Cases and Materials on the Law of Torts, 7th Edition
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Cases and Materials on the Law of Torts, 7th Edition Solomon, Robert M., McInnes, Mitchell, Chamberlain, Erika, Pitel, Stephen G.A. Table of Contents PREFACE TABLE OF CASES CHAPTER 1 AN INTRODUCTION TO THE LAW OF TORTS 1. Tort Law Defined Notes and Questions 2. Tort and Contract Notes and Questions Review Problem 3. A Brief History of Tort Law Notes and Questions 4. Trespass and Case: A Brief Review of the Case Law Scott v. Shepherd Notes and Questions Leame v. Bray Williams v. Holland Notes and Questions Holmes v. Mather Notes and Questions Cook v. Lewis Notes and Questions 5. The Bases for Imposing Liability in Tort (a) Absolute Liability (b) Strict Liability (c) Negligence (d) Intention (e) No Liability 6. The Functions of Tort Law (a) Compensation (b) Appeasement and Vindication (c) Punishment (d) Deterrence (e) Market Deterrence (f) Justice Notes and Questions CHAPTER 2 THE BASIC CONCEPTS OF REMEDIES IN INTENTIONAL TORTS 1. Introduction 2. Judicial and Extrajudicial Remedies Notes 3. Classifications of Damages Note 4. Nominal Damages The Mediana Notes and Questions 5. Compensatory Damages (a) Assessing Damages for Pecuniary Losses The Mediana Notes and Questions (b) Assessing Damages for Non-Pecuniary Losses Review Problem 6. Aggravated Damages Notes and Questions 7. Punitive Damages Notes and Questions B.(P.) v. B.(W.) Notes and Questions (a) The Principles in Whiten v. Pilot Notes and Questions 8. Disgorgement Damages Penarth Dock Engineering Co. Ltd. v. Pounds Notes and Questions Review Problem CHAPTER 3 INTENTIONAL INTERFERENCE WITH THE PERSON 1. Introduction 2. Basic Principles of Liability (a) Volition Smith v. Stone Notes and Questions (b) Intent (i) Imputed (Constructive) Intent (ii) Transferred Intent Notes and Questions 3. Related Issues: Motive, Mistake and Accident (a) Motive Notes (i) Duress Gilbert v. Stone Notes and Questions (ii) Provocation Miska v. Sivec Notes and Questions (b) Mistake Hodgkinson v. Martin Ranson v. Kitner Notes and Questions (c) Accident Review Problems (d) The Liability of Children and those with a Mental Illness Notes and Questions 4. Battery Bettel v. Yim Notes and Questions (a) The Burden of Proof in Sexual Abuse Cases Notes and Question 5. Assault Notes and Questions Holcombe v. Whitaker Police v. Greaves Notes and Questions Review Problems 6. False Imprisonment Bird v. Jones Notes and Questions Campbell v. S.S. Kresge Co. Notes and Questions Herd v. Weardale Steel, Coal and Coke Co. Notes and Questions 7. Malicious Prosecution Nelles v. Ontario Notes and Questions (a) The Tort of Abuse of Process Review Problem 8. Intentional Infliction of Nervous Shock Wilkinson v. Downton Notes and Questions Radovskis v. Tomm Samms v. Eccles Notes and Questions (a) The Broadening of Liability Notes and Questions (b) The Innominate Intentional Tort Notes and Questions Review Problems 9. Protection of Privacy (a) Introduction Notes and Questions (b) A Common Law Tort Action for the Invasion of Privacy? Motherwell v. Motherwell Notes and Questions (c) Subsequent Common Law Developments Notes and Questions (d) The Statutory Protection of Privacy Hollingsworth v. BCTV Notes and Questions Review Problem (e) Breach of Confidence Notes and Questions Review Problem 10. The Common Law Tort of Discrimination Bhadauria v. Board of Governors of Seneca College of Applied Arts and Technology Notes and Questions CHAPTER 4 INTENTIONAL INTERFERENCE WITH CHATTELS 1. Introduction 2. The Development of the Actions (a) Trespass (b) Detinue (c) Trover and Conversion Notes and Questions 3. Trespass to Chattels Fouldes v. Willoughby Notes and Questions 4. Conversion (a) General Principles MacKenzie v. Scotia Lumber Co. Notes and Questions Review Problems (b) Conversion of Cheques and Other Unusual Chattels 373409 Alberta Ltd. (Receiver of) v. Bank of Montreal Notes and Questions (c) Remedies for Conversion Aitken v. Gardiner Notes and Questions 5. Detinue Gen. & Finance Facilities Ltd. v. Cooks Cars (Romford) Ltd. Aitken v. Gardiner Notes and Questions 6. Recaption and Replevin (a) Recaption (b) Replevin Notes and Questions Review Problems CHAPTER 5 INTENTIONAL INTERFERENCE WITH REAL PROPERTY 1. Trespass to Land Entick v. Carrington Turner v. Thorne Notes and Questions Review Problems Harrison v. Carswell Notes and Questions 2. Trespass and Nuisance Kerr v. Revelstoke Bldg. Materials Ltd. Notes and Questions 3. Trespass to Airspace and Subsoil (a) Trespass to Airspace Bernstein v. Skyviews & General Ltd. Notes and Questions (b) Trespass to Subsoil Notes and Questions Review Problems CHAPTER 6 THE DEFENCE OF CONSENT 1. Introduction to the Defences 2. General Principles of Consent (a) Introduction Notes and Questions (b) Implied Consent Wright v. McLean Notes and Questions (c) Exceeding Consent Agar v. Canning Notes and Questions Review Problems (d) Competency to Consent 3. Factors That Vitiate Consent: Fraud, Mistake, Duress, and Public Policy (a) Introduction (b) Fraud (Deceit) Notes and Questions (c) Mistake Notes and Questions (d) Duress (Coersion) Latter v. Braddell Notes and Questions (e) Public Policy Notes and Questions Review Problem 4. Consent to Criminal or Immoral Acts Notes and Questions 5. Consent to Treatment and Counselling (a) General Principles of Consent Notes and Questions (b) Exceptions to the General Principles of Consent Marshall v. Curry Malette v. Shulman Notes and Questions (c) The Burden of Proof and Consent Forms Notes and Questions (d) Competency to Consent (i) Minors C. v. Wren Notes and Questions Review Problem (ii) Adults Notes and Questions (e) Substitute Consent Notes and Questions (f) Informed Consent: Battery or Negligence? Review Problem CHAPTER 7 DEFENCES RELATED TO THE PROTECTION OF PERSON AND PROPERTY 1. Introduction 2. Self-Defence Wackett v. Calder Notes and Questions 3. Defence of Third Parties Gambriell v. Caparelli Notes and Questions 4. Discipline R. v. Dupperon Notes and Questions 5. Defence of Real Property MacDonald v. Hees Notes and Questions Bird v. Holbrook Notes and Questions 6. The Defence and Recaption of Chattels Notes and Questions Review Problem 7. Public and Private Necessity (a) Public Necessity Surocco v. Geary Notes and Questions (b) Private Necessity Vincent v. Lake Erie Tpt. Co. Notes and Questions 8. Apportionment of Fault in Intentional Torts Notes and Questions Review Problems CHAPTER 8 THE DEFENCE OF LEGAL AUTHORITY 1. Introduction Notes and Questions 2. The Canadian Charter of Rights and Freedoms (a) Liability Under Section 24(1) (b) The Impact of Section 52 on the Defence of Legal Authority Notes and Questions 3. Authority and Privilege to Arrest Without a Warrant (a) Introduction Notes and Questions (b) A Peace Officer's Power to Arrest Without a Warrant Notes and Questions (c) Privilege or Justification Under the Criminal Code Notes and Questions (d) A Private Citizen's Authority and Privilege to Arrest Without a Warrant Notes and Questions 4. Rights and Obligations in the Arrest Process (a) Reasons for the Arrest Koechlin v. Waugh and Hamilton Notes and Questions (b) The Use of Reasonable Force Notes and Questions 5. The Common Law Power to Search Pursuant to a Lawful Arrest R. v. Caslake Notes and Questions 6. A Peace Officer's Common Law Power of Entry to Search for a Wanted Person Eccles v. Bourque Notes and Questions Review Problems CHAPTER 9 INTRODUCTION TO THE LAW OF NEGLIGENCE 1. Negligence: Defining Terms 2. The Historical Development of Negligence Notes and Questions 3. The Elements of a Negligence Action (a) Introduction (i) Duty of Care (ii) The Standard of Care and its Breach (iii) Causation (iv) Remoteness of Damages (v) Actual Loss (vi) Defences Notes and Questions (b) Negligence: A Case Illustration Dunsmore v. Deshield Notes and Questions CHAPTER 10 THE DUTY OF CARE 1. An Introduction to the Duty of Care (a) The Classical Approach (b) The General Duty of Care Test M'Alister (or Donoghue) v. Stevenson Notes and Questions (c) The Development of the Modern Law of Duty Notes and Questions (d) Anns and the Supreme Court of Canada Cooper v. Hobart Notes and Questions (e) Developments Since Cooper v. Hobart Notes and Questions 2. Application of the Duty of Care Test (a) Foreseeable Risk of Injury Moule v. N.B. Elec. Power Comm. Amos v. N.B. Elec. Power Comm. Notes and Questions (b) Foreseeable Plaintiff Palsgraf v. Long Island Ry. Co. Notes and Questions CHAPTER 11 SPECIAL DUTIES OF CARE: AFFIRMATIVE ACTION 1. Introduction to Special Duties of Care 2. Introduction to Duties of Affirmative Action Notes 3. The Duty to Rescue Osterlind v. Hill Notes and Questions Matthews v. MacLaren; Horsley v. MacLaren Notes and Questions Good Samaritan Act, 2001 (Ontario) Review Problems 4. The Duty to Control the Conduct of Others (a) Liability for the Intoxicated Crocker v. Sundance Northwest Resorts Ltd. Notes and Questions (b) Other Duty to Control Situations Notes and Questions (c) The Duty to Prevent Crime and Protect Others Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police Notes and Questions Review Problems 5. The Duty to Perform Gratuitous Undertakings Notes and Questions Smith v. Rae Zelenko v. Gimbel Bros., Inc. Soulsby v. Toronto Notes and Questions Review Problems CHAPTER 12 SPECIAL DUTIES OF CARE: MISCELLANEOUS CATEGORIES 1. Introduction 2. The Duty of Care Owed to Rescuers Horsley v. MacLaren Notes and Questions Review Problems 3. Duties Owed to the Unborn (a) Pre-Conception Wrongs Notes and Questions (b) Wrongful Birth and Wrongful Life Notes and Questions (c) Wrongful Pregnancy Notes and Questions (d) Pre-Natal Injuries Notes and Questions 4. Nervous Shock (a) Introduction Notes and Questions (b) Commonwealth Developments Alcock v. Chief Constable of South Yorkshire Police Notes and Questions (c) The Canadian Position Mustapha v. Culligan Canada Ltd. Notes and Questions Review Problem 5. A Health Profesional's Duty to Inform Haughian v. Paine Notes and Questions Review Problem 6. A Manufacturer's and Supplier's Duty to Warn Hollis v. Dow Corning Corp. Notes and Questions Review Problems 7. Duty of Care Owed by a Barrister Demarco v. Ungaro Notes and Questions CHAPTER 13 SPECIAL DUTIES OF CARE: NEGLIGENT MISREPRESENTATION 1. Introduction Notes and Questions 2. Negligent Misrepresentation Causing Pure Economic Loss Hercules Managements Ltd. v. Ernst & Young Notes and Questions 3. Negligent Misrepresentation and Contract (a) Concurrent Liability in Tort and Contract BG Checo International Ltd. v. B.C. Hydro & Power Authority Notes and Questions (b) Pre-Contractual Misrepresentations Queen v. Cognos Inc. Notes and Questions Review Problem CHAPTER 14 SPECIAL DUTIES OF CARE: RECOVERY OF PURE ECONOMIC LOSS IN NEGLIGENCE 1. Introduction Note 2. New Categories of Pure Economic Loss Martel Building Ltd. v. Canada Notes and Questions 3. Negligent Performance of a Service B.D.C. Ltd. v. Hofstrand Farms Ltd. James v. British Columbia Notes and Questions 4. Negligent Supply of Shoddy Goods or Structures Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. Notes and Questions Review Problems 5. Relational Economic Loss Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. Notes and Questions CHAPTER 15 THE STANDARD OF CARE 1. Introduction 2. The Common Law Standard of Care: The Reasonable Person Test Arland v. Taylor Notes and Questions 3. Factors Considered in Determining Breach of the Standard of Care (a) Probability and Severity of the Harm Bolton v. Stone Paris v. Stepney Borough Council Notes and Questions (b) Cost of Risk Avoidance Vaughn v. Halifax-Dartmouth Bridge Comm. Law Estate v. Simice Notes and Questions (c) Social Utility Watt v. Hertfordshire County Council Notes and Questions 4. An Economic Analysis of the Standard of Care United States v. Carroll Towing Co. Notes and Questions 5. Special Standards of Care (a) The Standard of Care Expected of the Disabled Fiala v. Cechmanek Notes and Questions (b) The Standard of Care Expected of Children Joyal v. Barsby Notes and Questions (c) The Standard of Care Expected of Professionals White v. Turner Notes and Questions 6. Degrees of Negligence Notes and Questions 7. Custom ter Neuzen v. Korn Notes and Questions Review Problems CHAPTER 16 CAUSATION 1. Introduction 2. The But-For Test Kauffman v. Toronto Transit Commission Barnett v. Chelsea & Kensington Hospital Management Committee Notes and Questions 3. Established Exceptions to the But-For Test (a) The Multiple Negligent Defendants Rule (b) The Learned Intermediary Rule (c) Informed Consent Notes and Questions 4. Recent Attempts to Modify the But-For Test (a) Material Contribution Walker Estate v. York Finch General Hospital Notes and Questions (b) Materially Increased Risk Snell v. Farrell Notes and Questions (c) Proportionate Cause and Loss of Chance Notes and Questions Review Problem 5. 6. Multiple Causes Notes and Questions (a) Independently Insufficient Causes Athey v. Leonati Nowlan v. Brunswick Const. Ltée. Notes and Questions (b) Independently Sufficient Causes Lambton v. Mellish Notes and Questions Review Problems Issues in Assessing the Plaintiff’s Loss (a) Successive Parallel Causes of Injury Penner v. Mitchell Notes and Questions Review Problems (b) Devaluing the Plaintiff’s Loss Dillon v. Twin State Gas and Elec. Co. Notes and Questions CHAPTER 17 REMOTENESS OF DAMAGES 1. Introduction 2. Directness Versus Foreseeability (a) The Directness Test Notes and Questions (b) The Foreseeability Test The Wagon Mound (No. 1); Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Notes and Questions Review Problems 3. Modifications to the Foreseeability Test (a) The Kind of Injury Hughes v. Lord Advocate Notes and Questions (b) The Thin-Skulled Plaintiff Rule Smith v. Leech Brain & Co. Marconato v. Franklin Notes and Questions (c) The Possibility of Injury The Wagon Mound (No. 2); Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. Notes and Questions Assiniboine South School Division, No. 3 v. Greater Winnipeg Gas Co. Notes and Questions 4. Intervening Causes Bradford v. Kanellos Notes and Questions Price v. Milawski Notes and Questions Hewson v. Red Deer Notes and Questions Review Problem CHAPTER 18 THE ASSESSMENT OF DAMAGES 1. Introduction (a) The Purposes of Damage Awards in Negligence Notes and Questions (b) Preliminary Issues Notes and Questions 2. Damages for Personal Injuries (a) Introduction Andrews v. Grand & Toy Alberta Ltd. Notes and Questions (b) Pecuniary Loss: Future Care Andrews v. Grand & Toy Alberta Ltd. Notes and Questions (c) Pecuniary Loss: Lost Earning Capacity Andrews v. Grand & Toy Alberta Ltd. Notes and Questions (d) Considerations Relevant to Both Heads of Pecuniary Loss Andrews v. Grand & Toy Alberta Ltd. Notes and Questions (e) Non-Pecuniary Loss Andrews v. Grand & Toy Alberta Ltd. Notes and Questions 3. Survival of Actions and Dependants' Claims (a) Survival Actions Survival of Actions Act (Alberta) Trustee Act (Ontario) (b) Fatal Accidents Legislation Fatal Injuries Act (Nova Scotia) Family Law Act (Ontario) Notes and Questions (i) The Death of the Family Provider Keizer v. Hanna Notes and Questions (ii) The Death of a Dependant Family Member Notes and Questions 4. Damages for Property Loss (a) The Assessment of the Damages to the Property Itself (b) The Assessment of Economic Losses Consequent on the Damage to the Property (c) The Plaintiff's Obligation to Mitigate Notes and Questions 5. Collateral Benefits (a) The Doctrine of Subrogation Notes and Questions Review Problems CHAPTER 19 DEFENCES IN NEGLIGENCE 1. Introduction 2. Contributory Negligence (a) The Development of the Defence Notes and Questions (b) Conduct Constituting Contributory Negligence Walls v. Mussens Ltd. Notes and Questions Gagnon v. Beaulieu Notes and Questions (c) Apportionment of Loss Negligence Act (Ontario) Notes and Questions Mortimer v. Cameron Notes and Questions Review Problem 3. Voluntary Assumption of Risk Dube v. Labar Notes and Questions 4. Participation in a Criminal or Immoral Act Hall v. Hebert Notes and Questions 5. Inevitable Accident Rintoul v. X-Ray and Radium Indust. Ltd. Notes and Questions Review Problem CHAPTER 20 PROOF OF NEGLIGENCE 1. The Burden of Proof in a Negligence Action Wakelin v. London & South Western Ry. Co. Notes and Questions 2. Exceptions to the General Principles Governing the Burden of Proof (a) Statutes and Shifting Burdens of Proof MacDonald v. Woodard Notes and Questions (b) Directly Caused Injury: Unintended Trespass Dahlberg v. Naydiuk Notes and Questions (c) Multiple Negligent Defendants Cook v. Lewis Notes and Questions 3. Res Ipsa Loquitur (a) Introduction Fontaine v. British Columbia (Official Administrator) Notes and Questions Review Problems CHAPTER 21 THE TORT LIABILITY OF PUBLIC AUTHORITIES 1. Introduction 2. Special Rules for Public Authorities (a) Legislative and Judicial Functions Bradley v. Fisher Notes and Questions (b) Crown Immunity Notes and Questions (c) Limitation Periods and Special Procedures Notes and Questions 3. The Negligence Liability of Public Authorities (a) Introduction Just v. British Columbia Notes and Questions (b) The Effect of Cooper v. Hobart Notes and Questions 4. Misfeasance in a Public Office (a) Introduction Roncarelli v. Duplessis Notes and Questions (b) Modern Developments Odhavji Estate v. Woodhouse Notes and Questions 5. Other Torts Notes and Questions Review Problem CHAPTER 22 STATUTORY PROVISIONS AND TORT LIABILITY 1. Introduction Note 2. Express Statutory Causes of Action Trespass to Property Act (Ontario) Competition Act (Canada) Notes and Questions Trachsler v. Halton Notes and Questions Review Problem 3. The Use of Statutes in Common Law Negligence R. in Right of Can. v. Sask. Wheat Pool Notes and Questions Horsley v. MacLaren Notes and Questions Rintoul v. X-Ray and Radium Indust. Questions Galaske v. O’Donnell Ryan v. Victoria (City) Notes and Questions 4. A Note on the Canadian Charter of Rights and Freedoms Canadian Charter of Rights and Freedoms Notes and Questions Review Problems CHAPTER 23 OCCUPIERS' LIABILITY 1. Introduction 2. The Common Law Principles of Occupiers' Liability (a) Who is an Occupier? Palmer v. St. John Notes and Questions (b) Categories of Entrants and Corresponding Duties (i) Contractual Entrants Finigan v. Calgary Notes and Questions (ii) Invitees and Licensees McErlean v. Sarel Notes and Questions (iii) Trespassers Veinot v. Kerr-Addison Mines Ltd. Notes and Questions 3. The Provincial Occupiers' Liability Statutes (a) Introduction (b) Ontario Occupiers' Liability Act Notes and Questions Waldick v. Malcolm Notes and Questions Review Problem CHAPTER 24 NUISANCE 1. Introduction 2. Private Nuisance 340909 Ont. Ltd. v. Huron Steel Products (Windsor) Ltd. Notes and Questions Hollywood Silver Fox Farm Ltd. v. Emmett Notes and Questions (a) Defence of Statutory Authority Tock v. St. John's Metropolitan Area Bd. Notes and Questions 3. Public Nuisance A.-G. Ont. v. Orange Productions Ltd. Hickey v. Electricity Reduction Co. Notes and Questions 4. Remedies Mendez v. Palazzi Notes and Questions Miller v. Jackson Notes and Questions Spur Industries Inc. v. Del E. Webb Development Co. Notes and Questions Review Problem CHAPTER 25 STRICT AND VICARIOUS LIABILITY 1. Introduction (a) Strict Liability (b) Vicarious Liability Notes and Questions 2. Strict Liability for Escape of Dangerous Substances: Rylands v. Fletcher (a) Introduction Rylands v. Fletcher Notes and Questions (b) Escape Read v. J. Lyons & Co. Notes and Questions (c) Non-Natural Use Gertsen v. Municipality of Metropolitan Toronto Notes and Questions (d) Defences to the Rule in Rylands v. Fletcher (i) Consent (ii) Common Benefit (iii) Default of the Plaintiff (iv) Act of God (v) Act of a Stranger (vi) Statutory Authority (e) A Comment on Rylands v. Fletcher Notes and Questions 3. Strict Liability for Animals (a) Dangerous Animals Cowles v. Balac Notes and Questions (b) Cattle Trespass Acker v. Kerr Notes and Questions 4. Products Liability: Negligence or Strict Liability? Notes and Questions 5. Vicarious Liability (a) Statutory Vicarious Liability Notes and Questions (b) Principal-Agent Relationship T.G. Bright & Co. v. Kerr Notes and Questions (c) Master-Servant Relationship Bazley v. Curry Notes and Questions (d) Independent Contractors 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. Notes and Questions (e) Non-Delegable Duties Notes and Questions CHAPTER 26 BUSINESS TORTS 1. Introduction 2. Deceit (Fraud) Derry v. Peek Notes and Questions 3. Passing Off Ciba-Geigy Canada Ltd. v. Apotex Inc. Notes and Questions 4. Intimidation Central Can. Potash v. Govt. of Sask. Notes and Questions 5. Conspiracy Posluns v. Toronto Stock Exchange Notes and Questions 6. Interference with Contractual Relations Posluns v. Toronto Stock Exchange Notes and Questions 7. Intentional Interference with Economic Relations by Unlawful Means Reach MD Inc. v. Pharmaceutical Manufacturers Assn. of Canada Notes and Questions Review Problem CHAPTER 27 DEFAMATION 1. Introduction Notes and Questions 2. Elements of a Defamation Action (a) Defamatory Material Sim v. Stretch Notes and Questions (b) Reference to the Plaintiff Knuppfer v. London Express Newspaper, Ltd. 3. 4. Notes and Questions (c) Publication Notes and Questions Defences (a) Justification Williams v. Reason Notes and Questions (b) Absolute Privilege (i) Executive Officers Dowson v. The Queen (ii) Parliamentary Privilege (iii) Judicial Proceedings Hung v. Gardiner Notes and Questions (c) Qualified Privilege Hill v. Church of Scientology Notes and Questions (d) Fair Comment Cherneskey v. Armadale Publishers Ltd. Notes and Questions (e) Consent Jones v. Brooks Notes and Questions Remedies (a) Injunction (b) Damages Hill v. Church of Scientology Notes and Questions Review Question CHAPTER 28 TORT LAW: THEORIES, CRITICISMS AND ALTERNATIVES 1. Introduction 2. Theoretical Criticism of Tort Law (a) Introduction Notes (b) Deterrence Notes and Questions (c) Compensation Notes and Questions (d) Theories of Tort Law Based on Concepts of Justice Notes and Questions (e) Feminist Perspectives Notes and Questions 3. The No-Fault Alternatives (a) Introduction (b) (c) (d) No-Fault Accident Compensation in New Zealand Notes and Questions Workers' Compensation Notes and Questions No-Fault Automobile Insurance in Canada Notes and Questions Review Problem
