Adil Khan
Law 108C, Torts --- Fall Midterm with Prof Janisch
1. Introduction:
Tort law determines when the person who causes harm must pay compensation to the
person who suffers it.


Covers criminal and non-criminal conduct
While actions have different motives and varying consequences- desire for
financial compensation is primary
Defendants have to be worth suing – three categories
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People or institutions with liability insurance (insured defendants)
Large corps or govt institutions (self-insured defendants)
Uninsured people or companies with deep pockets (defendants with means)
The nature of the defendant’s conduct- wrongful or innocent:
Conduct
Defendant’s Act & Knowledge
Accidental
Def acts & produces consequences which
were either not reasonably foreseen or
not reasonably preventable
Negligent
Def ought to have reasonably foreseen and
avoided the result
Intentional
Def acts either knowing with substantial
(in Cnd. need to prove intention)
certainty what the consequences would
be, or desiring them
Tort Law objectives

Moralist/essentialist approach: tort law is all about private relationships
where there’s a need for corrective justice; only necessary to look at the two
parties involved; no need to look at public policy; tort law as protector of
individual liberty and as enforcer of morality
o Narrowly restricts the potential ambit of tort liability
o Looks closely at individual conduct
o No liability until sufficient disruption or unjust imposition of force or loss
o The historical/original justification behind tort law
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o Elegant and specific, but narrows the scope to restrict the ability to reach
its own goals

Instrumentalist: modern approach --- some objectives at conflict with each
other, multifunctional conceptualization
o Compensation
o Punishment
 Possibly there, but not in the vast majority of cases
 Complements criminal law: seeks to influence conduct of citizens
o Deterrence
 Specific: Undermined by liability insurance because charge no
longer on personal wealth
 General
 Weak because public have little knowledge of tort litigation
 Courts still must consider society’s interests and have a
duty to ensure that harm doesn’t reoccur
 Market
 Encourages the manufacture of safer goods
 Dangerous products will be replaced by safer ones
o Psychological --- retribution a reality of human nature
o Education
o Ombudsman
 Using tort law to challenge the rich and powerful
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Nature of the plaintiff’s loss: distinction b/w compensable and non-compensable damage


Hinz: difficult to claim damages not physical but rather psychological in nature
Star Village Tavern: difficulty of claiming purely economic damages
Compensatory vehicles

Tort law stretched (liability insurance)
o Government initiatives: distribute compensation for no-fault claims,
replacing the costly tort process for such victims
 Worker’s compensation schemes
 Designed to replace tort law in industrial accidents
 Tort law said workers who worked in dangerous situations
voluntarily participated
 No fault auto insurance
Compensation for victims of crime
Social welfare expanded from a focus on disability -> accident
victims
o Special arrangements:
 Tort liability, public no-fault schemes, and private sector 1st-party
insurance compete in the arena to compensate victims of injury.
 Any kind of fault-based system like tort law is very expensive, thus
creating extensive compensation alleviates stress from victims
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New Zealand? Only common law country that has a national nofault compensation scheme replacing tort law entirely
1.1 Responses to Harm

Tort law offers those who have suffered a recognized type of harm a means to
seek remedy, generally in the form of compensatory damages

Defendant only liable if the harm was caused by his or her wrongful act
1.2 Identifying those responsible for Harm
1.2.1 Joint Tortfeasors (concerted action)

To secure the liability of joint tortfeasors, it is necessary to prove only a single
tortuous act by one of them

Categories (Cook)
o 1) One who encourages to commit a tort and the one who commits the act
o 2) Employer and employee; if act committed by employee within the
scope of employment
o 3) Principle and agent; if tort committed by agent within actual or
apparent authority of the principle
o 4) Fact-specific category:
 (i.e.) Guilt by participation not by association

Multiple tortfeasors causing indivisible damage
o Several concurrent tortfeasors are defendants who commit a series of
discrete, independent torts, each of which is a cause-in-fact of the damage
 Liability must be established individually
o Liability of multiple tortfeasors (both joint tortfeasors and several
concurrent tortfeasors) is joint and several, which means all defendants
are liable for the full amount of damages.
 Apportionment allocates responsibility for the plaintiff’s loss
according to the degree of fault.
Cook v. Lewis [SCC, 1951] --- hunting accident

Joint tortfeasors distinguished from plaintiffs, Cook and Aikenhead
o Only if there is one tort committed by one of them on the behalf or in
concert with another can they be joint

Finding joint liability would be a slippery slope to holding members of
entire parties responsible for for the negligence of any member
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1.2.2 Vicarious Liability

Vicarious liability shifts the burden of paying compensation for tortious conduct
from the tortfeasor, to a party who is in law responsible for the former's actions
thereby providing a viable alternative – usually more solvent - source of
payment to the victim of the tortious act
o Strict liability because no proof of wrongdoing needed to be subject to it

1) Employer and Employee (Master and Servant): business can be found liable
for the wrongdoing of its employees if it fails to select, train, supervise, or
control with due care.
 Employer liable for action committed within the scope of an
employee’s job
 Justified by: provision of a just and practical remedy, and
deterrence of future harm
o a) Employees and independent contractors
 Control test: control of the employer or simply by terms of a
contract
o b) The course of employment
 Difficult to determine what clearly falls w/in scope
 Explicit warnings to employees don’t reduce liability of act(s)


Deliberate wrongdoing seems to fall outside of the scope of
employment, but sometimes vicarious liability is found
The strong connection test laid out in Curry evaluates the
power and authority vested in the employee by employer

2) Principal and Agent
o Applicable when a principle empowers the agent to act on her behalf in
such a way as to affect her legal relationship with others
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3) Statutory Vicarious Liability
o Ex: Extension of the liability of the owner of a car
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4) Independent Contractors
o a) Non-delegable Duties
 Means by which courts can extend vicarious liability to
independent contractors in certain circumstances
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5) Liability of the employee or the agent
o Vicarious liability does not exonerate tortfeasor
o Doctrine of indemnification: allows employer to seek reimbursement
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6) Direct liability of employers and principals
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Ontario Ltd v. Sagaz Industries Canada Inc (SCC, 2001)

Facts: Sagaz employs AIM as a consultant to try garner business from Canadian
Tire. AIM consultant attempts to bribe CT official (intentional tort of interference
with economic interests). Claim for vicarious liability against Sagaz.
o Judge decides AIM is an independent contractor (No VL)
o Court is willing to compensate for pure economic losses

Questions of direct and joint liability - matter of judicial policy
o J. Major asks: How do we justify the fairness of finding an employer liable
who has clearly instructed the employee in proper conduct?
 Uncommon in Canadian law to hold someone not at fault liable
o Establishing control in the master-servant relationship is critical
 Modern contractual employment scenarios and general labour
relations is much more complicated

Factors to evaluate the relationship between parties
o A new central question:
 Old notion of control is no longer applicable
 New question: whose business?
o Entrepreneur test: Ownership of tools? Equipment?
o Organization test: Own staff (helpers)?
 Financial risk?
 Investment?
 Profit?
 Management?
Vicarious Liability of Hospitals for Doctors with Hospital Privileges

Canadian Medical Protective Association: is a liability insurance corporation
that represents doctors in malpractice cases and pays out compensation


Body designed to limit the liability of doctors
Non-delible duty: Hospital liable under true vicarious liability
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Note on Parental Liability
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
CL: no vicarious liability for the torts of the children on their parents
Overturned in certain provinces by legislation that says ‘presumption of fault’
unless they have made reasonable effort to discourage the tortuous behavior
o Application to the employer-employee relationship would have
interesting consequences
o Removes strict liability from parental-child
1.2.3 Joint and Several Liability
Joint tortfeasors:
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Single tortuous act: joint activity leading to a single act
Contribution among Defendants: if joint liability, one party is held liable then
one can apply to spread the costs of damages
Concurrent tortfeasors:

Multiple tortuous acts: a number of acts that create the end result
o Not in a joint exercise that leads to a result

Joint and Several Liability: plaintiff can choose against whom to bring action
o There can be Contribution among Defendants
1.2.4 Victim Contribution (Contributory Negligence)

Contributory Negligence: if the plaintiff has in fact contributed to the harm
o In CL, this usually barred the plaintiff from recovering
 This rule was considered harsh, and legislation has apportioned
liability between plaintiff and defendant
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2. Torts descended form the Action in Trespass to the Person
2.1 Protecting Physical Integrity: Torts that Originated from the old Writ of Trespass
Intentional Torts

As opposed to the tort of negligence; intentional torts are centuries old and
characterized by precise and rigid rules

Much more unlikely to gain fair compensation for loss and damage because
intentional wrongdoings not covered by liability insurance

The Meaning of Intention
o Conduct is intentional when the defendant desires the consequences
or the consequences are substantially certain to result
o Contrast with negligence, which is conduct that gives rise to foreseeable
and substantial risk of its consequences
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Intentional Interference with the Person

Types: bodily security (battery), freedom from threats of violence (assault),
liberty (false imprisonment), psychological security (intentional infliction of
nervous shock or mental duress), the tort of invasion of privacy, etc…

Battery
o Freedom from physical interference
o Battery is direct interference that is harmful or offensive
o Plaintiff need only prove that the defendant directly caused harm or
offense, defendant carries the burden of proof to show conduct was legal
o Criminal injury compensation schemes help compensate victims of crime
as tort litigation rarely worth pursuing.
o Has to be far more than simple touching
 Offensive touching, without consent and with intent to harm
 Distinction b/w battery & inoffensive touching

Assault
o Assault is the threat that creates a reasonable apprehension of an
imminent battery
 Rarely used in contemporary tort law

False Imprisonment
o Two major elements;
 False -> w/o legal authority
 Imprisonment -> confinement w/in physical or psychological
boundaries
Battery
Negligent Battery
Negligence
Intentional
Unreasonable disregard for
foreseeable risk of contact
Direct
Unintentional
Direct
Burden of proof on def. to
show consent
No proof of damage
(liabilities per se)
Damages cover all
consequences
Burden of proof on def. to
show no fault
No proof of damage
Direct or indirect
(causation)
Burden of proof on pl. to
show unreasonable conduct
Has to be proof of damage
Damages cover all
consequences
Def. liable for foreseeable
consequences (remoteness)
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Non-marine Underwriters, Lloyd’s of London v. Scalera (SCC, 2000)
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
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Case significant because it clarified the tort of sexual battery
Maintains that the burden of proof lies with defendant to prove consent
SCC divided on who has to prove that consent was absent
o TJ says it is unfair to put the burden on the defendant
o Majority disagrees: the purpose of battery is to protect the viability of
people from inappropriate touching so burden to establish proof of
consent lies w/ defendant

Verdict by McLachlin:
o In the traditional notion of tort law, this unique verdict demands that tort
law must accommodate more than the individual demands of the plaintiff.
o Must take into account costs upon society more broadly.

To what extent tort law can be used to vindicate the rights of others
o Traditional objectives of tort law was compensation
o This is almost a group solidarity consideration

Signals back to the Ombudsman role of tort law
2.2 False Imprisonment
Jeeves (Guardian ad litem) v. Swanson (1995)

Tort of false imprisonment brought against jewelry storeowner for locking up
daughter who refused to pay for subpar handiwork.
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Court did not allow the infant to recover damages.
Could there be liability for false imprisonment if at the time of the
confinement the plaintiff did not know she was being confined?

You have to ask what’s the purpose of the tort? What concern does the law
address? To prevent undue restriction of liberty and autonomy
Nolan v. Toronto Police Force (1996)
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Facts: Tort of wrongful imprisonment and mental distress brought against police
officers responsible for wrongful arrest and derogatory treatment due the
plaintiff’s indigenous background.

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Decision: Liability found for wrongful imprisonment and mental distress.
Does taunting, coming from police officers in positions of authority, qualify to
meet the interests being protected by tort law?
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2.3 Defenses to the Intentional Interference with the Person
Infancy

T.O v. J.H.O (BC SC, 2006)
o Facts: Plaintiff brings action against elder brother for sexual battery
Decision: Defendant found liable for the tort. General damages
awarded, but not punitive damages due to the young age at which the
events took place.
o Reasoning:
 Establishes that defendant showed intent needed to establish the
tort of battery.
o NO child is capable of giving consent under the age of 14 in
accordance w/ criminal law regarding sexual assault
Self-Defense and Defense of Others

Such a defense requires actions to be reactive & proportional
Babiuk v. Trann, 2005 SKCA

Facts: Trann punched Babiuk so that he would stop stepping on the face of
Trann’s teammate in the midst of a hard-fought rugby game.

Decision: Criminal trial sent to mediation, where Trann paid Babiuk $1500.
o Followed by civil suit that is dismissed on the defense that permits a
reasonable defense of others in harm’s way.


Trann held criminally liable but not civilly liable
Illustrative of the unsettled relationship between criminal and civil law
Consent
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Arises with particular frequency in cases of interpersonal violence, contact
sports, medical treatment, and sexual relationships

As established in Scalera, the defendant must prove the consent occurred for
it to be a viable defense to battery (Presumption of no consent)

Policy: protecting individuals right to self-determination (“people have the
right to make choices that accord w. their own values, regardless of how unwise
or foolish those choices may appear to others”: Malette).

Grounds the doctrine of informed consent: as a means of protecting patient’s
right to control his or her med’l treatment
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2.4 Medical Treatment and Consent
Adults
Malette v. Shulman (Ont CA, 1990)

Facts: Dr. Shulman administers a blood transfusion in emergency on plaintiff
regardless of a Jehovah card that do not consent to this.

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Decision: Trial judge in favor of plaintiff, but small compensation.
Reasoning: The right to control the physical integrity of one’s body
supplants a doctor’s attempts to preserve life. Without consent no medical
treatment is permissible. Card was refusal of consent. Doctor’s actions tortuous.

Notes:
o Usual rule when you win is that you get your costs covered:
 $20,000 award did not include cost coverage
 Judge irritated by statement of claim that says the actions of the
doctor was symbolic of medical arrogance and religious prejudice

In torts of battery no proof of damages is required:
o The plaintiff could prove no damage aside from believing she would not
be denied eternal salvation
o Body is inviolate and you are compensated for that
Reibl v. Hughes (SCC, 1980) --- SEE PAGE 30 FOR DISCUSSION ON DISCLOSURE

Facts: Reibl suffers sideffects of surgery. Claims non-consent (thus battery suit)
as mislead about risks by Doc Hughes. Close to pension before surgery.

Issue: When a physician may be sued for battery and when it is more
appropriate to sue in negligence.

Narrows window for battery in med malpractice (no consent at all)
o If you’ve consented battery is off the table
o If you weren’t informed of the risks, this is a matter in negligence

Benefits of battery are in the procedural aspects of the tort proceeding
o Negligence majorly disadvantages the plaintiff because a medical
malpractice suits against the medical profession are very challenging

This judgment is a reaction to very good litigation lawyers playing with the
notion of informed consent
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Health Care (Consent) and Care Facility (Admission) Act, 1996


Broadening the discussion in the doctor-patient relationship
Statute provides for a substitute decision-maker when patients cannot
o Doctor can override decision of substitute decision maker
 BUT must act on the known beliefs and values of patient

Concept of living will expanded: representation agreement act is a form that
specifies what medical treatment you want
o Binding upon the hospital, with express instructions
Minors
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
Infants Act, 1996 --- As long as an infant is informed he can consent
Child, Family and Community Service Act (CFCSA), 1996
o Courts can order that necessary medical treatment be done unto the
child regardless of parental consent
Region 2 Hospital Corp. v. Walker (NBCA, 1994)

Facts: Walker, a teenager, whilst undergoing treatment for leukemia informs his
doctor’s that he refuses to have blood transfusions. The hospital goes to court to
ensure that they can respect his wishes as opposed to his parent’s. TJ says that
the docs need to do the transfusion if his life is in danger. Hospital appeals.


Decision: Appeal heard. Walker can refuse treatment.
Reasoning: Looks to the Medical Consent of Minors Act, which states:
o 1. Common law recognizes the doctrine of a mature minor
o 2. Right to consent includes right to refuse treatment
S.J.B. (guardian of) v. BC (Director of Child, Family, and Community Service) [BCSC, 2005]

Facts: Child refuses blood transfusions during cancer treatment w/ Jehova
family support. Doctors invoke the CFCSA to allow transfusions. Child and
parents appeal by using Walker and the mature minor rule. Dismissed

Reasoning: Mature minor rule is subsequent to the courts CL duty to protect
the life of a child. The intervention of child protection authorities and doctors
differentiates it from Walker.
o Statutory authority now directly overrides patient and parents authority
o Judgment overrules CL mature minor rule and replaces it with a statutory
right of the Minister to intervene if the child’s life is deemed danger
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2.5 Sexual Wrongdoing and Intrusion

Financial compensation not primary, getting the crime publicly heard and
accountability found usually main objective


Generally brought under the intentional torts of battery and assault
Limitation periods become confusing when acts in childhood are brought up
o Restricted to ensure the wrongfulness of the act and the causation
between the act and its psychological consequences
Reasons behind increase in number of civil actions for sexual assault:
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1. Pressure from victims to get recognition


2. The willingness of feminist lawyers to take on cases
3. Responsiveness of the judiciary and courts
Advantages of Civil Action

Criminal process discourages claims b/c of high burden of proof
o Lack of control over the process as Crown directs the charges
 Rather than victimization, plaintiff can tell their story

Tort action can encourage other victims to come forward, as well as, have a
deterrent effect on other abusers
o Therapeutic and empowering the survivor

Financial compensation is significant too. Often involving punitive damages.
Disadvantages of the Civil Action


Expense can reinforce notion that some women are more rape-able than others
Civil action can be as long and brutal as the criminal process, negating
therapeutic effects
Damage Assessment and Gender Bias
o Pecuniary: seek to restore plaintiff to the financial position they have
been in “but for” the harm
o Non-pecuniary: often sought in sexual abuse cases, see to provide the
plaintiff with measure of consolation for intangible losses
o No orderly approach to damage quantification yet accepted
o Awards usually low as they reflect a gender bias often called the
marriage contingency
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 The following two cases demonstrate the historically gendered
nature of the notion of consent in trespass to the person claims:
Latter v. Braddell (QB CA, 1881)

Facts: Plaintiff was a maid in the defendant’s house. Employer thought she was
pregnant and ordered a doctor to come and examine her. Did so, w/o consent or
approval, but w/o evidence of a struggle or any violence.

Reasoning: By not physically resisting the judges infer consent.
Hegarty v. Shine (Irish CA, 1878)

Facts: Plaintiff claims assault on the grounds that the defendant knowingly
passed onto her a venereal disease during intercourse.

Reasoning: Disagrees that deceit makes consent inoperative. Thus consent is
still established and no legal claim can be made
o Deceit, as a matter of law, does not negate consent
Intra-familial Sexual Assault

SCC case K(M.) v. H(M) is pivotal
o Held that incest was both a tortuous assault and battery as well as a
breach of fiduciary duty (of parent to child)
o Also changed the understanding of limitation periods for childhood
victims of sexual assault

Blame shifting in sexual assault cases
o Major questions still linger over whether a mother can be held liable for
allowing the father to rape the daughter.
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Sexual assault in a therapeutic situation
Norberg v. Wynrib (SCC, 1992)

Facts: case of drugs-for-sex relationship between patient and doctor. Trial and
CA dismiss case as consent was there, as the doc did not force anything.

Findings by La Forest:
o Power imbalance as negating the consent attained by the doc.

Concurring by McLachlin:
o Treats the case as a breach of fiduciary duty on the doctor’s part.
o Relationship was consensual and thus not assault or battery.
 Endorsing an narrow view on consent that is out of date
o Even when you have consent (thus no battery), you may still have
sexual assault that could create liability
 But not under traditional common law rules but under the
equitable notions of fiduciary duty
 A relationship defined by trust rather than self-interest.

Damages: McLachlin, unlike La Forest, would have added significant
punitive damages to the award.
o Aggravated damages are compensatory, but require valid basis
o Punitive award for general deterrence
 How appropriate is it, in tort law, to award such punitive damages
not aimed specifically at the conduct of the individual defendant?

Norberg brought up the equality issues at stake in the case.
o Consent is not valid in relationships consisting of power imbalances,
where the imbalance is used to exploit the vulnerable party.
o Judicial approaches to consent should reflect an understanding of social
inequalities and the variety of ways coercion occurs.
o Analogy to k. law, parties must have = bargaining power for a valid k.
Thus the 2-part test for valid consent in sexual wrong-doing claims was est’d:


1) Was the relationship characterized by a power imbalance?
2) Was that imbalance exploited by the more powerful party so that the more
vulnerable party was exploited for the advantage of the powerful?
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Non-marine underwriters, Lloyd’s of London v Scalera (SCC, 2000)

Question of whether plaintiffs in cases of sexual battery should be required to
prove that consent was not given.
o Very specifically looking at the exemption clause within an insurance k
o Would take a pool of possible funds for claim out of tort litigation

Reasoning by McLachlin:
o Rules against the motion on the grounds that it would place an undue
burden on complainants of sexual battery unlike other intentional tort
claims.
o CL of intentional torts starts upon the assumption of personal autonomy
 Than it follows that any offensive touching is battery
 Therefore, appropriate to put onus of consent on defendant
o Focuses on what would happen if the burden of proof was placed on the
plaintiff --- victim blaming
o Critical of Iacobucci’s judgment’s consequences for med malpractice cases
 Because you cannot shift the burden of proof for only one kind of
intentional tort

Concurring by Iacobucci:
o Sexual activity should be presumed consensual, and the reverse onus
should not apply.
o Tort of battery does not require intent to harm
2.6 Unlawful Sterilization by State Officials
Muir v. Alberta (AB WB, 1996)


Muir wrongfully sterilized whilst being unjustly held at a mental health facility.
Damages and aggravated damages paid out, but no punitive damages as:
o 1) Aggravated damages were substantially large
o 2) Province has recognized its error and apologized by not putting
up a defense.

Note: Sexual Sterilization Act and Mental Defects Act
2.7 Vicarious Liability- Scope of Employment
E.B. v. Order of the Oblates of Mary Immaculate (SCC, 2005)

Facts: Plaintiff attended residential school run by the respondent. Suffered
sexual abuse at the hands of an employee who is now dead and whose estate is
insolvent. Claiming action on the basis of vicarious liability against employers.


Decision: TJ found for plaintiff. But CA upheld the appeal, as does the SCC here.
Reasoning by Binnie:
o Rejected the view that vicarious liability should be strictly imposed
o There needs to be a strong connection established that the employer
increased the risk of such harm
o Liability of the school for negligence remains open.
o Bazley test used to determine vicarious liability

Dissent by Abella:
o Goes through the Bazley test to come to a different conclusion:
 Abuser, a former felon, granted access to the children
 In an environment of strict discipline the power afforded to the
employee increased the risk of harm
 Order’s management of the school made children vulnerable

Notes
o Difference between judgments was enterprise liability
 Binnie focuses on the nature of employment
 Enterprise liability on the other hand extends vicarious liability
further than it would traditionally have been
o Binnie seems to indicate that the court demands an ‘unambiguous’
analogy to establish precedence
 Thus the trial judge reverts to policy considerations
 The specificity of the brown cow analogy illustrates how
narrowly precedent can be argued
o Abella rejects the narrow focus on the employee-employer relation in the
context of the residential school system:
 Pertinent realities and operational characteristics place it
within the Bazley test
 Doesn’t go straight to policy, but directly challenges the majority’s
interpretation of Bazley
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3.1: Negligence Intro
Control devices

1) Duty of care controls the extent of negligence liability
o Need to identify appropriate duty of care
 Defendant needs to hold a specific legal obligation to the plaintiff
o Facts need to indicate a breach of standard of care required in this duty

2) Remoteness (were the damages too improbable to be fairly compensated?)
Defenses to Negligence Actions

Primary defense: No negligence
o Contest duty of care, breach, causation

Contributory Negligence
o Partial defense results in reduction of award or apportionment of
damages between plaintiff and deft

Voluntary Assumption of Risk (complete defense)
o Arises when person consents to the physical risk of injury arising from
defendant’s negligence (and possibly the legal risk of waiving rights to
seek compensation should risk materialize into injury)
 Could be express (contractual waiver) or implied
 Requirements for the defense are very high
o Example: Crocker v. Sundance

Illegality (complete defense)
o Hall v. Herbert (SCC, 1991): restricted application
 Applicable to:
 Prevent person profiting from illegal conduct
 Where a person seeks damages to evade criminal penalty
 Eliminated in personal injury claims

Inevitable accident (complete defense)
o No defense of inevitable accident to the tort of negligence. (Paul v. Ebert)
Medieval law of Trespass -> Case -> Negligence




Direct -> Consequential
No damage need be established -> Damage needed
Direct -> Fault
Onus of proof on the defendant -> Onus of proof on plaintiff
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3.2.1 Origins of Duty of Care
Palsgraf v. The Long Island Railroad Company (NY CA, 1928)

Facts: As passengers attempt to board the moving train, baggage falls and sets
off fireworks that injured the plaintiff. Decision: Claim dismissed

Reasoning by Cardozo:
o Difficulty articulating what right or duty was violated
o Showing harm derived from bodily interference doesn’t justify damages.
o Creates orbit of danger outside of which the duty of care cannot arise

Restrictive view of reasonable foreseeability

Dissent by Andrews:
o Appeal to a more relative concept of duty: encompassing act that
endanger the public, precipitated by an unreas threat to safety of others
 Very broad understanding of foreseeability as to the limits of
proximate cause (Ex: baby that is dropped far away)

In the evolution of tort law. Cardozo wins. Modern understanding of duty of
care is limited by reasonable foreseeability
Donoghue v Stevenson (HL, 1932)

Facts: Famous case of the snail in the ginger beer from Scotland that
revolutionized our understanding of the duty of care

Reasoning by Lord Atkin:
o The neighbor principle: The rule to love your neighbor -> to the duty
not to harm your neighbor
 Who is your neighbor? Restricted by proximity
o Key ideas: close and direct relationship, and foreseeability of damage
 Ex: manufacturer owes duty to ultimate consumer

Lord Macmillan
o Carelessness only actionable where there is an established duty
o Emphasizes duty of commercial enterprise to customers
o Mentions that negligence requires that a reasonable person could
not avoid the harm

Broad precedent: liability of the manufacturer of ginger beer for a decomposed
snail in an opaque bottle to the consumer (not necessarily the buyer)
22
Home Office v. Dorset Yacht Co (HL, 1970)

Facts: Delinquents escape careless officers. They cause property damage to
boats. Public office being sued for negligence of officers on duty.


Decision: Liability extended, officers found to be negligent
Reasoning by Lord Reid:
o Not a question of government liability of the delinquent’s actions, but of
negligence that caused such damage (Issue: remoteness)
o The neighbor principle is amenable to expansion, like here.
 Must not treat the neighbor principle as a statute, it’s a
generalization that can be applied broadly
o Strict precedent: liability of prison guards of delinquent boys that could
have reasonably foreseen that neglecting their duty to oversee would
have cause wider property damage
o The rule in Donoghue may not apply in some case for policy reasons
Kamloops (City) v. Nielsen (SCC, 1984)

Facts: Municipal official ignores reports indicating that a house being built is not
on a safe foundation. Engineers disavow liability. The municipal official eventual
sells this house to the defendant, who on discovering the defects, sues.

Decision: 75% liability found of the municipal official, and 25% found of the city.
City appeals, but unsuccessfully.

Reasoning by Wilson J:
o Hughes (official) ignored warnings that caused damage
o Proximity test of Anns implicates city, as it was their duty to protect
against faulty building, a duty they breached by ignoring engineering
warnings. Thus the city is negligent.

Note: pivotal Canadian case as it establishes the extent to which the
neighbor principle can in fact go
23
3.2.2 The Current Approach to Duty
Cooper v. Hobart (SCC, 2001)

Facts: Plaintiff an investor, defendant a statutory regulator (Registrar of
Mortgage Brokers). Plaintiff alleges the defendant breached duty to the public by
not disclosing their investigation of a firm and not suspending its trading license.


Decision: NO such novel duty can be discerned for claim of pure economic loss.
Reasoning by McLachlin and Major J:
o Firstly, a clarification of the two-stage Anns test is given:


1) Foreseeability and proximity (this case is known to have
added relational policy concerns to this stage)
2) Residual policy considerations

Cooper is significant because it introduces the relational policy question into
the first consideration radically shifting the test for duty by reducing the liability
raised by reasonable foreseeability alone

Relational policy concerns:
o The statute explicitly makes the defendant owe a duty to the whole public
and thus not to any one individual
o Specter of indeterminate liability:
 Broker couldn’t control the investors, thus the court would be
imposing an unlimited liability
 Creating an insurance scheme paid for by the taxpayers
 Plaintiff’s counterargument: unfair argument as investors are
asking for reliance that there investments are properly regulated

Residual policy concerns:
o Courts also reluctant to create liability for pure economic loss
o If the registrar’s decision is labeled as quasi-judicial, private tort liability
cannot challenge the common law assumption that those in an
adjudicative role are free from liability
o Court shows deference to the government agency.
 Bringing private law standards of care to a public law issue is
questionable
How to Find a Novel Duty?
Donoghue v. Stevenson
 Reasonable foreseeability + close and direct relationship
Anns/Kamloops
 1) Foreseeability leading to sufficiently close relationship = prima
facie duty of care
o This segment is the main driver
 2) Policy considerations negate/limit duty of care
o Unlikely that this requirement will clamp down on novel claims
o Policy assessment of societal need
Cooper
 I)
o a) Foreseeability + factual proximity (closeness and directness
of relationship)
o b) Policy considerations arising out of relationship (relational
proximity)


This is the radical change that this case introduces
Additional stage to determine proximity between parties.
 II) Residual policy concerns outside relationship
o Overall needs and interests of the community at large
o Impact of duty on other legal obligations and the legal system generally
Notes

Cooper narrowed the ability to establish new duties of care – restricted view of
the law of negligence (3 stages)
o Canada undermined the progressive thrust of Anns/Kamloops by
introducing policy control at an earlier stage

Looking at the determination of a novel duty
o Policy comes in as quite a major consideration
o When a statute is relevant, it must be looked at carefully to establish
whether a duty exists.
25
3.2.3 Examples of Proximity
Duty of Affirmative action
- Negligence law dictates that you must not expose people to the risk of injury,
NOT that you must help them
- General principle of no liability for nonfeasance has exceptions:
o Special relationships – details listed on Osbourne p.74
 1. Where the defendants intentionally invited third parties to an
inherent or obvious risk [Crocker]
 2. Within a fiduciary relationship
3. Where defendants offer services to the general public that include
attendant responsibilities to act with special care to minimize risk to
the users of those services [Jordan House]
Jordan House: affirmative duties that commercial hosts owe to patrons
Crocker v. Sundance: special relationship inferred as the commercial and
promotional interests of the defendant create duty of affirmative action.
Stewart v. Pettie: court recognized duty to third party injured by an
intoxicated person leaving the defendants establishment
Childs v. Desormeaux: declined to add to the duties of affirmative action,

o
o
o
o
failed novel duty test of Cooper
Odhavji Estate v. Woodhouse (SCC, 2003)

Facts: Plaintiff mistakenly killed by police. Police fumble the investigation. Estate
sues for mental distress.


Decision: Novel duty to avoid psychiatric harm is affirmed.
Reasoning:
o Foreseeability that a mismanaged investigation would lead to
compensable psychiatric harm is questionable, but permissible
o Proximity implied with the duties of the police to the public
o And no policy implications can be upset as the police are already under a
statutory obligation to conduct investigation
 Civil liability reinforces & compatible w/ statutory obligation
o Distinguishable from Cooper because here there is legitimate harm
 Causal connection b/w plaintiff and defendant is far more direct
 Direct link b/w misconduct being complained and resulting harm
26
Crocker v. Sundance Northwest Resorts (SCC, 1988)


Facts: Crocker hurts himself in a tubing competition hosted by the defendant.
Decision: Lower court finds 75% liability of defendant with remaining in
contributory negligence (25% is a significant amount). SCC upholds.

Reasoning by Wilson:
o Distinction between misfeasance (dangerous conduct) and nonfeasance
(failure to take positive steps to protect others).
 Affirmative duties used to be used only for special relationships
 Special relationship here drawn because of commercial gain
that event offered to defendant
o Established duty of care of hotel toward intoxicated clients in a
dangerous competition
 The plaintiff’s irresponsibility adds to the defendant’s duty
o Dismisses the argument that Crocker voluntarily assumed the risk
1. Positive Duty of Care?
a. Does the manager and owner of Sundance have a legal duty to prevent the
plaintiff from participating?
2. Individualism and Common Law: a ‘look after yourself’ mentality
a. “Special relationships”
b. Ont CA and Individual Responsibility
i. Court notes that the irresponsibility of Crooker places a positive
burden upon the defendant
ii. SCC rebukes Ont CA for claiming that the plaintiff’s behavior should be
viewed as autonomous irresponsibility
3. Standard of Care
a. Probability and gravity of injury balanced against burden on defendant
i. Warning not enough here! SCC not impressed.
ii. Standard is derived from a balance between the risks to the plaintiff
and the burden on the defendant
4. Causation (Finding of Fact by trial judge)
a. Causal connection b/w decision to allow drunk participant and injury
5. Voluntary assumption of Risk
a. Waiver not found to eliminate any legal duty on the defendant
b. TJ’s factual determination: Crooker thought he was signing entry form
6. Contributory Negligence
27
Stewart v. Pettie (SCC, 1995)

Facts: After dinner and drinks Pettie drives Stewarts into a major accident. Sues
both the driver and Mayfield Investments, the owner under the principle of
commercial host liability.

Decisions: Lower courts find 10% liability on Mayfield, but overturned by SCC.
Also finds that Pettie was not grossly negligent.

Reasoning by Major J:
o Mayfield’s negligence
 Goes to Anns/Kamloops test:
 1) Cannot deduce any foreseeable harm to a patron who



did not appear visibly intoxicated and more importantly
was with two others sober enough to drive
No special relationship to obligate any affirmative action
Asserts that there are circumstances in which the liquor serving
host is liable, but not here
Also notes that there is no evidence for causation as the decision
to who is driving was made outside the restaurant
Stewart v. Pettie
1. Duty of Care: A question of relationship – Law, judge
a. General duty of care to 3rd parties upon commercial hosts is affirmed
i. Logical extension of Jordan House
2. Standard of Care: a question of conduct
a. Test=Law=Judge
i. “Reasonably prudent establishment” (no breach)
b. Application = Fact = Jury
i. “Two sober women”
3. Causation:
a. Would intervention by defendants have made difference?
b. “Parking lot conversation”
28
Childs v. Desormeaux (SCC, 2006)

Facts: Question of liability of social hosts to parties injured, Childs, by drunk
driving of one of their guests.


Decision: No duty of care found
Reasoning by McLachlin:
o Establishes that this duty is novel as is it different from the duty owed to
third parties by commercial vendors.
o Stage One: due to limited evidence that the hosts knew the level of
intoxication, injuries not reasonably foreseeable
 Not sufficient proximity between host and third-party highway
users either
o Allegation of nonfeasance doesn’t have legal grounding.
 No reasonable reliance of guest and public upon host to ensure the
safety of all.
Childs v. Desormeux
1. Novel Duty?
a. Commercial v. Social Host: SCC says distinguishable classes
i. Commercial undertaking has a very different nature: profit motive,
clear monitoring of quantities consumed, and substantial regulatory
guidelines
b. Note: Shift burden on defendant if prima facie duty of care evident (phase
one of Anns) to show policy consideration negatize application of duty
2. Duty: Foreseeability?
a. Knowledge of intoxication not established by trial judge
b. How can you foresee there would be harm caused if you don’t know if the
plaintiff was intoxicated?
3. Duty: Nonfeasance v. misfeasance
a. Limited circumstances, duty to act
i. No positive duty on a social host to prevent an intoxicated visitor
from driving their car
b. Respect for individual autonomy of Ont CA in Crocker
4. No prima facie duty of care
29
3.2.4 Duty to Warn
Lambert v. Lastoplex Chemicals (1971, SCC):

Created a standard whereby manufacturers must take reasonable steps to
provide warnings that permit the product to be used safely (Lambert principle)
o Extends CL duty beyond statutory requirements

Two important outcomes:
o 1) If a manufacturer is aware of a danger, they cannot without more pass
the risk of injury onto the consumer
o 2) A general warning will not suffice for all outcomes coming from
normal use

Causation is crucial in duty to warn cases- did the user pay any attention to
instructions, if not, further warnings would not have changed the circumstances.
Duty to warn extends to newly realized dangers of a product already sold

Continuing duty involves a need to disclose new discoveries of products that
have already been sold and are in the market
30
Medical products and the learned intermediary rule

A learned intermediary is often a physician in direct contact with the consumer
(patient) who must be informed of the risks by the manufacturer

Hollis v. Dow Corning highlighted concept and the causation issues that arose:
o 1. Would the plaintiff have declined use if properly informed of the risks
by the physician?
 Objective test: What would reasonable person do?
 Subjective test used: What would the specific plaintiff do?
o 2. Would the physician have carried out his duty to inform the patient of
the risks passed onto him by the manufacturer?

Court is tentative on whether this hypothetical question would
exonerate the manufacturer

Standard of care for products being put into the body (pharmaceuticals)
being higher than general products
o A heavy onus on the manufacturer
o Relationship of complete dependence emphasized

This controlled model (learned-intermediary) on the pharma industry has been
revolutionized by television advertising and the internet
Hollis v. Dow Corning (SCC, 1995)

Facts: Breast implant leaks. Recipient sues manufacturer for neglecting duty to
warn of such a danger from everyday use.


Decision: Dow’s appeal dismissed.
Reasoning by La Forest:
o Applying the learned intermediary rule, Dow neglected to inform the
physician of the risks that they themselves were aware of.
o Analogizes the warnings to making informed decisions and thus legally
validating consent
o Idea of learned intermediary is drawn from Donughue v Stevenson
concept of intermediate inspection
o Equitable distribution of tort duties
 Physician must have the same knowledge that the
manufacturer has – very high standard
o The fact that Dow knew of dangers and didn’t disclose was incriminating
31
3.2.5 Medical Malpractice

Absolute disclosure is mandatory for non-essential medical procedures
o Since therapeutic procedures are not elective, minimal risk disclosure
(lower standard) is appropriate

Material risks: anything that would have cause the patient concern, factors that
a reasonable person should have known in giving consent for the said treatment

Concept of therapeutic privilege: in certain cases the surgeon is justified in
withholding or generalizing information in which he would otherwise be
required to be more specific (Reibl)
Reibl v. Hughes (SCC, 1980) --- SEE PAGE 12 FOR DISCUSSION OF CONSENT

Facts: Plaintiff suffers stroke as a result of a cardiac surgery that was not urgent.
Dues doc as his inability to work doesn’t permit him to qualify for a pension.


Decision: Upholds trial verdict on duty of disclosure.
Reasoning by Laskin:
o Defendant failed to inform of risks evident with the procedure
o Plaintiff’s consent does not qualify as ‘informed consent’
 Not clearly informed of the increased risks from procedure
o Nature of the physicians duty: must disclose material risks
 If a probability it must be disclosed, if it’s rare not so much unless
the consequences are catastrophic
Videto v. Kennedy (Ont CA, 1981)

Facts: Plaintiff contracts rare side effect of surgery. Sues on failure of physician
to disclose (breach of duty to warn under doctrine of informed consent)

Decision: Verdict in favor of physician. Why?
o Medical profession did not regard scarring as a material risk
o BUT: Question of whether a particular risk is a material risk is a matter
for the trier of fact. Not a medical question, it is a legal question.
 Full disclosure standard applies from Reibl
 No reliance on professional standards.
o Duty of disclosure = what the surgeon knows and ought to know
 Doc not aware that privacy of the operation was pivotal
o Danger inherent to any generic operation DO NOT have to be disclosed
 Ex: the risks inherent with the use of anesthetics
32
Brito (guardian) v. Woolly (BC CA, 2003)

Facts: Mother is suing on behalf of second twin, now with disability due to
complications at birth. Alleges the docs should have informed her of said risk
from vaginal birth and thus advised her to have cesarean. Action dismissed.

Reasoning:
o Has to be decided whether it was a material risk not disclosed to the
plaintiff? Yes, low possibility but devastating consequences
 When costs are high, even small risks need to be explained
under duty of disclosure
 Trial judge held to a professional standard
o Causation: She would have adopted for a vaginal birth either way
 Subjective test: self-serving statements likely w/ hindsight
 Court adopts a modified objective test: considers the individual
in context, and then uses those circumstances to evaluate what a
reasonable would have done
Van Mol (Guardian) v. Ashmore (BC CA 1999)

Facts: Defendant suffered complication from cardiac surgery. Sues surgeon for
negligence and breach of duty to inform her of other surgical options.


Decision: Doctor held liable.
Reasoning:
o Question of how you explain surgical options to a teenager?
o Causation: compelling evidence another method wld have been adopted
 Court: the surgeon was using an older procedure that he was more
familiar with rather than taking a modern approach
o Case decided on informed consent and not on negligence
o This case greatly increases the range of matters that are considered
material risks



What about alternatives outside of the country?
Do physicians have to disclose their performance record?
What about the generic risk of infection by a visit to the hospital?
33
3.2.6 Rescuers and Good Samaritan
Horsley (Next friend of) v. MacLaren (SCC, 1971)

Facts: Plaintiff’s estate trying to claim damages for the death of Horsley on
MacLaren’s boat. Horsley trying to rescue Mathews, who went overboard.


Decision: Appeal dismissed. No liability assigned to boat-owner
Reasoning by Ritchie:
o Given the nature of emergency situations, courts are forgiving of errors in
judgment by the rescuer, and are unlikely to deem actions as reckless.
 McLaren made errors but was not negligent
o Stopped short of expanding the duty of care by limiting it to what was
foreseeable by a reasonable boater in the course of a rescue.
 Policy: Doesn’t want to hold one rescuer liable to another

Dissenting by Laskin:
o Both common law and statutory duties on MacLaren
 MacLaren failed to act according to standard procedure.
 Aggravated the situation and prompted the plaintiff’s actions.
o MacLaren owes a duty to the subsequent rescuer as well (Horsley), since
his failure to carry out his initial duty to rescue created further peril
 An independent and not derivative duty
 Different from negligence, more closely related to carelessness
o Contributory negligence dismissed as rescuer not ‘utterly foolhardy’
 Futile rescue attempts still get CL protection

Common law holds rescuers in high esteem
o CL duty to the rescuer on the person who created the situation of peril
 Mathews liable to Horsley as his carelessness created the risks
o ‘Danger invites rescue’ Cardoza J (1921)

Good Samaritan Act (1996)
o No liability for emergency aid unless gross negligence
o No affirmative duty to rescue, but if you do, you are free from liability
unless you exacerbate the situation
o Quebec difference:
 Places a positive duty to act upon those who can help or assist a
person in danger and/or in need of rescue
34
3.3 Standard of Care
3.3.1 Unreasonable Risk
What Constitutes an Unreasonable risk?

Donughue v. Stevenson: Take reasonable care to avoid acts and omissions
you can reasonably foresee would injure your neighbour
o Reasonable person standard - objective & idealized standard.

Osborne p. 28 – person's ability to apprehend and avoid danger may depend on
intelligence, reaction time, etc…
o Objective test EXCLUDES personal attributes in determination of
reasonable care.

Two serious exceptions: people who do not have mental competence to
exercise objective judgment and children.

Foreseeability is necessary, but other relevant factors:
o Likelihood of risk materializing – Bolton & Others v. Stone
o Seriousness of injury
o Utility of defendant's conduct
o Cost of precautionary measures
Bolton & Others v. Stone (1951, HL)



Facts: Ball hit out of the park during a cricket match. Injures the plaintiff.
Decision: Flip flop on negligence claim in lower courts, but case dismissed here.
Reasoning:
o Risk is apparent and foreseeable, but too unlikely to penalize
o Duty exists, but standard of care not breached
 Narrows the immunity provided


Cost of precautionary measures outweigh the risk
Using foreseeability only – PL would have won, but HL definitively states:
foreseeability, alone, is not enough
o Potter: difference b/w “mere possibility” and “reasonable possibility”
o Lord Normand: “possibility” vs. “probability
o Lord Oaksey: no liability if “negligible risk”
o Lord Reid: “reasonable probabilities” vs. “fantastic possibilities” reasonable person avoids creation of substantial risk.
35
Paris v. Stephney Borough Council (1951, HL)



Facts: One-eyed plaintiff goes totally blind after workplace accident.
Decision: Eventually held in favor of the plaintiff.
Reasoning:
o Likelihood of harm balanced against seriousness of harm
o Two factors determine magnitude of risk
 Seriousness of injury (so much higher here)
 Likelihood of injury
Gravity of consequences are a factor in determining required standard of care

If a two-eyed worker had lost an eye, liability probably wld not been imposed.
o BUT: they still could have argued that precaution required is simple and
inexpensive – so practice of not providing goggles is plain unreasonable.
Many “classic” tort judgments from England involve industrial accidents.

In Canada, we have transferred these to workman's compensation
o No-fault statutory mechanism like WorkSafe BC

In the UK, the unions fought very hard to prevent this because it meant they
could be seen to defend their members in courts
o Eventually, even the UK will presumably move to workers comp
3.3.2 The Learned Hand Formula:

Cost-Benefit Analysis in Determining Standard of Reasonable Behavior
United States v. Carroll Towing (1947)

Facts: A barge left unattended in a busy harbor broke away from its mooring and
collided with another ship.


Held: It was the owner's duty to provide against resulting injuries.
Formula for when risk is unreasonable and liable to a negligence action:
o Seriousness of the risk x likelihood of injury > cost of avoiding the
risk from materializing
 Solved obvious problem of quantification

Primary objective of tort law is prevention and compensation.
o Imposing economic analysis here may “commodify” injury
 Law and Economics approach
o This is why it is rarely used explicitly – but all do so implicitly
36
Rentway Canada Ltd v. Laidlaw Transport Ltd (1989, Ont CA)

Facts: Attempts to establish fault following major truck accident that caused
property damage. Deft manufactured the trucks the plaintiff was using.


Decision: Judgment for the plaintiff
Reasoning:
o Large trucks often loose their treads (tread separation) – this is a wellknown phenomenon, so argument was that this was known to deft
o Laidlaw's argument: They did know, but accident was caused by the fact
that the tread separation knocked out both headlights – design fault.
o Court uses risk-utility analysis. Risk is low, but consequences if it
materializes are disastrous – and cost of prevention is low.
 Causation could not be established from design fault because
evidence was destroyed in accident
 Gravity of harm outweighs the utility of a particular design.
Watt v. Hertfordshire (1954)



Facts: tool injures fireman in moving truck. Fireman sues fire station.
Decision: Claim dismissed
Reasoning:
o High risk justified by importance of duties being carried out
 Social utitlity of the deft’s conduct
o Purpose to be served, if sufficiently important, justifies assumption of
higher than usual risk
 Important point: real emergency (utility was high)
o Denning: If this accident had occurred in a commercial enterprise without
any emergency, there could be no doubt that the servant would succeed.
o In the US, there is a doctrine of charitable immunity: If you sue a
charity in tort, they are immune.
37
3.3.3 Indices of Reasonableness
Warren v. Camrose (City) [1989]


Facts: Plt injured in dive into municipal pool. City not found liable.
Reasoning:
o While the court can overrule the general rules used by swimming
pools across Alberta, it chooses not to
o Advises changing philosophy towards the management of public facilities
 Experts say: rigid rules are counterproductive
o How to treat expert evidence? More relevant in an institutional setting
than in a highly personal/emergency situation
Waldick v. Malcolm (SCC, 1991)

Facts: Plt slipped on icy parking lot of deft. Deft argues that not customary to salt
or sand in rural area. Plt cites Occupiers Liability Act. Deft held liable.

Reasoning by Iacobucci:
o Custom cannot render negligent conduct reasonable
o Local standards must equate to a common law standard of care
o Calculus of negligence ignores local customs
 If the custom is patently unreasonable than it is indefensible
o Evidence of custom must be shown
3.3.4 Departure from custom
Brown v. Rolls Royce (1960, HL)

Facts: Plt gets skin disease due to the fact that at work (deft is employer) he
dealt with oil a lot without protection for his hands. Deft not liable.

Reasoning:
o Deft’s medical officers said the barrier cream did not work
 In conflict with an established industry standard
o Court says breach of custom in itself does not impose liability
 Custom may well be ‘weighty evidence’, but does not create fullscale presumption, rather an inference, of negligence
o Question of causation: While it was customary of employers to offer
some kind of protective barrier cream, such a cream was not proven to be
a guarantee against the skin ailment the plaintiff contracted
38
3.3.5 Statutory Standards
Breach of Statutory Duty

A) Problem of “Silence”
o Statutes rarely indicate that a breach should impose civil liability
o Common law overwhelmed by statute law

B) Statutes adopt a strict liability standard
o Problem: statutory breaches are not judged on reasonable standard
English Position:

Implied legislative intent to create a nominate tort and impose civil liability
o A new tort that would apply the strict liability standard

English have continued to apply negligence standard in industry accidents
o No-fault government run schemes cover such issues in Canada
American Majority Position:

Breach of statutory standard=negligence per se
o If the statute says that there is a standard imposed and it is breached,
then there is liability
 Logic: No reasonable person would contravene a statutory
standard (basis in democratic theory)
American Minority Position:

Breach of statutory standard=relevant factor in determining CL standard of care
Theories of Legislation

Public Interest Theory
o Article of faith for lawyers: legislation coming out of democratic
legislatures seeks to establish a standard of care in the public interest

Interest Group Theory
o Law and economics people: naïve and over-optimistic to say all
legislation is designed to further the public interest
 Influence of lobbying groups to adopt a standard of safety to
reflect their interests influences, if not controls, eventual result
o Adds element of skepticism:
 Note the Railways role in shaping the law in Ryan v. Victoria
39
Canadian position on statutory standards?
The Queen v. Saskatchewan Wheat Pool (SCC, 1983)

Facts: Plaintiff, Canada Wheat Board, wants damages from grain dealer for costs
arising from infested shipment. Rely on Canada Grain Act.


Decision: Rejected novel right of action for damages for breach of statutory duty
Reasoning:
o Canada takes unique middle-ground in looking at statutory breaches
giving rise to civil cause of action
 Trusts that the proper penalty is delivered in statute
o Court predominantly adopted American minority position
 Only use breaches of statute as evidence of negligence and
standard of care towards established tort
o Issue is whether the defendant failed to act with reasonable care; plaintiff
did not even attempt to prove unreasonable conduct
 Court hesitant to impose strict civil liability
 The loss being economic and not personal injury effected verdict

Canadian law prior to this vacillated between the two American standards
o Modern position: breach of statute not conclusive on issue of due care
Limitations on reliance on Statutory Standards
Galashe v Stauffer (SCC, 1994): replaces the strict liability standard with the reasonable
person standard over and above the legislature’s intentions


Victory for insurance companies in regards to the Motor Vehicle Act
Downgraded statutory breach to reduce impact to a CL standard of negligence
o Usually statutes clearly trump common law
Problem: Wheat Board extended to apply to personal injury and safety legislation
Gorris v. Scott (1874)

Facts: Sheep of plaintiff fall off a ship owned by the deft. Conditions of ship were
not in compliance with Contagious Diseases (Animal) Act. This transgression
grounds this civil claim. Action dismissed.

Reasoning:
o Statute’s intent made no mention of protecting lost property interest.
o Thus using it as a basis for a claim is not permitted.
40
Ryan v. Victoria (City) (SCC, 1999)

Facts: Motorcycling, plaintiff, injured in fall whilst crossing a railway, which was
unusually built. Deft, City and Railways, only busted on nuisance claim in CA.


Decision: Deft held to be negligent as well.
Reasoning:
o Statutory standards do not abrogate your liability if you fall below
the common law standard of care.
o Railway says they were doing precisely what the regulations required
 Notion of residual discretion in the statute law allowed the railway
to expand on the inconclusive standard
 Court: discretion exercised unreasonably
o Judges approach industry standards with skepticism
 Legislative standards not seen as set in the public interest
 Therefore appropriate for the common law to add duties to fulfill a
common law standard
o Ratio: Statutory standards themselves are not a complete defense
3.3.6 Professional Standards

Problem of the beginner:
o How far should the circumstances like degree of experience and age be
included in the objective notion of the reasonable practitioner?
Lawyers
Brenner et al. v. Gregory et al. (1973)


Facts: Lawyer sued for professional negligence in property transaction.
Decision: Claim dismissed. Why?
o Error not negligent
 Deft exercised competency of reasonable practitioner
o For particular fields: specialists like a property or tax lawyer are not
subject to the generalist standard
o Important to note that the lawyer doesn’t solely represent the interests of
the client. Holds a duty of care to the court as an officer of the court.
 Suing lawyer for the conduct of litigation permissible in Canada
and the UK
41
ter Neuzen v. Korn (SCC, 1995)



Facts: Medical malpractice case
Decision: Doctor found negligent.
Reasoning:
o Applying a standard of care to the medical profession comes with some
considerable difficulties
o The standards of medical practice are not to be questioned and
certainly not to be questioned by the jury
 Prevailing practices could NOT themselves be negligent
o General rule: where a procedure involves complexity, it will not be
open to find a medical practice negligent
 Exception: if a standard of practice fails to adopt obvious and
reasonable precautions that are readily apparent to the court
Canadian Medical Protective Association: voluntary body that doctors belong to that
provides legal counsel and pays damages (liability insurance)


Position: ‘no settlement without negligence’
Unique approach to professional liability of medical practitioners
o Significant amount of trust in doctors and the medical profession
o Unassailable barriers to successful litigation
3.3.7 Determining Reasonable Behavior
Vaughan v. Menlove (1837)

Facts: Defendants disregard for safety created a fire hazard. Fire that broke out
caused plaintiff significant property damage.


Decision: Deft found negligent
Reasoning:
o Plaintiff failed to show the reasonable caution as a prudent man would
have exercised under such circumstances
o Rejected appeal that made standard whether the deft acted honestly and
to the best of his own judgment
 Thus affirms objective basis of reasonability test
42
3.3.8 Special Standards: Children and the Mentally Ill
Determining the reasonable standard of a child’s behavior

Osbourne: parents are not vicariously liable for torts of children but are under a
personal duty to take reasonable care to supervise and care for their children
and may be liable for neglecting that duty.

BC Parental Responsibility Act: makes parents responsible for intentional
property damage caused by children
Heisler et al v. Moke et al. (Ont HC 1971)

The objective reasonable person test not applicable.

Subjective test that considers age, intelligence, and experience
Pope v. RGC Management Inc (2002)



Facts: Plaintiff struck by wayward golf ball hit by defendant child (12 year old).
Decision: Defendant child found liable.
Reasoning:
o Judge finds the boy articulate and intelligent and engaging in an adult
activity. Thus warrants adult responsibilities. (CL precedent)
o Objective standard used when children engage in adult activities
Nespolon v. Alford et al. (ON CA, 1998) --- Teenager drinking case

Facts: S (deceased) 14-year old drinks a bottle of wine provided by Parents. C &
W (best friends) observe curfew. A & B acquaintances, controversially deemed to
have ‘taken responsibility’ for S at Burger King. As 16-year-olds they are judged
to have more knowledge of alcohol and drugs abuse. N (plaintiff) suffered posttraumatic stress after running over and killing S.

Liability:
o TJ: [N v. A & B] Responsibility taken after discussion with the PO
o Abella JA + McKinnon JA: [N v. S] S created danger. A & B did ok by
letting S out of the car at the time they did. Discharged duty, no breach of
standard for 16-year olds. No foreseeability of risks from A, B, or S.
o Brooke JA: [S v. A & B] You are responsible for the foreseeable
consequences flowing from your irresponsibility. S, A, & B liable.

No Liability for N, police officer, parents, or C & W.
43
Mental Illness
If purpose of tort law is compensation. Hold to objective standard.



Two innocent persons: Both victim and wrongdoer not responsible.
Practical difficulties to validate mental illness can be overcome
Caregiver precaution, isolation
o Will caregiver neglect duties if they know their charge will not be upheld
o Isolation refers to modern notion of deinstitutionalization, and thus
concerns over people avoiding mentally ill cause of no liability
If purpose is fault, and corrective justice. Hold to subjective standard.

Would create strict liability regime: No fault needed. Action merits liability.
o Element of moral blameworthiness essential

Already accommodate children and sudden physical disability
o Objective standard not applied absolutely

Not insurmountable practical difficulties
Fiala v. MacDonald (2001)

Facts: Defendant has mental breakdown. Loses it at an intersection, attacking
cars and persons. Plaintiff injured in ensuing trouble.


Decision: Negligence action dismissed on defense of mental illness
Reasoning:
o Defendant claimed to have no memory of the attack – bipolar disorder.
 Expert evidence put forth on this claim: sufferer loses conscious
control of actions. Could not be held accountable
o Objective test relaxed for instances involving mental illness
o Policy point: to allow the disabled to live independent lives court cannot
imply full legal duties.
 Tort law purpose of assigning ‘fault’ undermined
 Strict liability would not serve the goals of the innocent victim
o Test for mental illness defense:
 1. Defendant had no capacity to understand or appreciate the duty
of care owed at the relevant time
 2. Defendant was unable to discharge his duty of care as he had no
meaningful control over his actions at the time the relevant
conduct full below the objective standard.
44
3.4 Causation
3.4.1 The ‘But For’ Test
Not looking for ‘the’ cause but a legally relevant cause-in-fact

Necessarily speculative - involving judgment, intuition, common sense, experts…
Notion of ‘multiple possible causes’ leads to pressure on ‘but for’ test by the 1970s (due
to cases that the courts felt that defendants should be liable)
McGhee (1972)


Dusty brick kiln – no shower: does it lead to dermatitis?
Majority: Liability imposed
o Material increase of risk of injury -> inference of causation on a common
sense basis
 The absence of washing facilities resulted in an increased risk
 Did not meet the strict requirements of a ‘but for’ test

Lord Wilberforce: reverse onus of proof
o Distinct from the inference of causation made by the majority
o Wilberforce wants the defendant to be liable for the consequences of
creating an increased risk – presumption of causation
Wilsher (1988)

Facts: Excessive oxygen administered to newborn possibly leading to blindness.
Other possible causes. No liability.

Criticized McGhee - no new principle of law
o Simply confirmed that it was legitimate to infer of material contribution
from facts of that specific case
o Rebuttable inference leaves open the possibility of a finding of no liability

No burden shift in onus of proof --- rejects Wilberforce
Athey v. Leonati (SCC, 1996)


Don’t have to worry about strict application of ‘but for’ test
If its unworkable, go ahead with notion of material contribution from Myers
o No requirement of scientific proof, can go ahead and draw inferences
45
3.4.2 The Difficulty of Proof
Snell v. Farrell (SCC, 1990)

Facts: Med malpractice suit. Issue is whether causation can be established from
defendants’ breach to damage to the right eye of the plaintiff. Patient suffered
from diabetes and high blood pressure, thus causation could be undermined


Decision: Liability imposed on doctor
Reasoning:
o Significant step towards a more relaxed approach to causation
o Legal process cannot restrict the facts from speaking for themselves
o Where causation exists but it cannot be proved – thus flexible approach
emphasized - Wilberforce rejected (p.71, para 25)
o No shift in burden of proof but created rebuttable inference
 Perfectly justified to draw inference that optic atrophy was caused
by doctor continuing with operation after hemorrhaging
o Medical proof not necessary to establish causation on a bop

Overall, return to common sense: skip McGhee – Wilsher debate
3.4.3 Multiple wrongdoers and Contribution
Cook v. Lewis (SCC, 1951) – hunting accident

Rand J: If impossible to determine who shot the victim, place the presumption of
fault on both of them – burden shift in this specific scenario is permitted
B.M. v. B.C. (BCCA, 2004)


Facts: Incompetent investigation by RCMP of domestic violence file.
Majority: Causality must be established b/w breach and harm by evidence.
o Did the failure of the police materially contribute to the increasing risk
that she was exposed to? NO
 On narrow evidential basis causality is not established

Concurring by Smith: Takes middle ground, calls for the drawing of inferences.
o Looks for material contribution
o Tort law as ombudsman: challenge powerful

Dissent: Endorses speculation as a means of doing justice to the individual case
where causation cannot be proven in fact
46
3.4.4 Inadequate Supreme Court Analysis (i.e. BAD PRECEDENTS)
Resurfice Corp v. Hanke (SCC, 2007)


Facts: Plaintiff injured on defendant’s ice-resurfacing machine.
Decision: CA hold deft liable on material contribution test. SCC reverses, and
dismisses the action on the “but for” test.

Reasoning:
o Restating primacy of ‘but for’ test
 Rebukes CA for sidelining the importance of causation
o Limits the judgments ability to infer w/out a basis in scientific knowledge
 States that the injury suffered must be in the ambit of risk created
o No longer good enough to say that the defendant solely created a risk
o Principle: causation must be taken seriously
Walker Estate (SCC, 2001)


Facts: Negligent blood donor screening. Recipients contract AIDS.
Proper test of causation in cases of negligent donor screening:
o Whether the defendant’s negligence a sufficient condition (not necessary)
to the occurrence of injury?


SCC in Resurfice endorse this methodology
The court also states that liability could be found if the ‘but for’ test were applied
3.4.5 Failure to Warn
Martin v. Capital Health (AB, 2007)

Facts: Plaintiff wanted to dance at daughter’s wedding. Informed the doctor. BUT
the doc didn’t inform Martin of the material risks of the operation, essentially
stroke. Plaintiff dies. Case of informed consent and causation.
o Causation issue: Postponement (the benign tumor needed extraction)
would not have changed the resulting consequences

TJ: Regardless. Need to recognize the entitlement of compensatory damages of
the operation being carried out without informed consent.
o Applied ‘but for’ test: If the patient had known there was a risk of
stroke, he would have put off the operation till after the wedding

CA: upholds decision. Adopts patient-centric approach.
o Speculating on causation unnecessary as case pivots on consent
47
Chester v. Afshar (UK HL, 2004)

Facts: Another failure to warn case. Back surgery paralyzes plaintiff. Not
properly informed of this potential outcome


Decision: Liability imposed on the doctor for evident breach of duty
Reasoning:
o Function of law to protect patient’s right to choose, supposing she has
been given adequate and thorough warnings.
o Causation satisfied on ‘but for’ test
 If informed, she would have sought further advice or alternatives.
3.4.6 Causation in Medical Malpractice: Loss of Chance

Should patients be compensated for the chance or possibility that the treatment
could have been successful ‘but for’ the doctor’s negligence?

Laferriere v. Lawson (SCC, 1991): rejects loss of chance approach
3.4.7 Causation and Industrial Torts: The English and US Experiments
Role of Workers Compensations Board (WCB)


No fault insurance for “injuries” at the workplace
Means Canadian courts don’t have to deal with the causation problems that
emerge from accidents (unlike English cases which place liability on employers)
Toxic Torts in Canada?


Class actions recent addition to the Canadian tort system
Contingency fees also new: Lawyer won’t charge normal rates, but rather take a
portion of the damages that emerge from the case. Used to be taboo.
o Driven American tort system for years

Traditionally modest damage awards:
o Strict limits on punitive damages: Will not be awarded without
evidence of malice on the defendant
48
UK Courts Struggle with Toxic Torts and Medical Malpractice
Fairchild (2002)


Sequential exposure to asbestos dust. Which exposure triggered mesothelioma?
McGhee DID create a new legal principle
o Appropriate test in this situation, was whether the defendant had
materially increased the risk of harm toward the plaintiff?
o All employers contributed to damage with dangerous workplaces.

Do you have to for the purposes of tort law, prove which one of the employers
caused the exposure? No. JOINT AND SEVERAL LIABILITY IMPOSED
Barker v. Corus UK Ltd (UK HL, 2006)

Facts: Tortuous (employment) and non-tortuous (self-employment) exposure to
asbestos dust. Different from Fairchild.

“Fairchild exception” applied even where tortuous and non-tortuous acts
increase risks
o Normally still require causation to be shown on a “but for” basis, but
recognize that may end up essentially with a material contribution
situation where at least one of the defendant was negligent

Joint and several liability?
o Def liable for risk he himself created but not for risks created by others
o Several liability imposed (each individual employer will be liable to the
extent that they contributed to the creation of the risk) No joint liability.

New concept of "proportionate liability": contribution measured by length
and nature of exposure + type of asbestos
Legislative response: Compensation Act, to deal specifically with asbestos claims


Reverses the Barker ruling. Restores joint and several liability.
Why? The defendants likely to be brought to trial likely to be bankrupt.
o Several liability adversely effect those seeking compensation
Sindell v. Abbott Laboratories

Class action suit against a number of pharmaceutical companies on defective
pregnancy medication. Case dismissed.

Causation using “market share” liability: plaintiff must prove that one of the
defendants committed the act of negligence, even though they are unable to
prove which one has caused the damage, before the onus shifts.
49
3.5 Remoteness

Role of remoteness, like duty of care, is to contain negligence
o This secondary control response – comes after Duty, Standard, Causation

Once we get to remoteness, the courts are less likely to shield D from liability
o Slippery slope once you get to remoteness
o When we talk about remoteness, keep Andrews J from Palsgraf v The
Long Island in mind
 Don’t spend so much time on duty, you owe duty to the world
 Lets instead look at remoteness - “proximate cause” (in US)
Overseas Tankship (UK) v. Morts Comp (The Wagon Mound No. 1) (UK PC, 1961)

Facts: Overseas Tankship spilled oil over deft (Morts) property. Caught fire
because of some cotton waste around and caused significant damages

Decision: No liability imposed as the accident was not anything that the
defendant could have foreseen (oil on water catching fire!)

Reasoning by Simmons:
o Rule in Polemis: negligent actor responsible for all the ‘direct’
consequences whether reasonably foreseeable or not
o Judgment adjusts the above rule and centers the test for remoteness
on reasonable foreseeability
o Impact of rejecting ‘directness’ was favorable to defendants
Hughes v. Lord Advocate (HL, 1963)

Facts: Kids get hurt while playing around defendant’s construction site when
workers are off taking a tea break


Decision: Liability imposed. Why?
Clarified scope of the reasonable foreseeability test for remoteness:
o 1. A duty owed? Yes
o 2. If no negligence had occurred, no accident would have occurred? Yes
o 3. Injuries suffered were of a foreseeable nature? Yes


No need to foresee the precise nature/type of the accident or damage
Lord Pearce
o Fire in Wagon Mound was a different kind
o Clear indicator that court was not going to apply the new kind of justice
that Simmons talked about
50
Assiniboine School Division No. 3 v. Hoffer (Man. CA, 1971)

Facts: Snowmobile accident ruptures gas line that causes major damage at
plaintiff’s school.
o Strong argument under Wagon Mound that you could not foresee the fire


Decision: Liability imposed
Reasoning:
o Damage reasonably foreseeable, as machine operated recklessly
o Test of foreseeability about what is possible rather than what is probable
 Once you establish Duty, Standard and Causation, you
probably shouldn’t have much difficulty with Remoteness
o You can take things much further than strict application of Wagon Mound
Lauritzen v. Barsted (Alta. SC, 1965)

Facts: Plaintiff trapped in the snow cause deft drunk antics swerve car off
remote road on a freezing night.


Decision: Liability imposed
Reasoning:
o Damage from negligent behavior foreseeable
o Wagon Mound implies damages conditional on:
 Particular harm
 Precise manner or sequence of events in which it occurred
o Crucial finding of trial judge:
 Negligent to grab steering wheel
 Everything after that becomes liable
 TJ – unwilling to talk about contributory negligence
 When placed in this terrible predicament, you do some
foolish things
o TJ is seeking to make sensible conclusion despite the foreseeability issues
 No need to foresee the precise sequence of events
 Enough that D should have foreseen “dangerous results” from
grabbing the steering wheel
51
3.5.1 The Think Skull Rule
Exception to the Reasonable Foreseeability Test: The Thin Skull Principle

Deft liable for all consequences of negligence, even if unexpectedly severe due to
pre-existing condition
Bishop v. Art & Letters Club of Toronto et al. (Ont HC, 1978)

Facts: Plaintiff falls in deft’s property due to odd door. Hurt badly due to preexisting susceptibility (hemophiliac)

Decision: Extensive liability imposed

Reasoning: Tortfeasor forced to accept victim as he finds him
Athey v. Leonati (SCC, 1996)

Principle: distinguishing thin skull from crumbling skull
o Thin skull rule: tortfeasor liable for all the plaintiff’s injuries
o Crumbling skull rule: recognizes that damages need not put the plaintiff
in a position better than his ‘original position’
 D not liable to put P back in “better position” had it not happened
3.5.2 Intervening Factors/Events: Novus Actus Interveniens
Bradford v. Kanellos (cob Astor Delicatessen & Steak House) (SCC, 1974)

Facts: Fire in restaurant put out. Patrons panic because somebody thinks it’s a
gas leak. In commotion plaintiff is injured.


Decision: Liability not found on restaurant.
Reasoning:
o Intervening act could not have been foreseen, thus deft cannot be
held liable for resultant damage (too remote)

Dissent:
o Party guilty of original negligence (restaurant for fire) could have
foreseen damages occurring by intervening negligent actions.
52
3.5.3 Manufacturers, Distributors, Contractors and Remoteness
53
Smith v. Inglis Ltd. [manufactures of product] (NS, 1978)


Facts: Plaintiff injured by shock caused by errors by electrician and in product.
Reasoning: Deft should have foreseen the damages from their error alone.
Good-wear Treaders Ltd v. D&B Holdings Ltd et al. (NS CA, 1979)

Facts: Pash truck using Good-wear tire. Tire burst cause of unsafe use that Goodwear had warned about. Passengers of adjacent car killed by truck accident.


Decision: Liability imposed on both Good-wear (despite warning) and Pash
Reasoning:
o Liability imposed because of knowledge that warning would be
disregarded and Pash would use product unsafely
 Warnings to not absolve liability to third-parties on highway
o Person who contributes to a result cannot escape liability by
showing that others contributed as well.
Stansbie v. Troman (1948)


Facts: Contractor working on house alone. Leaves house unlocked. Thief robs.
Reasoning:
o Contractual relationship imposed duty to plaintiff to leave premises
in a reasonably secure state. Consequences direct result of breach.
3.5.4 Multiple Medical Errors
Mercer v. Gray (Ont CA, 1941)

Whether the intervening medical error is Novus Actus Interveniens depends on
nature of the doctor’s error
o Burden of proving negligence rests on original defendant
Katzman v. Taeck (Ont CA, 1982)


Casts doubt on Mercer approach
Burdens the original deft: if you cause person to require medical attention it is
foreseeable that medical error could further aggravate those injuries
o Doctor going to be held liable for the aggravation caused by negligence
54
4. Liability for Psychiatric Harm (Nervous Shock)

Overall concerns
o 1. Floodgates
o 2. Fabrication/indetermination
o 3. Cultural bias
 Mustapha case and the notion of ‘ordinary fortitude’

Overall Control Devices
o 1. Only recognized psychiatric illness
 E.g. clinical depression, post-traumatic distress disorder…
 Does not cover shock, fear, or anger
o 2. Average psychological resilience v. abnormal sensitivity
 ‘Ordinary fortitude test’ must be passed

Psychological harm w/out breach of duty - Factors for finding proximity:
o 1. Relational proximity- close family or love and affection
o 2. Locational proximity- ‘immediate aftermath’ of horror of the occasion
o 3. Temporal proximity- causation, must arise directly from the horror of
the occasion, not by being told about it by 3rd party
4.1 Historical Development of the Law

Compensating psychiatric injuries is troublesome for the courts
o Evidence problems aplenty

Willing to compensate psychiatric harm that flows from a physical injury
o Secondary victims/bystanders of accidents cannot recover

Two problems:
o 1. When can a person be found to have a duty in relation to the
mental well being of another person? (Issue in Devji)
o 2. When is a person who exposes another to an unreasonable risk of
physical injury liable for the psychiatric harm that results? (Issue in
Mustapha)
55
Devji v. Burnaby (District) (BCCA, 1999)

Facts: The family of a victim of a traffic accident blame on negligent road safety
of the deft. Claim damages for nervous shock from having to identify the body.


Decision: action dismissed. Judicial skepticism did not widen liability
Reasoning:
o Rhodes: damages for nervous shock cannot be recovered without
exposure to a ‘shocking’ experience arising from exposure to the
deft’s negligence – rather than just to one of its consequences
 Identifying body was in the ‘aftermath’ of accident
o Worries about fraudulent claims and differentiation b/w grief and shock
 Plaintiff must experience more than emotional response to death
o Points to note
 1. Mere bystander cannot recover, but if gets involved as a
rescuer there is a chance for recovery
 2. Thin skull rule does not apply
4.2 The Leading Case- Mustapha v. Culligan (SCC, 2008)


Facts: Fly in bottle sold by manufacturer, deft, crazed Plaintiff.
Decision: TJ awards plaintiff. CA overturns. SCC dismisses case.

Reasoning:
o Case fails on causation & damage too remote to find liability
o Negligence actions require:
 Duty? Yes
 Breach? Yes, fly in bottle creates unreasonable risk of harm
 Damages? Psychiatric illness resulted
 Causation?
 Reasonably foreseeable test:


Not for an objective person of reasonable fortitude
Subjective test leads to too many possibilities
o Only relevant if the deft knew of the
plaintiff’s susceptibilities
o Fails cause too remote from reasonable contemplation at time of contract
o The court returns to the stricter standard in Wagon Mound, rather
than the flexibility of Dickson in Assiniboine
 By using remoteness rather than duty to deal with psychiatric loss,
has the court restated the test for reasonable foreseeability?
56
5. Liability for Pure Economic Loss
Probable when loss foreseeable consequence of personal injury or property damage

Complicated and rare if not
Pure Economic Loss

1. No problem with consequential economic loss where the threshold of damage
to person or property has been crossed.
o E.g. lost income, cost of repair, lost of profits, etc…

2. "Pure" losses are not consequential, but sole loss is economic or financial.
Why Law's Caution?

1. Floodgates (Cardozo CJ in Ultramares 1931) - potential for "liability on
indeterminate amount for an indeterminate time to on indeterminate class"


2. Interest affected financial, not personal injury or property damage.
3. Commercial matters belong in the realm of contract with built in constraints of
consideration and privity.

4. In free market economy, permissible to inflict economic loss.
5.1 Recognized Categories
Winnipeg Condo v. Bird Construction (SCC, 1995): list 5 situations where it is possible





1. Independent liability of statutory public authorities
2. Negligent misrepresentation
3. Negligent performance of a service
4. Negligent supply of shoddy goods or structures
5. Relational economic loss
o Where plaintiff’s loss tied to property damage or personal injury suffered
by third party
Context




1. Somewhat like the approach of negligence to personal injury before DvS
2. Policy role of Anns/Kamloops/Cooper, in developing categories.
3. But, duty of care simply defined in terms of foreseeablity of economic loss.
4. Must be "something more" such as a "special relationship"
57
5.2 Negligent Misrepresentation
Hedley Byrne & Co. v. Heller & Partners (HL, 1964)

Facts: foundational case for professional negligence. Plaintiff (advertising firm)
relied on credit report from deft (bankers) in lending money to a third party.


Decision: Verdict for deft.
Reasoning:
o Duty exists where one possessed of special skills assists another whilst in
reliance on his superior knowledge (definition of special relationship)
o Recognized liability for pure economic loss not arising from a contractual
relationship, introducing the idea of "assumption of responsibility".
To succeed in a claim for professional negligence, the wronged party must prove the:
1. Existence of a duty of care based on a special relationship
2. Representation made was untrue, inaccurate, or misleading
3. Defendant breached the standard of care owed by acting negligently
4. Plaintiff relied upon the representation in a reasonable manner
5. Reliance came with detrimental consequences
Queen v. Cognos [SCC, 1993]
BG Checo. V. BC Hydro and Power Authority (SCC, 1993)

Facts: Hydro accepted Checo tender for power project. Checo sues for
misrepresentation of clearing being done over area. Contract in place.

Decision: CA rejected finding of fraud but upheld negligent misrepresentation.
SCC held that there is a prima facie presumption that a claimant is able to sue
concurrently in tort and contract where sufficient grounds exist.

Reasoning by La Forest and McLachlin:
o Emphasized concurrency of tort and contract. Three classes:




1. More stringent contractual stipulation makes seeking tort
remedy unnecessary
2. Common law duty of care higher than contract, but liability
exclusion clauses make tort action difficult
3. Contract and tort co-extensive: can sue upon either contractual
or tort breach. Still, liability in tort will still be subject to
exemptions or conditions set out in a contract. Applicable group.
Dissent: Liability here lies in contract, not tort
58
Hercules Management v. Ernst & Young (SCC, 1997)

Facts: plaintiff suing defendant for negligently prepared audit of a company in
which they lost significant sums as investors.


Decision: action dismissed
Reasoning:
o Establishing a duty of care in negligent statement cases:
 Relationship (re: foreseeability and proximity)
 Special relationship will exist when there is sufficient
proximity so that advisor ought reasonably to have seen
that reliance on the statement will cause injury
Presence of policy reasons to negate or reduce duty
 Indeterminate liability; insurance costs; incentive to
produce accurate reports
o Problem of indeterminate liability in this case:
 In order for problem to be avoided:
 (1) def. must know the identity of the pltf. and
 (2) statements be used for the purpose intended
 Since reports were used for investment purposes, liability is
indeterminate

Avco Financial v. Norman (Ont CA, 2003)

Facts: Avco, mortgagor, sues debtor. Policy had time limitations that were not
clearly explained to the Normans



Issue: what if the reliance is unreasonable?
Decision: Both plaintiff and deft acted unreasonably. Costs and damages split.
Reasoning:
o Concurrency between contributory negligence and negligent
misrepresentation possible
o However, concurrency not found in this case – no negligent
misrepresentation (requirement for reapplication strongly implied;
reasonable person standard)
59
5.3 Negligent Provision of a Service
Haskett v. Equifax Canada (Ont CA, 2003)

Facts: Part of class action against credit rating agency. Agency keeping records of
him that are illegal, thus preventing him from getting loans from banks.


Decision: CA imposed duty.
Reasoning:
o Case does not fit Hedley Byrne model
 No special relationship because there is no request for advice or
foreseeable reliance (as banks and lending institutions rely on
their info not the plaintiff)
o Need to discover an analogous duty of care or create a new one
o Creates new category through Anns/Kamloops test:
 1. Foreseeability and promixity? Yes
 Prima facie duty of care established
 2. Policy reasons? Overturns lower court
 Legislation supports policy basis for recognition of duty
 Disagrees on indeterminate liability argument
 Concurrent tort remedy and legislative remedy
possible (only civil cause of action would provide damages
or compensation)
BDC Ltd v. Hofstrand Farms (SCC, 1986) --- Case of the Unimaginative Courier Company

Facts: Defendant, a courier company, contracted with BC to deliver an envelope
from a government office in Victoria to the Land Registry Office in Prince George.
Unknown to the deft, the envelope contained a Crown grant for plaintiff, which
needed to be registered before certain date.

Decision: No duty of care inferred.

Reasoning:
o Supports finding by TJ: courier could not have reasonably foreseen the
resultant loss arising from for the failure to deliver on time stipulated in k
 Deft didn’t know nor should he have known of the contents
o The plaintiff cannot assert reliance on deft’s service.
 Shows reluctance of courts to expand realm of duty
o Plaintiff can’t take advantage of BDC breach of k with govt cause of privity
60
Wilhelm v. Hickson (Sas CA, 2000)



Facts: Lawyer negligently wrote will. Beneficiary unable to benefit. Is he liable?
Decision: duty of care owed.
Reasoning:
o Deals with problems of imposing liability first:
 Legal work done for testator not disappointed beneficiary
 Reliance is thus complicated
 Lawyer’s liability usually contractual – privity excludes third party
o Reasons for:
 Lawyer cannot be free from anything other than k liability
 CL and academia encourage the imposition of liability
o Beneficiary does not have a legal right to the benefit
 Mere expectation. (Equity does not help volunteers)
HLs Revolution

Anns (1977)
o Lord Wilberforce: two stage process in determining duty of care.
Relatively, easy to use reasonable foreseeability to establish prima facie
duty of care; much will then depend on Stage 2 policy concerns.

Junior Books (1982)
o Liability of sub-contract for cost of remedying defect and for
consequential economic loss. There’s liability even without contract!
HLs Counter-Revolution

Murphy (1990)
o Anns and Junior Books reversed
 In relational liability, there must be injury by the deft to pl’s
property (precise physical damage-reliance rule)

But note, reliance (Hedley Byrne) survives the counter-punch
Canada


Adopts dicta in Anns in Kamloops
And now, Cooper where Anns approach is extended to include Stage I relational
proximity as well as Stage II broad-based residual policy concerns
o Looking at pure economic cases, application demands both
Anns/Kamloops framework and Cooper
61
5.4 Negligent Supply of Shoddy/Dangerous Products
Winnipeg Condominium Corporation v. Bird Construction (SCC, 1995)

Facts: Plaintiff bought building. Sues construction company for latent defects.
o Issue: Can the subsequent purchaser recover for the cost of repairs from
the general contractor who built the building?


Decision: Liability imposed on Bird. Liable for costs of repair.
Reasoning:
o Intersection of contract and torts
 No contract between parties. Contract with initial owners already
beyond limitation period
 Duty of care can be inferred cause of foreseeability of damage
o Danger of latent defect unquestionable
 Distinguished from shoddy product case: ‘real and substantial
danger’ test
o Caveat Emptor – buyer beware
 Buyer in better position to identify the faults, but in the case of
latent defects they are equally as incapable
Hasegawa v. Pepsi Bottling Group (BC CA, 2002)

Facts: Water company contracts with Pepsi to bottle it before sale. Plaintiff is the
importer into the Japanese market. Product did not meet Japanese quality
standards. Sues ‘big fish’ Pepsi for compensation. No duty of care found.

Reasoning:
o Identify duty in existing category or new one:
 Plaintiff tried to make it a claim about damage to property: judge
says there stuck in a pure economic loss claim
 Court: No prima facie duty of care
o Evidence of low quality: Japanese authority banned the distribution
 Couldn’t show that it was banned for being dangerous thus
can’t recover for economic loss according to Winnipeg
o Issue of a lack of contract between importer and Pepsi:
 Plaintiff is using tort law to make-up for the fact that they didn’t
properly allocate risks by contract
 Refuses to apply Junior Books

Principle: liability limited to dangers, D’s product was merely defective
62
5.5 Relational Economic Loss
Canadian National Railway (CNR) v. Norsk Pacific Steamship (SCC, 1992)

Facts: tug boat owned by deft hits bridge. Bridge used by CNR, damage and
disruption of services costs them dearly. Bridge owned by Public Works Canada.


Decision: liability imposed on tug owner for damaging bridge used by plaintiff
La Forest (4) - this was not a joint venture
o If CNR had joint venture with govt (owner of bridge), could give enough
of an interest in the property that is damaged to claim for economic loss.

McLauclin (4) - Less strict view of joint venture
o Incremental approach of Kamloops over logical precision of Murphy
 Stevenson: liability but not on grounds supported by other judges.
Result: Liability imposed but no precendential value cause of divided judgments
Bow Valley Husky (Bermuda) v. Saint John Shipbuilding (SCC, 1997)

Facts: Oilrig built by Saint John leased out. Defects are dangerous. While the
owner can recover, the question arises about the party leasing the rig recovers?

Decision: Liability not found. Why?
o No clear precedent to deal with this area. May need new category
towards the leasors of a defective product. No proprietary interest.
o Finds a duty to warn on the leasees
 Concern of indeterminate liability even though the precedent is
limited to the parties of a lease
o Anns/Kamloops and flexible proximity triumphant
 Rigidity of Murphy rejected
5.6 New Duties Relating to Economic Loss
Design Services v. Canada (SCC, 2008)

Facts: tender process issue. Can subcontractors to the contractor that should
have been awarded the contract have claim in tort? Claim dismissed. Why?
o First stage - should have protected themselves by contract.
 Cannot use tort where parties forgot to put in k limitation
 Seems very reminiscent of Murphy from the HLs
 Canada says its pretty damn difficult to impose liability
o Second stage – indeterminate liability concerns negate duty
63
6. Tort of government liability - “The King can do no wrong”

The independent liability of public authorities for economic loss
o Possible fifth category of economic loss liability

Policy reasons not to hold government liable
o Floodgates argument
o Taxpayers (innocent parties) are going to eventually pick up the bill

Arises in three situation
o 1. Expressed statutory duty
o 2. General power for public body from statute
 Body charged to carry out a specific function
o 3. No statutory duty, Anns/Cooper test of new duty
Just v. BC (SCC, 1989)

Facts: Claim of negligent maintenance of a highway that killed the claimant’s
daughter and injured himself. Boulder crashed into car on highway to whistler.
o Liability test:
 1. What does the legislation provide?
 Obligations or liability exemptions
 Application: obligation placed, no absolving of liability
 2. Is there a liability exemption because the system constituted a
policy decision? Only operational implementation actionable.
 Leaves this to be discerned by trier of fact in RETRIAL
o Principle: duty of care should apply to a public authority unless there
is a valid basis for its exclusion
 Burden on the crown to prove exceptional circumstances that
justify why a duty of care should not be applied

Essential dividing line: True policy decisions vs. operational implementation
 No liability for decisions which involve financial, economic, social,
and political factors
 Possible liability for decisions involving administrative direction,
expert opinion, technical skills, or standard of reasonableness

What happened at new trial? Just v. BC (BC SC, 1991)
o TJ concludes that the plaintiff was correct in arguing that visual
inspection was inadequate to implement the policy. Liability imposed.
64
Kamloops (City) v. Nielsen (SCC, 1984)

Facts: A house had insufficient foundations, which were discovered upon
inspection, by the city. Stop work orders issued and ignored. The house was sold
to the Neilsens. On discovering the construction deficiencies, sued the city.

Reasoning on tort liability of government:
o The nonfeasance was patently an operational choice due to the fact
that the city alderman was involved.
o Possibility of a legitimate policy decision “within the operational context”
 No liability where “honest concern” with policy
Hill v. Hamilton-Wentworth Regional Police Services Board (SCC, 2007)


Facts: innocent man investigated and arrested. Liability imposed
Reasoning:
o 1. Prima facie duty of care?
 Foreseeability and proximity: harm clearly possible, and
relationship is close and direct
 Congruence between public and private duties
 Conflict with duty to public to prevent crime minimal
 Positive outcome: reasonable care will reduce wrongful
investigations, arrests, and convictions
o 2. Policy reasons not to impose – none found
 Police not immune from tort of negligence
 ‘Quasi-judicial’ nature of police work wouldn’t be compromised
 This is a prosecutor’s job. Not to be confused

Result: new Tort of Negligent Police Investigation
Liability of government

Duty of care
o Dorset Yacht
o Kamloops
o Jane Doe

Critical Role of Statutes
o Obhavji
o Cooper

Causation
o BM v BC AG
65
7. Immunity of Mothers
Dobson (litigation guardian of) v. Dobson (SCC, 1999)

Facts: Dobson got into a car accident in bad weather. Her fetus was damaged,
had to be delivered by Caesarean section before the expected due date. The child
had cerebral palsy. On child’s behalf, grandfather brought claim against mother.

Decision: Court found that tort claims couldn’t be brought against women
for negligence toward the fetus during pregnancy.

Reasoning by Cory:
o Public policy issues prevent the enforcement of the prima facie duty of
o
o
o
o

care upon pregnant mothers to their children
 Assumption that the fetus is a separate legal entity
Not a 3rd party tortfeasor: limitless possibilities where the unique duty of
care could be broken because of the complete reliance of the fetus
Prenatal standard of care too complex for the court to formulate
 Only legislature can create ‘reasonable pregnant woman’
Parties looking for a judicial solution that will force an insurance pay-out
 Solely compensation is not an appropriate use of tort law
McLachlin raises liberty and equality: invasion of women’s autonomy
Dissent by Major:
o Born alive rule: allowed to sue third-parties for prenatal injuries
o Complex social implications do not negatize enforcement of duty
Maternal Tort Liability Act, Alberta, 2005

Allows action by child for prenatal injuries
Preston v. Chow (Man CA, 2002)

Facts: Expectant mother fails to tell doctor of likelihood of STD. Child damaged at
birth. In action against hospital, counterclaim against mother dismissed.

Reasoning:
o Cited McLachlin's reasons in Dobson on the negative consequences for the
autonomy rights of women of imposing on pregnant women a duty of
care toward their fetuses.
66
8. Strict Liability Torts

No need to prove that the deft was guilty of any wrongful conduct
o Modern interpretation is closer to fault liability
Rylands v. Fletcher (HL, 1868)



Facts: Plaintiff’s mine flooded by reservoir negligently built by the defendant
Decision: imposed strict liability on defendant
Reasoning:
o Strict liability appropriate for non-natural use of land
o Broad scope has been significantly reduced in modern tort law

The Rule in Rylands v. Fletcher: [T]he person who for his own purposes
brings on his lands and collects and keeps there anything likely to do
mischief if it escapes, must keep it in at his peril, and, if he does not do
so, is prima facie answerable for all the damage which is the natural
consequence of its escape.
o Damage caused by escape of something likely to cause mischief/harm by
negligence to take adequate care is strictly liable

Non-natural use of land
o Today means dangerous, extraordinary, and of no general benefit to
community
o Two general categories:
 1) Land use that has a great magnitude of danger independent of
the particular circumstances of the case
 2) Land use not always dangerous, but is so in this case
 Applies loose fault-based liability

Defenses
o a) Consent
o b) Mutual Benefit
o c) Default of the Plaintiff
o d) Act of a Stranger and Act of God
o e) Statutory Authority
67
9. Nuisance
Public nuisance

Two categories
o 1) Interferences w/ the rights and interests of public shared in common
 Protects exercise of rights common to all - passage on roads
o 2) Widespread interference with the use and enjoyment of private land
Private nuisance

Seeks to strike appropriate balance between competing land uses

Trespass onto private property a tort of strict liability – no fault requirement
o If unreasonable interference, liability follows
o Actionable only by those enjoying proprietary rights or interest in the
land (extended in Canada to occupants)

1) Material physical damage to land
o Always regarded as unreasonable interference unless trivial

2) Unreasonable Interference with Enjoyment and Comfort of Land
o Typical nuisances: noise, odour, fumes, dust, smoke…
o Circumstances considered: (a) The character of the neighborhood Rural v. urban or Industrial v. commercial v. residential, (b) The intensity
of the interference, (c) The duration of the interference, (d) The time of
day and the day of the week, (e) Zoning designation, (f) The utility of the
defendant’s conduct, (g) The nature of the defendants conduct, (h) The
sensitivity of the plaintiff, (i) Motive of malice

Defenses
o a) Statutory Authority
 Defendant must prove that nuisance was inevitable and
unavoidable result (narrow interpretation from Ryan v Victoria)
o
o
o
o
b) Statutory Immunity
c) Consent (and acquiescence)
d) Prescription - activity has to have been taking place for 20 years
e) Contributory negligence
Coming to the Nuisance? No permanent priority for first land use

Ancient land use should not be allowed to prevent change