thin Skull: Smith v Leech Brain & Co.: An individual suffered a burn on his lip, because D allowed molten metal to
splash onto him. The burn became worse and worse – it developed into a cancer and later died. His estate sued for his death.
Argument was that it was not reasonably foreseeable for a burn to cause a death (from Wagon Mound). However, the court
applied the thin skull rule – when you cause an injury which normally would have been minor but caused severe damage to
this particular person you are liable for all damage. The entire injury does not have to be foreseeable, just the type of injury
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has to be foreseeable (since the burn was foreseeable D is liable for the entire injury). This test applies to both physical and
psychological injuries (egg shell personality).
This is why the test for nervous shock is foreseeability – same test for both psychiatric injury and physical injury.
Crumbling skull rule: If person was suffering from ongoing degenerative condition, D is only liable for the worsening effect.
Type of Damage: Hughes v. Lord Advocate: Workers uncovered the sewer (open hole) and they burnt tar balls as warning
lights around the hole. Boys drop one of the balls down the hole – it exploded from the sewer gases = boy injured. Boy sues
government for negligence.
D argued that it was reasonably foreseeable that the boys might burn themselves, but it was not foresseable that they would
cause an explosion = pursuant to Wagon Mound liability should not be extended.
House of Lords said it was not necessary to reasonably foresee how the injury (burn) was caused as long as the injury (burn)
was foreseeable, and need only foresee type not extent of injury.
Lauritzen v. Barstead: D spun steering wheel causing Pto lose control and hit the ditch. After several attempts to walk for
help, they were discovered and P had to have both feet amputated. D held liable because frostbite reasonably foreseeable in
circumstances.
Tremain v. Pike: Said not all rat injuries can be treated the same way. Rat bites are foreseeable, but disease from rat urine
(which was highly unlikely) is not.
School Division of Assinboine South (no. 3) v. Hoffer and Greater Gas Co. Ltd.
Falkenham v. Zwicker: Car was driving, but a cat ran out onto the road. The car braked and swerved into the farmer’s fence
– causing fence damage. Later cows ate the staples causing hardware disease = farmer sued driver of the car. Court held
them liable, with some contributory negligence on apart of the farmer.
Possibility of Damage: Wagon Mound 2: Owners of ships that were damaged by the fire are suing (instead of the dock
owner). D argued that the lighting of the oil on the water was not reasonably foreseeable (everyone agreed at the time it was
very unlikely – why the dock owners continued welding) – using the same argument they used in Wagon Mound 1.
However, court said the test was it has to be reasonably foreseeable, and not likely and reasonably foreseeable. If the
consequence is very severe and the cost of avoidance is very low then you are liable if you take a remote chance (even
remotely possible activities can be liable if the reasonable person would have take steps to reduced or avoid the risk of
injury). This case removes the restrictions of Wagon Mound 1.
Palsgraf v. Long Island Railroad Co.: The fireworks caused a weigh scale to fall. We are only liable for what we can
reasonably foresee from a duty perspective. Dissent focuses on remoteness and says were the court should draw the
proximity line is arbitrary (up to judge) based on justice.
Intervening Forces or Acts: Novus Actus Interveniens
A’s negligence causes B an injury. After the injury occurs Doctor negligently treats the injury making it worse (or
ambulance screws up, etc). Assume there is liability for the original injury – is A liable for secondary injury or is it a novus
interverniens (thus severing the chain of causation). Issue is legal cause (remoteness), because factual cause is made out (if
not for A, B would not have one injury let alone two).
First party is still liable – question is for how much.
Klar says solution is remoteness test: Is it reasonably foreseeable that what D1 did would cause the consequences that
materialized. The mere fact that the injury was contributed to or caused by the act of P or a third person, does not
relieve the defendant of liability if the “intervening act” was within the risk set in motion by D. Courts do not like to
hold one person liable for the actions of a third person. Have to argue statistics or other information. Klar says it has to quite
remote to remove liability.
Harris v. TTC and Miller: Merely because P caused/contributed by being negligent to his own injury does not necessarily
mean D is excused from liability. When D should have done something to prevent P from injuring himself (hanging arm out
of the window of a bus = the damages should be apportioned based on the degree of fault found against each party.
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Duty to Control
What if a prisoner kills another prisoner – is the prison liable for not controlling the people they have control over them. If
prison is negligent they are liable, because it is not a new intervening act. Question is whether or not they negligently failed
to control the person under their charge.
Rescue: Major hurdle in rescue is that people make voluntary choices – so why should they collect? Cardoza (note 1) says
there is no choice – you have to choose. But this is inconsistent with the duty to assist which says you do have a choice.
Horsley v. MacLaren: One passenger was drunk and fell overboard. The captain negligently tried to rescue = a third and
fourth party jumped in to save and one of the rescuers were injured.
1) First question is, was captain (A) negligent? Need to have a duty - did Captain (A) have an obligation to assist the
passenger? Generally no duty; however, duty because of the Canada Shipping Act or common law relationship of
control/supervision.
2) Was the duty breached? Court was divided, some said captains rescue attempt was negligent, others said it was not
negligent. Both majority and dissent agreed that you are liable for rescuers if you are negligent because as
either a remoteness or duty issue it is reasonably foreseeable that a rescuer will try to rescue.
Further, court held that futility of rescue is no defense, nor does rescue have to be successful. As long as rescue attempt is
not wanton or foolhardy (must be a reasonable rescue attempt) rescuer can recovery.
What if rescuer is contributory negligent? Debatable, Klar says it should not impact the action, Linden says it should impact
the action (probably just reduces damages).
Professional Rescuers: Firefighters for example – what happens when they get injured in a fire caused by a negligent act?
US has the Firefighter Rule that says firefighter can collect only when they go above and beyond the normal call of duty
(because they are already being paid for the risk, they have their own compensation).
Klar thinks that professional rescuer is treated the same as everyone else in Canada (although cases are not clear cut).
What is a rescue? Urbanski v. Patel: Doctors negligent caused daughter to lose a kidney, could her father who donated his
kidney collect as a rescuer?
Corothers v. Slobodian: P stopped her car because she saw an injured party in an accident – she runs down highway to flap
down a truck. Truck driver applied the brakes causing his truck to jackknife striking the women. She sued the negligent
driver saying she was a rescuer – and she won.
Second Accident: A injures B, but later because of the first injury B injures himself later on (slips on a toy because he
cannot see it on the floor because of his neck brace). Is second accident within the risk of danger created by the first
accident (where do you draw the line)?
Weiland v. Cyril Lord Carpets: P injured on a bus, because of D’s negligence. 2 days later he falls down the stairs because
of injury. P was allowed to recover, because it was within the reasonably foreseeable risk that D created (foreseeable that
injury would affect P’s ability to cope with the vicissitudes of life).
McKew v. Holland: P had an injured leg (from D’s negligence). His leg gave out while he was descending stairs; he jumped
but broke his ankle. No liability for D, because P’s actions were unreasonable for a injured person. Even if result was
reasonably foreseeable.
Klar says this case should either have been held to not be foreseeable (unforeseeable that P would act unreasonably) or hold
P to be contributory negligent.
Intervening Medical Error: P injured by D negligently. P goes to hospital and gets terrible treatment is D liable for all or
is doctor an intervening act?
Mercer v. Gray (OCA 1941): Court said when a doctor is negligent they become novus actus interveners, but if it is merely
an error in judgment then no liability.
Klar thinks the law has changed – question Klar feels is, is it reasonably foreseeable that a doctor can be negligent (he thinks
yes) = it should not be an intervening act. Also, Klar argues what if a patient sees 4 doctors about a stomach ache – none of
whom diagnosed he had a bad appendix – first three have intervening acts according to the old principle, but courts reject
this argument.
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Suicide: Automobile accident, leads to depression and ultimately suicide. Can P’s estate sue the negligent driver for the
death? Is suicide an new intervening act? Courts are very reluctant to view suicide as a compensatable injury = usually say
suicide is not within the risk of danger (no liability) unless the injury is a mental one (basically an extension of the thin skull
rule). Thus, court hold if suicide committed by a sane person that this is a new intervening act.
Warnings and the Learned Intermediary:
Three duties under product liability:
1) Make the product with reasonable care (manufacturing defect): bolts must be tight on a new car.
2) Design the product properly: All Kodiak quads flip over too easily.
3) Duty to warn of the risk of the product + the proper use of the product + what could happen with the abuse
of a product.
Learned intermediary fits under third category:
Hollis v. Dow Corning Corp.: Many breast implants were defective and caused severe consequences. There are risks
involved in breast implants – who does manufacturer have to give warning to. Most cases all you have to do is warn the
intermediary (doctor). However, what if the warning is not given to the intermediary – as in this case the doctor was not
fully informed of the risk regarding the breast implants? Causation problem as well, because P has to prove she would not
have gotten the breast implant – this requires that she prove that the doctor would have passed the risks that he got from the
manufacturer on to her. Evidence at trial said doctor would not have passed the risks on. The SCC explained the learned
intermediary problem, and quirky causation problem. Court said the manufacturer could not argue the doctor would not have
passed the information of risks on to the patient = when manufacturer is negligent in not passing on the risks causation is
irrebutably assumed (removed) as an element.
Defenses
Contributory Negligence: P’s own negligence contributed to P’s own injuries
1) Negligently contributing to the accident: Jaywalker hit by a speeding car.
2) Negligently exposing oneself to risk: Entering a car with a drunk driver – you do not contribute to the accident,
but you subject yourself to risk of injury.
3) Negligent act that increases seriousness of an injury: Not wearing a seat belt is unreasonable = does not mitigate
seriousness of injury.
Does not matter how you contributed to your injuries as long as they fit under one of the three principles.
Butterfield v. Forrester: when two parties are at fault there is a stalemate and thus no one is liable. At common law
contributory negligence was a complete defense. Court said even if D was negligent in leaving obstruction of the road, P too
was negligent by not avoiding the obstruction.
Davis v. Mann: Rule of last clear chance. Seemed harsh that P would get no $ merely because P himself was somewhat
negligent. Court said even if P was negligent, he/she could still recover if D had the last clear chance to prevent the injury
(Common law). Thus, at common law either P recovered everything or nothing.
Contributory Negligence Act (AB): Legislation changed common law, by allowing apportionment: when 2 parties at fault
determine the degree of fault and award damages on that basis (reduce damages by the amount of P’s fault).
Tortfeasors Act
Bow Valley Husky v. St. John Ship Building: Maritime waters = federal law applies. There was no federal contributory
negligence legislation. SCC held that even there no statute existed that the contributory negligence principle of
apportionment based on degree of fault would still apply. Court changed longstanding common law principle (because of
fairness).
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Rule of Last Clear Chance: who had the last chance to avoid the injury/damage should be 100% liable. Contributory
Negligence statutes say P still entitled to damages when P is contributory negligent. So, has the last clear chance doctrine
been abolished?
Some provinces formally have said no more last clear chance.
Others are ambiguous.
Klar says it has implicitly been abolished (whether or not provinces have formally abolished it in legislation). Wickburn v.
Patterson: AB had weird last clear chance legislation, judge adopted Klar’s argument and held that last clear chance is
implicitly abolished – and told legislature to expressly abolish the doctrine thru legislation.
What torts does contributory negligence apply to?
Intentional torts – I am throwing chairs around in a bar and I hit someone who has seen me throwing chairs for the last 10
minutes. Courts can say P was unreasonable for not doing something to prevent the injury (some disagreement but Klar
thinks it CN applies to intentional torts – provocation he says is just a form of contributory negligence + when P really
unreasonable for other reasons in intentional torts he is also contributory negligent).
What about other non-negligence torts (nuisance, or contracts). Probably yes, but not definitive.
How do you apportion Damages: You award based on degree of fault. Default position under legislation is to hold each
party equally responsible. There is no degree of causation (if you are a 1% cause = you are a cause – not a 1% cause,
because the 1% was required for the accident to happen). So, causation should not impact damages. Thus, question is what
is more blameworthy – driving negligently or not wearing a seat belt.
Seat Belts: Freedom proponents hate laws that protect you from yourself (government stay out my business, because I am
not hurting anyone else). Now all provinces have seat belt legislation – no longer the courts decision – breach of statutory
duty is evidence of breach of duty to take reasonable care (Wheat Pool). Question is how much do we hold them liable for?
Klar says it is incorrect to say had they worn a seat belt they would not have been injured – because you can say the same
thing about the driver. = who is more at fault (courts usually say seat belt is 25% at fault, while driver 75% at fault). Some
people want set standards of fault for seat belts – Klar says leave it alone because it is fact based (pregnant women may find
it uncomfortable, going to the store a block away different that a road trip with a drunk).
Glaske v. O’Donnell: D truck driver was being sued by P a child who had not been wearing a seat belt. There was a
statutory provision that said driver had to ensure that all children in his vehicle were wearing a seat belt – this cannot create
duties however only evidence of breach of duty. Childs father was in truck at the same time so D argued he was not liable,
because it was the father’s decision.
SCC held that failure to wear a seat belt is contributory negligent.
Driver’s duty (to take reasonable care that your passengers are safe [child wearing a seat belt]; so, in rare cases not wearing a
seat belt is not negligent) was not abolished because the father was present in the vehicle.
So, for D to argue contributory negligence - You have to prove that it was negligent for P not wear seat belt, and you have to
prove that the injury would have been less serious had seat belt been worn). Klar says then the damage should be focused on
the excess injury (hold driver responsible for 75% minus the part of the injury that would have happened anyways).
However, courts just award P 75% (minus 25% for contributory negligence).
It helps D’s insurance company, not D. So, the 25% is simply a savings for the insurance company.
Thin skull only applies to preconditions (naturally weak bones), because you still have a duty to mitigate damages. Not
drinking enough milk (which makes bones weak and thus more susceptible to injury) according to Klar is exactly the same
thing as getting into a vehicle without seat belts.
Voluntary Assumption of Risk (volenti non fit injuria)
Phrase means there is no legal wrong to one who consents (no legal action). This is a common law defense that is a complete
defense (you excuse the drunk driver for all liability, because it was the passenger who was at fault). In mid 1900’s
insurance/traffic accidents/compensation became important = this doctrine got whittled away. 1950’s-60’s 3 SCC cases
changed the doctrine: Drunk drivers argued voluntary assumption of risk. Court said you assumed 2 types of risk: 1)
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physical risk and 2) legal risk (implicitly wave your right to sue). How can you prove that you waved your legal risk? You
cannot so the doctrine was essentially killed.
Now it is almost a nothing defense – only when a jury misunderstands it is still a viable defense to a negligence action (it
remains theoretically possible but factually impossible).
Hambley v. Shepley: Policeman had a roadblock to stop D. Before cop got out of the car P slammed into him = no liability
because cop consented to the activity.
Illegality (ex turpi causa non oritur action)
For something that is caused by wrongdoing no action arises (complete defense).
Focus of defense was that P should not have an action for something illegal in which they were involved. Like voluntary
assumption this doctrine was grounded in morality (courts do exist to help wrongdoers).
Doctrine finds roots in contract: Klar is a drug dealer and I am a buyer – I say I will pay you next week (I do not pay): Klar
cannot sue for breach of contract in court, because he is a wrongdoer.
Hall v. Hebert: 2 young men went drinking and driving. They went down graveyard road (hill). The car’s keys got lost; so,
they tried to jump start the car. The non-owner tried it, but it was a muscle car = he lost control and it flipped. The friend
discovered the next day he had a head injury = he sued his friend. He said yes I was driving, but D was negligent because he
should not have let me drive a muscle car. P argued it was illegal to drink and drive so there should not be liability.
SCC on appeal decision ended the defense of illegality for personal injuries, now applies only to purely profit driven things
(drug dealer).
CHAPTER 10
Recovery of Pure Economic Loss:
Pure economic loss = financial loss without any corresponding injury, death or property damage (ex. loss of investment, loss
of profits, financial penalty). Traditional tort law required physical/property damage to be caused by someone. Historically,
there was no liability because:
1) Damage only happens once – while economic loss can affect a lot of people. (Indeterminate # of claims, from and
indeterminate # of claimants over an indeterminate amount of time). However, general tort law can have this same
problem (nuclear leakage can affect thousands), and this is only a problem with some economic claims.
2) Economics are usually easier dealt with in advance (contract), but this does not fit in with above example.
3) Qualitative difference between economic losses and personal injury, death, or property damage.
However, it is bad to generalize about economic loss claims – they are different (some raise above issues and others do not).
Best to recognize that different disputes raise different issues – thus what the courts have done is look at pure economic loss
in terms of different categories and examine the policy considerations for this category. Lawyers have to examine what
category a claim falls into, to view jurisprudence to see if D is liable, as each category is treated differently.
Economic Loss Categories
1) Liability for negligent statements: This is the category that first allowed economic loss to succeed = most common,
least controversial. Really part of negligent services but remains distinct due to importance.
2) Liability for negligent performance of services:
a) Directly undertake to do a service (where on person agrees to get travel insurance for another). These do not
have consideration or else it would be evaluated in contract.
b) Indirect Undertaking: Service is being preformed for your benefit. Example – lawyers drafts a will for a client,
can beneficiaries sue lawyer for negligent drafting (it was indirectly for their benefit).
3) Liability for relational economic losses: the highway example is an example – relational, because it is an economic
loss that is caused by damage to another person or his goods.
a) Related to property damage of another
b) Related to personal injuries/death
c) Relational contractual losses
4) Liability for economic loss caused by defective products or building: Often this dealt with warranties (contract).
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5) Liability of public authorities: Klar says this category is broader than pure economic loss, but most of these cases are
pure economic loss claims.
Liability for Negligent Statements
Opened the door for pure economic losses – indicated courts would be open to giving compensation for other categories of
pure economic losses.
Why distinguish between liability for negligent statements as opposed to liability for negligent acts? Not (despite what
courts said) because words different than deeds, as words can be deeds (advice). Instead it was because negligent words
frequently involve economic or business losses (no injury).
Hedley Byrne v Heller Eliminated restriction against recovery for damages caused by negligent as opposed to fraudulent
words: P wanted know if it should lend $ to a specific individual. He asked his bank if the 3rd party’s credit was good – they
passed question on to another bank. This bank sent letter back to P’s bank saying 3rd party was a good risk. P invested
money and lost it = P sued the bank that did the check. The letter disclaimed all responsibility for the advice. The court held
that the disclaimer was valid = no liability. . However, court said had there not been a disclaimer then P could have collected
for pure economic losses.
The test the court created for gratuitous negligent statements was: Was it reasonably foreseeable that P will rely on
the advice, and P does indeed rely of that information (slightly more specific duty than other negligence actions).
1) Duty of care based on a “special relationship”
2) The statement must be untrue, misleading, or inaccurate.
3) The Representor must have acted negligently in making the misrepresentation.
4) The Representee must have reasonably relied on the statement.
5) It must have caused (economic) damage.
Queen v. Congnos: Person was being recruited for a position in Ottawa. He went to the interview, to oversee a special
project. He was told by the recruiter that there was funding in place for at least 2 years + it had been approved by the
company.
Relying on this advice he quit his job and moved to Ottawa. However, after 2 months he found out that funding was not
their and he got transferred and later let go.
He could not sue in contract, because the contract did not guarantee funding (the statements that attracted him, it said he
could be transferred, and let go with one months notice). He sued in tort for negligent statement – and he won.
This case accepted Hedley Byrne in Canada. It had been accepted before, but never so well.
Duty: Stage One: special relationship based upon reasonable, foreseeable reliance
Duty: Stage Two: policy reasons to negate or limit the duty
Breach: failure to exercise reasonable care in statement
Cause: Plaintiff relied on advice to his/her financial detriment
Remoteness: loss was reasonably foreseeable
Notes
Some courts prefer the voluntary assumption of responsibility test, but Queen v. Congnos ended this debate in Canada.
#5: Debate as to whether or not P reliance was unreasonable – should it be contributory negligent or no liability at all. Klar
says courts are accepting contributory negligence in negligent statement actions.
Hercules v. Ernst & Young: Auditors of a company were sued for negligent financial statements. (Gratuitous negligent
statement as company, not shareholders, have contract with Ernst & Young). Annual general meeting was held and financial
report was given to the shareholders (showed company had made $) – this was negligently produced and inaccurate.
Investors later said we bought or refused to sell because of this advice.
SCC reworked duty issue to conform to the 2 step (DUTY) test from Anns v. Merton.
1) Reasonably foreseeable: that special relationship + reasonable reliance would result. If so a prima facie duty is
established.
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2) Policy considerations: Indeterminate liability, increased litigation, social costs (amount of time + $ auditors
would have to spend worrying about insuracnce/liability), the true purpose of the misrepresentation.
Court held prima facie a special relationship existed, but it was held under policy that Ernst and young did not owe a duty
(focused on indeterminate liability – focuses on purpose of audit statements: to indicate to shareholders how successful the
management and company is doing, and not for the purpose of relying on them for investment = cannot use misstatement
for a purpose that the statement was not intended to be used for).
New test is 3 steps (proximity has been added). However, Klar says for negligent misstatement cases the test is still
(probably) 2 steps as this is a longstanding case law.
What factors does one consider in determining whether a special relationship exists?
These factors determine if it was reasonably foreseeable for advice to be relied on.
Skill of advisor
Skill of advisee
Nature of occasion: formal not formal
Whether request was made
Nature of advice
What factors does one consider in determining whether advice was reasonable?
This question determines whether the advice itself was negligent.
Nature of occasion
Purpose for which statement was made
Foreseeable use of statement
Probable damage
Type of advisor and advisee
Generally approved practice: what was the standard of care that was expected.
Contract and Tort: Concurrent Liability
Before Hedley Byrne you sued professionals under contract – relationship defined solely through contract (doctors’ main
exception). Question after Hedley was what if you have a contract, but you would have fallen under tort had you not had
contract (negligent misstatements were it was reasonably foreseeable that P would rely and P did rely)?
1) this would perhaps give a better limitations period (at time contracts = 6 years from time of breach of contract; while
tort law was 2 years from the time damage occurred – sometimes breach (negligence) occurs many years before the
damage occurs.
2) Get better damage assessment in some cases – tort: put me back to where I was before the tort occurred (Reliance);
contract: put me to where I thought I would be (value of undelivered promise).
Hypothetical: "A" sells a painting to "B" for $25,000. He tells him that the painting is worth $75,000. "B" buys the painting
only to discover that it is worthless. "B" sues "A".
Contract: "B" is entitled to the value of what was promised, i.e. a $75,000 painting ($75,000 in damages).
Tort: "B" is entitled to argue that had the representation not been made, he would not have entered deal. He thus gets his
$25,000 back.
Question: assume the painting was actually worth $35,000. What would the contract damages be? 40000? What would the
tort damages be? Nothing, because 35000 is more than 25000.
1982 SCC created principle of concurrent liability = you can sue in either as long as you can prove both. The only
exception is that you cannot sue in tort to avoid a term of a term of the contract (avoid an exclusion clause is not acceptable).
You enter evidence for both and list damages that you want.
BG Checo International Ltd. v. BC Hydro & Power: Case dealt with concurrent liability and overlap of tort/contract. Facts:
Tenders were called for to erect transmission towers. P was one of the bidders, and in the pre-tender package it was
represented to bidders that the right of way would be cleared by a 3rd party. P entered into contract, and contract too said that
the right of way would be cleared. The right of way was not properly cleared = they lost $. So, they sued the company for
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both contract and negligent misrepresentation. Could they still sue in tort when the misrepresentation was included in a
contract?
Majority of the court held that this situation allowed concurrent liability (P can choose either cause of action) if:
1) There must be a tort duty which is independent of the duty in contract;
2) If the contract contains more stringent obligation than would be required in tort, plaintiff can sue in either (but
probably would choose contract);
3) If contract stipulates lower duty than owed in tort, plaintiff relegated to lower duty; i.e. cannot use tort to avoid
contractual term.
So, you can sue not just the contractors you contracted with but also their subcontractors.
Dissent said where contract has an express term you should be bound to the contract.
Note 8 (London Drugs): LD stored an expensive transformer with a storage company. Exclusion clause limited damages to
about 100 per item. Two employees moved the transformer and wrecked it – 40000 worth of damage. P sued the company
and the employees for negligence. Company limited to 100 and employees were not a party to the contract = they were
being sued for 30000. Did employees owe a tort law duty to the transformer company? The court said there was a duty and
they were liable. Where they covered by liability policy that the storage company had? Yes they were covered by the
insurance.
Did they owe a duty based on policy? Court never addressed this question, Klar thinks not – 15 an hour = I think I will be
liable for 30000.
Negligent Performance of Services (2nd category of Economic Losses).
Direct Undertakings
A promises to do something for B. There is no consideration for the promise
A fails to do it reasonably and B suffers damage.
B.D.C. v Hofstrand Farms – Direct Undertaking
Issue was between a courier company and someone who lost $, because of negligence of the courier. P had to register a
document by a certain time, courier was hired. However, due to legislation the courier actually contracted with the
government not P. P lost $ when courier was late, (allegedly) because of negligence.
If you are relying on service, and it is reasonable to rely on it = you are able to sue under tort (gratuitous promise). However,
no liability in the case as it was not reasonably foreseeable by courier that he was in a special relationship with P (no
reasonable reliance).
Indirect Undertakings
A enters into a contract with B
A fails to perform contract reasonably
C suffers damage as a result
Should C have a tort claim against A
Wills Cases – Indirect Undertaking
After Hedley Byrne beneficiaries who lost gifts began successfully suing lawyers for negligent drafting of the will (before
lawyers only responsible to clients).
Klar says this is a stretch, as beneficiaries (usually) do nothing on the advice of the lawyer, and in most cases lawyers do not
even know the beneficiaries = no reliance.
Now we treat wills as a negligent service. So, unintended beneficiary gets gift, intended beneficiary gets lawyers
insurance $, and lawyers insurance fees increase. Klar says we should just make the gift right (Wills Act says we cannot,
Klar says lets change the wills Act) = we give $ to 2 people instead of one.
Economic Losses Caused by Defective Structures or Products
So, historically there was no tort for pure economic loss resulting from defective products/structures, because it was thought
to be more efficient to deal with these issues through contract. Thus, tort law not concerned with quality of goods
historically.
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Rivtow Marine Ltd v. Washington Iron Works (1973): A logging crane had a crack in it. It was taken out of service.
Company sued in tort the manufacturer, because D knew about the defect and D did not perform its duty to inform. Had D
disclosed P could have serviced crane in the off-season, but by not disclosing more profit was lost. It also sued for the cost
of repairing the crane.
SCC created tort liability for defective products: they held the company could collect for the economic loss caused by the
defective produce (the difference in lost profit), because there was a close connection between the two companies (Duty to
Warn). The costs of repairs was denied, as it was an economic loss that could be collected only through contract.
Dissent (Laskin) said they should be allowed to collect the cost of the repairs. If left in disrepair it could cause an injury.
And since tort law would allow a claim for an injury then the manufacturer should be liable for the cost of preventing that
harm. (When it poises a danger to people manufacturer should be liable).
Winnipeg Condominium v. Bird Construction (SCC 1995)
Bird built B a building in 1971. B sells building to C. Defects appear in building in 1980's (building developed cracks).
Structural engineers were called in they said it would be OK. 2 years later the cladding had to be replaced = C sues A for
costs of repairs in tort as no contract existed between them. This is an economic loss case (not a damage to property case),
because it is the building created an inherently damaged building (a damage to property case would be had the cladding
fallen on a vehicle parked below).
Can C sue A in contract? They had no contract with Bird.
Can C sue A in tort? Yes, as majority accepted Laskin’s dissent from Rivtow.
What "quality" of building will tort law require? Building’s or product’s that have a defect that poise a real and substantial
danger to persons or property are unacceptable, if D breaches then cost of repair awarded. Problem is what does is real and
substantial danger: is a cracking driveway that one can trip over a real and substantial danger (probably not), because most
cases have dismissed actions for lack of real and substantial danger.
Main policy concern addressed by the court was indeterminate liability. Klar says court did not examine what contracts
between parties had to say.
Relational Economic Losses: Where someone suffers economic loss, because of damage/injury to someone else.
CNR v Norsk Pacific Steamship (SCC 1992):
P was the principal user of bridge owned by Crown. Bridge damaged by D’s negligence (tug boat) causing it to be put out of
service. P suffered economic losses as a result (P had a contract to use the bridge to transport its cargo) = P sued D for
recovery of the economic loss.
Policy Concern: If everyone who suffers economic losses as a result of bridge being closed there could be hundreds of
claimants (indeterminate liability). Proximity - device which controls indeterminate liability – each case’s facts must be
evaluated. Test for proximity is whether P’s loss was "sufficiently close" to D's negligence so as to allow P to recover
without opening up liability too much?
In this case few people used the bridge – CNR was the main that was a “sufficiently close” one so no problem of
indeterminate liability. Thus, relational economic damage is prima facie recoverable if P’s loss (foreseeable), and is
significantly close to D’s negligence (proximity).
Dissent (La Forest): Says indeterminate liability is not the issue, question is whether it is efficient for tort law to be
addressing relational economic losses. The Crown and CNR had a contract – a relational contract – the issue of what
happens if the bridge is not usable should have been addressed with in the contract. He is saying both parties were
sophisticated parties that should have dealt with these issues (either through negotiation or insurance).
Bow Valley Husky v Saint John Shipbuilding (SCC 1997)
P was a company that incorporated another company to construct oil rig. P was the sole user of rig, as a result of D's
negligence in failing to warn of the flammability of insulation the rig burnt down. P could not use the rig and suffers
economic losses – problem was P was not the owner of the oil rig. Thus, there was economic loss, relating to P’s inability to
use the property that they had with the owner of the property. Majority dismissed the action, because of lack of proximity –
concerned about indeterminate liability (weird because there was only 1 user, and the relationship was very close [one
company owned both]). Klar says these uncertain outcomes are a result of the fact specific nature of the law currently – to
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determine if indeterminate liability exists. Relational economic loss is recoverable in Canada. It is based on proximity and
duty of care. Difficulty is when is relational proximity enough? La Forest approach although certain has not been adopted.
Until we get a clear line rule = fact specific based on proximity.
Action Per Quod Servitium Amisit: Employer's action for economic losses caused by injury to employees (action per quod
servitium amisit)
Action for loss of consortium: Spouse's action for loss of consortium due to injury to spouse
Two areas of law have allowed recovery historically: employer when employee got hurt, or where wife was hurt = husband
could collect (loss of consortium). Perhaps they were not pure economic loss cases, but rather damage to property
(employees, and wife). Some provinces still have action per quod (AB still has it). Most provinces have abolished loss of
consortium (in Alberta either spouse can sue for loss of services, because of an injury).
Personal Injury and Death:
Fatal Accidents Legislation: Action brought by dependants for death of person who supported them. When you were
dependant on someone for support, and he/she is killed as a result of a tort – this Act gives a cause of action (applies to
children up to the age of 18, but applies throughout adult life). Important claim, based on amount of support one would have
collected (can be 20-40 years of support).
Survival of Actions Act: at common law torts were personal actions so if person was dead the action died. This Act changed
this = actions can now survive their death. Questions now is what can the estate claim – what heads of damage: in most
legislation only direct financial losses can be claimed by the estate – in ABCA interpreted to allow collection of loss of
future income, but Legislature closed this window recently = only direct financial losses are recoverable.
Chapter 11: Public Tort Liability
Crown Liability: Historically there was an absolute prohibition against suing the Crown. A petition of right developed
where you could sue the Crown if you received permission from the Crown.
Proceedings Against the Crown Statutes:
Crown can be sued for torts of its servants or agents, as an employer, as an owner, occupier or possessor of property, or by
virtue of statute (Ministers, Departments, Municipalities, Boards, Tribunals, etc.: Ontario government and SARS for
example). These statutes have basically puts Crown at same level as ordinary citizens by simply removing the historical
prohibitions against the Crown.
Policy Objections to Being Able to Sue the Crown
1) To what extent should courts, as a matter of separation of powers, "second guess" the decisions made by duly elected
or appointed public authorities?
2) Are courts capable of resolving "political" issues which involve the exercise of discretion based on the weighing of
conflicting interests? Do the courts and its process have the ability/resources/etc. to make decisions (no committee
hearings, other interests not heard).
Express Statutory Duties and Liabilities
Where statute imposes a duty on a public authority and provides for civil liability for a breach of the duty, courts will apply
the statute. Not problematic as government has given the courts the authority (same principle applies to the Charter).
Common Law Duty – when Statue does give express civil action
Two stage for determining when failure of a public authority to reasonably perform a statutory duty leads to a private right
cause of action: From Cooper and Edwards
1) Was it foreseeable to public authority that their action would harm P, and was the relationship proximate (private
duty that is not owed to public in general)? Courts increasingly using lack of "proximity" between public authority
and complainant to deny prima facie duty (Cooper).
2) Are there policy reasons to negate prima facie duty duty? This is where we evaluate whether or not courts should be
making “political” decisions, or “second guessing” elected officials, because of capacity.
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a) Standard of care for operational activities (what governments actually do): It was thought that we should
make these activities recoverable on the standard of reasonable care (private law standard).
b) Standard of care for policy decisions: "good faith" to make this element unrecoverable. The problem is the
two are not mutually exclusive, and thus are practically impossible to separate.
City of Kamloops v Nielsen (1985 SCC)
Solidified Anns test in Canada (established a presumptive 2 step duty test: 1) Foreseeable 2) Policy) + it was a public liability
case were liability was divided between policy and operational dichotomy. In Kamloops a builder was building a home
contrary to code – the house was completed despite the building council not approving. The Nielson’s bought the house and
sued the municipal (building) council. SCC held Kamloops liable, but it is unclear why (could have been “bad faith” or
breach of reasonable care).
Just v BC (SCC 1989): (Pre Cooper/Edwards)
Rock slide in BC killed a person on his way to Whistler. BC had a scheme for monitoring rockslides = P sued Ministry for
negligence. It was assumed that the Ministry owed P a common law duty of care issue was whether the duty was breached?
SCC determined that this was an operational activity, because it dealt with the manner and quality of the operation system
= owed standard of reasonable care [thus a new trial was ordered to see if the inspection had been negligent]. Conversely
“policy” decisions governed by “good faith” was whether or not to create the system.
Dissent + Klar said if this was operational almost everything has to be considered policy, but SCC has gone the other way
(sometimes).
Swanson & Peever v. Canada (1991): Pilot crashed. He contravening regulations and Transport Canada knew of breaches
but did nothing. SCC said this failure to act was operational = liability.
Brown v. BC: Icy highway – was a system for sanding and salting roads (there was a summer and winter schedule: winter
had more resources + quicker response). This accident happened at the end of the summer schedule = took 3 hours to
dispatch the crew, 20 minutes before they arrived the accident occurred. SCC held that this was a matter of policy, as
government decided to have a summer/winter schedule = no liability.
Swinamer v Nova Scotia: Trees were falling down side hills. NS created a system to inspect for falling trees. They would
flag the tree and later cut it down. The tree in question was not flagged = injured someone. SCC said no this inspection was
policy not operational.
Legislative Activities and Negligence Law: SCC has held that a municipal corporation could not be sued in negligence for
passing an invalid by-law zoning plan.
Judicial Decisions: Judges exempt at common law and under statute for negligence.
Very confusing are of tort law, because operational and policy distinction does not exist (the policy [how many times to
inspect] impacts how the operational component is carried out). Klar says they are not reconcilable with each other.
Cohen (author) outlined 10 questions to make distinction between policy and operational activities.
1) was decision a routine
2) how much discretion was involved in the decision
3) what type of interest
4) injury deliberate or unintentional
5) what was the status of the decision maker
Then Cooper v. Hobart and Edwards v. LSUC came along: Need foreseeability, and proximity. Court looked at the
statutory provisions and asked: was there a common law duty in the first place?
Now you look to see if there was a common law duty (D says no and lots of public authorities get off here) then you look to
operational vs. policy, because Sask. Wheat Pool says a statutory duty not enough = you need to prove reliance (or
something else to create a private relationship between the injured person and government) to convert the legislation into a
private law duty.
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Misfeasance in a Public Office/Abuse of Power:
This is a unique cause of action (separate from negligence, as it is an intentional tort).
Requirements
1) Involves a “public official”
2) Who acts in relation to the exercise of a statutory authority or power
3) Who intentionally uses the power to damage plaintiff
Two types of intentional abuses:
Historically abuse of power was directed at a public official who abused his statutory power to harm an individual
intentionally (targeted malicious). Few abuse of power cases, because these fact occur infrequently. However, recently
untargeted malicious has be included: they are were a public authority abuses his power for some reason and because of this
he causes damage to an untargeted victim.
1) First, exercising power or authority in order to harm plaintiff (targeted malice) (Roncarelli v. Duplessis).
2) Second, exercising authority which one knowingly does not have when harm to plaintiff is to the knowledge of the
defendant probable (new area).
Odhavji Estate v. Woodhouse: Fatal shooting in TO, by a police officer. Statute in ON said whenever police shoot someone
there has to be an investigation by Special Investigation Unit and police officers have a duty to cooperate with this Unit. P’s
estate argued that the police failed to cooperate, which caused family mental distress. They sued for negligence and abuse of
power (for refusing to cooperate). SCC held that abuse of power could be made out on the facts of this case = the abuse of
power tort has been expanded to untargeted victims. Now if you abuse your power you can be liable if you directly target
someone or when you knew or ought to have know what you were doing abused your power and you knew or ought to have
it could have injured P.
Chapter 12: Strict Liability
A person is said to be “strictly liable” when liability is imposed despite the fact that the defendant was not “at fault”
in any way. Reason for this cannot be corrective justice as there is not wrongful act.
There are very few examples:
1) Rylands v. Fletcher (1868) water from one person’s land flooded lands of his neighbor, even though he was no at
fault he was held strictly liable.
2) Liability for fires: SL for fires that you start and let get away, but NG law has largely taken over.
3) Liability for animals: Now mainly dealt with by NG. For domestic animals SL applies only to animals you know are
dangerous
4) Defamation and nuisance have a strict liability component
5) Vicarious liability: not a cause of action – but merely a situation were someone is liable for a tort committed by
another person.
Vicarious Liability
One person is liable for wrongdoing of another despite the fact that he was not at all at fault. It is strict, because the person
that has to pay was not at fault in anyway (if that person is at fault then you would not have to sue vicariously) – you can be
liable for both at the same time.
1) Principal being responsible for torts of his agent – not (really) vicarious because the agent is (fictitiously) the
principal – although it is considered vicarious liability.
2) Statute can also impose strict liability – if you allow anyone to drive your vehicle for consent you are vicariously
liable in addition to holding driver liable too.
3) Employee – employer the most important section.
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Employer - employee relationship: Employer did nothing wrong (they trained, selected, supervised, gave proper
equipment, etc) but have still been held liable = true examples of vicariously liability. Employer only responsible for certain
torts of its employees (and you have to be an employee).
Two requirements:
1) The person who committed the wrong must be an employee, not an “independent contractor.
a) 671122 Ontario Ltd. v. Sagaz Industries (2001 SCC): Key question is to ask whose “enterprise” or business is it?
What is the policy - enterprise liability? Court looked to degree of control, the permanence of the relationship,
whether the marketer had his own tools/office, who worried about taxes, does he have his own business card.
b) KLB v. BC: Sexual assault of foster children by the foster parents = government sued vicariously. Are foster parents
independent contractors or employees? Majority said foster parents are independent contractors. Dissent said there
is supervision by government = was sufficient control to impose liability.
2) The employee must have committed the wrong during “the course of the employment.”
a) Test pre Bazely was whether the tort that the person committed was an unauthorized mode of conducting an
authorized activity, or was it an unauthorized activity all together (this meant almost all intentional torts
were not considered vicariously liable). Problem was you could not truly make the distinction.
b) Now use the Strong connection test: is the wrongdoer’s tort sufficiently connected to wrongdoer’s job as to
make it fair and just to impose vicarious liability on employer?
a) What is the policy - enterprise liability?
b) Person who creates the enhanced risk ought to be required to pay the costs if risks occur
c) To determine strong connection/enhanced risk you look to:
1) The opportunity the enterprise gave employee to abuse power.
2) The extent to which the wrong enhanced the aims of the employer.
3) How related was the wrong to friction/intimacy inherent in to the employment
4) How much power was given to employee in relation to victim
5) The vulnerability of potential victims.
Policy goals of vicarious liability: Bazely v Curry (SCC 1999) and T.(G) v. Griffiths (SCC 1999):
Bazely v. Curry (Jacobi was a companion case): Residential school was run by a non-profit children’s organization for
troubled youths. During the course of this activity a person that was hired by D organization assaulted a child (an intentional
tort). SCC, abandoned the old test, and said the first thing a judge should do in a vicarious liability case is look to precedent
to see if it was a vicarious liability case before – SCC said there were not any in this case (Klar says there was lots – and
even in Jacobi precedents are discussed). Nevertheless the SCC looked to policy, they focused on:
1) “Fair and just” compensation to victim of tort
2) “Deterrence” of employee’s wrongdoing
Based on above two policy considerations SCC said the principal/rational for vicarious liability is “creation of risk.” Thus,
the who created or enhanced the risk that the tort would be committed ought to have to fix the tort that was committed, as
this will meet policy goals that were outlined.
Now you have to determine who caused the risk? Merely running a daycare/day camp and hiring someone is not enough
(need something more than creating the activity) – you have to enhance the chances (setting up the employment in such a
way as to increase the chance of the outcome).
Other Policy Goals?
1) Compensation: We want to compensate P for his loss, and employer better able to absorb and redistribute the loss.
However, this does not explain why independent contractor not covered. Also, doesn’t explain why contractors
exempt.
2) Deep Pockets: Employer better able to pay. Some employer are non-profit organizations and some contractors are
loaded.
3) Employers hold a high degree of control employer has over “employee.” However, heart surgeons for example are
not controlled by their hospitals.
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4) Deterrence: If employer knows they will be held liable – they will take greater steps to monitor their employees.
Why not use NG, and why no care required for hiring independent contractors.
5) Business created the risk in the first place so they should be liable. Does not explain why contractors not liable, as
employer controls work in both cases.
Klar says there is no good explanation of vicarious liability. This is why we have such a hard time in applying it in real life
cases.
Alternatives to Vicarious Liability:
1) Direct Negligence action against employer.
2) Breach of Fiduciary Obligation
3) Non-Delegable Duties: jurisprudence says high degree of care and lots of responsibility on the delagee; however, this
is extremely vague and courts unsure how to apply it.
Chapter 13: Private Nuisance
Private nuisance protects ones right to use and enjoyment of land. Nuisance does not require unreasonable care, instead it
requires unreasonable conduct – thus, it is a compensatory action not a fault based action (like negligence). Question is not
who is at fault, but whose conduct if unreasonable – who should be required to change their expectations?
Who Can Sue of Private Nuisance?
Motherwell v. Motherwell (ABCA): One household kept phoning the other home and leaving harassing messages. Nuisance
succeeded even though the person who sued had no property interest in the home. In Canada occupants of homes have been
able to sue for nuisance (despite not having a property interest in the home).
England says nuisance protects interests in land (thus only people who have a proprietary interest can sue for nuisance).
Hunter v. Canary Wolfe (England – recent case): HL discussed Motherwell and decided in there jurisdiction this case was
wrongly decided.
What is Use and Enjoyment? What is Unreasonable Interference
Use and Enjoyment is on a spectrum: Some activities are really annoying but do not cause damage (noise, odors =
psychological disruptions). At other end of the continuum are harmful activities (break windows, peal paint off house, make
you physically sick). Courts have said as it becomes more harmful – the more likely you will succeed in nuisance (at the end
there is no excuse for allowing). Thus, you can claim anything as nuisance that you want, but court will evaluate
reasonableness:
1) Consider utility of the activity
2) Who was there first
3) Character of neighborhood
4) Sensitivity of complainer
5) Was reasonable care taken to limit the effect
Hunter v. Canary: Nuisance protects the quality of the land in regard to its amenities – takes us back to Victoria Park who
argued profit and a right of privacy were qualities of use and enjoyment – the court in that case rejected both arguments.
Canary held that the blocking of television signals was not a nuisance, because it was a building that was interfering with
television (and a mere building cannot constitute a nuisance).
Nor Video v. Ontario Hydro: Cable company complained that a hydro tower were blocking reception. Court accepted,
because as technology improves so too must our use and enjoyment interests.
Tock v. St. Johns Metropolitan Area: SCC held that D’s storm sewer than backed up was a nuisance. The system itself did
not make a nuisance, but a backup leading to property damage – can create a nuisance, as D’s activity creating damage
(which is unreasonable conduct). Klar says these are accident compensation cases not nuisances.
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What impact does Injury Play in Nuisance?
You have to be suing for amenities of land (thus personal injury/property damage is only evidence of unreasonable conduct
not proof – which it would be for negligence). Suppose I live next to a golf course, and I get hit in the head with a golf ball –
assume the golf course is liable, can you sue in nuisance? Clearly you have an injury, you have property rights, and it
resulted from an activity on a neighboring property (what you are suing in nuisance for is that you cannot properly use and
enjoy your land because of constant fear of golf balls) – if this was a 1 off thing then no nuisance action is available.
Hunter v. Canary: Said personal injury or damages does not make out a nuisance action – although it could be evidence for
negligence.
Defence of Statutory Authority to Nusiance
Legislature authorized us to do this so it cannot be a nuisance. When can you use the defense?
Tock v. St. Johns: SCC came up with three different opinions on when the defense could be used = very confusing,
clarification came in:
Ryan v. City of Victoria clarified the defense: SCC said whenever your activity is statutory authorized or permitted you can
claim the defense, if the nuisance was the inevitable consequence of the activity (no other option for carrying out the statute
– a way to avoid the nuisance).
Two requirements:
1) The activity must be a statutorily authorized (not necessarily mandatory) activity
2) The nuisance must have been the “inevitable consequence” of the activity, which means there cannot be another
option for how to carry out the statue that would have avoided nuisance.
Chapter 14: Occupiers Liability
Occupiers' Liability: Tenants of a house is liable for occupier’s liability. This law developed through the common law – it
was very complex. It made a lot of distinctions:
1) Nature of the person on the property – 4 categories and standard of care varied depending: trespasser (not an
authorized guest), licensee (on property with person), invitee (person who is there for commercial benefit), person
there for a contractual right. This was not a clear cut distinction (implied permission, or failure to stop someone
from coming, etc.)
2) Then decide if duty of care was breached. Duty to trespasser – not to willfully or recklessly injury trespasser.
Licensee – blatant hidden dangers. Invitee – unusual dangers.
3) CL only applied to injuries caused the condition of the premises: liability for falling through the stairs. But no
liability for someone hitting you on the head with a golf club as this was an activity (then ordinary negligence law
would apply).
Most provinces now turned to legislation to REPLACE common law. Only distinction in AB is trespasser and everyone else.
Duty now is basically the same as negligence + liability extended to all injuries that occur on the premises. If dealing with
an occupiers liability use it; lots of times it is forgotten. Lots on injuries occur in malls, sports arenas, etc. Statute
demonstrates duty of care requirement + remedy for breaching. CL remains important for determining terms/etc. that are not
in the Act.
Structure of Alberta Occupiers Liability Act:
1. Common duty of care owed to all "visitors" and all injuries.
2. Duty is to make sure premises and activities are reasonably safe
3. Occupier is person who has responsibility for and control over premises
4. Duty owed to trespassers is not to willfully or recklessly injure them.
5. If a child trespasser is on land to the knowledge of the occupier and the occupier knows that there is a dangerous condition
or activity on the land, the occupier has a duty to see that the child is reasonably safe
6. Contributory negligence applies
7. Voluntary assumption of risk applies but it is as onerous as volenti at common law
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Chapter 16: Defamation
Basically common law dictates defamation, with some statutory guidance. Media is most likely target of defamation
lawsuits.
Issues at Stake: Freedom of speech vs. Protection of Reputation: These two interests are incompatible – as to the extent that
you protect one you limit the other. Thus, battle is to find the appropriate balance. Klar says Canada has protected
reputation more than freedom of speech – the result being that speech has been limited to much (much more than Yankees).
Is this because the law different or is the approach different – Klar says both.
Hill v. Church of Scientology: Very important case, as over a million was awarded (a lot for a Canadian case), and it dealt
with the Charter, and it expressed a preference for reputation over free speech.
Church was being perused by the Crown for something. In the course of these proceeding defamation arouse: (Manning)
Lawyer of the Church made a statement about Crown prosecutor (Hill). Church was going to alleged that Hill should be held
in contempt of court for failure to seal documents properly.
1) 1) The night before this contempt order was going to be filed Manning made public the notice – Hill claimed this to
defamatory .
2) There were other actions: some agains the Church others against Manning personally.
To what extend does Charter apply: Freedom of Expression is protected. Thus, since defamation is about freedom of
expression how much limit will Charter tolerate? Charter does not apply to common law (private law) – thus private law
torts are not impacted. Defamation Act does fall under the Charter, but Defamation Act only provides for special damages/
and other ancillary things so this does really impact defamation. However, Dolphin Delivery: Says even if Charter does not
apply the values of the Charter should be used to inform the common law. Canadian courts say (current) defamation
system is compatible with the Charter. SCC says reputation is highly, highly valued. Hill’s reputation was not really that
tarnished (he went on to become a CA judge), but nevertheless he was protected.
Definitions
1) Defamation: consists of libel and slander.
2) Libel: Defamation that exists in a concrete tangible form (usually written, but sometimes paintings, etc).
3) Slander: Defamation which is spoken.
4) Common law had different standards – libel had more stringent rules, as it was more permanent. Libel damages
were presumed, most slander cases you had to prove defamation. In AB there is not difference between libel and
slander (as per legislation).
Plaintiff's Case:
1) The material was defamatory: Objective reasonable person test. True/false statements are both defamatory.
Anything that could make someone be shunned, or could lower that persons reputation (very wide definition). Thus,
courts decided what is defamatory – it is a question of fact; do not have to established the public thinks less of the
person, but in the abstract could the statement lower what people think of that person (thus, Klar argues that lots of
minor stuff gets considered defamatory).
Murphy v. LaMarsh: LaMarsh (politician) wrote a book, which said Murphy was “detested by other members of the press
gallery.” This was held to be defamatory. As the public reading would think “there must be something wrong” with Murphy.
Thus, this hurdle is easily jumped over.
2) The material concerned the plaintiff – material referred to P. Usually you say “John Smith has sex with donkeys,”
which is obvious.
a) What if you do not mention the name or are unaware that your story refers to someone? Does not matter
– because defamation is largely strict liability.
b) Group defamation: hate propaganda (racism), or just saying nasty stuff about Crown prosecutors.
Question is would the statement make people think of the plaintiff + how large is the class (larger the
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class the harder it is to say the statement applied to me). Criminal law deals with hate speech – in part
because most provinces do not have group defamation legislation.
3) The material was published: Does not mean “published” but rather that it was communicated in some method to a
third party (it is not defamatory to say negative things to someone’s face).
a) What if a 3rd party overhears: Despite being a mostly SL tort, there is an element of fault as you are not
responsible unless you could foresee that someone would be around to overhear.
b) Every time something repeated it is defamation (so, if 3 people repeat what one person has said about
another then there are 4 defamatory actions). Book sellers have defense of innocent ____.
c) Innuendo can also be defamatory.
d) Who is the publisher on the internet – when does the limitation period begin – end.
Damage presumed, according to Defamation Act.
Defendant's Case: Most defamation cases decided on defenses because the plaintiff’s case is (usually) easily proven.
A. Truth: Absolute Defence: No matter how mean spirited you are – you can publish it as long as it is true.
1) How true is true? If I say you killed 10 people but you only killed 8 – is not defamatory as what you wrote was
substantially true.
2) You have to prove truth of the statement – you cannot say someone told me so it has to be true – you must be
able to prove it was actually true.
3) If you plead truth and it fails the damages against you will be greater than if you did not raise the defense =
people are hesitant to plead truth.
All other defenses presume that the statement was false.
B. Absolute Privilege: Applies to statements made in Parliament or Legislatures, statements made by high executive
officers, statements made in judicial proceedings, communications between spouses. Not defeated even by malice.
a) Witness statements also protected, what about documents leading to trial – eventually the privilege
disappears – Hill v. Church was defamatory because D read his statement outside the court (took court
proceedings outside of the court).
C. Qualified Privilege: (Most common defesnse)
 defeated by malice: If there is malice then this privilege disappears.
 applies to several different types of occasions, characterized by idea that the publisher has legal or moral duty to
make the statement to a person who has reciprocal interest in hearing it: Key is you are protecting an interest = you
are allowed to defend certain interests:
o (i) protection of one’s own interest:
o (ii) protection of another’s interest
o (iii) protection of common interests
o (iv) protection of public interest
Defeating Qualified Privilege
1) P would have to prove defamation. Then D can prove it was qualified privilege then P has to prove that
there was malice in what D was saying.
2) Excessive privilege: Also defeats qualified privilege – when D goes too far.
SCC has held in several decisions that the media does not have qualified privilege – media has a right (like ordinary people)
to report stuff not a duty to report. In England/Aust/NZ all have moved toward adding qualified privilege for political
discussion. Our lower courts have been lenient to these developments – SCC will probably jump on board one day.
Can a newspaper report what was said in court or legislature – they would be creating defamation but we have a “fair and
accurate” defense for the media to report on to give them protection from defamation.
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D. Fair Comment: Only as effective as courts definition. Our courts have made it narrow.
Requirements:
1) Comment or opinion: Reviews of restaurants for example. If it is a fact then this defense does not apply. If you say
“John is a racist” this can be a fact or opinion (racist is a term that exists on a continuum – should be an opinion).
2) Matter of public interest (very broad definition).
3) Based on true facts: If I say “John is a racist because he apposed immigration from China” you need evidence that
John actually opposed Chinese immigration to have fair comment defense.
4) Objectively fair: A reasonable objective person must be able to hold the opinion.
5) Honestly held opinion: You personally must have believed the comment.
6) Defeated by malice
Chernskey v. Armadale Publishers Ltd.. : Chernsky was an alderman. The city was debating having a halfway house for
aboriginals. Chernskey opposed the idea. Two law students said they opposed it on racial grounds in an opinion to the
editor. Writers + the paper were sued for defamation. Paper argued these were not our opinions – SCC said fair comment
only available if the comment was something that you believed or something that the writer believed in it.
710 (Dixon’s Dissent):
Remedies: Damages or Injunction: Damages for each publication is ridiculous sometimes = you will also seek an injunction
to prevent the continuation of the defamation.
Punitive Damages also available: Hill v. Church got a lot of punitive damages.
If newspapers issue retractions they are liable only for financial losses.