Torts S2 Notes
Duty of Care
Special Duties of Care: Affirmative Action
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Duty to rescue
Duty to control the conduct of others
Duty to Prevent Crime and Protect Others
Duty to perform gratuitous undertakings 366-72
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Special Duties of Care: Misc. Categories
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Duty of care owed to rescuers
Duties owed to the unborn
Pre-Natal Injuries
Pre-Conception Wrongs
Wrongful Birth/Wrongful Life
Wrongful Pregnancy
Psychiatric harm
Health professional’s duty to inform
Manufacturer/Supplier’s Duty to Warn
Negligent Misrepresentation
Recoverable Categories of economic loss
Pure economic loss
Negligent misrepresentation and contract
Recovery of pure economic loss in negligence
Negligent performance of a service
Negligent supply of shoddy goods/structures
Relational economic loss
Standard of care
Common law: Reasonable Person Test
Breach of Standard of Care: Factors
Probability and Severity
Cost of Risk Avoidance
Social Utility
An economic analysis of the standard of care
Special standards of care
Custom
Causation
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One D
Multiple Ds
“But for” test
Exceptions to “but for” causation
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Remoteness
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Intervening causes
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Defences
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Participation in a criminal or immoral act
Proof of negligence
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Multiple negligent defendants
Res ipsa loquitur
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Tort liability of public authorities
Misfeasance in public office
Relationship between statutes and negligence
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Skipping occupiers liability
Skipping nuisance
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Strict and Vicarious Liability
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Rylands v. Fletcher tort--escaped reservoirs, tigers, etc.
Defamation
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Is material defamatory?
Reference to the plaintiff
Defences to defamation
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Remedies
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Duty of Care
1. Does the law impose upon the
actor a duty to care so that the
activity in question does not harm
the claimant?
Duty
2. Is there a foreseeable risk of
harm to the P?
Foreseeability
this activity --> any
foreseeable harm (to this
victim)?
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3. Did the D breach the standard of Breach
care by not acting responsibly?
the particular
act/omission ---> harm?
4. Was this breach a sufficient
cause of the P's injury?
Causation
factual connection: “but
for”
5. Are the injuries sufficiently
proximate to justify the imposition
of liability?
Proximity
(Remoteness)
this particular
act/omission ---> this
kind of harm?
6. Are there any factors in the P's
conduct which would justify a
reduction or eliminate of the
damages which otherwise would
have been awarded?
Quantifying
damages
Before Donoghue v. Stephenson, negligence was only found in strict categories.
After, all cases seen as instances of a more general principle of duty of care:
proximity arising from foreseeability.
Is proximity the same as foreseeability? Yes, in cases of risk of physical injury. But
some cases have non-physical harm, where foreseeability test alone doesn’t work as
it’s always foreseeable.
Also a problem is government liability (when performing a function of government).
Must distinguish policy questions from operational decisions. Tort law shouldn’t
fetter policy, which is the subject of administrative law.
Kamloops v. Nielsen [1984] SCC not on reading list
Building inspector noted deficiencies, city issued stop work order and didn’t issue occupancy
permit, but did not prevent owner (city alderman) from living there or selling.
Anns test:
(1) is there a sufficiently close relationship between the parties that carelessness might
cause damage to that person (proximity)? If so,
(2) are there any considerations which ought to negative or limit
(a) the scope of the duty
(b) the class of persons to whom it is owed or
(c) the damages to which a breach of it may give rise?
Whether to inspect is a policy decision, but having decided to do so they must perform
correctly.
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“Loss caused in the implementation of policy decisions, i.e. operational negligence will be
compensable. Loss will also be compensable if the implementation involves policy
considerations and the discretion exercised by the public authority is not exercised in
good faith. Finally, and perhaps this merits some emphasis, economic loss will only be
recoverable if as a matter of statutory interpretation it is a type of loss the statute
intended to guard against.” [my emphasis--NM]
Cooper v. Hobart [2001] SCC p. 303
P investor in mortgage co. sues Registrar of Mortgage Brokers for causing her loss by not
suspending broker sooner. Did D owe a duty of care? Anns/Kamloops test for nonphysical damage and government cases:
Stage 1: prima facie duty of care requires foreseeability and proximity (relationship
between P and D, including policy)--generally based on categories.
Stage 2: residual policy outside of the relationship of the parties, including indeterminate
liability, immunity of public officials for policy decisions, and lack of legislative intent to
insure private losses.
No duty of care to P as D’s duty is to the public. If there were a duty of care, there is a
policy reason against liability. General idea: public officials act in broad public interest
(exceptions like housing inspection with proximity to particular persons).
Foreseeable harm:
Moule v. New Brunswick Electric Power Commn. (1960 SCC) p. 314
Tree had been limbed at bottom and by power line, but someone attached steps and boy was
able to climb and fall on line causing injury. Not a foreseeable harm--took reasonable
steps to prevent.
Duty of care unquestionable, but not a breach as it was unforeseeable: standard of
care question.
Duty of care is a question of law, decided by judge not jury.
Amos v. New Brunswick Electric Power Commn. (1976 SCC) p. 316
Power lines run through tree, boy climbs and tree sways into line. D negligent as it was
foreseeable tree would grow and people would climb it.
Again, not a question of duty but of breach.
Foreseeable plaintiff:
Palsgraf v. Long Island Ry. Co. (1928 NY) p. 320
Man with package runs for train, porters push him on, drops package. Fireworks explode,
25-30 feet away a scale falls on P. No duty of care as she was not the foreseeable
plaintiff.
Dissent: duty owed to others in general to refrain from acts that may cause harm.
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See Re Polemis, English case
Special Duties of Care: Affirmative Action
Duty to rescue
When can you be liable for nonfeasance as opposed to misfeasance?
At common law, no duty to come to someone’s assistance or to protect them from
their own stupidity. Could Osterlind v. Hill be argued on the basis of an obligation
of renter to customer?
Osterlind v. Hill (1928 Mass) p. 329
Ps estate sues. D knowingly rented a canoe to 2 drunk men, it tipped and they held on for a
half hour yelling for help, which he allegedly heard and did nothing.
P was not so drunk as to be helpless as he was able to hold on and yell. All canoes are “frail
and dangerous,” not this particular one. P had no legal right to be rescued and D had no
duty of care.
At common law, tort claims died with the person, unlike contracts. Now, by statute
by the BC Family Compensation Act (in supplement), if you’re killed by a tort your
family have a statutory claim against the wrongdoer. Have to show injury to
spouse/parent/child, i.e. money loss. Might get aggravated damages as they are
compensatory, but probably not punitive as that isn’t what the statute is for.
Matthews v. MacLaren (1969 Ont HC) p. 333
Ps were families of two men who were invited guests on the Ds boat. One fell off and was
unresponsive in the water as the D and passengers tried to rescue him ineffectually.
The other jumped overboard in a rescue attempt. Both died either immediately from
shock or from prolonged immersion. D had some drinks beforehand which may have
affected his judgement.
LaCourciere J: Statute provides some duty of care to passengers, which he says corresponds
to a common law obligation. Also having voluntarily assumed duty he must do so
properly [or maybe just not to make things worse--NM]. Standard of conduct: reasonable
boat operator. D did not meet that standard, so was negligent. However, did not find
causation as both men may well have died immediately from shock.
Good Samaritan Act, R.S.B.C. 1996, c. 172
No liability for emergency aid unless gross negligence
1. A person who renders emergency medical services or aid to an ill, injured or unconscious
person, at the immediate scene of an accident or emergency that has caused the illness,
injury or unconsciousness, is not liable for damages for injury, to or death of that person
caused by the person's act or omission in rendering the medical services or aid unless
that person is grossly negligent.
Exceptions
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2. Section 1 does not apply if the person rendering the medical services or aid
(a) is employed expressly for that purpose, or
(b) does so with a view to gain.
Duty to control the conduct of others
Crocker v. Sundance Northwest Resorts Ltd. (1988 SCC) p. 342
P was very drunk both while signing waiver/application and while competing in a
dangerous snow tubing competition. D knew he was drinking and that he was a
competitor, served him drinks, and got him a new tube after he fell over and lost one.
Another competitor was hospitalized for neck injuries the same day and P was left a
quadriplegic.
Wilson J: Generally no-one is liable for sports accidents. Six issues: 1. duty of care--D set up
dangerous competition and provided drinks; 2. standard of care--minimally, don’t let
drunk people compete; 3. causation--D claimed tubing is just as dangerous for sober
people but J disagreed; 4. voluntary assumption of risk--too drunk to know what he was
doing and waiver wasn’t drawn to his attention; 5. and 6. not given.
New trial for damages with P 25% contributorily negligent.
Childs v. Desormeaux [2006] SCC p. 348 (in notes)
Social hosts have New Years party where guests brought and served their own alcohol. Ds
knew he was an alcoholic with drunk driving convictions and did not attempt to stop
him driving. He caused an accident that left P a paraplegic.
Trial judge found prima facie duty of care but negated for policy reasons. CA upheld on
insufficient proximity for even prima facie duty (less control over guests). SCC
upheld this, distinguished from commercial hosts who have better knowledge and profit
from serving.
Commercial hosts have a duty to take reasonable steps to ensure customers don’t
drive, knowing they are intoxicated and might do so.
Insurance is legally irrelevant to liability. Reality is that judges are aware
commercial establishments are insured and won’t be crippled.
Duty to Prevent Crime and Protect Others
Jane Doe v. Metropolitan Toronto Commrs. of Police (1998) Ont Gen Div p. 356
P sued police for failing to warn of a serial rapist. Found that a warning was possible and
desirable. Police Act and common law obligate police to prevent crime.
Duty of care: profile of victims narrowed to a very specific group known by police. Harm was
foreseeable and relationship was proximate.
Breach: Common law duty to warn or protect by other means.
Causation: P would have taken precautions and likely not been raped had they warned her.
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Are you liable if you leave keys in the car and a thief causes damage with it? Some
courts have said yes.
Duty to perform gratuitous undertakings 366-72
Smith v. Rae (1919 Ont CA) p. 368
P expecting baby, husband asked D doctor to attend and he agreed. 2 weeks late, D didn’t
attend and baby died. No negligence found. K is with husband, wife can only sue in tort,
and no misfeasance done to her to support a claim. Ratio: nonfeasance isn’t a tort unless
negligent, though it may be breach of contract.
Zelenko v. Gimbel Bros. Inc. (1936 NYSC) p. 368
P’s intestate taken ill in D’s store, D undertook to help and kept him in an infirmary for 6
hours without medical care.
No duty to help, but once undertaken to help, the D must do at least what an
ordinary person would do.
Law of negligence does not impose a duty to act. Have to show some special duty of
care to establish that someone should have done something, eg. they were supposed
to be supervising kids and didn’t (though this is more like misfeasance). Failure to
rescue is nonfeasance.
Soulsby v. Toronto (1907 Ont HC) p. 369
D city normally kept a watchman at a gate to close it when a train was coming. P found
gate open, crossed without looking and was hit by a train. Sued city for failing to
perform a duty it had voluntarily assumed.
P was contributorily negligent by not looking and failure to perform a self-imposed
duty is not negligence.
Not enough conduct by the city to justify reliance--maybe if they did it consistently
for a long time. Zelenko P was prevented from receiving alternate care, unlike
Soulsby and arguably Smith.
Special Duties of Care: Misc. Categories
Duty of care owed to rescuers
Horsley v. McLaren (1972) SCC p. 374
Same case as Mathews v. MacLaren. Did D also owe a duty of care to P, who died trying to
rescue Mathews?
Ritchie J: “If a rescuer is killed or injured in the attempt, he can recover damages
from the one whose fault has been the cause of it.” Did the incompetent rescue
create a new peril inducing P’s action? There was a life jacket and pike pole within
reach of Matthews within minutes. D made an error of judgement but not negligence.
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Laskin J (dissent): [Review this opinion] Possible that the victim could be liable to his
rescuer if he was negligent. And P could be contributorily negligent if failure to
use a rope or lifejacket caused his death.
Not a duty case. If you owe duty to victim 1 then you owe it to victim 2 rescuer.
Standard of care is an issue--did he bungle rescue and did that cause Horsley’s
death?
Good Samaritan Act only addresses liability to the person being rescued.
Duties owed to the unborn
Pre-Natal Injuries
Can you be liable to someone who does not exist at the time of the tort? Sometimes.
Clearest case is where fetus is injured in an accident--duty of care is owed not just
to the mother but to the child. Fact that child did not exist is no obstacle as it’s all
foreseeable. Dobson case--refused because holding mother had duty of care to child
would open up new area of liability. Alberta addressed this by statute (p. 395, note
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Pre-Conception Wrongs
Mostly drug co. cases in book. Generally not willing to find drug co. owes duty of
care to unconceived child.
Wrongful Birth/Wrongful Life
Something has gone wrong with health care. Usually medical professional did not
warn of risk of abnormalities and mother would have terminated had she known. P.
386, note 3, Arndt v. Smith. Wrongful life problematic: courts unwilling to say that
life is a detriment; but mother can claim for cost of raising disabled child (not for
healthy child, which is not seen as a detriment). Claim failed on causation: P could
not prove that reasonable person would abort if informed of small risk of serious
birth defects.
Wrongful Pregnancy
Psychiatric harm
Alcock v. Chief Constable of S. Yorkshire Police [1991] Eng HL p. 402
95 people were killed and 400 injured from being crushed in an overcrowded stadium as a
result of police negligence. This case involves Ps who suffered nervous shock from fear
for the safety of others who were in the stadium.
Lord Ackner: Only ground contested was duty of care of D to Ps. 3 elements in proximity:
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1) Class of persons to recognize: even bystanders can be shocked in some situations--have to
assess case-by-case.
2) Proximity of plaintiff to accident: spatial and temporal--immediate aftermath close
enough, but not identifying a body 8 hours later.
3) Means by which shock was caused: Sight/hearing required. Television not generally
foreseeable (though possible esp. in live broadcast) as they would not show suffering by
recognizable individuals.
Considers two Ps and finds them not sufficiently proximate (brother who was there,
brother-in-law not present).
Mustapha v. Culligan of Canada (2006) ONCA p. 410
Unusually sensitive P sees dead fly in his unopened bottle of water and suffers prolonged
and extreme physical and psychological illness.
Reasonable foresight of nervous shock to P is key. Foreseeable consequences are to
reasonable person. Test: Reasonable foreseeability that a person of normal fortitude or
sensibility is likely to suffer some type of psychiatric harm.
Health professional’s duty to inform
Battery or negligence? Reibl v. Hughes (P would have put off operation until his
pension vested if he knew of stroke risk) said it’s only battery if the inadequate info
goes to the nature of the procedure. Negligence: not told of risk, nature of procedure.
If negligence:
1. breach
2. causation
a) personal choice
b) position if tort not occurred
Duty is not an issue: there is one.
Breach: what should the doctor have told the patient? Has to disclose all risks
relevant to that particular patient. Only in rare cases an answer that knowing
would upset them too much.
Causation: operation was competently performed, but not informed of inevitable
risk. Had they been told, would they have made a different decision? Not based on
what this patient would do but a reasonable patient in the position of the P--so it
doesn’t matter if this patient says they would have done something different.
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Haughian v. Paine (1987) Sask CA p. 421
P paralyzed from surgery. He was not told of the option of conservative management or of
the 1 in 500 risk of paralysis. It was not the doctor’s practice to inform of risks less than
1 in 100.
Found that the disclosure was not adequate to give informed consent because of the
combination of the two factors, which bear on each other.
No discussion of causation in this extract?
Manufacturer/Supplier’s Duty to Warn
Hollis v Dow Corning (1995) SCC p. 426
P had breast implant surgery and implants subsequently burst, requiring several
operations. She sued the doctor and the manufacturer. The doctor was not liable as the
issue was not well known among doctors. The product literature warned doctor of risk of
rupture in surgery, but not from non-traumatic human activities.
CA found Dow liable not for manufacturing but duty to warn, having received 50 reports of
ruptures. Dow argues: 1) warning to doctor satisfied duty to P; 2) if there was a breach
it was not the proximate cause.
Manufacturer has duty to warn, including of dangers that become known after sale.
Significant dangers require detailed warnings. Standard of care for medical products is
high.
Though the duty is to the consumer, the warning in exceptional circumstances can be given
to a “learned intermediary,” as where the product is intended to be used by experts or
consumer will not realistically receive the warning. The intermediary’s knowledge
should approximate that of the manufacturer. Found that they had significant
knowledge not given to the doctor.
P was a baker, might have changed activity if she knew of risk from daily activity.
Causation: would she have consented knowing risk? Not the Reibl reasonable person test
used for doctor’s liability, but a subjective test for a products liability case. In products
liability, desirable to place strong onus on manufacturer. Found that P would not have
had surgery.
Would the doctor have warned the patient if he knew risk? P needn’t prove this. Had the
doctor been warned, the manufacturer would have been absolved by the learned
intermediary doctrine. Not willing to make finding that doctor would have breached his
duty.
Walker case p. 568 not on reading list. Failure to warn blood donors against
donating if in a high-risk group. Was a breach, was there causation? Difficult to
prove it would have deterred that donor, so enough if she proves screening
materially contributed to risk.
Material contribution is seldom the standard per Clements--have to prove causation
on a “but for” basis.
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Class Proceedings Act mentioned on the syllabus. Procedural device to allow
separate claims to be treated as one for the purpose of resolving common issues. A
judge has to certify it as a class proceeding. Remedy: manufacturer puts money in a
fund to be divided.
Negligent Misrepresentation
Recoverable Categories of economic loss
1. negligent misstatement -- Anns/Kamloops, Hercules, Cognos
2. public authority -> economic loss -- few cases, each in its own category, will
get to them later. Economic loss and physical loss handled the same way. Cooper
3. negligent performance of service -- generally no duty of care, except lawyer
doing will. James is similar, but wasn’t really decided.
4. shoddy construction -> economic loss -- Winnipeg Condo (yes if dangerous).
Maybe no Anns test needed for this category.
5. relational economic loss -- Bow Valley (no duty of care unless special
circumstances take it out of the realm of non-liability where victim is held to control
their own risk). McLachlan mentions 3 exceptions on p. 505 (joint venture is one
case, Norsk, where barge hit New West railway bridge owned by federal govt but
part of CN line, Norsk liable to CNR).
6. others? Young v. Bella
1, 4 most fruitful, 2 limited by Cooper.
Contract law: non-fraudulent misrepresentation didn’t give damages so had to sue
in tort. Courts did not want to go further. Stock cases, such as Derry v. Peek
(misstatement in prospectus--directors didn’t know of untruth)--maker of statement
must know it is false or is reckless. Later “duty of care” concept arises, why not
apply it to negligent misrepresentations?
Pure economic loss
Hedley Byrne v. Heller discussed in class
P sued for negligent misstatement by bank as to creditworthiness of a company (pure
economic loss). They lost based on an exclusion clause, but the House of Lords
recognized a duty of care.
Can’t have a duty care every time someone relies on another, or even reasonably
relies. Casual advice not basis for duty of care.
Hercules Management Ltd. v. Ernst & Young (1997) SCC p. 451
D accounting firm provided audited financial statements for two companies as required by
law to keep them accountable to shareholders. P shareholders sued for negligent
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misstatement after losing on their existing and new investments made in reliance on
the statements.
La Forest J: Used the Anns/Kamloops test, finding a prima facie duty of care (based on
reasonable foreseeability and reasonable reliance) to a large foreseeable group of
Ps, and that their reliance was reasonable. Then asked if there were policy reasons to
limit this duty, found the prospect of unlimited liability which would open the floodgates
to litigation and cause auditors to insure investors.
In Hedley Byrne, the statement was used precisely for its intended purpose. If a
document was for the purpose of attracting $10k investment, and was used for $10m
investment, would open up too much liability.
In this case, the report was for shareholders in general to have accountability, not for
individuals to invest further. No duty of care for policy reasons.
Nature, context (incl. time) of reliance and degree to which advisor can gauge their
exposure?
Krips p. 446 P does not have to prove causation on a “but for” basis; enough to
prove the statements were material to the decision to buy.
Hercules shows: go through Anns analysis for pretty well every case in negligent
misstatement because the facts are unique.
Negligent misrepresentation and contract
Used to be able to sue certain trades--hotels, doctors, etc.--in tort or contract.
Different limitation periods in tort and contract:
k -> time of breach
tort -> time of damage
If the facts support a tort claim, doesn’t matter if they also support a contract claim.
BG Checo International v. BC Hydro (1993) SCC p. 463
P made a tender to D to put up power lines, requiring that the clearing of trees be done by
others. Hydro contracted out the clearing and knew it wasn’t done properly, which
caused difficulties for P’s work.
Trial judge found that they were fraudulently induced to enter the contract (allows recovery
of whole loss, even though some wasn’t caused by the misrepresentation), but the CA
found it was not fraud but negligence (and found that “but for” the tort they would have
entered contract but bid higher).
Contract: we had to do work. Tort: you negligently made us believe we wouldn’t have to.
What remedy is available for pre-contractual representations? Can a tort claim be made if
the duty is contractual?
Because there are difference in remedies and limitation periods for tort vs. contract, found
that excluding tort claims for contractual obligations could lead to wrongs without
remedies. The parties can explicitly exclude tort liability if it is not intended to apply.
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“We conclude that actions in contract and tort may be concurrently pursued unless
the parties by a valid contractual provision indicate they intend otherwise.”
Class discussion of differences between majority and minority positions.
Queen v. Cognos Inc. (1993) SCC p. 469
P appellant hired to work as a computer programmer by D, who represented that the
position was for a two-year project with good prospects to continue after. He didn’t
reveal that the project wasn’t funded yet. He accepted the contract before the scope of
the project was reduced, and was terminated after 18 months. He sued for negligent
misrepresentation causing economic loss (Hedley Byrne tort).
Iacobucci: 5 requirements (incorporate duty, breach, causation, damages):
1. Duty of care based on “special relationship”
2. Representation is untrue
3. Representor acted negligently
4. Representee relied on misrepresentation...
5. to his detriment
All of them met here.
5-point list is inconsistent with Hercules (“special relationship”), and courts have
continued to use Cognos in preference to the Anns test. Results tend to be the same.
On exam, mention Hercules too.
Recovery of pure economic loss in negligence
Martel Building v Canada (2000) SCC p. 478
P was trying to negotiate a lease renewal in their building for D, a federal government
department. D mistreated them--broke appointments, didn’t put them in touch with the
right people, etc., and later put it out for tender and leased somewhere else. P asserted
breach of duty of care to negotiate so as to avoid causing them a loss. This would be an
extension of negligence to find a duty of care in negotiations.
There is a prima facie duty of care, as the relationship is close. Anns test: no duty of care
found on policy grounds. It would go against the nature of business, where obligations
are contractual and one is expected to seek economic advantage over another.
Design Services Ltd v Canada [2008] SCC p. 484 in notes
Public Works selected wrong tender. Subcontractors of general contractor sued in tort (not
privy to contract). Policy: Ps could have protected themselves by being privy to contract,
so no prima facie duty of care. Obiter: indeterminate plaintiffs--who knows how many
subcontractors and suppliers could be affected?
Young v. Bella [2006] p. 487 notes (discussed in class)
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Student whose professor wrongly reported she might have been involved in child abuse due
to a paper she wrote, resulting in being blacklisted for social work jobs. Liability for
pure economic loss.
Negligent performance of a service
BDC Ltd v Hofstrand Farms (1986) SCC p. 487
Apellant D courier company contracted to deliver an envelope for the province of BC
containing a land grant to the P which they needed registered by a certain date. Didn’t
arrive on time and the P suffered economic loss. Sued for negligent performance of a
service.
The courier did not know the content of the envelope or the need for timely delivery. On
these facts there was no actual or constructive knowledge of the consequences for a
third party of their actions.
A duty of care would create indefinite liability to a large class of consumers who could be
affected in unforeseeable ways. Second stage of Anns unnecessary.
James v BC (2005) BCCA p. 489
P represented a class of employees of a sawmill. Their employer held a tree farm license
from BC which provided that they could not close their sawmill without approval, but
the D inadvertently omitted the protective clause when renewing the license. The
sawmill was closed and the Ds lost their jobs. Alleged negligence causing economic loss.
Application to strike out claim as no detrimental reliance to support misrepresentation.
Decided it was not necessary to prove reliance on a false representation. Employees
relied on the ministry to exercise reasonable care to retain the clause until he reached a
decision on policy grounds to remove it. Reliance was replaced by voluntary assumption
of a duty by the Minister.
Ruling is that claim is possible, remains to be proven.
Other category (found in notes p. 491): lawyer engaged by client to do a will, does so
negligently so there is no will. Loss is not to estate but to 3rd party beneficiary.
Negligent supply of shoddy goods/structures
D builds something for an initial owner, P subsequently owns it and suffers
economic loss from a latent defect caused by D’s negligence. Applies to anyone
making anything with a dangerous latent defect (p. 494 Rivtow has been overruled
on this point).
Winnipeg Condo Corp v Bird Construction (1995) SCC p. 492
D built an apartment building which was later purchased by the P appellant and converted
to condos. The P had the building inspected once and found it structurally sound, but
when problems arose later they sued everyone, including the D, for negligence in the
design and construction. P and D had no contract, so the only claim would be the tort of
negligent supply of shoddy goods/structures.
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La Forest J: building was not just shoddy but actually dangerous--policy reasons for
liability. Where negligence results in dangerous defects, the occupants can recover
repair costs. Even without contractual privity, there is foreseeability.
2nd stage considerations: 1) warranties of construction easier to define or limit in contract
than tort. 2) Interferes with caveat emptor, viewed as a species of indeterminate
liability.
1) Place limits: dangerous defects, repair costs, useful life of building.
2) Caveat emptor doesn’t suit modern building market--contractors best placed to ensure
safety
Doing with tort what could not be done with contract. Contract will not imply a
warranty for a used building when one is not explicitly provided.
Leaky condos found to be a danger due to rotting structure.
Relational economic loss
Bow Valley Husky (Bermuda) Ltd v St John Shipbuilding Ltd (1997) SCC p 503
Husky (HOOL) and Bow Valley (BVI) set up P company BVHB to have an oil rig built by D
SJSL. BVHB specified a product with insulation they didn’t know was flammable. The
insulation manufacturer (Raychem) and SJSL negligently failed to warn.
A fire was caused jointly by the system and P’s misuse.
Trial: D and Raychem breached tort duty to warn. D BVHB 60% contributory negligence.
But contributory negligence is a complete defence under maritime law.
CA: Found contributory negligence not a bar to recovery.
SCC agreed. Separate issue: Consideration of contractual relational economic loss by HOOL
and BVI : tort recovery is possible though exceptional. What are the rules?
If P is in a joint venture with the party whose property is damaged, P may claim economic
loss. Recognized categories to date: 1) P has possessory/proprietary interest in
damaged property; 2) general average cases; and 3) claimant and property owner
constitute a joint venture. More categories could be added (presumably with Anns test).
P doesn’t fit the categories. Anns: 1) prima facie duty--yes, foreseeable; 2) policy--no,
indeterminate and they can take care of themselves in contract.
Standard of care
Common law: Reasonable Person Test
Arland v. Taylor (1955 Ont CA) p. 514
Discussion of a judge’s charge to the jury on standard of care in MVA case. Judge asked
jurors to put themselves in the drivers seat and assess what they would do--if 10 jurors
would do it then the reasonable person would.
15
Reasonable person is an objective, impersonal test--what a person with no special
prejudices, abilities, disabilities would do--conduct “adopted in the community by
persons of ordinary intelligence and prudence.”
It is improper for the juror to judge by what he would have done in the circumstances.
Would a reasonable person break the speed limit? Maybe. The statutory standard is
not the negligence standard, though it is taken into account.
Breach of Standard of Care: Factors
Probability and Severity
Two most important factors: probability and potential severity of injury, assessed at
the time of the breach, not in hindsight.
Bolton v. Stone [1951] HL p. 518
P was walking by a cricket ground and was hit by a ball. Balls were hit out of field once
every 3 seasons and chances of hitting someone slight. The reasonable man takes into
account the degree of risk and avoids substantial risk. Degree and likelihood to be taken
into account, but not the difficulty of remedial measures.
Cost of Risk Avoidance
Vaughn v. Halifax-Dartmouth Bridge Commn. (1961 NSSC) p. 525
D’s bridge was painted and flecks of paint blew on P’s car. D argued it had taken necessary
measures. High degree of risk and easy to warn if not to prevent. D negligent not to
warn. Shouldn’t this be a trespass to property? No, intent.
Law Estate v. Simice (1994 BCSC) p. 526
P sued doctors in negligence for husbands death for, inter alia, not initially taking a CT
scan. Scans are a limited and costly resource.
Ds felt constrained by insurance plan and Medical Association standards. But the
responsibility to the patient and severity of potential harm outbalance financial
restraint. Several doctors found negligent. Test is fault.
Social Utility
Watt v. Hertfordshire County Council (1954 CA) p. 529
P fire fighter was injured by a jack. The jack is used once in 15 years and the truck to carry
it was unavailable so another one was used.
Denning LJ: Risk is to be balanced against the end to be achieved. Saving lives justifies
taking a risk where profit would not.
But what about a duty to warn? Very fact-dependent.
Priestman v. Colangelo (1959) SCC note 2 on page 530
16
Police tried to shoot out tire in chase, hit driver and 2 pedestrians were killed. Justified
under CCC s 25. Justified in exposing to risk in the performance of a public duty.
Factors include role of D, their skill level, probability of risk, scale of risk.
An economic analysis of the standard of care
United States v. Carroll Towing Co. (1947 2d Cir) p. 531
Barge broke loose after bargee had been gone for 21 hours, court was unsure of appropriate
standard.
Hand: If probability is P, injury is L and burden of prevention is B, then liability depends
on whether B is less than L multiplied by P. In this case, busy harbour, high activity, so
D should have bargee on board in working hours.
Special standards of care
Unreasonable person:
Fiala v. Cechmanek (2001) AB CA p. 534
MacDonald suffered manic episode from undiagnosed bipolar disorder, assaulted driver C
who lost control of car and injured F.
M is not liable: If a person is suddenly, without warning, afflicted with mental illness and
can prove on BOP that he could not understand or appreciate duty of care or was unable
to discharge duty, he has no tort liability.
Discussion of fault vs. compensation as functions of tort law.
Reasonable child:
Joyal v Barsby (1965) Man CA p. 541
6-year-old girl and younger brothers trying to cross highway. Girl has been told of danger
and what to do when crossing. Boy crosses, trunk blows horn, girl distracted and crosses
without checking other direction. Driver should have slowed down, contributory
negligence by girl?
Standard is the reasonable child, who might not be careful all the time. Court divided
on facts. Majority followed trial judge that she did what a reasonable child would do so
not contributorily negligent.
Minority found child 40% at fault.
Reasonable doctor/lawyer/plastic surgeon:
White v. Turner (1981) ON HC p. 545
D Dr. Turner performed breast reduction on P, with post-op complications and poor results.
P claimed D was negligent in performing operation and not disclosing risks (latter not
discussed).
Must prove negligent conduct and standard of care is the reasonable plastic surgeon.
Expert witnesses testified the procedure used takes 2-4 hours to do properly. D did it in
1h35, which experts felt was not enough time to do it competently. Not enough tissue
17
was removed, held that D’s rush led to not checking properly. Causation: too much
tissue remaining caused pressure to open incisions.
Custom
Ter Neuzen v. Korn (1995) SCC p. 553
Artificial insemination with semen containing HIV. Was this a recognized risk in 1985?
Was the MD negligent in failing to screen donors? Jury said yes. CA said jury could not
have found that a competent specialist would have had reason to know that it could be
transmitted in this way. Should not have left it to the jury.
Where a procedure involves difficult/uncertain questions of medical treatment beyond the
ordinary experience of the judge and jury, it is not open to find a standard medical
practice negligent. As an exception, if standard practice fails to adopt obvious and
reasonable precautions that are readily apparent to trier of fact, standard practice is no
excuse. This exception is a question of law to be decided by the judge.
Duty of care: question of law
Breach: question of fact or mixed
Must professional evidence be followed? Question of law
What is the standard practice? Question of fact
Standard of care for lawyers? Single standard
Causation
“But for” test: did the alleged negligence cause the harm?
One tort vs. multiple torts
One tort: Did it cause damage? Snell v. Farrell--can infer negligence from what
reasonable surgeon would do. Judge/jury can infer causation. Possible it was
unrelated, but not likely. Balance of probabilities on indirect evidence. This is
factual connection.
Has the tort made P worse off than otherwise? What P’s position would have been:
Clements. Husband negligent in overloading bike, driving fast. But had bike been
less loaded and slower, would accident probably not have happened? Defence expert
said no as tire puncture would still probably have caused crash. SCC said you can’t
use material contribution--either caused or did not. Finder of fact must decide
whether the negligence made the difference.
Athey v Leonati (p. 587): Man with weak back injured again doing exercises. Did
the accident cause the herniation? 25% contribution taken by SCC to show “but for”
causation. Material contribution. Must be “but for” plus material, not a de minimus
contribution.
18
Crumbling skull: If the injury would likely have happened soon anyway but the
accident brought it forward. Reduces recovery. Contingency--might estimate future
earnings on basis of becoming a lawyer, but then subtract 25% for contingency.
Penner illustrates this.
Penner v. Mitchell (1978) AB? CA p. 592
Trial judge awarded lost income for 13 months, but the respondent would have been unable
to work 3 months of that time from an unrelated heart condition. Should the damages
be reduced?
In Baker v. Willoughby, a second tort led to further injury but the damages for the first tort
were unchanged. A successive culpable injury could only be taken into account if it
reduced the disability or shortened the period they suffered it. Does this apply to a nonculpable injury?
Generally, take account of factors affecting future earnings: unemployment, illness,
accidents, etc. P would be overcompensated if these weren’t taken into account. So
award reduced by 3 months income.
Baker v. Willoughsby??
One D
What happened to cause injury? (Snell)
What would have happened if no tort?
Whether the injury would have happened anyway (raised in Clements)
Whether the injury might have happened from another cause (crumbling
skull--don’t give full damages, can use %)--contingency
Whether would have or did happen from another cause (Penner--reduce
damages)
Whether P was deprived of a chance of gain by the tort (Laferriere, p. 583,
prove you probably would have gotten better, then get 100%)
Multiple Ds
Separate torts cause separate injuries to same P (each liable for own damage)
Separate torts cause a combined injury (several concurrent torts--apportioned under
Negligence Act s. 4, have to indemnify each other--but severed if there is
contributory negligence by P)
Joint torts (parties acting together to commit one tort) treated the same as several
concurrent torts
19
Multiple tortfeasors but don’t know which caused damage (Cook v. Lewis, both held
liable unless one can exculpate himself. Clements said you can hold liable for
material contribution to risk of injury.)
Tort and non-tort each may have caused injury. English cases (mesothelioma) have
found liability--can’t prove cause. Canada: okay between multiple wrongdoers, but
not if one potential cause is non-tortious (Clements, would apply to McGhee).
“But for” test
Kauffman v. TTC (1959) ON CA aff’d SCC p. 562
Youths scuffling on escalator knocked over man who fell on P, causing severe and
permanent injuries. The handrail design was a “radical departure.”
But no-one tried to grab the handrail! No causation.
Barnett v. Chelsea [1969] Eng p. 563
3 men unknowingly drank arsenic in their tea, D doctor told them to go home and rest
without examing, one died.
D was negligent. But even with treatment there was no reasonable possibility of getting
antidote on time to save him. Negligence didn’t cause the death.
Dillon v. Twin State Gas and Electric (1932) p. 595
Boy P was climbing on a bridge, fell, grabbed a high voltage wire, and died from
electrocution. He would have died or been very seriously injured from falling. His estate
sued the electric company responsible for the wires.
Damages would be reduced or eliminated on “but for” test of what would have happened
without the wires.
Clements v. Clements (2012 SCC) supp.
Motorcycle accident--experienced driver, but overloaded and too fast. Nail in tire which
suddenly deflated. Which caused the accident?
Material contribution is a reverse onus and therefore for very exceptional circumstances
(akin to Cook v. Lewis) where requiring “but for” causation “would offend basic notions
of fairness and justice.” (para 27). It is material contribution to risk, not to result. SCC
has acknowledged it may be necessary given difficulties of proof in cases with multiple
tortfeasors, but has not actually applied it.
Material contribution has been used in UK asbestos cases.
How does one distinguish between “impossibility” of proof and simple failure to do so? Not
scientific impossibility but contingency between multiple tortfeasors. This excludes
recovery where the injury may be unconnected or no-one’s fault. “But for” can be proven
as against a group of tortfeasors but not as against any one of them.
20
General rule: “but for” causation on balance of probabilities, not scientific certainty.
Exception: “but for” against the group, then material contribution against the
individual, to prevent each from pointing fingers at the others (Cook v. Lewis).
Exceptions to “but for” causation
Multiple negligent Ds: Cook v. Lewis cast in Clements as material contribution to
risk.
Learned intermediary: discussed in Hollis v. Dow. Manufacturers deemed to
have informed patient by informing doctor.
Informed consent: Reibl v. Hughes. Objective/subjective test of causation: would a
reasonable person in the Ps position knowing the risk have consented.
Remoteness
Thin connection between the cause and the harm--directness (Polemis) vs.
reasonable foreseeability (Wagon Mound).
Wagon Mound No. 1: Overseas Tankship v. Morts Dock, [1961] Eng PC p. 600
Appellant charterers of the Wagon Mound spilled oil into harbour which was carried under
the wharf and was set afire by welding slag, damaging the wharf. Judge found they
could not be expected to have known oil on water would burn. But found on directness
that they caused the damage.
Overruled Polemis. Not directness but foreseeability: man responsible for the probable
consequences of his act. Is the damage of such a kind as the reasonable man
should have foreseen? No, appeal allowed.
If the tort were intentional, they would be liable regardless of foreseeability.
Hughes v. Lord Advocate [1963] HL p. 605
Paraffin lamp left by workmen at a tent by an open manhole. 8-year-old boy knocked the
lamp in the manhole and vaporized paraffin exploded. Boy was knocked in manhole and
burned. Fault was found in leaving manhole open.
It was argued that the damage suffered was not of a foreseeable kind. Found that boy
taking lamp was likely, as was burn. Different type of accident, but harm was similar to
what would result from the foreseeable accident. Broadly, broken lamp causing fire is
foreseeable.
Smith v. Leech Brain & Co. [1962] Eng QB p. 608
21
P’s husband was a galvanizer employed by D. Operating crane behind a shield, D was
struck on lip by molten metal causing a burn. Cancer developed later from existing premalignant condition causing death.
Adds to Wagon Mound the thin-lipped plaintiff: what needs to be reasonably foreseeable is
the burn. D is then liable for consequent damage, which depends on the characteristics
of the victim.
Remoteness is based on a general concern for fairness but is highly fact-dependent.
Personal injury is never held to be too remote.
Note 5 on p. 608 loss of consortium has been abolished in BC, as has breach of
promise of marriage.
Marconato v. Franklin (1974 BCSC) p. 609
P suffered minor physical injuries in a car accident but soon developed major psychological
issues due to pre-existing personality traits.
Aikins J: Thin-brained plaintiff--symptoms arose from injuries and injuries were
foreseeable. D pays for all the consequences.
The Wagon Mound (No. 2) (1967 PC (NSW)) p. 614
Ps were owners of two boats damaged by the fire. Appeal from trial where their action in
negligence was dismissed as not foreseeable.
Lord Reid: In Wagon Mound 1 Ps were constrained (by their own considerations) from
arguing that it was foreseeable for oil to burn on water. Actual facts were that it was
considered unlikely but possible.
Discusses Bolton v Stone--infinitesimal risk weighed against high difficulty of prevention.
In the present case, low risk balanced against no justification for oil spill (it was an
offence to allow oil spill). A reasonable engineer would have realized there was some
risk, and without justification even a small risk should be prevented.
Foreseeability is very elastic, not a very high bar.
Assiniboine South School Divn. No. 3 v. Greater Winnipeg Gas (1971 Man CA, affd
1973 SCC) p. 617
Hoffer drove a [snowmobile] into a gas riser pipe outside a school. It broke and gas leaked
into an air inlet above the pipe and ignited in the boiler room. The trial judge gave
damages 50% from Hoffer and 50% from the gas co.
Is damage by fire foreseeable from an impact? Wagon Mound 1 requires foreseeability of
consequences, but Hughes and Wagon Mound 2 don’t require great precision. “It is
enough to fix liability if one could foresee in a general way the sort of thing that
happened.”
Gas pipes are common and can be damaged, out-of-control snowmobiles hit things.
Placement of a gas meter years before is not a new intervening act.
22
Gas company also liable: foreseeable that a gas meter under an air intake could lead to
explosion if damaged. Small risk but large damage foreseeable and low cost of
prevention. “The duty to take protective measures increases in direct proportion to the
risk.”
Mustapha v. Culligan of Canada Ltd. (2008 SCC) p. 620
P sues for psychiatric injury after finding a fly in a bottle. Products liability is an
established category so there is a duty of care.
Remoteness: ask whether “the harm [is] too unrelated to the wrongful conduct to hold the
defendant fairly liable.” Standard is Wagon Mound 2: “real risk” that a reasonable
person would foresee and “would not brush aside as far-fetched.”
Standard for injury is person of “ordinary fortitude.” Once this is established, take the
actual P as you find him and assess damage subjectively.
Obiter: if D knew P was thin-brained, needn’t apply the objective standard strictly.
Not foreseeable as it was too remote: a person of ordinary fortitude would not have been
injured.
Intervening causes
Bradford v. Kanellos (1973 SCC) p. 624
Appellants were customers in respondent’s restaurant when there was a grease fire and the
fire extinguishing system was operated. Some idiot yelled that there was a gas leak and
people panicked and ran, pushing appellant from her stool causing injury. Trial judge
found negligence in the fire so awarded damages. CA held that the originally negligent
person could not have anticipated the “subsequent intervening act” of the idiot.
Martland J: concurs with CA. Fire extinguishing system was one of the best. Hysterical
customer was not “within the risk” of the grease accumulation on the grill.
Spence J dissenting: Idiots were a foreseeable and natural consequence of events from
the original negligence.
Causation or remoteness?? Fire didn’t cause the idiot, so not exactly “but for”
causation.
Price v. Milawski (1977 Ont CA) p. 628
Plaintiff injured his ankle playing soccer and went to emergency room. D doctor ordered
foot x-rays though he had been told it was an ankle injury, and told P it was only a
sprain. He later went to a specialist as it remained painful, who was told x-rays were
negative, did not order new ones, and applied a cast. Permanent disabilities resulted
from the delay. Both Ds were found negligent and equally at fault and both appealed.
The first MD argued that the second MD’s negligence was not a foreseeable consequence.
A negligent person may be held liable for damages arising in part from the subsequent
negligent act of another and in part from his own negligence where the subsequent
negligence and damage were a reasonably foreseeable result of his own.
23
Trial court ruling upheld.
Problem of intervening cause: damage is done by a third person, likely unavailable.
Did 1st party’s act/omission cause it? 2nd act must at least be reasonably
foreseeable (CA in Hewson said it wasn’t on those facts, but today you might be
liable for leaving keys in the car).
Hewson v. Red Deer (1976 Alta SC) p. 631 reversed on appeal
D city employee was using a tractor to move gravel, left for a break and took some
precautions but left the key in the ignition. It was found in gear having crashed into the
P’s house 2.5 blocks away. Footprints and tire tracks show that someone likely started it
and jumped out.
The defence of a new intervening act is not available if the defendant failed to
guard against the very thing that was likely to occur. Removing the key and
locking the door would have prevented the tort.
Discussed note 9 on p. 631.
Also discussed “last clear chance” (to avoid accident), which was a way to avoid the
bar on recovery for the contributorily negligent. Not needed with new contributory
negligence provisions.
Skipping assessment of damages (incl. cap on non-pecuniary damages, survival of
actions already discussed).
Defences
Have discussed a few defences: contributory negligence, voluntary assumption of
risk (only if you agreed to accept legal risk, eg. by signing waiver, not just getting
in car with a drunk person which is contributory negligence). One more:
Participation in a criminal or immoral act
Hall v. Hebert, (1993) SCC p. 717
P and D both drunk in D’s car. D agreed to allow P to drive and he flipped car down an
embankment, then sued D for allowing him to drive!
Defence of ex turpi causa non oritur actio (“out of a corrupt cause”)
McLachlin J: Tort liability is not limited to neighbours who have acted morally and legally.
But some cases raise circumstances where the court declines to enter into the question
of whether a duty exists.
Ex turpi causa is a defence. D has onus to establish why P’s conduct bars the action. Most
commonly arises 1) where P seeks to profit from his illegal conduct; or 2) where the
claimed compensation would amount to an evasion of a criminal sanction.
This appellant can be compensated because it is not those categories but for injuries
received, but can be reduced by his contributory negligence.
24
Most of what the doctrine would apply to has been edited out of this case. #2 means
you can’t sue your accomplice in crime for negligently getting you caught (see note 7
on p. 721). Principle is that one arm of the law should not undermine what another
arm is doing.
Proof of negligence
General principle on burden of proof not discussed.
Exceptions: when do we have a reverse onus? Technically never, but...
Multiple negligent defendants
Cook v. Lewis, [1952] SCC p. 737
Ds have destroyed the victim’s power of proof. Therefore the onus shifts to the wrongdoer to
exculpate himself. Responsibility attaches to both and sole responsibility is a matter
between them.
This is not very satisfactory, but Clements has re-explained this case (in para 19) in
terms of material contribution.
Res ipsa loquitur
Inference from circumstantial evidence:
1. occurrence is one that doesn’t happen without negligence;
2. instrumentality of harm was under sole control of defendant; and
3. no direct evidence.
Eg. P struck by barrel of flour from window of D’s warehouse (Byrne v. Boadle).
Effect is to reverse the burden of proof either partially or entirely.
Fontaine v. British Columbia (Official Administrator) (1997) SCC p. 744
Fontaine and Loewen went missing on hunting trip. Later found, seemingly having hit a
bump at speed in the rain and went off the road with Loewen driving. Fontaine’s widow
sues and attempts to prove her claim with res ipsa loquitor. Trial and CA disagree as
she could not show the accident would not happen without negligence.
Major J: Res ipsa loquitor should be applied narrowly where the evidence supports only one
conclusion. Better to ignore the doctrine and just decide on the facts, both direct and
circumstantial. Not enough evidence here to prove negligence.
Tort liability of public authorities
Anns: can’t adjudicate policy, but can adjudicate operational decisions.
25
Kamloops case was about inadequate building inspection resulting in house with
inadequate foundation. Inspector reported that foundation wasn’t deep enough, but
nobody did anything about it. SCC found city negligent in 1984 for pure economic
loss using Anns test. It was foreseeable and no policy reasons to negate (no
indeterminate liability for a specific house). Now by statute (Local Government Act)
you can’t sue municipalities in BC for failing to enforce bylaws. Could still sue for
negligent inspection, just not for failure to do anything.
Cooper v. Hobart was public authority case--used Anns/Kamloops test (no proximity
between investors and regulator).
Just v. British Columbia (1989 SCC) p. 763
P appellant and his daughter were stopped in a car on the Sea-to-Sky hwy when a boulder
fell on his daughter. Sued for negligently failing to maintain the highway. There was a
department responsible for inspection and maintenance. P argued that reasonable
inspection would have found the danger.
Part of decision not given says there is a prima facie duty of care because physical harm is a
foreseeable risk.
Cory J: Is the government even responsible to inspect? A duty of care applies to a public
authority unless there is a valid basis for its exclusion. A true policy decision is a valid
basis. Anns and Kamloops say that a government agency deciding on inspection must
act in a reasonable way which is a bona fide exercise of discretion--must consider
whether to inspect and if so the system must be a reasonable one in all the
circumstances. They may decide not to inspect at all.
A government agency duty of care exists if there is a relationship of sufficient proximity
(exemption may exist by statute or for pure policy decisions with bona fide discretion
such as budget decisions). The standard of care includes the manner and quality of
inspection system and depends on circumstances such as budgetary restraints and
availability of qualified personnel and equipment.
Held that there was a duty of care as a system was put in place so it must be a reasonable
one. Trial judge had said no duty of care, so sent back for new trial.
Sopinka J (dissenting): No duty of care as extent and manner of inspection are policy
decisions, so not to be questioned unless made for an ulterior motive.
Went for new trial and judge did find department liable.
Misfeasance in public office
Deliberate bad choices in government, not negligence.
Odhavji Estate v. Woodhouse (2003 SCC) p. 778
Toronto police shot someone. Civilian SIU requested segregation of officers, same-day
interviews, shift notes, on-duty clothing and blood samples. Police were statutorily
obligated to cooperate but did not.
Two categories of misfeasance in public office: A) conduct specifically intended (actual
subjective intent) to injure a person/class; and B) acts knowing he/she lacks the power to
do his act and that it is likely to injure the P. For each 2 elements to prove: 1) public
26
officer engaged in deliberate and unlawful conduct in his capacity as a public
officer; and 2) public officer must have been aware that his conduct was unlawful
and that it was likely to harm the P.
Appeal allowed against striking of the claim as there is some evidence alleged to each of
these elements.
Relationship between statutes and negligence
Of what relevance is it to the tort that you are in breach of a statute? Old doctrine
allowed breach of statute (especially in industrial accident cases) to prove
negligence--breach of statute was sometimes enough to establish negligence.
R. v. Saskatchewan Wheat Pool (1983 SCC) p. 799
Saskatchewan Wheat Pool sued by Canadian Wheat Board for delivering infested wheat in
breach of the Canada Grain Act, causing pure economic loss. Wheat Pool claimed they
weren’t negligent as they had no duty to test grain.
Breach of statute might be evidence of negligence but not sufficient unless statute creates a
civil cause of action.
Very few areas of strict liability in tort.
P. 811 Ryan v. Victoria interesting case, statute used as a defence unsuccessfully-rule wasn’t designed to say if you’re negligent.
Skipping occupiers liability
Statute: Occupiers Liability Act requires reasonable care to those who come on the
property, so it is absorbed into general liability.
Skipping nuisance
Not quite fault-based, intent not required. Two varieties, public and private
depending on type of property. Can’t sue for public nuisance unless you’re AG or
uniquely affected by the act. Private nuisance: interference with property with or
without fault or intent, committed by smell, noise, floods, vibration, etc. Some may
not be covered by negligence.
Strict and Vicarious Liability
We will skip chapters on nuisance and strict and vicarious liability (24 and 25).
Vicarious liability: Employer is liable for employee does that is work-related, but
not if they just take the company truck for a joy ride. What about intentional torts
(eg. residential school cases)? Yes, often, the employer put the employee in the
situation where there is risk. On exam, should know that vicarious liability exists.
27
Rylands v. Fletcher tort--escaped reservoirs, tigers, etc.
Absolute liability for harmful things that escape from your property--reservoirs,
noxious chemicals, tigers, etc.
Defamation
Elements of a defamation action: statements 1) were defamatory; 2) made reference
to P; and 3) were published or disseminated. Tension between protection of
reputation and free expression, press. Slander is oral defamation, libel is written.
Broadcast is libel, probably email.
Slander is considered less harmful and is actionable only if it actually causes harm
or fits categories on page 1001-2--imputation of crime, disease, unfitness to practice
profession, lack of chastity for women. Saying “x told me that” probably not slander,
and hyperlink is not libel (unless you indicate agreement).
Innuendo may be defamation: statement needs to be combined with some other fact
that people know to make a defamatory statement.
Is material defamatory?
Sim v. Stretch (1936 HL) p. 1004
Housemaid worked for D then P then D, who sent a telegram asking for her wages and
“money you borrowed”. P alleged that this was an imputation of poverty.
Lord Atkin: Test for defamation--”would the words tend to lower the P in the estimation of
right-thinking members of society generally?” Question of law: are the words capable of
being defamatory? Question of fact: are they defamatory?
Suggestion of “meanness” not supported by ordinary meaning of words, which is true. When
there are a number of good interpretations, unreasonable to seize on the only bad one.
Defamatory meaning can only be given by inventing supplemental facts.
“Right thinking” people might be some (more than minimal) group such as catholics
(if you are a catholic), might be just your boss, etc. Something that is defamatory for
one person might not be for another.
Reference to the plaintiff
Knupfer v. London Express Newspaper Ltd. (1944 HL) p. 1009
Ds published an article on “Young Russia” group saying they were fascists. P was leader of
British branch. Witnesses associated article with P (factual question), but words were
about an international organization.
For defamation words must be published “of the plaintiff.” 2 questions: 1) can the
words be capable of referring to him (law); 2) do they actually lead reasonable
people to think they refer to him (fact).
The fact that a group is defamed doesn’t mean an individual member is, though it
can in the case of a small, defined group, eg. board of directors of a company.
28
Defamation can be applied to a business, but doesn’t come up often.
Defences to defamation
True defences which need to be proved by the D. Eg. falsity and malice can be
presumed.
Justification: truth. If you rely on this and fail it is treated as a repetition of the
libel--not that you can be sued for the repetition but it would increase the damages
(kind of an exception to absolute privilege for court proceedings)
Absolute privilege: anything said in a legislature or a court proceeding. Also quasijudicial proceedings such as disciplinary hearings in a law society.
Qualified privilege: Applies if parties communicate in a situation where one has a
duty/interest to inform and the other has an interest in hearing it: eg. a letter of
reference. Applies if you say something factually false but in good faith--can’t claim
if you were malicious--P proves malice. It is very hard to claim a duty to speak to
the public (and their interest in hearing it).
Williams v. Reason (1983 CA) p. 1015
P amateur rugby player was accused by D in newspaper articles of “shamateurism” (being a
professional who claims to be an amateur). The articles referred to a book deal (but he
eventually donated that money to charity), so can evidence be admitted that the P took
“boot money”?
The “sting” of the slander is not the book deal but the “shamateurism,” so the boot money is
relevant. Evidence going to the “sting” of the slander can go to truth in a
defence of justification. You just have to negate one possible sting, not every
interpretation. But multiple separate defamatory statements need to be justified
separately.
Hill v. Church of Scientology (1995 SCC) p. 1029
Lawyer was involved in criminal investigation of the Church of Scientology. Crown seized
Church documents (2 million pages), some of which were sealed under court order.
Church applied to another ministry to be able to perform marriages, the ministry
wanted to see documents and was denied, but looked at some non-sealed documents.
Church alleged they were looking at sealed documents and brought a contempt
proceeding against Hill among others.
Church had a press conference to announce their proceeding and on the steps of Osgoode
Hall their lawyer proclaimed their proceeding. Hill brought this lawsuit for accusing
him of being an unethical lawyer.
Qualified privilege attaches to the occasion of the communication (one where the party
has an interest/duty, legal, social, or moral, to make it and corresponding
interest/duty to hear it) and not the communication itself. The qualified privilege is
public reporting of court proceedings. Court chooses not to distinguish between
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something about to be filed and something already filed, so the occasion qualifies. The
public has a right to hear about court proceedings.
You can’t go beyond the duty/interest, eg. through malice or improper purpose.
But going beyond reporting to using the proceeding as a platform to make defamatory
statements steps outside of the privilege. Ds lawyer should know as a lawyer exactly
what is appropriate to the occasion.
Fair comment on a matter of public interest
Cherneskey case: newspaper printed a letter to the editor and was found liable
because they did not honestly hold the belief, though the letter writers probably did.
Libel and Slander Act has been amended to take care of part of Chernesky case-don’t have to honestly believe someone else’s opinion now. WIC brought common
law in line with the statute and went further. Now it’s objective: is it an opinion
that a person could honestly hold based on the facts.
WIC Radio Ltd. v. Simpson [2008] SCC p. 1035
Radio host Mair made negative comments about anti-gay activist Simpson based on her
comments at a school parents meeting, compared her to Hitler, perhaps implied she
would condone violence (but denied that he thought this). CA did not allow fair
comment as D did not honestly believe what they said was his meaning.
Binnie J: Requirements for fair comment on a matter of public interest: Must be a)
comment (not accusation or allegation of fact); b) which any person could honestly
express; c) based on facts that are true; and d) pertaining to a matter of public interest.
P can rebut the defence with evidence of actual malice.
Overturns Chernesky to uphold objective test for honest belief: what an ordinary person
could honestly believe on the facts.
In this case the belief could be honestly held and other requirements are satisfied, malice
was not proven, so trial judge was correct to allow a defence of fair comment.
The facts being commented on must be true to support fair comment.
Malice is a term of art: ulterior motive
Who has to prove malice? In U.S. per NYT v. Sullivan, for statements about public
figures the onus is on the P to show D was motivated by malice, which is difficult to
do. D argued this in Hill v. Scientology but it was rejected.
WIC on onus: Simpson would have to prove malice to dispel defence of fair
comment.
Malice can overcome honest belief.
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Grant v. Torstar Corp [2009] SCC p. 1047
Grant sued Toronto Star for defamation for an article airing views of local residents critical
of his golf course development. The reporter attempted to verify allegations including
asking Grant for comment which he did not provide. Jury awarded $1.475m. Gap in the
defamation tort defences: justification (if it’s true and can be proven) or qualified
privilege (rarely allowed for journalism). Fair comment doesn’t apply to factual error.
Should there be a responsible journalism defence as in the U.S. and England?
McLachlin CJ: Free expression values of democratic discourse, truth-seeking and selffulfilment vs. protection of reputation.
New defence of “responsible communication on matters of public interest.” Test:
1) was it a matter of public interest (genuine interest, not salacious); 2) was it
responsible? Relevant factors include: seriousness of allegation; public importance;
urgency; status/reliability of source; whether P’s side was sought and accurately
reported; whether defamatory statement was necessary to the communication. Finally,
whether the statement’s interest lay in the fact it was made rather than
content--an exception to the repetition rule (important to attribute, report fairly, give
context and note that truth has not been verified).
Held that communication was in the public interest and sent for new trial to determine if it
was responsible.
What is responsible blogging? Who knows?
There is already a limited CL defence for reporting the statements of others where
you are reporting a matter of public interest. Goes to whether the statement is
defamatory--it is true to say that a statement was made. But this is a limited
exception to republication which is not allowed.
Remedies
Hill v. Church of Scientology [1995] SCC p. 1061
Facts as previous, damages of $300k jointly v. Manning and Scientology. $500k aggravated
and $800k punitive against Scientology alone.
Award of damages is up to the jury unless the result is grossly disproportionate.
General damages are presumed from the act of defamation and best assessed by members
of the community. Unlike personal injury, most of the damage is non-pecuniary and it is
an intentional tort, so a cap is not appropriate.
Aggravated damages awarded where D’s behaviour is high-handed or oppressive,
motivated by actual malice which increases the injury. Consider withdrawal, apology,
repetition, false plea of justification, conduct of D.
Punitive damages awarded where behaviour is so malicious and oppressive that it offends
the court’s decency. The aim is not compensation but punishment and deterrence.
Helps to ensure that deep-pocketed Ds won’t repeat.
Damages upheld.
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Ss. 6 and 7 of the Libel and Slander Act talk about apologies, particularly directed
at media, which help to reduce damages. CL treated apologies as admissions of fact-Apology Act neutralizes that.
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