TORTS LAW 2006-2007– Bobinski and Brooks (Solomon, Kostal, McInnes 2003) by Scott Bernstein
CHAPTER ONE—INTRODUCTION ..................................................................................... 8
1. Torts—basic terms and themes ........................................................................................ 8
2. Torts Distinguished from Other areas of Law .................................................................... 8
3. Brief History of Tort Law ................................................................................................... 8
4. The Bases for Imposing Liability in Tort ............................................................................ 9
5. The Functions of Tort Law .............................................................................................. 10
CHAPTER 9—INTRODUCTION TO THE LAW OF NEGLIGENCE ............................ 10
1. Negligence: defining terms ........................................................................................................... 10
2. The Historical Development of Negligence ................................................................................. 11
3. The Elements of a Negligence Action: ......................................................................................... 11
Dunsmore v. Deshield (1977 Sask. Q.B.) ................................................................................................. 11
CHAPTER 10—THE DUTY OF CARE ................................................................................ 12
1. Introduction to the Duty of Care ................................................................................................. 12
a) “The classical approach” ................................................................................................ 12
b) The General Duty of Care test ........................................................................................ 12
M’Alister (or Donoghue) v. Stevenson (1932 UK HL) – establishes principle of negligence ........................ 12
c) The Development of the Modern Law of Duty ................................................................. 12
d) Anns and the Supreme Court of Canada ......................................................................... 13
Cooper v. Hobart (2001 SCC) – reaffirms Anns/Kamloops test for duty of care ......................................... 13
2. Application of the Duty of Care Test .......................................................................................... 13
a) Foreseeable Risk of Injury .............................................................................................. 13
Moule v. NB Electric Co. (1960 SCC) ....................................................................................................... 13
Amos v. NB Electric Co. (1976 SCC) ........................................................................................................ 14
b) Foreseeable Plaintiff ....................................................................................................... 14
Palsgraf v. Long Island Railway Co. (1928 NY CA) ................................................................................. 14
Haley v. London Electricity (1964 UK HL) ............................................................................................. 14
CHAPTER 11—SPECIAL DUTIES OF CARE: AFFIRMATIVE ACTION ................... 14
1-2. Introduction to Special Duties of Care; Affirmative Action.................................................. 14
3. The Duty to Rescue ....................................................................................................................... 15
Osterlind v. Hill (1928 Mass. SC) – no duty to rescue someone .................................................................. 15
Matthews v. Maclaren; Horsley v. Maclaren (1969 Ont. H.C.) – once a rescue is undertaken, the
rescuer has a duty to act ...................................................................................................................................... 15
4. Duty to Control the Conduct of Others ...................................................................................... 15
a) Liability for the Intoxicated .............................................................................................. 15
Crocker v. Sundance Northwest Resorts Ltd. (1988 SCC) – duty to protect intoxicated ................................ 15
b) Other Duty to Control Situations ..................................................................................... 16
c) The Duty to Prevent Crime and Protect Others ............................................................... 16
Jane Doe v. Metro Toronto Police (1998 Ont. Gen Div) – duty to warn ..................................................... 16
5. Duty to perform gratuitous undertakings .................................................................................. 16
Smith v. Rae (1919 Ont. CA) – no duty to attend to birth ......................................................................... 16
Zelenko v. Gimbel Bros. Inc. (1936 NY SC) – duty once you start to help ................................................... 16
Soulsby v. Toronto (1907 Ont. H.C.) – no duty to post guard .................................................................... 17
CHAPTER 12—SPECIAL DUTIES OF CARE ................................................................... 17
1. Introduction ................................................................................................................................... 17
2. Duty of Care Owed to Rescuers ................................................................................................... 17
Horsley v. MacLaren (1972 SCC) – was there a separate peril created by negligence? ................................ 17
3. Duties Owed to the Unborn .......................................................................................................... 17
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Dobson v. Dobson (1999 SCC) – mother not liable to fetus for “lifestyle choices” ....................................... 18
4. Nervous Shock ............................................................................................................................... 18
Rhodes v. CNR (1990 BCCA) – proximity was too far for shock ................................................................. 18
5. A Health Professional’s Duty to Inform ..................................................................................... 19
Haughian v. Paine (1987 Sask. CA) – didn’t advise patient adequately of options ..................................... 19
6. Manufacturers Duty to Warn ...................................................................................................... 19
Hollis v. Dow Corning Corp (1995 SCC) – learned intermediary, duty to warn .......................................... 19
7. Duty of Care Owed by Barrister ................................................................................................. 19
DeMarco v. Ungaro (1979 Ont. HC) – lawyer not immune to civil action .................................................. 19
CHAPTER 13—SPECIAL DUTIES OF CARE: NEGLIGENT
MISREPRESENTATION ....................................................................................................... 20
1. Introduction ................................................................................................................................... 20
2. Negligent Misrepresentations Causing Pure Economic Loss.................................................... 20
Hercules Management Ltd. v. Ernst & Young (1997 SCC) ........................................................................ 20
3. Negligent Misrepresentation and Contract ................................................................................ 20
a) Concurrent Liability in Tort and Contract ........................................................................ 20
BG Checo International Ltd. v. BC Hydro & Power Co. (1993 SCC) – concurrent liability ........................... 20
b) Pre-Contractual Misrepresentations ............................................................................... 21
Queen v. Cognos Inc. (1993 SCC) – five requirements of misrepresentation ............................................... 21
CHAPTER 14 - Recovery of Pure Economic Loss in Negligence ........................................ 22
1. Introduction ................................................................................................................................... 22
2. New Categories of Pure Economic Loss...................................................................................... 22
Martel Building Ltd. v. Canada (2000 SCC) – policy reasons for limiting economic loss cases ...................... 22
3. Negligent Performance of a Service ............................................................................................ 23
B.D.C. Ltd v. Hofstrand Farms Ltd. (1986 SCC) – no reliance on representation ....................................... 23
4. Negligent Supply of Shoddy Goods or Structures ..................................................................... 23
Winnipeg Condominium Corp. No 36 v. Bird Construction Co. – duty of care in dangerous struct. .............. 23
5. Relational Economic Loss ............................................................................................................ 24
Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. (1997 SCC) – three categories.............. 24
CHAPTER 15—THE STANDARD OF CARE ..................................................................... 25
1. Introduction ................................................................................................................................... 25
2. The Common Law Standard of Care: The Reasonable Person Test ....................................... 25
Arland v. Taylor (1955 Ont. CA) – reasonable person .............................................................................. 25
3. Factors Considered in Determining Breach of the Standard of Care...................................... 25
a) Probability and Severity of the Harm .............................................................................. 25
Bolton v. Stone (1951 UK HL) – risk of harm is minimal ......................................................................... 25
Paris v. Stepney Borough Council (1951 UK HL) – more serious the danger, more thorough ...................... 25
Miller v. Jackson (1977 UK CA) – low risk, low harm & reasonable steps taken ........................................ 26
b) Cost of Risk Avoidance .................................................................................................. 26
Vaughn v. Halifax-Dartmouth Bridge Comm. (1961 NSSC) – were all reasonable measures taken? ........... 26
Law Estate v. Simice (1994 BCSC) – severity of harm is greater than expense ............................................ 26
c) Social Utility .................................................................................................................... 26
Watt v. Hertfordshire County Council (1954 UKCA) – social utility makes risk acceptable ........................ 26
4. An Economic Analysis of the Standard of Care ......................................................................... 27
US v. Carroll Towing Co. (1947 US 2nd Circ.) – learned hand approach to prevention ................................ 27
5. Special Standards of Care ............................................................................................................ 27
a) The standard of Care expected of the Disabled .............................................................. 27
Fiala v. Cechmanek (2001 Alta. CA) – mental illness negates liability if no capacity to understand ............ 27
b) The Standard of Care Expected from Children ............................................................... 28
Joyal v Barsby (1965 Man. CA) – normal reasonable standard of a 6 year old ........................................... 28
c) The Standard of Care Expected of Professionals ........................................................... 28
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White v. Turner (1981 Ont. CA) – standard of care is custom of profession ............................................... 28
6. Degrees of Negligence ................................................................................................................... 28
7. Custom ........................................................................................................................................... 28
TerNeuzen v. Korn (1995 SCC) – standard of care is custom of profession, unless it’s too low ..................... 29
Chapter 16 – Causation ............................................................................................................ 29
1. Introduction ................................................................................................................................... 29
2. Determining the Cause ................................................................................................................. 29
a) The But-for test .............................................................................................................. 29
Barnett v. Chelsea & Kensington Hosptial Management Committee (1969 QB) – articulation of butfor test ............................................................................................................................................................... 30
b) The material Contribution test ........................................................................................ 30
Walker Estate v. York – Finch General Hospital (2001 SCC) – material contribution test .......................... 30
c) Materially Increased Risk – Inference of Causation ........................................................ 30
McGhee v. National Coal Board (1972 HL) – burden of proof on defendant .............................................. 30
Snell v. Farrell (1990 SCC) – once π proves breach of duty, ∆ has to disprove causation; inference of
causation ........................................................................................................................................................... 30
d) Multiple Causation .......................................................................................................... 31
Athey v. Leonati (1996 SCC) – a tortious factor combines with a non-tortious factor. ................................. 31
Nowlan v. Brunswick Const. Ltee (1974 SCC)– a tortious factor combines with another tortious factor ....... 32
Penner v. Mitchell (1978 Alta. CA) – tortious and non-tortious acts that each alone could have caused
injury. ................................................................................................................................................................ 32
Dillon v. Twin State Gas and Elec. Co. (1932 New Hampshire SC) – independently sufficient
conditions ........................................................................................................................................................... 33
Chapter 17 - Remoteness of Damages .................................................................................... 33
1. Introduction ................................................................................................................................... 33
2. Directness v. Foreseeability .......................................................................................................... 33
a) Directness Test .............................................................................................................. 33
Re Polemis and Furnessm Whity & Co. (1921 KB) – “directness” is test for remoteness ............................. 34
b) Foreseeability Test ......................................................................................................... 34
The Wagon Mound (No. 1) Overseas Tankship (U.K.) LTD. v. Morts Dock & Engineering Co. (1961
PC) .................................................................................................................................................................... 34
3. Modifications to the Foreseeability Test ..................................................................................... 34
a) Kind of Injury .................................................................................................................. 34
Hughes v. Lord Advocate (1963 HL) – type of injury though not exact gravity or manner must be
foreseeable. ........................................................................................................................................................ 34
b) Thin-skulled Plaintiff Rule ............................................................................................... 35
Smith v. Leech Brain & Co .(1962 QB) – thin skulled plaintiff rule .......................................................... 35
Marconato v. Franklin (1974 BCSC) – thin skulled rule applies to pre-existing psych. illness ..................... 35
c) Possibility of Injury – Injury doesn’t have to be probable, just possible. .......................... 35
Wagon Mound (No.2) Overseas Tankship (U.K.) LTD. v. Miller Steamship Co. Pty.(1967 PC) .................. 35
Assiniboine South School Division v. Greater Winnipeg Gas Co.(1973 SCC) – only need to see damage
happening in general way ................................................................................................................................... 35
d) Intervening causes – within the scope of the risk ........................................................... 36
Bradford v. Kanellos (1973 SCC) – act was not within the scope of risk. .................................................... 36
Price v. Milawski (1977 Ont. CA) – 1st tortfeasor held liable for intervening act of 2nd tortfeasor if
act was within the scope of risk/ foreseeable result of 1st tortfeasors actions. ......................................................... 36
Hewson v. Red Deer (1976 Alta. TD) – 1st tortfeasor liable for intervening act because act was
within the scope of risk. ....................................................................................................................................... 37
Chapter 18 – Assessment of Damages .................................................................................... 37
1. Introduction ................................................................................................................................... 37
Mitigation ............................................................................................................................ 37
2. Damages for Personal Injuries .................................................................................................... 38
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Andrews v. Grand & Toy Alta Ltd (1978 SCC) – how courts assess damages in personal injury claims. ........ 38
a) Pecuniary Loss: Future Care .......................................................................................... 39
b) Pecuniary Loss: Lost Earning Capacity .......................................................................... 39
c) Pecuniary: Considerations Relevant to Both Heads of Pecuniary Loss........................... 39
d) Non-Pecuniary Loss ....................................................................................................... 40
Survival Actions .................................................................................................................. 40
Keizer v. Hanna (1978 SCC) – death of family provider........................................................................... 40
3. Damages for Property Loss .......................................................................................................... 41
Three issues ....................................................................................................................... 41
4. Collateral Benefits ......................................................................................................................... 41
5. The Equitable Doctrine of Subrogation ...................................................................................... 42
Chapter 19 - Defences in Negligence ....................................................................................... 42
1. Introduction ................................................................................................................................... 42
2. Contributory Negligence .............................................................................................................. 42
Walls v. Mussens (1969 NBCA) – reasonable person in emergency ............................................................ 42
Gagnon v. Beaulieu (1977 BCSC)- role of belief in efficacy in standard of care .......................................... 43
Negligence Act (RSBC 1996, Chapter 333) .............................................................................................. 43
Mortimer v. Cameron (1994 CA) – apportionment of liability ................................................................... 43
3. Voluntary Assumption of Risk – volenti non fit injuria ............................................................ 43
Dube v. Labar (1986 SCC) – volenti defence must show consent to physical AND legal risk ........................ 43
4. Participation in Criminal or Immoral Act – ex turpi causa non oritur actio ......................... 44
Hall v. Hebert (1993 SCC) – restricting scope and application of ex turpi defence ..................................... 44
5. Inevitable Accident ....................................................................................................................... 44
Rintoul v. X-Ray and Radium (1956 SCC) –reasonable care is needed ...................................................... 44
Intentional Torts ....................................................................................................................... 45
1. Basic Principles of Liability ......................................................................................................... 45
a) Volition – you must have conscious mind when doing something ................................... 45
Smith v. Stone (1647 KB) ....................................................................................................................... 45
b) Intent – desire to bring about results or consequences of action .................................... 45
c) Motive – doesn’t have any role to play in cause of action itself usually; .......................... 45
Gilbert v. Stone (1648 KB) – Duress doesn’t negate intent ....................................................................... 45
Miska v. Sivek (1954 Ont. CA) – Provocation ........................................................................................... 45
d) Mistake – has no effect on the issue of intent  not relevant to intentional tort
elements............................................................................................................................. 46
Hodgkinson v. Martin (1929 BCCA) – Mistake of fact or law not recognized as defence ............................. 46
Ranson v. Kitner (1888 Ill. CA) – Mistake doesn’t remove intent requirements ......................................... 46
e) Accident  NO INTENT ................................................................................................. 46
Chapter 3 - Intentional Interference with the Person .......................................................... 46
1. BATTERY – Integrity of Person ................................................................................................. 46
Bettel v. Yim (1978 Co. Ct)) – elements of battery ................................................................................... 46
Non-Marine Underwriters v. Scalera (SCC 2000) – burden of proof of consent on ∆ ................................... 47
2. ASSAULT – Mind ......................................................................................................................... 47
Holcombe v. Whitaker (1975 Ala. SC) – need words + actions for assault ................................................. 47
Police v. Greaves (1964 NZ CA) – conditional threat can be assault ......................................................... 47
3. False Imprisonment ...................................................................................................................... 47
Bird v. Jones (1845 QB) – no false imprisonment if there’s a means of escape ........................................... 48
Campbell v. SS Kresge (1976 NSTD) – total restraint doesn’t need to be physical confinement ................... 48
Herd v. Weardale Steel (1915 HL) – no false imprisonment with consent ................................................. 48
4. Malicious Prosecution – public actions ....................................................................................... 48
Nelles v. Ontario (1989 SCC) – laid out test for malicious prosecution ...................................................... 48
5. Abuse of Process - civil action ...................................................................................................... 49
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6. Intentional Infliction of Nervous Shock ...................................................................................... 49
Wilkinson v. Downton (1897 QB) – demonstrated imputed intent ............................................................ 49
Radovis v. Tomm (1957 Man. QB) – no manifestation of injury ................................................................ 49
Samms v. Eccles (1961 Utah SC) – U.S. tort of Emotional Distress ........................................................... 49
Innominate Torts .............................................................................................................................. 50
1. Protection of Privacy – emerging intentional tort? ................................................................... 50
Motherwell v. Motherwell (1976 Alta CA) – suggests there is a common law tort of privacy ........................ 50
Hollingworth v. BCTV (1999 BCCA) – statutory requirements for privacy ................................................ 50
2. Breach of Confidence .................................................................................................................... 50
3. Discrimination ............................................................................................................................... 50
Bhadauria v. Board of Gov. Seneca College (1979 Ont. CA) – tort of discrimination .................................. 51
Seneca v. Bhadauria (1981 SCC) – no tort of discrimination ..................................................................... 51
Defences to Intentional Torts .................................................................................................. 51
Chapter 6 – The Defence of Consent ...................................................................................... 51
1. General Principles of Consent ..................................................................................................... 51
a) Introduction .................................................................................................................... 51
b) Implied Consent ............................................................................................................. 52
Wright v. Mclean (1956 BCSC) – implied consent by entering activity ...................................................... 52
c) Exceeding Consent ........................................................................................................ 52
Agar v Canning (1966 Man. CA) – actions go beyond what was consented to ............................................. 52
d) Competency to Consent ................................................................................................. 52
2. Factors that Vitiate Consent ........................................................................................................ 52
a) Fraud (Deceit) ................................................................................................................ 53
R. v. Cuerrier (1998 SCC) – standard for fraud in tort is very narrow ....................................................... 53
b) Mistake........................................................................................................................... 53
c) Duress ............................................................................................................................ 53
Latter v Braddel (1880 QBCP) – standard of duress ................................................................................ 53
d) Public Policy ................................................................................................................... 53
Nelitz v Dyck (2001 Ont. CA) – implied consent; corporate liability for battery ......................................... 54
3. Consent to Criminal or Immoral Acts ........................................................................................ 54
4. Consent to Treatment and Counseling ....................................................................................... 55
Marshall v Curry (1933 NSSC) – exception to consent in general course of treatment of medical
emergency .......................................................................................................................................................... 55
Malette v Shulman (1987 HC)– autonomy issue and law.......................................................................... 55
a) Burden of proof and Consent forms ................................................................................ 56
b) Competency to Consent ................................................................................................. 56
C v. Wren (1986 Alta. CA) – minor’s consent to abortion not based on age ................................................ 56
c) Substitute Consent ......................................................................................................... 57
d) Informed Consent: battery or negligence? ...................................................................... 57
Chapter 7 - Self Defence ........................................................................................................... 57
1. Self Defence.................................................................................................................................... 57
Wackett v. Calder (1965 BCCA) – elements of self defence ....................................................................... 57
2. Defence of Third Parties ............................................................................................................... 57
Gambriell v Caparelli (1974 Ont. Co. Ct.) – elements of defence of third parties ....................................... 58
3. Defence of Discipline ..................................................................................................................... 58
R. v. Dupperon (1984 Sask. CA) – disciplining a child ............................................................................. 58
4. Public and Private Necessity ........................................................................................................ 59
a) Public Necessity ............................................................................................................. 59
Surocco v. Geary (1853 Cal S.C) – if action is necessary in public interest  defence.................................. 59
b) Private Necessity............................................................................................................ 59
Vincent v. Lake Erie Tpt. Co. (1910 Minn S.C.) – if property damage, must compensate owner ................... 59
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Chapter 26 - Business Torts ..................................................................................................... 60
1. Deceit (Fraud)................................................................................................................................ 60
Derry v. Peek (1889 HL) – deceit must be knowingly false or recklessly made ............................................ 60
2. Passing off ...................................................................................................................................... 60
Ciba Geigy Canada Ltd. v. Apotex (1992 SCC) – elements of passing off .................................................... 60
3. Intimidation ................................................................................................................................... 61
Rookes v. Barnard (1964 HL) – three-party intimidation ........................................................................ 61
Central Can. Potash v. Government of Sasketchewan (1979 SCC) – no two- party intimidation .................. 61
4. Conspiracy ..................................................................................................................................... 61
Posluns v. Toronto Stock Exchange (1964 Ont. HC) ................................................................................. 62
5. Interference with Contractual Relations .................................................................................... 62
Direct interference .............................................................................................................. 62
Indirect interference ............................................................................................................ 62
Posluns v. Toronto Stock Exchange (1964 Ont. HC) – no interference ....................................................... 62
Chapter 24 - Nuisance ............................................................................................................. 63
1. Introduction ................................................................................................................................... 63
2. Private nuisance ............................................................................................................................ 63
340909 ONT. LTD v. Huron Steel Products (Windsor) Ltd.(1990 HC) –key elements of private claims ....... 64
Hollywood Silver Fox Farm Ltd.v. Emmett (1936 KB) –sensitivity of use; nuisance if malicious
intention ............................................................................................................................................................ 64
Tock v. St. John’s Metropolitan Area Board (1989 SCC) - liability of govt. body; defence of stat.
authority ............................................................................................................................................................ 64
3. public nuisance .............................................................................................................................. 65
AG Ont. v. Orange Productions (1971 – how do the courts distinguish between private and public
nuisance? ........................................................................................................................................................... 66
Hickey v. Elec. Reduction Co. (1970 Nfld. SC) – private citizen must show unique damages ...................... 66
4. remedies for nuisance ................................................................................................................... 66
Mendez v. Palazzi (1976 Ont. Co. Ct.) – rules for determining appropriate remedy: damages or
injunction........................................................................................................................................................... 67
Miller v. Jackson (1977 CA) – factors considered when determining remedy .............................................. 67
Spur Industries Inc. v. Del E. Webb Development Co. (1972 Ariz. SC) –Ex. of creative remedy;
development ....................................................................................................................................................... 68
Chapter 25 - Strict and Vicarious Liability ........................................................................... 68
1. Introduction ................................................................................................................................... 68
2. Escape of dangerous Substances.................................................................................................. 69
a) Introduction .................................................................................................................... 69
Rylands v. Fletcher (1868 HL) - example of strict liability; two-step test .................................................. 69
b) Escape ........................................................................................................................... 70
Read v. J. Lyons & Co. (1947 HL) – escape must be away from defendant’s property ................................ 70
c) Non-natural Use ............................................................................................................. 70
Gertsen v. Metro. Toronto (1973 Ont. HC) – Factors considered in determining non-natural use of
land ................................................................................................................................................................... 70
d) Defences to the Rule of Rylands v. Fletcher ................................................................... 71
e) A comment/criticism on Rylands v. Fletcher POLICY CONSIDERATIONS..................... 72
3. Liability for Animals..................................................................................................................... 72
a) Dangerous animals ........................................................................................................ 72
Richard v. Hoban (1970 NBCA) – test for liability for domestic animals ................................................... 72
b) Cattle Trespass .............................................................................................................. 72
Acker v. Kerr (1973 Ont. Co. Ct.) – responsibility of owner of grazing animals to ensure that they
don’t escape ........................................................................................................................................................ 73
4. Products Liability: Negligence or Strict Liability? .................................................................... 73
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5. Vicarious Liability ........................................................................................................................ 73
a) Statutory Vicarious Liability ............................................................................................ 74
b) Principle Agent relationships .......................................................................................... 74
T.G. Bright & Co. v. Kerr (1939 SCC) – principle needs control over agent to be liable .............................. 74
c) Master- Servant Relationship ......................................................................................... 74
B. (P.A.) V. Curry (1999 SCC) – Salmond test for VL of employers ............................................................ 74
d) Independent Contractors ................................................................................................ 75
671122 Ontario Ltd. v. Sagaz (2001 SCC) – distinction between employee and independent contractor ....... 76
e) Exceptions to IC = no VL, focus on Non-delegable ......................................................... 76
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CHAPTER ONE—INTRODUCTION
1. Torts—basic terms and themes
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Torts, broadly defined, means “compensable wrongs”.
There are two major sub-categories of actions based on their underlying theories of liability:
Torts of intent—based on a defendants subjective intention to interfere with the plaintiff’s
person or property
Torts of negligence—based on carelessness or unintentional wrongdoings of the defendant
3rd small category—strict liability torts (no evidence of being either negligent or intentional)
Tort—a civil (private) wrong between people as opposed to society
Based on usage and custom; is largely common law
2. Torts Distinguished from Other areas of Law
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While Criminal law and Tort law share a common heritage, they became distinctive as
differing as private and public wrongs.
Tort is based on civil proceedings, commenced and maintained by the plaintiff. Criminal
proceedings are run through the State.
Tort and Contract both give rise to civil actions, but the interests protected are different.
Contract breaches occur when mutually agreed upon terms are breached. An action in tort
arises when there is a breach of general principles of law instead of mutually agreed upon
terms.
There are civil wrongs that do not fall under tort law, such as trespass of property.
A single fact situation could give rise to tort, contract and criminal actions.
A tort is a civil wrong compensable by a common law remedy in damages.
A tort is not a crime, a breach of contract or an infringement of an equitable right,
although they could occur together.
3. Brief History of Tort Law
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In old Anglo-Saxon England, there was no distinction between crimes and torts.
Disturbing the peace (clans fighting) resulted in clans having to pay a bot to the other clan,
and a wite to the King. Appeasing clan pride and symbolically managing the land was the
whole point of the imposition of bots and wites.
This system eventually broke down. William the Conqueror imposed a “common law” on the
land— unified set of laws throughout the land. Feature of the Common Law was the writ
system.
The wrong/crime has to fit the format of a “writ”. If the wrongdoing did not fit a “writ” then
no action could be taken. Writs were issued by Chancery on behalf of the King. Eventually
the demand for writs grew.
Generally, liability in tort was based on moral liability. Generally it was, and remains today,
to be largely “fault based”. Must show the wrongdoing of the defendant.
Writ system abolished in 1870. Generally a plaintiff could proceed if he could show that his
facts justified relief under any recognized cause of action (a “head of liability”). Courts
reluctant to recognize new heads of liability.
By late 19th Century, academics generally identified torts as a distinct branch of law.
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Courts had to determine if they would expand the heads of liability for tort law.
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Donoghue v. Stevenson (1977 UK HL) - Considered first case to recognize and apply a
general theory of liability.
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“The liability for negligence, whether you style it such or treat it as in other systems as a
species of ‘culpa’ is no doubt based upon a general public sentiment of moral
wrongdoing for which the offender must pay”
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Anns v. Merton London Borough Council - identified a new approach to define the scope of
liability.
o “First one has to ask whether as between the alleged wrongdoer and the person who has
suffered damage there is a sufficient relationship of proximity or neighbourhood such that
in the reasonable contemplation of the former, carelessness on his part may be likely to
cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if
the first question is answered affirmatively, it is necessary to consider whether is any
considerations which ought to negative, or to reduce or limit the scope of the duty or the
class of person to whom it is owed or the damages to which a breach of it may give rise”
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It was felt that the two-step approach in Anns was too open-ended and it led to capricious (?)
results. It was overruled in England in 1990, but remains good law in Canada.
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Whereas the writ system’s challenge was to properly expand liability, now the challenge
seems to be in how to limit it.
4. The Bases for Imposing Liability in Tort
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Generally, there are four categories of actions:
1. intentional torts
2. negligence
3. strict liability
4. residual actions—such as defamation, nuisance.
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Rules for Tort Liability
o Absolute Liability—defendant is held liable if his conduct causes the plaintiff’s loss. No
defences. Essential issue is causation, not fault. No modern instances of this.
o Strict Liability—is liability in the absence of wrongful intent or negligence. I.e. product
manufacturers in some states. If plaintiff can show that the product injured them, the
manufacturer is liable if it was defective when it left the manufacturer. Also, employers
are liable for employee actions while on the job.
o Negligence—the failure to take reasonable care to prevent foreseeable harm to others.
Plaintiff must prove that the defendant failed to take reasonable care to prevent the risk
that caused the harm.
o Intentional Torts—is also based on fault. Plaintiff must show actual subjective intent on
the part of the defendant.
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5. The Functions of Tort Law
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There is no governing principle that dictates the proper goals of tort law.
compensation for harm, injury (DOMINANT MOTIVATION)
sanction injury and negligence, deter further accidents  either specifically or generally.
o complements Criminal Law system  seeks to influence conduct of citizens
o different burden of proof (civil)
o e.g. OJ Simpson case
o BUT Certainty of punishment is not there—not necessarily likely to have to pay for
committing a tortuous wrong
o Deterrence fails if damages flow to the customers without penalizing the wrongdoer.
Criminal sanction cannot be addressed in Tort law.
Tort litigation seeks to identify and remedy specific action of wrongdoers, and correct
personal injustice to victim
Mollifies plaintiff’s anger and resentment – civilized vehicle for securing vengeance.
Educational dimension  teaches litigants about requisite standards of conduct and the
need to recognize and accommodate the legitimate interests of others.
Accountability - e.g. holding tobacco companies and arms manufacturers liable
FUNCTIONS: COMPENSATION, PUNISHMENT, DETERRENCE, ACCOUNTABILITY,
CORRECTIVE JUSTICE, APPEASEMENT, VENGEANCE, EDUCATION
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Tort law has many failings including financial costs of litigation, inefficiency, small group
of plaintiffs who take action as well as succeed.
Insurance schemes have taken a burden from the courts by protecting many people, but if
defendant has no insurance, plaintiff may not be able to collect. Flaws with enforcement
and deterrent—complicated
Defendants must be worth suing
Those worth suing fall into three categories
o people or institutions with liability insurance
o large corporations or governmental institutions that are able to absorb the cost
o uninsured persons with personal wealth
CHAPTER 9—INTRODUCTION TO THE LAW OF
NEGLIGENCE
1. Negligence: defining terms
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Negligence—liability for careless conduct, as in its broadest sense.
In a more narrow definition, negligence refers to a specific sub-issue of every negligence
lawsuit.
There are no predetermined legal boundaries—not limited to particular kinds of conduct
The scope of liability in negligence is as wide or narrow as the judicial interpretation of the
tort’s
foundational concept, the legal duty to take care.
10
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Canadian judges have adopted a very permissive position on negligence. This plus liability
insurance = very popular, and most frequently litigated tort.
Negligence: need to show Duty, Standard of Care (and Breach), Cause, Injury (legally
recognized) – all on balance of probabilities
2. The Historical Development of Negligence
a. Nominate tort—trespass, battery, defamation; has a name is specific
b. Writ of trespass—the test was strict liability for persons or property, only had to prove that it
occurred, not that it was intentional (writ is a means to get into court)
c. A trespass on the case however required allocation of blame
d. Negligence actions began with people who held a duty to the public i.e. doctors
e. Soon evolved to include vehicle, carriage collisions
f. No major subsequent changes until Donaghue v. Stephens (snail in bottle case) p. 238
1. Established the universal theory of negligence
g. Negligence is now treated as a tort instead of a writ, but there must be an underlying theory to
support defining who should be able to claim
1. “you must take reasonable care to avoid acts or omissions which you can reasonably
foresee would likely to injure your neighbour. Who then is my neighbour? . . .persons
who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directly my mind to the acts or omissions
which are called into question”
3. The Elements of a Negligence Action:
a. Is there a duty of care? Is there an obligation to exercise care to the plaintiff given these
circumstances?
b. What is the standard of care? How should the defendant act?
c. Causation—defendant cannot be held liable unless his negligent conduct is a cause of the
plaintiff’s loss. Is there a cause in fact.
d. Remoteness of Damages—what is the proximate cause? The cause could be a tenuous one,
is it a foreseeable result?
e. Actual loss—the plaintiff must have actually suffered a loss
f. Defences—did the plaintiff’s own action play a role?
i. contributory negligence  partial defence
ii. voluntary assumption or risk  complete
iii. illegality  complete
iv. inevitable accident  complete
g. Damages
i. pecuniary
ii. non-pecuniary
Dunsmore v. Deshield (1977 Sask. Q.B.)
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π purchased eyeglasses which were to have “hardex” lenses. In fact, they were regular lenses; Played
football, they broke and injured his eye. He claims he would not have worn the glasses during the sport
if they were not “hardex”. The manufacturer and the retail outlet did not check if the lenses were in
fact “hardex”. The plaintiff did not check either.
Contributory negligence of the plaintiff must be shown by the defendant
Negligence of the defendant must be shown by the plaintiff
11
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In this case there was not enough evidence from the defendant to show that the plaintiff contributed to
the damages.
It was reasonably foreseeable that the plaintiff might play football with the glasses on—standard of
care.
Court found that the optometrist had a duty to ensure that the sent lenses were the correct ones.
What is the causation? The hit must have caused the non-hardex lens to break while it may not have
occurred if it had been a hardex lens
CHAPTER 10—THE DUTY OF CARE
1. Introduction to the Duty of Care
a) “The classical approach”
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Legal liability does not necessarily flow from a breach of moral responsibility
Common law courts would have left just results to the courts of equity
The notion of “love thy neighbour” was not as strong as “every man for himself”
The second premise of the classical view was political in nature. Legislators should enact
laws if they want to enforce the moral view.
The third premise concerned the theory of legal obligations. Illegal acts are actionable despite
the possibility of moral purpose.
The final premise is based on the value of interests. While physical injuries are always
compensable, loss of future profits or emotional loss may not be.
b) The General Duty of Care test
M’Alister (or Donoghue) v. Stevenson (1932 UK HL) – establishes principle of negligence
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A man bought a bottle of Ginger beer and gave it to his friend. She drinks it and finds a decomposed
snail in it.
There was a motion to dismiss this case, asserting that there was no case based on if there was a duty
of care or not
House of Lords wishes to identify an overarching principle on these negligence cases. Uses the notion
of “proximity” to measure “who is my neighbour”
Refines notion of proximity from Heaven v. Pender
There is no contract here to rely on, so they are using the “duty of care” approach to fill the void
Dissenting view is that there is no precedent basis on which to have a duty of care, is of the opinion
that contract law sufficiently covers the issue.
Majority advocates taking reasonable steps—not ensuring 100% perfection
What then is the standard? How much checking is required?
This case was watershed—pointed to in order to open up other categories
c) The Development of the Modern Law of Duty
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Negligence may well have been extended to include any act or omission that causes physical
injury.
The principle is deeply ingrained, and courts often simply assume that negligence law
applies.
Duty of Care can apply now for negligent financial advice
12
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Many other categories other than product liability
d) Anns and the Supreme Court of Canada
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Sets down important principles and ideas—largely restates Donaghue
Don’t need to set down a new specific category. Admits that there is a standard duty of care.
o is there sufficient proximity that there is a foreseeable risk of harm to another, (importing
love thy neighbour into law). (other countries have rejected this idea and reverted to
classical incremental approach)
easy to establish - onus then shifts to the defendant to demonstrate why the duty ought to be
negated or limited.
a prima facie duty will exist when there is sufficient foreseeability of risk of harm to another;
can be reigned in using public policy (ie proximity) and case law. (See p. 246)
Anns is a good example of a principled approach—adopting a basis premise of there being a
general duty of care
Other view is that Anns is too broad—the law should instead adopt a category by category
basis instead (principled approach) Either principled or classical approach can be used to
achieve ends
Cooper v. Hobart (2001 SCC) – reaffirms Anns/Kamloops test for duty of care
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π and many others invested money with mortgage company. Statute of BC allowed ∆ to investigate
complaints, suspend licenses of brokers, etc.; When ∆ suspended license, investors had already lost a
lot. π claims if ∆ acted faster, would not have lost so much
Did ∆ owe a duty of care to the π?
Clarifies two part test of Anns
o First Stage, two questions which lead to a prima facie duty of care (foreseeability and proximity)
 Was the harm that occurred a reasonably foreseeable consequence of ∆’s act?
 Any reasons, notwithstanding proximity, that tort liability shouldn’t be recognized?
o Second Stage
 Are there residual policy considerations outside the relationship of the parties that may
negative a duty of care?
 These considerations take into account the effect of recognizing a duty of care on society
as a whole
 Would this lead to unlimited liability to an unlimited class?
Sufficiently proximate relationships usually can be defined by categories, which are not a closed set
Court found that ∆ may have had foreseeability, but insufficient proximity; even if they had found duty
of care, it would have been negatived by policy considerations (indeterminate liability); Appeal by π
denied.
2. Application of the Duty of Care Test
a) Foreseeable Risk of Injury
Moule v. NB Electric Co. (1960 SCC)
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Kid climbs tree where there is a hydro line.
13
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Court finds that while it is reasonably foreseeable that at child would be likely to climb a tree, but since
this child used a ladder, and climbed to an unusual height, this particular circumstance was not
foreseeable, and the electric company did take reasonable precautions. Dismissed.
Amos v. NB Electric Co. (1976 SCC)
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Hydro wires and children in trees again.
This time, the court finds that it could have been reasonably foreseeable, distinguished from Moule on
the facts.
Differing facts included the type of tree, the lax tree trimming practices, this case involved only one
tree whereas Moule case the kid had to swing into the tree from another.
Reasonable foreseability is always arguable either way.
b) Foreseeable Plaintiff
Palsgraf v. Long Island Railway Co. (1928 NY CA)
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Fireworks accidentally go off through a series of accidents at a train station. There follows a series of
events that ends with a woman in the station being injured when scales on the other side of the
platform fall on her head.
“the eye of vigilance perceives the risk of damage”; “proof of negligence in the air, so to speak, will
not do”
Is it reasonably foreseeable that guards helping a man with a package would ultimately result in scales
falling on the head of a woman on the other side of the platform? No.
No need to address causation or proximity if there is no duty of care. In this case, there is no privity to
the woman as there is no way to know that she could forseeably be an injured party to the action of a
man helping another man with a package onto the train.
Haley v. London Electricity (1964 UK HL)
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Is it reasonably foreseeable that a blind man would be walking down the lane and could fall into a
construction ditch? (there were warning signs which he could not read)
There is 1 in 500 people who are blind. (What if it was 1 in 10,000?)
The test is objective—what would the reasonable person view as reasonable under the circumstances?
“I find it quite impossible to say that it is not reasonably foreseeable that a blind person may pass along
a particular pavement on a particular day”.
Blind man succeeds
CHAPTER 11—SPECIAL DUTIES OF CARE: AFFIRMATIVE
ACTION
1-2. Introduction to Special Duties of Care; Affirmative Action
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Misfeasance—injuries caused by positive acts
Nonfeasance—failures to act that cause injury
Duty to rescue was not enforced at common law. i.e. watching a child drown was not
actionable.
However, innocent acts (i.e. accidental trespass) could be actionable.
14
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In the late 20th Century, this began to change. The scope of liability increased dramatically as
many exceptions to the rule evolved. The Anns case stopped considering individual
exceptions and made instead a general 2-step rule (still contentious though) to permit liability
for negligence.
Duty is based on proximity—objective test of foreseeability of harm to the plaintiff. When
proximity is established, public policy must be taken into account.
3. The Duty to Rescue
Osterlind v. Hill (1928 Mass. SC) – no duty to rescue someone
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∆ rented a canoe to π, who was quite drunk. The canoe overturned, π clung to it for over a half hour, ∆
refused to save him.
It was not a crime to rent the canoe to a drunk man, nor was it a crime to refuse to save him.
Duty to not put an incapacitated person in harm’s way? If the deceased could hang onto a canoe for
half an hour he was not an incapacitated person.
Matthews v. Maclaren; Horsley v. Maclaren (1969 Ont. H.C.) – once a rescue is undertaken, the rescuer
has a duty to act
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A group of people partied on Maclaren’s yacht, all were intoxicated. Matthews and Horsley were
passengers.
Matthews falls overboard. Maclaren tries to back up the boat (wrong procedure).
Horsley dives overboard in an attempt to save Matthews. Horsley dies too as the water is freezing cold.
The court uses the Canada Shipping act—must rescue anyone in peril at sea, to analogise that
Maclaren did have a duty to rescue Matthews.
In any event, once a rescue is undertaken, the rescuer has a duty to act and thereafter will be liable
for his negligence.
This judge finds that the duty begins once passengers are invited onto the boat.
Drunkeness is irrelevant to issue of duty of care.
Burden is on the plaintiff to show that the defendant’s negligence was the effective cause of the harm.
The evidence did not indicate that Matthews could have been saved but for the negligence of the
defendant, therefore there can be no liability.
4. Duty to Control the Conduct of Others
a) Liability for the Intoxicated
Crocker v. Sundance Northwest Resorts Ltd. (1988 SCC) – duty to protect intoxicated
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Crocker and friend enter competition that involves going down moguls on inner tubes. They signed a
waiver. They got drunk before the competition. First time down C cuts his eye. The manager and the
owner knew that these two were drunk and suggested that they not compete. The ski company provides
more free booze. When C drunkenly drops his tube, they give him another one to use. Crocker breaks
his neck.
Finds waiver invalid as there being no notice of what was being signed.
Resort has a duty to prevent a drunken guy from participating in a dangerous event.
Relies on Jordan House, and others.
Ski resort is found 75% liable
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Drunkenness goes to duty of care
Uses conventional approach by drawing on precedent
b) Other Duty to Control Situations
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Other situations in which a duty to control may arise include: Master/servant relationships,
Employer/employee relationships, Occupier/entrant, Police or guards/prisoners, Coaches,
instructors, supervisors/students, Most common duty to control: parents or teachers/children
Usually the contentious issue here is not whether there is a duty to control, but whether the
standard of care has been breached.
c) The Duty to Prevent Crime and Protect Others
Jane Doe v. Metro Toronto Police (1998 Ont. Gen Div) – duty to warn
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Serial rapist attacks woman on 2nd floor of apartment building. Police knew existence of serial rapist
and identified Doe as being a likely victim based on modus operandi and neighbourhood in which she
lived; Police did not warn women in area so as to avoid “hysteria” spoiling investigation and to coax
offender into re-offending in order to catch him.
Policy v. operational decisions in crown organizations. Tort applies to operational, not policy
decisions.
Police had a duty to warn her, an effective warning could have been done without jeopardizing the
case.
The Police Act requires police to prevent crime, and at common law they owe a duty to protect life and
liberty.
Addresses foreseeable risk and foreseeable plaintiff—Anns test.
Duty to warn depends on the facts of the case.
Must be a very specific plaintiff group with a very specific risk—keeping the limits tight. Here,
these requirements were met.
Note 6—courts have begun to impose affirmative duties on private citizens to prevent crime.
5. Duty to perform gratuitous undertakings
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Generally no duty to undertake an act for another without reward, although once undertaken,
act must be carried through with due diligence, or be considered a misfeasance. Act should
not be undertaken if it cannot be completed or done correctly. (the Thorne rule)
Smith v. Rae (1919 Ont. CA) – no duty to attend to birth
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A husband contracts with a doctor to attend to his wife during childbirth. The doctor did not come at
the time he was required and the child died during birth.
The husband cannot sue in tort because he was not injured, and the wife cannot sue in contract because
the contract was with the husband.
They consider this to be a contractual matter.
Zelenko v. Gimbel Bros. Inc. (1936 NY SC) – duty once you start to help
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The defendant administers emergency aid to the (now dead) plaintiff. The defendant keeps the plaintiff
6 hours instead of taking him to a hospital which was where he really needed to go.
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If you say you will help, and then do nothing, you can be liable.
Plaintiff succeeds
Soulsby v. Toronto (1907 Ont. H.C.) – no duty to post guard
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Toronto normally posts a gate attendant at a railway crossing, who opens the gate when it is safe to
cross. One day there is no attendant, and the gate is left open. The plaintiff assumes all is clear, crosses,
and gets hit. Is the city liable?
There is no specific duty to either post a guard or to keep the gate closed at the time of approaching
trains.
Defendant succeeds
CHAPTER 12—SPECIAL DUTIES OF CARE
1. Introduction
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There are two approaches, the Anns Approach (general approach), or a more common-law,
principle based approach that can be used in order to find an analogous situation, or at least a
similar enough situation to extend the duty.
Either approach can used to find a duty.
Anns approach has not been used by the SCC to find any of the following “special duties” of
care.
2. Duty of Care Owed to Rescuers
Horsley v. MacLaren (1972 SCC) – was there a separate peril created by negligence?
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Same facts as Matthews v. MacLaren. That case found that there was a duty of care of a captain to his
gratuitous passengers. In this case the issue is whether there was also a duty of care to Horsley, a
would-be rescuer.
Foreseeability does not go to the rescuer. However, “if a person by his fault creates a situation of peril,
he must answer for it to any person who attempts to rescue the person who is in danger.”
Unless it’s wanton and reckless, the rescuer who is killed or injured in the attempt can recover
damages from the one who is to blame for the bad situation.
If a rescue attempt is being botched (creating a new peril), then the one who becomes an intervening
rescuer can claim against the one who is responsible for screwing up the first rescue. I.e. did Horsley
feel the need to rescue Matthews because MacLaren was doing such a poor job of rescuing?
Matthews fell overboard by his own doing, not the doing of the captain.
Was Horsley jumping into the water the result of MacLaren’s poor rescue (a separate peril) or the
direct result of Matthews falling in (original peril)?
o Test: Was there a separate peril created through MacLaren’s conduct? No.
o If there was, was it brought about through negligence?
o Was the rescue wanton or reckless?
o MacLaren was not found to be negligent in his rescue attempts, so Horsley’s death was a result of
his own actions, or the actions of Matthews.
3. Duties Owed to the Unborn
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Four kinds of claims related to the unborn:
17
1. Preconception Wrongs—exposure to toxic chemicals that caused injury to ova or
sperm that led to genetic defects.
2. Wrongful birth (mother’s claim) / wrongful life (child’s claim) - physician
carelessly fails to inform a woman that she faces an unusually high risk of giving
birth to a child with disabilities. Denied mother opportunity to make an informed
decision.
3. Wrongful pregnancy – Based on general principles of medical negligence. Involves
carelessly performed abortions or sterilization. If child is born healthy, courts
unlikely to award childcare, but if disabled they might.
4. Prenatal injuries—i.e. if there is a car crash, the infant can sue the one to blame
when born with injury as a result. Child must be born to claim damages. However, a
mother is not liable for injuries to a child resulting from her use of cigarettes or other
“lifestyle choices” including bad driving. See Dobson v. Dobson. No SCC decision
on liability resulting from illegal activities causing injury to fetus, such as drugs—
possible distinction from Dobson.
Dobson v. Dobson (1999 SCC) – mother not liable to fetus for “lifestyle choices”
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plaintiff child sued mother for prenatal injuries as result of her negligent driving
Court held she owed no duty of care to fetus  justified on policy grounds: liability
couldn’t be constrained to motor vehicles; would lead to judicial scrutiny of all prenatal activities
4. Nervous Shock
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It is difficult to define nervous shock, distinguishing it from daily emotional upheavals
involving grief or sorrow.
What is the scope of recovery? Should all those who suffer nervous shock arising from the
defendant’s negligence be entitled to recover?
The notion of proximity and reasonable and foreseeable are proxies to one another. The Anns
approach uses the term “foreseeable”. Does forseeability necessarily lead to proximity?
3 factors go to forseeability (hence to proximity):
1. Physical injury or fear for personal safety—if exists, will be foreseeable that shock could
result (primary victims).
2. Witnessing something bad occurring to a relative. Shock is foreseeable (secondary victims)
3. Trauma from rescuing a trauma victim. Shock is foreseeable (secondary victims)
UK HL held duty of care depended on three-part test for secondary victims:
1. proximity of relationship
2. proximity of time and space
3. hearing or seeing the event or its immediate aftermath with unaided senses
Rhodes v. CNR (1990 BCCA) – proximity was too far for shock
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Son killed in train derailment. Mom denied access to site, missed memorial because of staff
misdirection. Mom now has a psychiatric illness, purportedly as a result of this disaster.
What is the connection between the harm caused and negligence?
Did not see son at all, did not see crash site, it was unfortunate that she missed the memorial service.
Negligence did contribute to the resulting psychiatric condition, but in this case, the proximity was too
far. ∆s didn’t owe her a duty of care.
Proximity and forseeability are the same thing.
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5. A Health Professional’s Duty to Inform
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Doctors may be held liable in negligence for breaching their affirmative duty to disclose the
risks of proposed treatment, as patients rely on this information in order to make decisions.
Material Risks—big harm/low risk, or low harm/big risk – must be disclosed, as well as
non-material risks that might be of particular concern to a particular patient.
Patient must show that a reasonable person would have refused treatment if aware of the
risks.
Patient would prefer a subjective test, but now it is an objective.
Haughian v. Paine (1987 Sask. CA) – didn’t advise patient adequately of options
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Patient suffers paralysis following back surgery. Did the doctor meet a duty to inform of the risks of
disc surgery? Risk of paralysis is 1 in 500. Doctor’s policy is only to inform of risks that are 1 in 100
or less.
Since consequence is high, than the duty to inform also increases.
The doctor should have told the man of the risk of paralysis, since that effect is so serious. As a result,
the man did not give an informed consent to the procedure.
The doctor was also found to not have advised adequately of all the available alternative options
involving more conservative management. Appeal allowed, judgment for π.
6. Manufacturers Duty to Warn
Hollis v. Dow Corning Corp (1995 SCC) – learned intermediary, duty to warn
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The warning of breast implant rupture on product packaging only discusses warning as related to
surgery.
Surgeon is not aware of fact that there are 60 women who have had implants rupture after
implantation.
Warning must be clearly communicated as to risks related to normal use
Policy issue is to shift risk to the manufacturer as opposed to the consumer, as manufacturer is in a
better position to know risks.
Since manufacturer is in a better position to be aware of the risks, they have a duty to be forthright as
to all the risks
Greater risk=higher duty to warn
“learned intermediary” rule—the intermediary must be brought up to the level of knowledge of the
manufacturer
Just because doctor wouldn’t have informed patient, there is still a duty of the mfg. to inform doctor.
Dow was aware of the risk of rupture but did not tell doctors nor put a full warning on its packaging
While doctors have a fiduciary duty to their patients, manufacturers do not and should therefore
be brought to a higher standard. Appeal dismissed; judgment for π.
7. Duty of Care Owed by Barrister
DeMarco v. Ungaro (1979 Ont. HC) – lawyer not immune to civil action
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Are lawyers immune from a negligence claim based on their performance in a civil case?
Categoried approach considers an older UK case on the issue.
Assume that a duty of care exists—not mentioned.
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Either approach can be used to achieve same result
Doesn’t think the UK case applies—gives a number of policy reasons as to why lawyers should be
held to a duty care in a negligence suit against them.
Result: a lawyer is not immune from action at the suit of a client for negligence in the conduct of the
client’s civil case in court. “An attorney must exercise reasonable care, skill and knowledge in the
conduct of litigation . . . and must be properly diligent in the prosecution of the case”.
CHAPTER 13—SPECIAL DUTIES OF CARE: NEGLIGENT
MISREPRESENTATION
1. Introduction
This chapter concerns itself with liability for written or oral representations that are incomplete,
erroneous, or negligent. While the potential for damage resulting from actions is usually readily apparent,
damage flowing from statements may not appear in the time, place and to persons in which they were first
made.
Negligent misrepresentations tend to foster pure economic loss, rather than physical damage. Liability
does not traditionally flow from negligent statements unless they were made in the context of fiduciary
duty, contract breach or deceit. Hedley Byrne case recognized that a “duty of care” with respect to
representations and statements may arise within the context of certain relationships. Such breaches may
constitute grounds for “concurrent liability”, or the ability to sue in both tort and contract.
2. Negligent Misrepresentations Causing Pure Economic Loss
Hercules Management Ltd. v. Ernst & Young (1997 SCC)
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E&Y, respondents, were accountants who (carelessly) prepared financial statements for two companies
(NOT the appellants, who were shareholders in the two companies). HM relied on these statements to
make some personal financial decisions, and lost money. The question is whether or not the
respondents owed a duty of care to the shareholders of the companies for whom the statements were
prepared.
Court applies the 2-step Anns/Kamloops test to determine if a duty of care existed. (proximity
[foreseeable plaintiff, foreseeable damage] and policy considerations)
The court finds that a prima facie duty of care existed to the shareholders, as a group, in order to
make management decisions for the company that they were prepared for.
Policy considerations in this case limited extending the duty of care to the shareholders for the
purposes of making personal investment decisions.
To find otherwise would expose auditors to indeterminate liability, which would be too broad of a
group for them to be reasonably responsible to.
3. Negligent Misrepresentation and Contract
a) Concurrent Liability in Tort and Contract
BG Checo International Ltd. v. BC Hydro & Power Co. (1993 SCC) – concurrent liability

Checo accepted a tendered contract to erect transmission towers and power lines. Prior to accepting the
contract, the Hydro representative showed Checo’s rep a partially cleared right of way and indicated
20
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that the road would be cleared prior to the commencement of Checo’s work. The road was not cleared,
and Checo went to a lot of expense to clear it so they could perform their work. The contract made no
written allocation of the responsibility to clear the road. Checo sues Hydro for expenses related to the
clearing asserting that a negligent misrepresentation was made (tort) and for breach of contract.
Issue surrounds whether Checo has the right to sue in both tort and contract.
Here, the negligent misrepresentation was also a contractual term. Because the representation was part
of the contract, does that cancel the ability to also sue in tort?
The contract did not limit the duty of care owed by Hydro to Checo. Nor did Checo waive its right to
sue in tort. Parties should limit liabilities in their contracts if that is their intention.
Thus, the SCC majority finds that Checo may sue in both tort and contract on the basis of the negligent
misrepresentation.
b) Pre-Contractual Misrepresentations
Queen v. Cognos Inc. (1993 SCC) – five requirements of misrepresentation
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The appellant, gainfully employed in a secure job, applied for a job with the respondent. The manager
made many representations as to the positive outlook for the position. The appellant accepted the job,
and moved across the country with his family. Eighteen months later, the respondent terminated the
appellant.
The appellant asserts that the manager made negligent representations and he suffered damages as a
result.
Action is for the tort of negligent misrepresentation.
Court applies Hedley Byrne doctrine to the facts of this case. There are 5 general requirements;
1. There must be a duty of care based on a “special relationship” between parties
 Yes, there was a duty of care to the prospective employees to not make
negligent misrepresentations as the nature and permanence of the position.
The respondent conceded to this point.
 It was foreseeable that the interviewees would rely on the information given
in the interview and rely on it for making their career decision.
2. The representation must be untrue, inaccurate or misleading
 Factual finding of trial decision undisturbed
3. The representor must have acted negligently in making the representation
 Court finds that the assertions were made carelessly
4. The representee must have relied on the representation
 Factual finding of trial decision undisturbed
5. The reliance must have resulted in detriment, and damages resulted.
 Factual finding of trial decision undisturbed
All 5 criteria met, the appellant succeeds against his former employer.
The fact that the alleged negligent misrepresentation are made in a pre-contractual setting, such as
negotiations or, as here in an employment interview, and the fact that a contract is subsequently
entered into, does not bar an action in tort for damages caused by the misrepresentations.
The subsequent contract is still important for determining the extent to which the parties wish to be
held liable in tort. The liability can be limited or excluded.
21
CHAPTER 14 - Recovery of Pure Economic Loss in
Negligence
1. Introduction
Focus is on economic loss that is not dependent on personal injury or property damage.
Recently, SCC has adopted a taxonomy that classifies economic loss into 5 categories. Each of these
categories takes into consideration difference policy issues.
1. Negligent misrepresentation (see above)
2. Independent liability of statutory public authorities
3. Negligent performance of a service
4. Negligent supply of shoddy goods or structures
5. Relational economic loss

POLICY ISSUES around pure economic loss (reasons to limit)
i. volume and magnitude of financial losses that can arise from property damages
ii. claims may be grossly disproportionate to the negligence
iii. difficult to prove
iv. not so wise to collect broad claims and redistribute them through the ∆’s
insurance to another broad group
2. New Categories of Pure Economic Loss
5 Categories above are not closed. Courts may recognize a new category/type of duty of care.
Although, Martel applies Anns test, courts would now use Cooper test.
Martel Building Ltd. v. Canada (2000 SCC) – policy reasons for limiting economic loss cases

π leased a building from the ∆. When lease was going to end parties started to negotiate re renewal. ∆
led π to believe that it would be amenable to renewing on certain terms, then wouldn’t, and issued a
call for tenders.
 Court discusses that traditional reluctance to create liability for economic loss. This case does not fall
in any of the categories that do recognize economic loss. Should there be negligence in conduct of
negotiations?
 Court applies Anns test 1) Foreseeability and Proximity. :
Looks at foreseeability that actions of ∆ would cause economic loss to π. Note that this does mean that
any “negotiation” type activity automatically gives rise to a duty of care.
2) Policy considerations.
 Finds that there are policy justifications negate the duty of care.
 A negotiating party should not have to be mindful of another commercial party’s interests when
negotiating at arm’s length. A lot of policy justifications drive off fact that this is a commercial
relation and how court should be involved
 Indeterminate liability is not the driving issue here as the class of potential claimants is limited to
party negotiating with and damages to transaction being negotiated.
 Court sets out 5 policy justifications that preclude extending tort of negligence into
commercial negotiations.
1. Someone wins and someone loses in negotiations. Goal is to achieve most advantageous
deal. No real economic loss to society, just transfer of wealth between parties.
22
2.
3.
4.
5.
Useful social and economic relations might be discouraged. Discourage economically
efficient conduct. “Hard bargaining”. Someone usually has upper hand in negotiations.
Tort law should not be used as an insurance scheme for unsuccessful negotiations.
It would introduce the courts into examining every detail of pre-contractual negotiations.
There are already doctrines, such undue influence and economic distress, to deal with
these issues.
Don’t want to encourage unnecessary litigation.
3. Negligent Performance of a Service

Principles mirror those of negligent misrepresentation. There is often a fine line between
representation and services because advice is a form of service.
B.D.C. Ltd v. Hofstrand Farms Ltd. (1986 SCC) – no reliance on representation


Appellant is a courier company. They were contracted by Province of BC to deliver an envelope to
Prince George; didn’t know how important it was to deliver on time; delivered late, and R suffered
economic loss
Court Applied Anns test but added to foreseeability.
 Proximity: No relationship of proximity. The courier did not know of the existence of the
respondent, that nature of the document or that a third party would be effected. No foreseeable
π.
 Policy: If duty of care was extended to the respondent, based on idea that this respondent
should be within the reasonable contemplation of the appellant, there would be no
logical/practical limitations. Added reliance component. Uses Hedley Bryne - Finds that there
was not reliance of respondent on the appellant based on the representations or
undertaking of the appellant.
 The courts should be moving towards the Cooper test, so the test for this category should be
cooper plus consideration of reliance in policy section. In this special category, when looking
at foreseeability under duty of care need to look at reliance.
 Cooper test: Was the harm that occurred the reasonably foreseeable consequence of the
D’s act?
4. Negligent Supply of Shoddy Goods or Structures


There is a claim of negligence if due to supply of shoddy goods or structures the π suffers
personal injury or property damage.
Problem is when π cannot show privity of contract and π has suffered economic loss rather
than personal injury or property damage, as a result of shoddy goods or structures. Can’t
show privity of contract because never had contact with ∆. ∆ had contract with someone
else, then π bought goods/structure from.
Winnipeg Condominium Corp. No 36 v. Bird Construction Co. – duty of care in dangerous struct.



D was hired by land developer to construct apartment building; Years later Appellant bought and was
converting to condos.
Can a general contractor be held liable for negligence to a subsequent purchaser of the building, who is
not in contractual privity with the contractor, for the cost of repairing defects in the building arising out
of negligent construction?
This falls in fourth category – shoddy goods and structures but with caveat – that the construction was
dangerous. This is the cornerstone of policy analysis.
23






Finds that if contractor, etc is negligent in construction of building and this leads to defects that
presents danger, then the reasonable costs of repairs are recoverable in tort under negligence.
Applies Anns test
o Is there a sufficient relationship of proximity between ∆ and π that the ∆ reasonably should have
known that carelessness would result in damage to π?
o If yes, are there any policy issues that should negate/limit (this was the first time policy concerns
were introduced into duty of care) Finds no policy issues because indeterminate class: Potential
class of Ps is limited to owner and inhabitants of building
o No risk of indeterminate amount because it will always be limited to reasonable amount to fix
building of dangerous defects.
o No risk of indeterminate time because limited to usefulness of the building. With time hard to
blame on contract and not just age
o Contractor should also be held liable to owner who discovers the danger and wants to
mitigate it by fixing it. Thus, contractor responsible for economic loss suffered in making
repairs.
Duty of care is not negated by existence of contract with another party. Duty to construct building that
is safe is outside of contractual relations. Thus, contract between contractor and original owner should
not shield contractor re duty to other owners because foreseeable risk and π.
Contractor has duty of care to subsequent owners for take reasonable care in constructing building to
ensure it does not contain defects that pose a foreseeable and substantial danger. Contractor must pay
for repairs.
Restricted to shoddy goods and structures that are dangerous. How shoddy goods and structures that
are not dangerous should be dealt with is not clarified by this case.
Must there always be a “real and substantial danger” in order for there to be a duty of care? P. 383-4.
Not in Australia, but yes in Canada.
5. Relational Economic Loss

Situations in which the defendant, as a result of negligently damaging property belonging to a
third party, also causes pure economic loss to the P with whom the third party shared a
relationship.
Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. (1997 SCC) – three categories








Heat trace system required to prevent pipes from freezing was negligently made, and wasn’t fireproof.
Court allowed appeal by BVHB, but not two other parties that suffered only economic loss
Relational economic loss is recoverable only in special circumstances where conditions are met.
Circumstances are defined by categories. Categories are not closed.
McLachlin wants to use the Hercules test.
LaForest wants exclusion unless falls in 1 of 3 categories.
1. cases where the claimant has a possessory or proprietary interest in damaged property
2. general average cases (averaging out loses involved – very specific to throwing goods in
water),
3. cases where the relationship between the claimant and the property owners is a joint venture
(but this is very difficult to define – MacLauchlin and LaForest can’t decide on this. It would
be a debate in SCC).
This case (McLachlin) combines both approaches. If not in one of 3 categories then apply Anns.
BUT Majority comes along and says thanks but we’re not listening to that, we’re just going to keep
using the three categories approach.
If had case like this on exam, can just indicate how things have changed and how could/would deal
with given case.
24
CHAPTER 15—THE STANDARD OF CARE
1. Introduction



Did the defendant fail to meet the expected level of conduct given the circumstances?
Judge must determine as a matter of law what standard of care (determined to be the
community expectation of reasonable conduct in the circumstances) was the defendant
required to meet, then
Jury or other trier of fact must determine if the defendant breached this standard.
2. The Common Law Standard of Care: The Reasonable Person Test
Arland v. Taylor (1955 Ont. CA) – reasonable person



Judge charges jury to “put themselves in the driver’s seat” when determining if the actions of the
driver were negligent. Was this charge incorrect?
This was incorrect because the standard of care by which a jury was to judge the conduct of parties is
the care that would have been taken in the circumstances by a “reasonable and prudent man”, not what
they personally would or would not have done.
“reasonable man” standard is not a standard of perfection, courts have distinguished between
negligence and non-negligent mistakes and errors of judgment
3. Factors Considered in Determining Breach of the Standard of Care

Two most important factors:
o Probability of injury and
o The likely severity of injury stemming from the defendant’s alleged negligent act.
a) Probability and Severity of the Harm
Bolton v. Stone (1951 UK HL) – risk of harm is minimal




π walking by a cricket play area was hit a struck by a stray cricket ball. Did the cricket players fail to
meet the proper standard of care?
There is foreseable harm/plaintiff—there is a duty of care
However, here, the risk of stray balls, and the risk of a stray ball actually hitting someone is so low,
that the reasonable person would ignore it.
The cricketers succeed; ∆’s appeal allowed
Paris v. Stepney Borough Council (1951 UK HL) – more serious the danger, more thorough




Does employer’s standard of care include supplying goggles to one eyed employee?
Majority finds “yes”
Dissent: Need to take into account likelihood of accident and the gravity of the consequences. The
more serious the damage, the more thorough the precautions should be.
Employer owes this precaution to every employee, so if not negligent in providing them to everyone
else, then not negligent for one-eye.
25
Miller v. Jackson (1977 UK CA) – low risk, low harm & reasonable steps taken



A cricket field used as such for over 70 years. Building developers build homes directly next to the
field.
Some balls hit the homes occasionally. The cricket club bends over backwards to appease the home
owners—puts up an expensive fence to catch balls, offers to install tough windows, offers to pay for all
damages. Homeowner can’t stand it and refuses all offers. Wants the club shut down.
Here there is found to be a low risk, low harm, reasonable steps have been taken. There is a duty of
care, but the standard is met. No injunction granted.
b) Cost of Risk Avoidance
Vaughn v. Halifax-Dartmouth Bridge Comm. (1961 NSSC) – were all reasonable measures taken?



Painting of a bridge results on paint being splattered all over the cars/dockyard below. No preventative
measures taken. Were all reasonable measures taken to prevent foreseeable harm to the foreseeable
plaintiff?
No, they could have warned people, which was not done.
Looks at past behaviour as indicative of standard – is this a good idea?
Law Estate v. Simice (1994 BCSC) – severity of harm is greater than expense






P sued claiming husband died because didn’t get needed CT because financial concerns of doctor.
Negligent.
Financial guidelines in place by insurance organizations.
Dr. responsibility to patient must come before responsibility to medical system. The severity of
harm is far greater than spending $.
Even though healthcare system as a whole would be injured, the harm from one CT scan would be
minimal and the benefit would be great
But, this wouldn’t be a one-time deal, though – lots of cases in which to do CT scans, so the impact as
a whole would be large
What happens if you impose liability?
o If it’s true that the guidelines are correct, very few should be injured by lack of CT exam
o Society should compensate individuals for falling through the cracks of the system
o Might be only way to have guidelines revisited – otherwise never see who is hurt by them
o Could be longer waits and poorer outcomes
c) Social Utility
Watt v. Hertfordshire County Council (1954 UKCA) – social utility makes risk acceptable



Fireman had to drive truck with a jack on it to the scene of an emergency. However, the usual truck
was inoperable and the replacement truck was not designed to carry the jack especially. The driver
braked hard and the jack slid off the truck and injured the plaintiff.
Denning: Because it was an emergency and the jack was needed to save lives, the risk of taking the
jack was acceptable. The risk in sending the truck was less than the risk to life by not sending it at all.
Defendant succeeds
26
4. An Economic Analysis of the Standard of Care



Generally, if the costs of prevention are excessive given the risks (low), a defendant cannot
be faulted for not having prevented the accident.
However, liability cannot be simply reduced to a purely economic equation. Usually, limited
financial resources is no excuse.
Secondarily, there are non-financial considerations at stake, such as health, life, freedom,
privacy which may also carry great significance.
US v. Carroll Towing Co. (1947 US 2nd Circ.) – learned hand approach to prevention







An unattended barge broke loose and causes damage. There was no attendee on board during daylight
hours. This case considers 3 variables in determining if there was a breach of the standard:
o Probability/risk
o Severity of possible harm
o Potential cost of remedy (burden of adequate precautions)
If more expensive to prevent the loss than to compensate the loss then don’t have to prevent it.
o P=probability; L=injury; B=burden
o if B < PL then there is liability  should this be required, then?
o If B > PL  should ∆ be required to buy the safety widget? If not, should he still pay? Does this
change the risk involved in the activity
o Whoever it is cheaper to prevent the injury should take on that responsibility, regardless of their
actual ability to pay.
Two questions of standard of care: standard related to thing you are doing (fault) and also strict
liability;
Must also consider the industry standard, standard of the profession, custom. This is a consideration in
determining the standard, but it is not determinative.
However, the entire industry standard may be too low
This case finds that there should have been a “bargee” on the boat during daylight hours.
This kind of approach takes out some sense of moral fault/fault of the actor. Fault is only about
assessment of risk and costs of prevention.
5. Special Standards of Care
a) The standard of Care expected of the Disabled
Fiala v. Cechmanek (2001 Alta. CA) – mental illness negates liability if no capacity to understand






MacDonald out for a run. Has first manic episode that is later diagnosed. Breaks sun roof and attacks
woman. She steps on gas and hits car. Was MacDonald liable?
Finds no because never happened before; no way to anticipate.
In order to be relieved of liability when a D is afflicted suddenly and without warning with a mental
illness D must show either of the following on the balance of probabilities:
o As a result of mental illness, the D had no capacity to understand or appreciate the duty of
care owed at the time.
o As a result of mental illness, the D was unable to discharge duty of care as he had no
meaningful control over actions at the time the relevant conduct fell below the objective standard
of care.
Won’t totally erode reasonable person test.
Court goes through some of arguments re purpose of tort law. Compensation, socially desirable
behavior, issue of fault etc. p. 418 note 5 – physically disabled
What about if you knew you had a mental illness? Court doesn’t say – this decision is very specific.
27


Could argue that if you knew you had a duty to care
Could argue that you couldn’t do anything anyway...etc.
b) The Standard of Care Expected from Children
Joyal v Barsby (1965 Man. CA) – normal reasonable standard of a 6 year old




Driver slows down when he sees children playing near the road. Kid jumps in front of the car the
moment it approaches.
Kid is held to standard of what a “normal reasonable” 6 year old kid would do. The majority finds the
child not negligent. She was scared by the horn.
Dissent would allocate 40% liability onto the child.
If children perform adult activities (like driving), they will be held to the adult standard of care
c) The Standard of Care Expected of Professionals

Courts are developing a standard of special modified standards of care for professionals as
well as most skilled trades and occupations.
White v. Turner (1981 Ont. CA) – standard of care is custom of profession



A breast reduction operation goes wrong, breasts are misshapen, and not enough reduced. Doctor did
operation in 90 minutes as opposed to the standard 4 hours.
Using the professional standard, or custom, as given by other doctors, the doctor was held to not have
fully met the standard of care.
The profession’s peers essentially set the standard.
6. Degrees of Negligence


Usually, there is only one standard—that of a reasonable person. However, some statutes
impose liability for only specified degrees of negligence. Despite this, the courts have
imposed liability for gross negligence even if the defendant was merely negligent.
Gross negligence = something less blameworthy than criminal negligence, but worse than
ordinary tort negligence
7. Custom


Usual rule (p. 431 #2) = evidence of standard of care, but not conclusive (can rebut this and
show what the standard of care SHOULD be); e.g. 85% of people speed, but not what
reasonable person would do.
Does this same rule apply in health care? There is a threat, but people have always done
otherwise. When is the right time to change the practice?
28
TerNeuzen v. Korn (1995 SCC) – standard of care is custom of profession, unless it’s too low




Patient contracts HIV from Artificial Insemination performed in 1985 before screening for AIDS
began.
Must consider the circumstances at the time of the injury. At this time, it was not unreasonable for the
sperm to not have been tested for HIV as it was not a known disease. The doctor cannot be held liable
as a result.
SCC found that doctor had acted in conformity with colleagues.
 Standard practice is determined by experts. Issue is just whether doctor conformed to
this.
 “Generally accepted that when a doctor acts in accordance with a recognized
and respectable practice of the profession, he or she will not be found to be
negligent”
 Then the issue is whether the standard itself is negligent. Is it fraught with obvious
flaws? This is not determined by experts but rather by trier of fact. If so they you
can be held liable. This not found in this case.
 Sent back to trial to determine what standard of care is for ST diseases. Didn’t have
enough evidence to determine if dr had acted in accordance with standards for this.
Ratio: Standard of care that which is customarily used by colleagues. First look at if met that
standard and then is the standard is appropriate. If met standard but not appropriate still liable.
Spring 2007
Chapter 16 – Causation
1. Introduction
I.
Did what the ∆ do actually cause the loss?
a. Causal link between what the ∆ did and the π’s loss
b. Two part test: (but there are pretty much always multiple causes)
But for test: But for actions of one party would the other have sustained the injury? Easiest to apply
when just one action. In some cases it is just so obvious that one factor is the key factor so that is
why they apply this test.




Material contribution test– when more than one cause. De minimis standard.
The plaintiff must demonstrate, on the balance of probabilities, that the defendant’s careless conduct
caused their loss (Solomon).
In trial, issue is usually about trying to prove factual causation, not which is legal tes.
A problem/policy issue with causation is that tort law is all or nothing – either liable or not. No
principle to let us say someone is only partially liable unless you can show contributory negligence.
This makes it hard sometimes for judges to make a decision. Can be solved by apportioning to
multiple defendants.
In Sindell v. Abbott Laboratories (1980 Cal S.C.), court allocated percentage of drug-related liability
based on market share to manufacturers
2. Determining the Cause
a) The But-for test
29
Barnett v. Chelsea & Kensington Hosptial Management Committee (1969 QB) – articulation of but-for
test




π’s husband goes to hospital because ill and thinks has been poisoned; Sent home without tests; Later turns
out he was poisoned. Dies.
Did the hospital cause the death by failing to do examine/tests?
No: on the balance of probabilities he would have died anyways cause even if did exam would have died
before got results
Assessment of causation is a factual question that is commonly determined according to the “but for” test.
According to this test, causation is satisfied if the defendant would not have suffered their loss but for the
careless actions of the defendant. Usually for ONE CAUSE
b) The material Contribution test
Walker Estate v. York – Finch General Hospital (2001 SCC) – material contribution test






π contracted HIV from blood transfusion; Donor claims would not have given blood if had the right info re
the fact that he was high risk; Issue is regarding whether or not the pamphlets used to inform donors were
sufficient; 1983 – pamphlet; 1984 – better pamphlet; American pamphlet – talks in more detail; What
standard should Red Cross have used?
If they had used a different pamphlet would this have prevented donor from donating and as such plaintiff
would not have got HIV? Is there causation?
Trial court finds that donor would have given blood anyways; Moves to material contribution test; π has to
prove that failure to screen donor materially contributed to getting HIV; SCC says appropriate standard is
American pamphlet and determines that if used donor would have refrained from donating. Causation
satisfied.
Shows how if the standard of care is different it really effects causation – now that standard is changed,
there is causation (NB: no evidence that donor would have changed behaviour anyway, SCC goes there
anyway)
Case is illustration of when to use different causation tests; but for test is unworkable when there are
multiple, independent causes
Alternatively, in cases in which several causes combine to result in the plaintiff’s injury, causation may be
determined according to the material contribution test. According to this test, it is not necessary for the
defendant’s actions to be the sole cause of the damages suffered by the plaintiff, rather material
contribution is established if their actions caused or contributed to the damages (Athey).
c) Materially Increased Risk – Inference of Causation
McGhee v. National Coal Board (1972 HL) – burden of proof on defendant




π works in kiln, develops dermatitis; was no shower a cause? HL impose liability despite lack of proof by
experts;
switched burden of proof to ∆ to prove injury wasn’t caused by lack of shower
In some circumstances, material increase in the risk of injury may be equated to a material contribution to
the injury sufficient to establish cause-in-fact.
Proof by π that ∆ was negligent + proof that π’s loss was within the scope of risk REVERSES burden of
proof of causation
Snell v. Farrell (1990 SCC) – once π proves breach of duty, ∆ has to disprove causation; inference of causation

Snell: Cataract operation. Eye bleeding. Still does surgery; π blind afterwards
30




Was the blindness caused by the operation or some natural occurrence? Did the actions of the ∆ materially
increase the risk of harm/injury? Burden is on the doctor to disprove causation.
Once π proves there has been a breach of duty of care and risk created by the ∆ is within the realm of
possibility, then ∆ has to disprove. Called inference of causation and inverse of burden. ∆ has to show
that on the balance of probability that you didn’t cause it or that something else caused it. (this inference
based method was first suggested in McGhee v. National Coal Board)
Makes important point that don’t have to show causation based on medical evidence.
In malpractice case, where the doctor has special knowledge, π can marshal that an inference can be drawn.
Doesn’t really shift the burden in that ∆ doesn’t have to shown on balance of probabilities that didn’t cause,
just has to rebut inference in some way. In practice this makes almost no difference.
d) Multiple Causation
1) Independently Insufficient Causal Factors
 Each of several factors combined is necessary for plaintiff’s loss. But, no single factor is individually
sufficient. But for the presence of the other factors the loss would not have occurred.
Athey v. Leonati (1996 SCC) – a tortious factor combines with a non-tortious factor.









π had preexisting back condition; sustained injuries to back and neck in traffic accident; ∆ was at
fault in the traffic accident; On advice of physician started fitness program; When he started
program (stretches) experienced disk herniation that resulted in permanent partial disability.
Whether a pre–existing non-tortious condition (i.e. his preexisting back condition) can reduce
liability of the defendant (traffic accident causer)?
Trial and BECAUSE Court of Appeal said yes and reduced liability by 75%. ; A appealed to SCC
SCC overturned the appeal and held the defendant 100% liable.
Long established the ∆ is responsible for any injuries caused or contributed to by his/her
negligence. The presence of other non-tortious contributing cause does not reduce the extent of
the ∆’s liability.
A π has never been required to establish that the ∆’s negligence was the sole cause of their injury.
There is no basis for a reduction in liability because of the existence of preconditions to the injury.
∆ is fully liable for the damages even if his action was not alone enough to create an injury but
was part of the cause of the injury.
Reasoning that it was necessary to have both the preexisting condition and injuries sustained by
the traffic accident in order for the disk herniation to occur.
Thin skull rule:

tortfeasor liable for all injuries even those that are unexpected and more severe than anticipated or
than would be expected of an average person. Must take victim as he is.
Crumbling skull rule:

only have to restore the person back to the condition that they were in before the injury not
compensate them to the point that they are not a person with a crumbling skull / i.e. their pre-existing
condition. Need not compensate the victim for any previous conditions. If there is a measurable risk
that the pre-existing condition would have detrimentally affected the π in the future, regardless of the
∆’s negligence, this can be taken into account in refusing the overall award.
Separating/division of injuries: if the injuries can be clearly separated then tortfeasors can be held
liable only for the injuries they cause. This is not really apportionment but holding each liable for the
31
injuries they caused according to the usual rules of negligence. Separation can be done when some
injuries are due to tortious causes and others to non-tortious causes.
Causation must be determined to be proven or not proven. This has the following ramifications:
1) If the injury would have occurred at the same time without the injuries caused by the D, then
causation is not proven.
2) If it was necessary to have both the tortious and non-tortious caused for the injury to occur then
causation is proven. This is because the injury would not have occurred without the tortious cause.
Even if the tortious cause played a minor role the D is still fully liable.
3) If the tortious cause alone could have caused the injury and the non-tortious cause alone could have
caused the injury it is unclear which was the cause-in-fact of the injury. The judge must determine, on
the balance of probabilities, whether the D’s tortious action materially contributed to the injury.
 In this case, court held that it was necessary for both the pre-existing condition and the injuries from the car
accident to cause the disc herniation. Thus the D materially contributed to the injury and is fully liable.
Nowlan v. Brunswick Const. Ltee (1974 SCC)– a tortious factor combines with another tortious factor
 ∆ was a contractor. He had been negligent in the construction of the π’s house. The house suffered extensive
rot due to leaks; ∆ claimed faulty designs were the cause; should ∆ be held fully liable for π’s damages?
 Poor design of architect and poor workmanship of contractor both contributed to the negligent construction
and damages.
 Where there are concurrent torts, breach of contract or breach of contract and a concurrent tort that both
contribute to the same damage, regardless of whether the damage would have occurred in the absence of the
other cause, the liability is joint and several. This means that either party causing or contributing to the
damage is liable for the whole damage suffered by the π.
 In this case, ∆ is a concurrent wrongdoer and the fact the damages might not have occurred if the architect
had put in proper ventilation is no excuse for ∆’s negligence. – ∆ fully liable.
 NOTE: If negligent acts are close in time, it may be practically impossible to divide them, thus treated as
joint and several and either tortfeasor fully liable. ∆ can choose to sue each separately or both together. If
successful in the latter approach, π could chose to get all damages from only ∆ only.
2) Independently Sufficient Causal Factors
 When the P is subject to several causal factors, each of which independently is sufficient to cause a certain
injury.
Penner v. Mitchell (1978 Alta. CA) – tortious and non-tortious acts that each alone could have caused
injury.
 Deals with issue of several causes of injury, some of which are tortious, others non-tortious.
 Trial judge awarded π damages for 13 months that she couldn’t work due to the tortious action. During that
13 months should would not have been able to work for 3 months, even if the accident/tort had not occurred,
because of a non-tortious cause. Appealed based on argument that π should not be compensated for 3 months
she would not have been able to work regardless of the tort; Should ∆ be held liable for all the damages, are
the damages caused by their tort, minus the impact of a non-tortious act?
 Court finds that π can only recover damages for 10 months wages.
 When you can clearly separate the factors that have influenced the damages claimed, you can only
recover for the tortious actions not the non-tortious acts.
 Brings up Baker case – P’s leg is injured when struck by car driven by D. Before goes to trial same leg gets
shot by bank robber and had to be amputated. Should the D who struck the P with this car be held liable for
entire injury or is he absolved because there was a subsequent tort that caused more serious injury? Court
holds the first D liable even though subsequent tort caused more serious damages.
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 When Damages arise from concurrent legal causes of successive wrongdoers the court should assess the total
damage, then should apportion as set up in Baker – that is, by applying the rule that a wrongdoer takes his
victim as he finds him and not treating the second tort as a relevant factor in assessing the damages against
the first. This allows the P to be compensated for the whole of the damages.
 But the issue in this case is whether this approach from Baker is applicable to the situation where the second
event is non-tortious circumstances. Court holds it should not. If the tortfeasor was held liable for the
damages arising from a non-tortious event, then the P would end up being over compensated. That is, getting
compensation for a circumstance for which there was no wrongdoer and as such they are not entitled to
compensation. In this case, the non-tortious event is a heart condition. Thus, the non-tortious condition
should be considered when assessing damages to be paid by the tortfeasor.
Dillon v. Twin State Gas and Elec. Co. (1932 New Hampshire SC) – independently sufficient conditions
 D maintained electrical wires over a public bridge. No current passed through the wires during the day,
except by chance; Children would sit on beam that is above the bridge; One day a boy fell from the beam and
to stop himself grabbed onto wires nearby and was electrocuted, fell and died
 Should the D be held liable for the death of the boy ? D’s only liability could be for the danger of the wires,
not for the boy falling.
 Court says that if the boy had not grabbed the wires he would have likely died or been seriously injured
anyways due to the fall (rather than the electrocution). So boy would have died either way.
 Court holds that if it was found that he likely would have died then no liability is imposed on the D. But if it
was found that he would have lived and been seriously injured then D is liable for the difference between
life with injury(which was not D’s fault) and death (which was D’s fault). – Breach of Standard of Care re:
wires, not duty to save him
 Court concludes that there is no clear evidence to indicate if he would have died or been seriously injured; if
he dies  nothing; if he survived  value of difference between severely injured and dead person’s
earnings.
 Doesn’t say  sent back to trial
Chapter 17 - Remoteness of Damages
1. Introduction
 Liability will be denied if the connection between the breach and the loss was too remote.
 Remoteness is a rule of fairness; about how far down the chain will you permit recovery? Where do
you draw the line?
 Policy: Courts have struggled to find a balance between the desirability of holding the D responsible
for a loss he carelessly inflicted and desirability of relieving the D of an unreasonable burden/scope of
liability ( similar in this way to duty)
 Remoteness is concerned with the legal connection (as opposed to factual with causation) between the
D’s breach and the P’s loss  based in policy thus arbitrary.
 Foreseeability relates to probability of harm
2. Directness v. Foreseeability
a) Directness Test
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Re Polemis and Furnessm Whity & Co. (1921 KB) – “directness” is test for remoteness
 D’s servant carelessly dropped a plank on P’s ship that contained benzene. Fire started, ship destroyed.
Court held that sequence of events were not reasonably foreseeable but still liable because direct connection
between breach and loss.
 Established the directness test, which holds the D responsible for anything that is direct result of D’s
actions. P’s injury are not too remote if they are the direct result of the D’s carelessness, even if they were
not foreseeable.
 Directness defined as a close temporal and spatial connection between the D’s breach and the P’s injury.
 This test has been criticized as unworkable, unfair, illogical and pro-P. Degree of D’s fault not related to
liability imposed.
b) Foreseeability Test
The Wagon Mound (No. 1) Overseas Tankship (U.K.) LTD. v. Morts Dock & Engineering Co. (1961
PC)
 The A were charterers of the Wagon Mound. They carelessly allowed oil to spill into harbour. Oil travels
across water to the wharf of the R. The R was welding and the oil caught on fire from spark. Severe damage
to wharf and equipment.
 At trial judge said that A couldn’t reasonably know that oil would catch fire in water.
 Rejects directness test from Polemis.
 Adopt of the reasonable foreseeability test.
 This may not change the outcome of most cases but will hopefully simplify the law and injustice will be
avoided in some cases. Court says that it doesn’t make sense that someone who performs an act of
negligence, however slight, should be held liable for all the consequences, even if they are grave, just
because they are the can be said to be direct. A person must be held responsible for the probable
consequences of their actions, to demand more is too harsh.
 Should be held liable for the natural/necessary/probable consequences of our actions because if they are
natural/nec/probable then they are likely foreseeable by the standard of a reasonable person.
 Foreseeablility is the test whether the actions are direct or indirect. If you a reasonable person could foresee
the consequences then can be held liable.
 Finds that the A is not liable for the fire. The fire was the direct consequence of A’s actions but was not
reasonably foreseeable.
3. Modifications to the Foreseeability Test
a) Kind of Injury
Hughes v. Lord Advocate (1963 HL) – type of injury though not exact gravity or manner must be
foreseeable.
 D left a paraffin lamp and open manhole unattended. An 8 year old boy knocked the lamp in the manhole,
which caused an explosion. Boy falls into hole and is badly burnt.
 Finds that it was foreseeable that someone could be injured by leaving the lamps unattended. It may not
have been foreseeable that the injury would be this serious or that it would occur in this specific
manner but that is irrelevant. The type of injury (burn) was foreseeable and that is enough, regardless
of the gravity.
 Doesn’t matter if injury is greater or occurs in another way, it is sufficient that it is the same type of injury
that could be foreseen.
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 The injury did differ in degree but not in kind.
 D can only escape liability if can show that the injuries were different in kind that those that could have
reasonable been foreseen.
 The accident was caused by a known source of danger, the lamp, but was caused in a way that could not be
foreseen. However, this does not afford a defence because the injury was still foreseeable. D is liable – not
too remote.
b) Thin-skulled Plaintiff Rule
Smith v. Leech Brain & Co .(1962 QB) – thin skulled plaintiff rule
 Smith employed by D. During course of work hit in the lip with a piece of molten stuff, which caused a burn.
The burn was treated but Smith later developed cancer on that spot. Cancer spread and Smith died.
 Smith already had a pre-malignant condition because of his exposure to tar at work over the last 9 years.
 Court states that a tortfeasor (D) takes their victim as they are (Smith). Tortfeasor is liable for their
negligence even if the result of their negligence is more severe because of the characteristics of the victim,
such as a pre-existing condition.
 The test is whether the type of injury could have been foreseen not the consequence/gravity of the injury
(cancer in this case) All the consequences of the burn are recoverable.
Marconato v. Franklin (1974 BCSC) – thin skulled rule applies to pre-existing psych. illness
 P suffered minor injuries in a car accident. Post accident she becomes hostile, anxious and depressed.
 Prior to the accident she had some paranoid tendencies.
 Thin skull principle applies to pre-existing psychological illness/issues. Tortfeasor takes victim with all
characteristics, including psychological pre-conditions that result of a foreseeable injury causing more
serious damages. (but aren’t psy injuries of a difference type then could have been foreseen???)
 D is liable for all the consequences of their negligence, even if more sever due to pre psy. illness of the P.
c) Possibility of Injury – Injury doesn’t have to be probable, just possible.
Wagon Mound (No.2) Overseas Tankship (U.K.) LTD. v. Miller Steamship Co. Pty.(1967 PC)
 The A were charterers of the Wagon Mound. They carelessly allowed oil to spill into harbour. Oil travels
across water to the wharf of Morts Dock & Engineering Co, who start oil on fire from spark from welding;
P’s boats are damaged.
 Finds that a reasonable probably qualified ship engineer would have know that there was a real risk that the
oil would start on fire.
 Question is whether a risk is one that would occur in the mind of a reasonable person in the position of the D,
which would not be brushed off as far-fetched and would not have required significant effort/disadvantage to
avoid it. If yes, then liable if take not actions.
 The risk of injury does not need to be probable, rather it must only be a possible foreseeable risk, in a way
that is less then far fetched.
 Finds Wagon Mound liable.
Assiniboine South School Division v. Greater Winnipeg Gas Co.(1973 SCC) – only need to see damage
happening in general way
 Snowmobile goes down hill, hits pipe, leaks gas, explosion and fire starts in school; Gas company was
responsible for the installation of the pipe; School sues owner of snowmobile and gas company.
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 The test of foreseeability of damages is what is possible rather than what is probable.
 Liability can be imposed if one could foresee in a general way the sort of thing that happened. The extent of
the damage and the its manner of incidence need not be foreseeable if the physical damage was of the type or
kind which any reasonable person might foresee.
 Finds gas company liable – pipe negligently constructed in sense that it was constructed in such a place and
manner as to make likely to type of damage that occurred.
 People are not required to take extravagant precautions but they must weigh the probability of injury
resulting and probable seriousness of the injury. Must weigh probable incident occurring, probable
seriousness of injury and the cost and difficult of precautions which could be taken.
d) Intervening causes – within the scope of the risk
 Cases where the P’s losses were caused by the D’s breach and a subsequent intervening act.
 An intervening act is one that causes /contributes to the P’s loss after the original D’s breach has taken
effect.
 In the past only the last negligent person was held liable.
 Today, the principle is “within the scope of the risk”. Application of this test can be difficult. Some
courts examine whether the losses caused by the intervening act were within the scope of risk created
by the original tortfeasor Other courts ask whether the intervening act itself was within the scope of
the risk created by the original tortfeasor.
Bradford v. Kanellos (1973 SCC) – act was not within the scope of risk.
 A was at R’s restaurant. There was a flash fire on the grill, When the fire extinguisher was used it caused a
popping sound. The caused an unidentified person to start yelling that there was a gas leak and going to be an
explosion. People started running out of the restaurant and the A gets hurt.
 Court finds that the R is not liable. This consequence (i.e. that the popping sound made from safely using the
extinguisher would lead to a panic and someone in the restaurant would be injured) was not within the scope
of risk created by the R in allowing the grease to build up on the grill.
 Dissent - Finds that the restaurant anticipated that leaving the grill dirty could result in a fire and would then
have to use the extinguisher. Finds that it was foreseeable that the noise made by the extinguisher may cause
a panic.
Price v. Milawski (1977 Ont. CA) – 1st tortfeasor held liable for intervening act of 2nd tortfeasor if act
was within the scope of risk/ foreseeable result of 1st tortfeasors actions.
 P injured ankle playing soccer; Went to Dr who x-rayed right FOOT instead of ANKLE and said there was
no fracture. The ankle was in fact broken; P was still in pain so went to another Dr. The second Dr relied on
the first Dr.’s x-rays and thus also said no fracture. The second Dr. did not order new x-rays, even though he
had a machine and tech in his office; P was still in pain, so went to a third Dr. Dr. ordered new x-rays and
found fracture.
 P sued 1st and 2nd Drs. Both held liable.
 The first Dr is liable for the second Dr’s intervening act. That is, the negligence of the 2nd Dr does not
prevent the first Dr from being held liable.
 When there are negligent acts by 2 people in succession, the first person can be held liable for his own
acts and the acts of the second person, when the negligence of the second person were reasonable
foreseeable as a possible result of his own negligence.
 In this case, it is reasonably foreseeable that someone may negligently rely on your negligent x-ray. Both
Dr’s held liable.
 Policy issue: don’t want to let first person off the hook for their negligence. The acts of the negligence of the
second person does not halt the consequences of the first persons negligence.
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 This principle demands that you/D foresee someone else’s negligence. That is, that because of your
actions/negligence, someone else may act negligently.
Hewson v. Red Deer (1976 Alta. TD) – 1st tortfeasor liable for intervening act because act was within
the scope of risk.
 City employee at gravel pit leaves truck on the top of a hill, unlocked with keys in it; While city employee is
on break some unknown person comes along and starts the vehicle; Truck crashes into P’s house; P sues city.
 City held liable for actions of employee. Court considers the proximity of the gavel pit to residences, and in
particular to a college, and holds that it was reasonably foreseeable that someone might become aware of
the tractor and might be tempted to put it in motion. Finds that the city employee didn’t take enough
precautions and that it would not have been difficult to take further precautions.
Chapter 18 – Assessment of Damages
1. Introduction
 Three categories of damages:
i. Nominal: to vindicate P’s rights when no damage has been suffered. Not available in
negligence because in order to bring a claim in negligence the P must show damages.
ii. Compensatory: almost all negligence actions are brought for this type of damages. Purpose
is to put the P in the position that she would have been in had the tort not been committed.
 Special damages – pre-trial pecuniary losses – easy to quantify;
 General damages – pre-trial non-pecuniary damages, and post-trial damages
iii. Punitive: May be awarded in any situation in which the D’s malicious , outrageous, vicious
etc behavior warrants punishment or deterrence. This is rare because negligence is about
accidents/carelessness. (Also, maybe this should be relegated to Criminal Law instead of tort, but
higher standard of proof in Criminal and victim doesn’t receive the money )
1. Court is inconsistent on punitive damages
 Disgorgement damages – you get what the plaintiff took
 Damages can occur at 2 times:
i. Those that have occurred before time of trial
ii. Those that may occur after the trial: Below is about after trial.
Key Points re Damages


must be loss recognized as being recoverable in tort law. E.g. grief is not recoverable.
π has burden to prove the amount of damages on the balance of probabilities. The long term impact
of an injury can make this difficult. Courts will try to quantify the probability of recovery or long
term injury and award accordingly.
o The P must prove the existence and quantum of such losses. If P meets standard then
recovers 100%..If not, then nothing. In the case of losses that may occur after the trial,
once the P establishes that there is a substantial or reasonable possibility of injury, she is
entitled to recover for this loss, but subject to the likelihood of it occurring.
Mitigation
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
P is under an obligation to act reasonably in all circumstances to mitigate loss. The D has the burden
of proving that the P didn’t do so. P can recover for the losses incurred in taking such reasonable
steps, but cannot recover for losses that she successfully avoided.
 Three principles of mitigation
o
o
o


o
o
plaintiff must take all reasonable steps to avoid or minimize loss
plaintiff may recover for losses incurred in taking such reasonable steps
plaintiff cannot recover for losses she has successfully avoided, even if she wasn’t
required to have avoided them under the first rule
D is allowed to set off against the P’s damage claim any parallel expenditures that the P would have
incurred had the tort not been committed.
Damages are generally paid in the form of a lump sum. This is compensation for the damages
suffered and those likely to be suffered in the future. There is no means of reassessment.
Disadvantage is that the trier of fact has to predict amount P will need – must consider inflation,
future condition of injury, cost of health care etc. The advantage, is that it concludes the case and
both P and D can plan accordingly.
It is juries responsibility to determine amount of damages to award. This is not as much of a problem
for special damages which are pre-trial pecuniary losses such as expenses incurred, income lost prior
to trial etc. But is more difficult for general damages, which includes all pre-trial non pecuniary
losses and all post–trial losses. Juries get guidance for special damages but not general damages. But
courts have been increasingly willing to tell juries what a suitable range would be. Juries cannot be
told what has been awarded in similar cases.
Appellant courts are not to interfere with amount awarded at trial unless there is a clear error in
law or it is a “wholly erroneous” estimation of damages.
2. Damages for Personal Injuries
 SCC approach requires a separate assessment of each head of recovery that has been proven by the P
 The trilogy (Andrews; Arnold v. Teno; Thornton v. Prince George Board of Education) established the
following framework:
1.
Pecuniary Loss
i. Future Loss
ii. Lost earning Capacity
iii. Considerations Relevant to Both Heads of Pecuniary Damages
2. Non-Pecuniary Loss
 Since establishment of this framework size of awards of increased.
Andrews v. Grand & Toy Alta Ltd (1978 SCC) – how courts assess damages in personal injury claims.
 Young man rendered quadriplegic in traffic accident for which the D was partially liable; Trial judge granted
damages; were damages assessed properly?
 SCC says appellate court can’t change amount of damages unless a wrong principle of law has been applied
or the amount is a wholly erroneous estimate of damages.
 Court says that need legislative reform in this area.
 Court points out the problems with the lump sum approach: inflation, income on the sum is taxed, can’t be
reassessed based on new needs of P after trial etc. Indicates that the apparent reliability of actuarial practice is
illusionary – speaks to groups not individuals victims.
 Suggests possibility of some type of scheme that has periodic payments.
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a) Pecuniary Loss: Future Care
 Goal is to restore the P to position they were in before the tort/injury. Should be for the amount
which may be expected to be expended in putting the injured party in the position he would have
been in if had not sustained the injury. Obviously this is often not possible. Money can’t substitute
for health, happiness etc. Compensation is meant to be fair to both parties and not based on
sympathy or compassion.
 What kind of care the P has to accept? What is reasonable? Home or institutional? Court says
that MITIGATION doesn’t mean you have to take the cheapest option. You can’t or should not
depend on family members to provide the care.
 Ability of D to pay is irrelevant. Note: in the area of future care, social cost of care (e.g. home
care) should not be a controlling factor. Can’t present information about insurance at trial (but can
at appeal)
 Distinction between provision and compensation. In torts looking for something more than mere
provision, as would be provided by organizations such as Worker’s Compensation. WC is to make
injured more comfortable, NOT restore them.
 What information about the P gets looked at:
o Life expectancy
o Contingencies and hazards of life: in the context of future care, consider factors that
would reduce the amount of award based on reduced need e.g death, go into institution
that is cheaper. This is a very difficult thing to determine and is largely speculation. It
always results in over or under compensation.
o Special Equipment
o Tax: original personal injury award not subject to tax, but future investment of funds is
 gross-up to make up for this
b) Pecuniary Loss: Lost Earning Capacity
i.
ii.
iii.
iv.
Level of earnings: Look at lost earning capacity  average income at the job P works. Uses
actuarial statistics.
Length of the working life: Full working life, not the reduced working life because of the injury.
This is the opposite of future care. Assume that will retire as soon as possible e.g. 65 or after 25
years, depending on the job.
Contingencies that might affect/reduce P’s earnings e.g. down turn in economy, illness,
unemployment. Should note that not all contingencies are negative e.g. getting promoted. Courts
determine a % reduction based on the facts of the individual case.
Avoidance of duplication: A P cannot recover for the expenses of providing for basic necessities
(food, etc.) as part of the cost of future care while still recovering fully for loss of earnings.
Without the accident these costs would have come out of the P’s earnings. Court finds that best
way to deal with this is to include basic necessities in future care, which is the paramount concern,
and then make a reduction in future earnings (want to make sure future care remains intact) –
that is pay net instead of gross. The cost of necessities may be higher due to the accident and this
should be considered.
c) Pecuniary: Considerations Relevant to Both Heads of Pecuniary Loss
i.
Capitalization rate: the award is reduced to take into consideration the fact that you will earn
interest on the award. Also, have to take into consideration that there is inflation. Take interest,
minus inflation and the remainder is the amount court reduces the damages by. Usually 2-3%.
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Allowance for tax: In making an award you don’t take into account that the P would have had to
pay tax on the money if P had earned it by working. This is because not being compensated for lost
income but your capacity to earn income. Also, don’t take into account the amount that the income
from the award will be reduced because P has to pay taxes on it. P can argue for higher damages
based on fact that although damages aren’t taxed interest on them is – this is called asking for a
gross up.
Note: the calculations should provide for a self – extinguishing fund. To allow a residual capital
would be to overcompensate.
ii.
iii.
d) Non-Pecuniary Loss
 Pain and suffering, loss of amenities, loss of expectation of life etc. One award is granted for all.
Common trait of all is irreplaceability.
 Attempts to quantify have been difficult.
 Cap set in this case was $100,000. Now around $285,000.
 This is the area were the danger of excessive awards is greatest.
 Three approaches:
1. Conceptual: treats each faculty as distinct, with an objective value, independent of the
individual’s own use or enjoyment
2. Personal: values the injury in terms of the loss to that individual; loss of happiness.
3. Functional: Takes into consideration the personal aspect but it is to provides the compensation
required for to provide the injured person “with reasonable solace for his misfortune”. Solace is
defined in terms of making there lives as livable as possible through physical arrangements rather
then awarding based on sympathy. Money is awarded because it was serve a useful function to
make life more endurable. This is the functional approach. Based on this approach, after money
has been awarded under the other heads it should not be necessary to award large amount.
Additional money is seen as providing for more general physical arrangements beyond those
related directly to the injuries. Approach favoured in Andrews.


Awards are still largely arbitrary or conventional.
There has been a significant increase in the amounts awarded under this head.
Survival Actions
o
o
Legislation provides for damages to relatives
Fatal accidents legislation – designed to compensate deceased’s dependants
Keizer v. Hanna (1978 SCC) – death of family provider
o
o
o
o
π was wife to man killed in auto accident by ∆
What damages are appropriate?
Contingencies to consider
 possibility of remarriage
 possibility of widow’s death
 possibility of deceased dying under other circumstances
 retirement, etc.
At the end of the day, the only question is whether the award is fair and accurate
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
Should receive award that will assure her the comforts and station in life which she would have
enjoyed but for the untimely death of her husband
Death of a Dependent Family Member
o
o
o
Award is usually less than for death of family provider
Mostly, this is due to the fact that the legislation is intended to provide pecuniary
compensation only – no grief, sorrow, etc.
Also, under-appreciation of homemakers
3. Damages for Property Loss
Three issues
1. Assessment of damages to the property itself
 Usually get the lesser, unless there is some sentimental value to property and then
get repair
 Cost to repair – is it possible to repair?
 Cost of replacement
 Decrease in value of property
2. Assessment of the economic losses consequent on the damage to the property
 Principles are the same for personal injury and property loss, but applied more
strictly.
 In Leisbosch, defendants were absolved of liability for additional economic losses
that resulted from plaintiff’s impecuniosity, but the law has moved towards a more
relaxed approach (PC rejected blanket rule denying recovery of losses due to thin
wallet).
 Instead, principles of foreseeability and remoteness should govern
3. Obligation of plaintiff to mitigate
 plaintiff must act reasonably in a business sense to mitigate damages
4. Collateral Benefits
 In most cases, P will receive compensation from collateral sources such as, gov't health insurance,
private insurance or employment benefits, not just from ∆.
 Collateral sources are a question of whether the damages you receive should be paid by more than
one source (e.g. Work’s comp provides $ for physio, can you still sue for this?)
 Generally, if the collateral source is something you paid into/for then you can double recover e.g.
insurance you paid for or essentially paid for through labour negotiations. Idea that it is unjust to
deprive employees of benefits that they, through prudence and thrift, had purchased themselves.
 If collateral source was free then can’t double recover (subtract amount received form collateral
source from amount you are suing for) E.g. employment insurance you didn’t pay for.
 Not a very good mode of distinguishing. Above is based on assumption that no contractual or
legislative obligations indicating otherwise.
Collateral Source Rule is: as long as you can demonstrate that you’ve paid through your salary, the
defendant’s amount they owe you won’t be reduced by benefits you receive from employer
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5. The Equitable Doctrine of Subrogation
 If another party pays you an indemnity payment for your loss and then the person who actually injured
you compensates you, you need to pay back the party who originally compensated you. You must
pay back the party who indemnified you the amount they paid you, or if you receive less then that
from the D, then you must give them everything the D paid you. Any party who honours a legal
obligation to indemnify another has an equitable right to subrogation.
 E.g. If insurance companies gives you money for injury and then person who injured you compensates
you , you have to pay to insurance company.
Chapter 19 - Defences in Negligence
 defendant raises and proves evidence once offence is established
1. Introduction
 Historical
i. Only one defence  contributory negligence
ii. Others are harder to prove; they are complete defences in that you are found not
negligent
iii. Wagon Mound  historically, contributory negligence was a complete defence
iv. After legislation  apportionment between π and ∆ when contributory is
proven
v. Also, in Husky  maritime law was something different
vi. So, NOW – no longer a complete defence
 How do you prove contributory negligence?
i. Material contribution - Causation
ii. Some degree of negligence by plaintiff
iii. Implies a duty of care; violation of a standard of care
iv. No remoteness
 Need to do all parts of negligence analysis then...
i. As defendant, need to argue these for yourself re: the plaintiff’s negligence
2. Contributory Negligence
 partial defence that apportions blame on plaintiff and defendant
 leads to reduction in damages based on degree of contribution
Walls v. Mussens (1969 NBCA) – reasonable person in emergency
 Fire in gas station because of oil leak; π’s people and others try to put out fire with snow, instead of
using fire extinguishers; causes damage; extinguishers would have put out fire
 Is π contributorily negligent?
 Standard of care analysis when person is in emergency – “agony of moment”
 Wouldn’t expect reasonable person to behave in rational way, so NO contributory negligence
42
Gagnon v. Beaulieu (1977 BCSC)- role of belief in efficacy in standard of care
o Driver rear-ends stopped car; π wasn’t wearing a seat belt, but didn’t believe they helped
o Does failure to wear belt contribute to negligence?
o Should standard of care be altered because of subjective belief that belts don’t work?
 Court says reasonable person would believe seat belts work
o Also, whether or not seat belt wearing was cause of injuries
 Court determines from evidence that it was
o Finds plaintiff contributorily negligent
Negligence Act (RSBC 1996, Chapter 333)


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Section 1 – Apportionment on basis of fault
 Pay based on negligence
 If you can’t determine --> equal
 No liability if you can’t prove contribution of fault
Section 2 – Awarding of damages
 Damage in dollars --> monetary
 Degree as percentage of total fault
 Recovery from person at fault
 Can offset damages from one to another if both contribute
Section 3 – Apportionment of liability of costs
 Same approach as above applies to legal fees
Section 4 – Liability and right of contribution
 Joint and several liability
 Indemnity
 Can go after others not named in suit
Mortimer v. Cameron (1994 CA) – apportionment of liability


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
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Roughhousing boys; fall through wall; fall 10 feet; one is hurt
Is there contributory negligence?
Court finds NO – accident wasn’t within the realm of their reasonable foreseeability
 TOO REMOTE (need to foresee type of injury, not specific)
Bars get raised in contributory negligence claim  probably wouldn’t have been too
remote in regular negligence claim
What is proper apportionment of liability between city and building owner?
Shifted apportionment to Stingray because found they had duty to show it was safe and
didn’t meet this  more “at fault” than the city
3. Voluntary Assumption of Risk – volenti non fit injuria
 complete defence when plaintiff consented to the risk of harm generated by ∆’s
negligence
 defendant must prove express or implied agreement
 plaintiff must consent to physical and legal risk of injury (abandonment of right to sue
– difficult to prove)
 waivers of liability fall under here  controlled by contract principles
Dube v. Labar (1986 SCC) – volenti defence must show consent to physical AND legal risk
o Similar to Sundance – plaintiff didn’t waive right to sue, so no volenti
43
Two guys in car plaintiff entered knowing other is drunk; accident
Did π absolve ∆ for liability?
Court says MORE than plaintiff knew of the risk, had to actually absolve plaintiff of liability
Volenti arises only where clear absolving of right to take responsibility understood by both
parties
o Common sense dictates that only rarely will a plaintiff genuinely consent to do this
o Found jury (which held defence was shown) isn’t sufficiently incorrect to overturn it  volenti
defence stands; no claim for plaintiff
o
o
o
o
4. Participation in Criminal or Immoral Act – ex turpi causa non oritur actio
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no cause of action when plaintiff is participating in an illegal act
Hall makes illegality inapplicable to negligence actions
Hall v. Hebert (1993 SCC) – restricting scope and application of ex turpi defence
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π and ∆ equally drunk; in muscle car; π claims ∆ shouldn’t let him drive car; ∆ says it was an
illegal act
Cory – put all of the ex turpi in Duty of Care (policy) analysis
McLachlin (majority) – keep it as a defence
o Let onus remain on defendant
o Can allow defence to apply to some, but not all heads of damage
o Gives more flexibility
Procedural problems in cases where both tort and contract claims
Would be elements of tort / damages of contract analysis
Only going to get this defence if
o Plaintiff is going to profit from criminal behaviour
o Or, claims to compensation would amount to evasion of criminal sanction
Doesn’t apply in this case
5. Inevitable Accident
 question is whether defendant took reasonable care
 burden of proof on plaintiff
 not really a defence  merely emphasizes the centrality of fault
Rintoul v. X-Ray and Radium (1956 SCC) –reasonable care is needed
o Brakes work and then didn’t work, ∆ applied hand brake; crashed;
o Was the accident inevitable? (said he did everything he could do...)
o Court (from Schwan) –
 No control
 If any control  couldn’t avoid even with GREATEST amount of skill
o Need to show
 failure of breaks couldn’t have been prevented with exercise of reasonable care
 accident couldn’t have been avoided with application of reasonable care
o Court holds ∆ didn’t prove either of these
44
Intentional Torts
1. Basic Principles of Liability
a) Volition – you must have conscious mind when doing something
Smith v. Stone (1647 KB)
 carried onto land
 Was it trespass?
 No, can’t blame the person who had nothing to do with it
Voluntariness is only really used in mental illness situation or with children; parents aren’t vicariously liable for
children unless they were negligent in supervising or controlling the children
b) Intent – desire to bring about results or consequences of action
 Intent must be for result, not the action itself  this limits the scope of the intentional tort
 Two principles:
 Imputed (constructive) intent
i. If consequence is certain or substantially certain to result from action, then can
impute intent
 Transferred intent
i. Intend to commit tort against one and INADVERTENTLY commit it against
another
ii. Intent to commit tort against π and INTENTIONALLY commits another tort
against π
c) Motive – doesn’t have any role to play in cause of action itself usually;

π has to prove intent, not motive
1. But, couple of intentional torts  malicious prosecution
2. But, Relevant to defence
3. But, taken into account for damages  size of award, punitive damages,
etc.
Gilbert v. Stone (1648 KB) – Duress doesn’t negate intent
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∆ had fear for life, killed twelve men
Does duress negate intent or voluntariness arguments?
Court says NO; just because you’re forced to do something, doesn’t mean you don’t have intent to
do it
Miska v. Sivek (1954 Ont. CA) – Provocation


π threatens ∆ with knife; ∆ fires gun at π; ∆ says he was provoked
Court says you need 2 things for provocation
 ∆ loses power of self-control
45
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 ∆’s response was proximate in time of π’s action
Elements not made out in this case; Appeal fails
If they did find provocation  would only apply to DAMAGES
Provocation is measured by objective test
If transferred intent, provocation doesn’t apply; compensation to damaged party would be reduced in
that case, and that wouldn’t be right.
d) Mistake – has no effect on the issue of intent  not relevant to intentional tort elements
Hodgkinson v. Martin (1929 BCCA) – Mistake of fact or law not recognized as defence

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∆ intends consequence of action, but result is different in FACT or LAW
Neither mistake of fact or law is recognized per se as a defence to intentional tort
Person forcibly ejected from site who was okay to be there
Both mistake of fact AND law in this case: ∆ thought it was legal to evacuate person (wasn’t);
thought person was one who should be evacuated (wasn’t true)
Court: Damages are reduced  nominal damages
Ranson v. Kitner (1888 Ill. CA) – Mistake doesn’t remove intent requirements

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Mistakenly shoots dog thinking it’s a wolf
Damages, but NOT a defence
Doesn’t remove intent or voluntariness requirements
Court finds damages (not reduced)
e) Accident  NO INTENT
 sometimes things just happen  no negligence, intent, etc.
Chapter 3 - Intentional Interference with the Person
1. BATTERY – Integrity of Person
 1st point: Bodily integrity is big point for courts
 2nd point : Deter bad behaviour
 Harmful or offensive contact
 Almost any contact can be offensive, except incidental contact
 But, still need to show some damages, so not too many brought
 Can include indirect intrusions (poisoning of food)
 Can include clothes.
 Don’t have to be aware that contact has occurred.
Bettel v. Yim (1978 Co. Ct)) – elements of battery

Battery = 1) Intentional infliction on 2) body of another by 3) offensive or harmful
contact
46
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π goofing off with matches, ∆ thinks something is going on; shakes and inadvertently smashes π’s
nose on head
Have intent; on body of another; contact
Case is about whether foreseeability of negligence should be imported into this
Court says: NO; would ignore essential difference between intentional infliction of harm (battery)
and unintentional infliction of harm (negligence)
Court talks about blurring between Assault and Battery
Non-Marine Underwriters v. Scalera (SCC 2000) – burden of proof of consent on ∆
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Does lack of consent need to be shown by π? OR consent shown by ∆?
McLachlin: purpose of battery is to preserve autonomy
Shouldn’t distinguish sexual contact from other battery
Not going to have huge amount of difference
Wrong to make π prove lack of consent  π must prove direct contact, then burden is on ∆ to
prove consent
2. ASSAULT – Mind
ELEMENTS
 Intentional creation in mind of reasonable apprehension of imminent harmful or
offensive contact
 Voluntary
Different from Battery because it is a threat, don’t need physical interference
Holcombe v. Whitaker (1975 Ala. SC) – need words + actions for assault

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“if you take me to court I will kill you”; bangs on door
Is this reasonable apprehension?
Is the threat immediate? With a condition.
Can words alone be an assault? Need to have some action that goes with words.
Door banging is physical action.
Sent back to trial.
Police v. Greaves (1964 NZ CA) – conditional threat can be assault

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∆ made threats to police: “if you come closer, I’ll kill you”; had knife
No reason why a conditional threat can’t be assault
Distinguish from other cases where condition removes reasonable apprehension
3. False Imprisonment
ELEMENTS
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intentional
confinement
fixed boundaries
(against their will)
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Bird v. Jones (1845 QB) – no false imprisonment if there’s a means of escape
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π is stopped from going in certain direction by police; could go in other directions
Can’t confuse False Imprisonment with restriction to go anywhere you want
If you have some reasonable means of escape  no false imprisonment
Don’t have to be touched
Dissent – stopping someone is bad and = F.I.
Campbell v. SS Kresge (1976 NSTD) – total restraint doesn’t need to be physical confinement
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Someone accuses woman of shoplifting; called in to store by police officer; perceived fear; nothing
found
Total restraint doesn’t need to be physical confinement
Court draws distinctions between someone who submits against will and someone who cooperates
reluctantly
Would it matter to tort if she had actually been shoplifting?
 Still have false imprisonment, but have some legal justification for it
Note 2, p.69 – also can be imprisonment if you cause someone else to imprison someone
Herd v. Weardale Steel (1915 HL) – no false imprisonment with consent
 Won’t let miner out when he wants to
 Court says it’s not false imprisonment where you’ve consented to confinement
What about if you contract to be confined indefinitely?
 Issue is consent in tort context
 Court would construe some reasonable amount of consent
4. Malicious Prosecution – public actions
FOUR ELEMENTS
 Proceedings initiated by defendant
 Proceedings terminated in favour of plaintiff (doesn’t have to actually be a prosecution)
 Absence of reasonable and probable cause (honest belief in the guilt of the accused)
 Malice, or a primary purpose other than that of carrying the law into effect (perversion of
office, almost criminal conduct)


+ must also show DAMAGES (necessary for most torts)
+ proceedings must be Criminal (not civil  use “abuse of process” instead)
Nelles v. Ontario (1989 SCC) – laid out test for malicious prosecution
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π charged with murder of four babies; publicized trial; charges dropped
Is the Crown Prosecutor immune to charge of malicious prosecution?
Laid out the test for malicious prosecution (above)
Test contains both subjective and objective elements
She didn’t meet them & No reason for immunity
48
5. Abuse of Process - civil action
ELEMENTS
 Defendant brought a civil action
 Defendant did so for some extrinsic purpose
 Defendant undertook, or threatened to undertake, some overt act, other than the litigation
itself, in order to further the improper purpose
 Plaintiff suffered a loss
 (π doesn’t have to prove earlier proceedings terminated in his favour or ∆ lacked
reasonable and probable grounds for engaging in the earlier proceedings)
6. Intentional Infliction of Nervous Shock
ELEMENTS
 Overt act of defendant
 Intention to produce nervous shock
 Plaintiff has to suffer nervous shock with some measurable psychological or physical
effect
Wilkinson v. Downton (1897 QB) – demonstrated imputed intent

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As practical joke, guy tells woman her husband is hurt; she goes into nervous shock, doesn’t have
a history of bad nerves
Judge deals with intention  guy may not have intended person would be so distraught, but can
that be so certain that we can impute intent? Court says YES
Judge deals with remoteness (not to be confused with negligence)  were damages sustained
unrecoverable as if akin to grief  type you can’t recover for in torts? Court says they ARE
RECOVERABLE
No need for reasonableness because intentional tort  intention is enough
Radovis v. Tomm (1957 Man. QB) – no manifestation of injury
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Daughter is raped; mother tries to recover by being distraught
Must show that there is some physical or psychological manifestation of injury
She couldn’t show that  case fails
Samms v. Eccles (1961 Utah SC) – U.S. tort of Emotional Distress
 ∆ asks her repeatedly for sex
ELEMENTS: 1) intentionally engaged in conduct; 2) purpose of infliction emotional distress; or 3)
reasonable person would have thought so; 4) offends generally accepted standards of decency and morality;
5) can be emotional harm
 Difference between US and Canada
 In US an objective standard  accepted standards of decency and morality
 In US can be emotional harm only
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Innominate Torts
 Torts that aren’t specifically named, such a “battery”
 Might be used in cases of intentional conduct that is morally blameworthy and likely to cause injury
(poisoning of food, other unjustified, intentionally-inflicted bodily injuries)
 Are they moving towards one category of intentional torts?
 Advantage is you wouldn’t have to fit into specific categories (just some basic elements)
1. Protection of Privacy – emerging intentional tort?
Motherwell v. Motherwell (1976 Alta CA) – suggests there is a common law tort of privacy


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Calling π by telephone repeatedly; π seeks injunction to stop
Brought claim as both nuisance and invasion of privacy
Successful on nuisance claim (let privacy discussion go)
Statutory protections to protect your privacy – you have access to other fora to redress your wrongs
Hollingworth v. BCTV (1999 BCCA) – statutory requirements for privacy

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π had procedure to cure balding; was filmed with his consent; later, aired on TV
Was that an invasion of privacy?
S. 1 of Privacy Act – statutory requirements
i. Actionable without proof of damage
ii. Wilfully and without claim of right to violate privacy of another
1. Wilfully = Intention, known or should have known would violate privacy of
another
2. Without claim of right = honest belief in state of facts which, if existed, would
be legal justification
iii. Not reasonable in circumstances
iv. Nature of relationship between parties
BCTV found not liable  not willful, had claim of right
2. Breach of Confidence
 mostly trade secrets, but could be personal loss of reputation
ELEMENTS
 Information must have quality of confidentiality
 Obligation of confidence
 Unauthorized use must be detrimental
3. Discrimination
 NOT A COMMON-LAW TORT
 but that was pre-Charter  might be different now; tension between legislation and
common law
50
Bhadauria v. Board of Gov. Seneca College (1979 Ont. CA) – tort of discrimination



She’s qualified, but wasn’t called in for any interviews; alleges that was because of her ethnic
background
Court looks at Ontario Human Rights Code (which she didn’t apply to)
Decides there should be a tort of discrimination
Seneca v. Bhadauria (1981 SCC) – no tort of discrimination


Laskin overturns the lower court’s decision
There is legislation which “covers the field” (Ont. Human Rights Code) so no need for a tort
Defences to Intentional Torts
 Even if P established that the D committed an intentional tort, liability may not be imposed because D
may be entitled to raise a common law or statutory defence.
 These defences can be divided into 3 categories:
1) consent,
2) those related to the protection of person and property,
3) those arises from the assertion of authority.
 These defences are not mutually exclusive and D may plead more than one.
Chapter 6 – The Defence of Consent
1. General Principles of Consent
a) Introduction
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Main defence for intentional torts.
Tension in law between individual autonomy and protection of vulnerable people.
There is some debate whether consent is a defence or an element of a tort. SCC says defence.
Courts tend to place the burden of proof regarding consent on the defendant
Relevant question re consent is whether or not the P consented to the activity that now form the basis
of her claims
Consent may be given explicitly through words or in writing, or implicitly through participation,
demeanor or other behavior.
Consent to an act generally extends to risks normally inherent in that act. Consent is about
consenting to the activity and the reasonable consequences. Unreasonable or unforeseeable
consequences may exceed or vitiate consent.
Consent can: not be given, expressly given, implied, given but it doesn’t hold for the particular activity
(e.g. exceeded or vitiated – fraud, mistake, duress and public policy)
Failure to resist or protest is an indication of consent “of a reasonable person who is aware of the
consequences and capable of protest or resistance would voice his objection.” However, consent must
be genuine, it must not be obtained by force or threat of force or be given under the influence of drugs
or fraud.
51
b) Implied Consent
Wright v. Mclean (1956 BCSC) – implied consent by entering activity
 Children playing by throwing lumps of clay and mud balls at each other. P injured.
 Held: In sport where there is no malice, no anger and no mutual ill, that combatants consent to take the
ordinary risks, and the pain that may result from them, of the sport in which they are engaged. But this is
only while play is fair, according to the rules and blows are not malicious but rather given in sport. If play
is not fair etc, then consent is ended and parties regain same rights as when not engaging in sport.
c) Exceeding Consent
Agar v Canning (1966 Man. CA) – actions go beyond what was consented to
 P suing D for injuries that resulted from hockey game.
 A person who engages in sport must be assumed to accept the risk of accidental harm and to waive
any claim he would have apart from the game for trespass to his person in return for enjoying a
corresponding immunity with respect to other players (implied consent). This includes unintentional
injury resulting from one of the frequent infractions of the rules of he game.
 The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be
judged by standards suited to polite social intercourse.
 But there is a need to establish some limits placed on a player’s immunity from liability. Injuries inflicted
in circumstances that show a definite resolve to cause serious injury to another, even when there is
provocation and in the heat of the game should not fall within the scope of implied consent.
 Consent to game may mitigate damages.
 Note: Courts have become less tolerant of hockey violence. Stated that it cannot be assumed that a player
implicitly consents to a type of assault b/c it occurs frequently in the sports e.g. fighting. In McSorley –
judge found that some forms of conduct are too dangerous for the players to consent to.
 Relates to consensual fights. R v. Jobidon: Criminal law says that can’t consent to bodily harm or death.
Latter has been imported into tort law. Issue of stronger person acting with restraint. Is this required? No
solid answer. Law hasn’t usually intervened with fights accept if result is death.
d) Competency to Consent
 For consent to be valid, person must be capable of appreciating the nature and consequences of the
act to which it applies.
 E.g. of reasons why consent would not be valid: age, physical or mental illness, intoxication, other
incapacitating condition.
 Balance between protection and maintaining autonomy.
 Court likely to interpret adults to be competent to consent. More of an issue if someone is really old or
young.
2. Factors that Vitiate Consent


Once D establishes P consented, P may raise factors that would negate otherwise valid consent, thus
making D liable.
Courts have relied on criminal law concepts and have interpreted narrowly. Question re whether
concepts are appropriate in torts, which focuses on compensation, as opposed to Criminal law that
focuses on moral blameworthiness.
52
a) Fraud (Deceit)
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Consent based on fraudulently induced belief will not necessarily vitiate consent.
It must be established that D was aware of or responsible for the P’s misapprehension and that the
fraud relates to the nature of the act as opposed to “collateral matters”.
Courts have adopted a broad view of what they consider collateral matters and as such fraud rarely
negates consent based,.
Fraud includes situations in which D either knowing deceives the P or acts in total disregard as to
truth of his/her statements.
Most cases where this is an issue deal with written or verbal statements.
Questions have arisen re whether P’s consent is valid if she is aware of nature and quality of act but is
deceived as to harmful consequences (Hegarty v Shine – failure to disclose have sexually transmitted
disease)
Two step test has been adopted in Criminal but not tort law:
1. proof, on an objective standard, that the accused obtained his partner’s consent dishonestly, either
through positive misrepresentations of through material omissions.
2. Proof that accused’s conduct exposed his partner to a significant risk of serious bodily harm.
R. v. Cuerrier (1998 SCC) – standard for fraud in tort is very narrow


HIV+ guy directed by health worker to not have unprotected sex; he does
Court used traditional test of fraud, and that fraud didn’t pertain to “nature and quality of the
act”; shows how narrow application of fraud is.
b) Mistake
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Vitiates consent only if the D is responsible for creating the P’s mistake. Whether or not the
mistake is regarding collateral or central to act/issue is not relevant.
US: broader law that indicates that consent it vitiated if D knew that P consent under mistaken belief.
Keeton et al – Argue that plaintiff’s consent will be vitiated if the D knew or ought to have known
that P’s consent was based on a mistaken belief – this is even broader than US.
Defendant’s mistaken belief that the plaintiff consented provides no defence.
c) Duress
Latter v Braddel (1880 QBCP) – standard of duress


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P is a maid. Must prove she’s not pregnant to keep job. Doctor called to examine her. When doctor
arrives P she indicates she does not want to be examined. Doctor indicates she must be. P cries
through exam.
Dissent says there was no consent; Majority says there was no DURESS (wrongly never talks about
whether there was consent first)
Duress is restrictive. It is not duress if P consented reluctantly but there was no evidence of force
or violence or threat of force or violence, not any illegal actions done or threatened. P has own
power physically to comply or not comply.
d) Public Policy
53

Three circumstances
o Are you able to consent to physical harm
o Exploitation of trust / authority
o Clear power imbalance

Courts increasingly recognized public policy considerations in negating what would otherwise be a
valid consent defence.
Can you consent to physical harm? Lane v Holloway – refused to accept consent b/c it was obvious
from outset of fight that P was no match for D. Jobidon – SCC held that even in a fair fight, the
defense of consent, although the criminal law is limited to cases where bodily harm is neither
intended nor caused.
Some courts may negate defence of consent if the D exploited a position of trust or authority: M.
(M.) v K(K.): sexual relations between foster father and child. Claimed consent. Court rejected ;
Norberg v Wynrib: D was doctor who offered to supply addicted patient with prescription drugs in
exchange for sex. D held liable for battery b/c of unequal bargaining power. Court points to need for
“meaningful consent”. Concurring arguments also point to breach of fiduciary duty – obligation that
arises from a relationship of trust.
Consent where power imbalance: Cannot consent unless in a position to choose freely, which
requires that any feelings of interfering constraint must be absent from his mind. Feelings of
constraint can arise in situations other than force, threat of force, fraud or incapacity. A position of
relative weakness/power imbalance can interfere with freedom and autonomy thus consent.
Courts have not reconciled public policy analysis with concept of autonomy: Conduct that is
inherently dehumanizing or degrading cannot be subject to consent.
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Nelitz v Dyck (2001 Ont. CA) – implied consent; corporate liability for battery

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P claiming chiropractor costs. Insurance company sends to their chiropractor. P not informed
she could refuse. P made no indication she did not consent. Later claimed injured by D.
Held that P had consented, “A valid consent can be given without uttering a word.
Unexpressed private feelings if not communicated do not govern, whereas the objective
manifestation of consent does. “D is entitled to rely upon what any reasonable man would
understand from the P’s conduct.” IMPLIED CONSENT  BATTERY AGAINST
DOCTOR NEGATED
While a corporation cannot commit battery, it can be directly liable by using an individual to
commit the act or vicariously for acts committed by an employee or agent within the scope of
their authority. Thus if P did not consent to exam insurer could be held liable b/c retained D
to commit the tort.
Not a significant power imbalance, thus not vitiated.
3. Consent to Criminal or Immoral Acts
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A person cannot recover in tort law for the consequences of own immoral or illegal conduct.
Proof that P’s actions were criminal or immoral is a complete defence for intentional and negligence.
Used on case-by-case basis without clear definition of underlying purpose.
Trend in Canada has been to narrow the doctrine.
SCC said doctrine is intended to protect the integrity of legal system (e.g. P profiting financially from
illegal or immoral behaviour).
Defence rarely applies if P seeking compensation for actual physical loss.
Problem: how do you define immoral?
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4. Consent to Treatment and Counseling
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Different category  stricter rule  need some INFORMED CONSENT beforehand
As general rule, health care prof. or counselor need to get consent before examination, procedure etc.
Consent must be obtained in advance and cover not only intervention but also related issues re record
keeping, disclosure about alternative treatments etc.
Consent must be related to specific procedures or treatment.
To be valid consent must be voluntary.
Consent must be based on full and frank disclosure of nature of intervention and risks. Increasingly
remote risks must be disclosed.
Practitioner is increasingly expected to put treatment in context of risks and benefits. Has been
increased in info must provide patient
Patient may consent implicitly by behaviour, demeanor, or explicitly either orally or in writing. Fact
that patient comes for treatment is measure of implicit consent.
Courts have relaxed strict requirements for consent in 3 EXCEPTIONS:
 Unforeseen medical emergency where impossible for patient to give consent. Health
care prof. can intervene without consent. Biggest exception. Although next of kin way be
consulted their consent is irrelevant.
 Patients who have given general consent in course of counseling, treatment etc. Patient
will be viewed as implicitly consenting to any subsequent counseling or subordinate tests
and procedures necessarily incidental to agreed treatment. Implied consent negated if
patient objects. Currently, Dr does have to be pretty detailed re incidental procedures etc.
 At one time could withhold info that would undermine patient’s morale and discourage
from having treatment. SCC has cast doubt on this.
Marshall v Curry (1933 NSSC) – exception to consent in general course of treatment of medical
emergency






P consented to hernia surgery. In course of surgery, without patient’s consent, Dr. removed
testicle.
D claims removal of testicle was necessary part of operation to cure hernia, it could not have been
diagnosed in advance, and that consent was implied.
Court finds consent was not given but D not liable because medical emergency and general
course of treatment.
In ordinary situation if there is the opportunity to get consent it must be had. Even if that means
stopping surgery, waking up and asking.
Consent can be explicit or implied, but silence and compliance are not consent.
Can have implied consent but increasingly difficult. Consent may be implied based on
conversations before the surgery or antecedent circumstances. If you have consented to multiple
stages of treatment and have to advance to next stage unexpectedly then likely okay b/c implied
consent based on general course of treatment.
Malette v Shulman (1987 HC)– autonomy issue and law.



P injured in car accident. She has card indicating she is a Jehovah Witness and doesn’t want blood
transfusions; Dr., fearing she will die without transfusion, proceeds anyway.
Dr. is aware of card but unsure of when signed or if under duress. Next of kin confirmed no blood
transfusion. Dr. should have listened to this.
If next of kin had not confirmed accuracy, then Dr. has to weigh information.
55



Card was a legitimate restriction. Purpose of card was to speak for patient, is she could not
give/deny consent. From looking at card should have known no consent. It is best indicator while
unconscious.
No such thing as doctrine of informed refusal. Can refuse without knowing consequences of your
refusal.
Note: implications for anorexics, suicide, drunk patients.
a) Burden of proof and Consent forms




Health professionals have the burden of proving consent on the balance of probabilities.
Signed consent form provides some evidence, not conclusive proof.
Issue is whether patient understood procedures, risks etc.
Consent form is only as good as the info in it. Can’t have a really broad (i.e. not id procedures) or
really detailed and confusing consent form (e.g. jargon). Can’t be presented as mere formality or in
circumstances were there is no opportunity to read it. Problems arise if patient intoxicated, drugged or
in severe pain. Literacy can also be issue.
b) Competency to Consent




To be valid, consent must be given by patient who is legally competent.
Focus on patient’s ability to understand nature of proposed treatment and its risks, not ability to
make a reasoned and prudent decision.
Common law defines competency broadly to protect autonomy.
Doctor makes assessment whether someone is competent to consent; also Board to help decide
Minors
 No single recognized age of consent for medical treatment.
 Courts assess whether patient capable of understanding nature of proposed procedure and risks. If
yes, parental consent is irrelevant.
 Some statutes that may impose minimum age requirement for consent to specific procedures.
C v. Wren (1986 Alta. CA) – minor’s consent to abortion not based on age



16 year old wants to have an abortion. Parents claim she can’t make own decision. Parents would
refuse abortion. Suit against Dr.
Consent is not based on age. If patient understands nature of procedure and risk then can given
consent. Ethics not an issue.
Dismissed appeal  she could consent to the procedure; understood ethical issues
Adults
 Issue most often arises with people who are mentally ill or senile. But, this doesn’t necessarily mean
can’t give informed consent. Health care professional must assess ability in relation to specific
procedure.
 General rules around consent apply to those in custody etc. Fact that refusal to consent may be
violation of probation does not alter health care professional obligation to abide by decision.
 Note: consent given while patient is sedated or in pain may be invalid.
 Health care professional may refuse police requests for blood samples etc. to be taken from unwilling
or unconscious suspects – need search warrant. Exception with leg re drinking and driving.
 Issues re force feeding prisoners.
56
c) Substitute Consent



Next of kin: Person next in line to you (ranking).
3 Conditions: 1) If you are incapable of making own decision, 2) if person is acting in good faith
and 3) it is in your best interest then they can provide consent.
More complicated if procedure is strictly for research purposes and can’t be justified as in patient’s
best interest.
d) Informed Consent: battery or negligence?


If no consent, consent exceeded or consent obtained fraudulently to treatment - the proper claim is
battery.
If patient has consented but not informed consent (incomplete, inaccurate etc disclosure of risks) then
the proper claim to bring is negligence.
Chapter 7 - Self Defence

On balance of probabilities, defendant must establish that he reasonably believed he was about to be
struck and that the amount of force was reasonable in the circumstances
1. Self Defence
Wackett v. Calder (1965 BCCA) – elements of self defence








π picks a fight; after a while the ∆ hits him back twice
Was the force of the defendant justified?
Was the force excessive?
You don’t have to walk away from a fight; two hits in this case wasn’t excessive
Why wasn’t this a consented fight? Not sure…
Two issues:
1) Reasonable belief that ∆ was about to be struck
2) Force was reasonable
you don’t have to wait for someone to strike you first
Self defence v. Counter attack (you came at me with an entirely new aggression; distinct from SD)
2. Defence of Third Parties

Where a person in intervening to rescue another person holds an honest ( though mistaken) belief that
the other person is in imminent danger of injury, he is justified in using force, provided that such
force is reasonable; and the necessity for intervention and the reasonableness of the force employed
are questions of fact
57
Gambriell v Caparelli (1974 Ont. Co. Ct.) – elements of defence of third parties







Guy saw next door neighbour back into car; defendant (mother of guy) hits π with a hoe
Does the defence of 3rd party justify physical intervention?
ELEMENTS
 Intervening to rescue another (3rd party doesn’t have to be a relative)
 Honest belief of imminent danger
 Reasonable force
Court says this was reasonable considering her age, didn’t speak English
Honest belief must be reasonable
Force wasn’t excessive  didn’t cause more than a laceration
Shouldn’t be a basis on whether to draw whether the force was reasonable though
3. Defence of Discipline
R. v. Dupperon (1984 Sask. CA) – disciplining a child






Father hit child with strap 10x  charged with assault; said it was justified because it was justified
in Criminal code s. 43
Must show force was by way of correction
Was reasonable
Court finds that it was by way of correction, but was excessive
At common law parents and those in the place of parents such as guardians have the right to inflict
corporeal punishment for the purpose of correction provided that the amount of force used is not
unreasonable.
Under s. 43 of the Criminal Code a similar justification for the use of force by way of correction
toward a pupil or a child.

In Ogg-Moss v. The Queen (1984) the court emphasized that s.43 provides a justification for the
application of force if it is for the benefit of the education of the child and the force applied is
reasonable.
o The court indicated that the section should be strictly interpreted and applied.
o It did not justify the use of force by mental health staff to discipline mentally disabled adults.

Whether force has been applied for the purpose of correction will depend on whether there has been
any misconduct on the part of the child to warrant a measure of discipline.

Most cases turn on the issue whether a reasonable amount of force was used.
Relevant factors considered include:
 The seriousness of the misconduct.
 The age and character of the child.
 The likely effect of the punishment on this particular child.
 The degree of gravity of the punishment.
 The circumstances under which the punishment was inflicted.
 The injuries suffered by the child.

Social science evidence increasingly suggests that corporeal punishment is ineffective in
influencing behaviour and may teach resort to violence.
58


While a ship is at sea or an aircraft is in flight, a captain has the privilege to exercise reasonable
force to secure the safety of their ship of aircraft or its passengers.
It has been recognized at common law and in provincial education statutes that teachers and
principals have broad rights to inflict corporeal punishment and even conduct a reasonable
search in order to maintain order and discipline and to preserve the health, safety and comfort of the
students: see M.R.M. v. The Queen (1998)
4. Public and Private Necessity
a) Public Necessity





This defence is applied mostly to privilege damage or a wrongful act inflicted intentionally by the
defendant to property in response to an imminent and serious peril for the purpose of averting a
greater loss; must be necessary in light of circumstances, and in absence of other options.
Necessity is generally is not available to a defendant who has acted negligently and thereby
contributed to or caused the situation of urgency and imminent peril.
Some cases hold that the defence is a complete justification for the action taken in response to
imminent peril and require the plaintiff not only to submit to the acts complained of, but bear the loss
or harm without compensation.
The defence is usually applied to justify harm or loss inflicted upon property for the greater
good of the majority or of society.
Some notion of necessity is included in the recognized exception to consent requirements for
emergency medical treatment, although the exception cannot apply to negate an express refusal of
consent to a treatment (Malette v Shulman).

It has not been successfully used to excuse the taking of life in a shipwreck ( i.e. the cannibalism
case, R. v. Dudley and Stephens) or the throwing overboard of people to preserve the seaworthiness of
a lifeboat (United States. v Holmes).

Applies to travelers who are forced to cross adjoining land when a public highway is blocked (Dwyer
v. Staunton – 1947 Alta.)
Surocco v. Geary (1853 Cal S.C) – if action is necessary in public interest  defence


House burned down to ensure that rest of houses in row don’t burn
If some action is necessary in the public interest  complete defence
b) Private Necessity
Vincent v. Lake Erie Tpt. Co. (1910 Minn S.C.) – if property damage, must compensate owner


∆’s steamship moored to π’s dock without consent; storm came, ∆ used dock to shelter ship; dock
was damaged
Using pier was justified, but need to compensate owner of pier
59


Private necessity is defence to technical torts  don’t cause any property damage
Where there’s property damage  I’m not absolved from compensatory damage, even if action
was out of necessity
Chapter 26 - Business Torts
1. Deceit (Fraud)

most serious of business torts
ELEMENTS
 false statement
 made knowingly, without belief in truth, or recklessly without care whether it’s true or false
 intention to mislead plaintiff
 plaintiff suffers loss as result of reasonably relying on statement
Derry v. Peek (1889 HL) – deceit must be knowingly false or recklessly made








Advertise in prospectus that they have the right to use steam, and they don’t
Can the plaintiff recover for lost investment?
If claiming rescission (contract)  only necessary to prove misrepresentation
In tort, need something more: FRAUD
False representation made knowingly, without belief in truth, or recklessly without care
whether it’s true of false
If you make a false statement believing it’s true, that’s NOT fraud.
Court says this case falls into second category: was believed to be true no fraud
usually, reasonable person relies on statements of past or present facts, but statements may be implied
by puff, opinion or prediction
2. Passing off

protects manufacturers from unfair competition, and customers from being duped by inferior product
ELEMENTS
 existence of goodwill
 deception of the public due to a misrepresentation
 actual or potential damage to plaintiff
Ciba Geigy Canada Ltd. v. Apotex (1992 SCC) – elements of passing off




π sold drug; ∆ legally produced drug, then started to market drug identical to plaintiff’s
Elements: some goodwill, deception of public due to misrepresentation, actual or potential damage to π
Protecting both consumers (want to buy the right product) and manufacturers (their goodwill)
Could get disgorgement damages
60
3. Intimidation

Two types



Two-party intimidation - ELEMENTS
 coerces plaintiff by means of unlawful threats
 to do or refrain from something he has a right to do
 intends to do harm to plaintiff
Three-party intimidation - ELEMENTS
 unlawful threats
 to coerce third party
 into committing specific act
 which harms the plaintiff and was intended to harm the plaintiff
intimidation is not committed if a party to a contract asserts what he reasonably considers to be his
contractual right and that the other party, rather than electing to contest that right, follows a course
of conduct on the assumption that the assertion of right can be maintained (Central Can…)
Rookes v. Barnard (1964 HL) – three-party intimidation


π was in ∆’s union and employee; union threatened employer; plaintiff gets fired (can’t bring
action against union, can’t bring action against employer)
Claim for 3rd party intimidation
Central Can. Potash v. Government of Sasketchewan (1979 SCC) – no two- party intimidation





π needed license to produce; exceeded limits of license, got letter that said reduce or lose
license
is it within ∆’s authority to legislate here?
threat made directly to π threatened to breach contract
court finds that even if it’s ultra vires, must comply (?)
not unlawful to make someone comply with something they are obligated to comply with
4. Conspiracy




Captures actions by two or more people that are unlawful
differs from other business torts in that the ∆’s motive comes into play
Two kinds of claims
 Conspirators set out to do something lawful
o π needs to show their main purpose was to cause harm to π
 Conspirators set out to do something unlawful
o π needs to show that they should have known the collaboration would hurt π
ELEMENTS
 Two or more people
 Do UNLAWFUL act they should have known would hurt plaintiff OR
 Do LAWFUL act the purpose of which would hurt the plaintiff
 Plaintiff suffers some harm
61
Posluns v. Toronto Stock Exchange (1964 Ont. HC)



π employee in firms; stock exchange finds out about illegal trades; TSE tells employer they
won’t deal with him; employer fires him
Claim fails because not an agreement to injure π  no malice or improper motive
Directors of corporation do not make “agreement” in sense of tort, just make decision
5. Interference with Contractual Relations

ELEMENTS
 ∆ knew about contract between π and third party, but not all the details
 ∆ must have intended 3rd party to break agreement with plaintiff, but need not be
motivated by malicious desire to harm π
 Breach of the contract occurred
 plaintiff suffers loss, although mere lack of contractual performance is usually sufficient
Direct interference


∆ might be liable, even if actions are lawful
e.g. inducing someone with a better employment offer
Indirect interference


Action MUST be unlawful to recover
e.g. ∆ broke 3rd party’s legs to prevent her from performing a contract with π
Posluns v. Toronto Stock Exchange (1964 Ont. HC) – no interference





See facts above; Was the action interference with contractual relations by TSE?
No need to show malice.
Court: was interference justified - criteria?
 nature or contract
 position of parties
 grounds for breach
 means employed to procure breach
 relation of person procuring breach to person breaking contract
 object of person procuring
Justification sanctioned by courts in past:
 Moral or religious reasons
 statutory or contractual right
 health reasons
Exchange fulfilled its correlative obligations, acting under statutory requirement  no
inducement
62
Chapter 24 - Nuisance
1. Introduction
 Purpose/Policy: Designed to protect the P’s use and enjoyment of their land.
 Examples include overhanging branches, sewage, foul odors, barking dogs, bright lights, traffic vibrations,
pollution etc.
 Must be unreasonable interference with use and enjoyment of land.
 The court must weigh the P’s interest in being free from interference against the D’s interest in
carrying out the activity in questions.
 Both parties are doing something they are allowed to do, but one party’s actions are intruding on the
other.
 Elements: Relief is only available if, having regard for all circumstances, the interference is
unreasonable.
 Reasonableness in nuisance refers primarily to the reasonableness of the effect of the D’s conduct on
the P’s enjoyment of land. A D may be liable in nuisance even if they acted reasonably but the effect
is not reasonable.
 Important Policy Consideration: This type of tort increasingly presses/tests the assertion that tort
law is based on fault. THINK ABOUT THIS! What are the policy reasons for having this tort if it
cannot be based on fault?? Compensate to the victim.
 There are 2 categories: PRIVATE and PUBLIC
o Difference is who brings the suit
2. Private nuisance
 between 2 individual people
 Key points (from 340909)
1. Court goes through a balancing process to determine if actionable nuisance.
2. Unreasonableness in nuisance is when the interference in question would not be tolerated by the
ordinary occupier. Determined by:
 Severity of interference, having regard for its nature, duration and effect.
 Character of the locale: important in determining the standard of comfort which may
reasonably be claimed by an occupier of land. Standard in a predominately residential
differs from industrial area. Determining standard is more difficult it mixed or changing.
 Utility of the D’s conduct: importance and value to the community. Question goes to
leniency in remedy rather then liability itself. Can be considered too socially useful to
grant an injunction.
 Sensitivity of the use interfered with (of the Ps land). Use isn’t unduly sensitive if it
lawful use of the land (Hollywood)
3. P needs to show damages/injury. Usually measured by monetary damages but not always.
 Moving to a nuisance. Not a defence that the nuisance already existed and the P just moved there. You
can lead evidence re this and can be considered it considering reasonableness of use of land, but
generally this is not a defence.
 The effect of new behavior. Can have something that isn’t a nuisance (e.g. noise) and add more to it
and it becomes a nuisance.
63
 Intention is usually irrelevant, it is just a matter of whether what they are doing interferes with P’s
reasonable use and enjoyment of land. But there are exceptions (see Hollywood – noise).
 See Tock for application of nuisance claim when D is a gov’t body.
340909 ONT. LTD v. Huron Steel Products (Windsor) Ltd.(1990 HC) –key elements of private claims
 P built an apartment near D’s stamp plant; D had been a that location for years. After P built apartment,
D bought a press that was really loud and caused vibrations; P sues D for nuisance, claiming loss of
rental income and loss of value of the building.
 Does the P have a cause of action under nuisance?
 Key points about private nuisance (see above):
 This case deals with the first three factors in order to determine there was a nuisance.
1. Severity of the interference having regard for the nature, duration and effect.
 Nature - finds that the is noise above that is permitted, impulse noise
 Duration – finds the noise is regular, has been going on for 10 years, occurs
at nights and on weekends.
 Effect – looks at damage caused to P. P must show damages in order to be
successful. Finds loss of tenants, loss of property value. Judge excepts at
least some loss in value.
2. Character of local: area is of mixed use, so harder to determine standard.
3. Utility of D’s conduct: There are number of people employed at the plant. But there is
something they could do to decrease the noise without putting people out of work.
 Court finds that P has suffered an unreasonable loss of the use and enjoyment of their land due to the
nuisance of the D; P are granted damages and injunction. D is required to take steps to decrease noise.
Hollywood Silver Fox Farm Ltd.v. Emmett (1936 KB) –sensitivity of use; nuisance if malicious intention
 Fox breeder (P) puts up sign advertising business; Neighbor (D) doesn’t like it. D threatens will shoot
gun during mating season if P doesn’t take sign down; D does start firing guns. ; P sues.
 Was shooting of guns with the express purpose of interfering with the P’s fox breeding a nuisance?
 Intention is usually irrelevant, it is just a matter of whether what they are doing interferes with P’s
reasonable use and enjoyment of land.
 But judge in this case found a case in which intention mattered (Christie) and applied it.
 When a person makes noise for the purpose of injuring or annoying their neighbor, an actionable wrong
of nuisance has been committed and making to noise may be restrained by an injunction. Held: If the
intention is malicious and noise is the outcome then it is nuisance.
 Could be rationalized that intention is important because if D’s actions are based on pure malice, then
the freedom to do these actions is not really important for any “real” reasons, other then to annoy or
interfere with P. In this situation is logical to look at intention and not just actions of D.
 Sensitivity of the use: D argues that the Ps use of land as fox breeding is unduly sensitive use. The
court says it isn’t unduly sensitive because it is lawful use of the land – this is a really broad definition
of sensitivity of land – not unduly sensitive if not unlawful.
Tock v. St. John’s Metropolitan Area Board (1989 SCC) - liability of govt. body; defence of stat.
authority
 P’s basement flooded with water from sewer because the sewer was blocked. Basement was damaged;
D is gov’t body.
 Whether there is a difference in the way we understand the nuisance claim because the D is a public
body?
 Is there a defence of statutory authority that can be invoked to avoid liability for the D?
La Forest
64
 criteria of something being inevitable consequence of implementation of leg by public authority is not
sufficient to support defence of public authority. Inevitable in that it could not have been avoided by
the exercise of all reasonable and available expertise and care in the design, construction and
implementation.
 Test proposed is: given all the circumstance is it reasonable to refuse to compensate the party for the
damage suffered? A functional test. No criteria re: what is reasonable. This test was not used in the
future.
 Holds that it is not reasonable to refuse compensation in this case.
Wilson
Test: based on structure of legislation
1) if the legislation imposes a mandatory duty and the nuisance is inevitable
consequence of that duty then the nuisance itself is authorized and P can’t
recover, absent of negligence  defence of statutory authority is applicable.
2) if the legislation is permissive but legislation tells you exactly how or
where to do carry out the thing and nuisance results, then nuisance itself is
authorized and P can’t recover, absent of negligence  defence of statutory
authority is applicable
3) if the legislation is permissive and you can carry it out however you want
then nuisance is not authorized and P can bring an action / defence of statutory
authority is not applicable. Present case falls into this category.
Sopinka (approach now used)
 Disagrees with test above. Says there is no need to depart from the law in this area/nuisance unless
there is a good reason.
 There is only a defence of statutory authority if the nuisance is the inevitable result of the doing what
legislature says. That is, it could not have been avoided by the public authority. Public authority has to
show there is no other way they could have carried out there duty under the legislation. Burden of proof
is on the D. The fact that one means is considerably less expensive will not be sufficient. If only one
method is practically feasible then it must be established that it was practically impossible to
avoid the nuisance.
 This is the test that is currently used. Sopinka’s approach was adopted by SCC in Ryan v. Victoria
(city) 1999.
 Nuisance, strict liability and negligence will often be run at the same time, as in this case.
3. public nuisance
 Impacts larger group of people/public/ the community in general.
 Might be defined as: any activity that unreasonably interferes with the public’s interest in questions
of health, safety, morality and convenience.
 How many people do you need for it to be public? No determination. Idea is that public nuisance is
too widespread and indiscriminate to impose an obligation on one person bring a claim
(Denning- widely accepted)
Factors Considered:
o
o
o
o
o
Trouble and inconvenience caused by activity
Ease of difficulty in avoiding risk
General practice of others\
Utility of activity
Character of neighbourhood
 difference is WHO SUES…
o Usually Attorney General;
65
o
can only bring suit as private individual if the damage you sustained is SPECIAL; Not
just that you’re hurt more than others, it must be unique.
 Court tries to balance between interests of parties.
 Has been debate whether there needs to be damages to property interest – Court has said yes.
 Sphere of nuisance may be described as “the neighborhood”. It is not necessary to show that every member is
impacted, rather that a representative cross section of the class has been affected. Public nuisance is a collection
of private nuisances. Public nuisance is so widespread and indiscriminate in its effect that it would not be
reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, rather
should be taken on by the community. (A.G. Ont.)
 Private citizen can only bring an action in public nuisance if can show special damages. Need a difference in
kind of damage not just a difference in magnitude/degree of damages. Must be direct and particular over and
above the injury inflicted on the public in general. (Hickey)
AG Ont. v. Orange Productions (1971 – how do the courts distinguish between private and public
nuisance?
 D wants to hold a rock concert; AG wants an injunction to stop rock concert, alleging it would be a
public nuisance because in at D’s past concerts there was trespass to private property, public intercourse,
drugs etc.
 Whether the concert is a public or private nuisance.
 Neighbourhood is sufficient to constitute public. Need to show that cross section/class of people are
impacted. Doesn’t have to effect everyone in the neighbourhood in the same way.
 Finds public nuisance because impact on the neighborhood as a whole and as such grants an injunction.
Hickey v. Elec. Reduction Co. (1970 Nfld. SC) – private citizen must show unique damages
 D put toxins in the water that destroyed fish life; The livelihood of fisherpersons in the area suffered as a
result; P is a fisherperson who wants to bring action.
 When can a private citizen can bring a claim for public nuisance?
 The right to fish in the sea and public waters is free and open to all. It is a public right.
 Finds that the pollution to the water created a nuisance for all persons not just the fisherman as such
is considered a public nuisance. Pollution impacts broad group of people indiscriminately.
 Private citizen can only bring an action in public nuisance if can show special damages.
 Need a difference in kind of damage not just a difference in magnitude/degree of damages. Must be
direct and particular over and above the injury inflicted on the public in general.
 Court finds fisherpersons don’t have special damages.
NOTES
 Private citizens bringing a separate claim is extremely rare. More likely that AG will allow someone to sue on
AG’s behalf.
4. remedies for nuisance
 The most commons remedies for nuisance are damages and injunctions.
 Injunction is an order directing a person to act in a particular way.
 There are 2 types of injunctions:
1) Prohibitory: compels the D to refrain from a certain act.
2) Mandatory: compels the D to perform a certain act.
 Injunctions may be granted at 2 times:
1) An injunction may be interlocutory: when the court temporarily restrains the D while the P
attempts to establish a case for a permanent order.
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2) Quia timet: when the court, at trial, grants an injunction in an effort to prevent an
anticipated harm.
 Mendez set out criteria to be considered by court when determining what type of remedy is required:
Mendez v. Palazzi (1976 Ont. Co. Ct.) – rules for determining appropriate remedy: damages or
injunction
 Roots from one of the D’s trees are growing into P’s property; P alleges roots are ruining lawn, patio etc
and threatening to pierce septic tank and have interfered with the enjoyment of the P’s land.
 What remedies are available to the P? Are damages or an injunction more appropriate?
 Two types of damages: already occurred and future
 Factors to consider when assessing what type of remedy to use:
 Damages are appropriate instead of injunction when:
1. the injury to the P’s legal rights is small
2. And is one which is capable of being estimated in money
3. And is one which can be adequately compensated by a small payment,
4. And the case is one in which it would be oppressive to the D to grant and
injunction.
 An injunction should be granted when 2 conditions are met
1) there must be actual damages
2) the damage must be substantial.
 An quia timet (injunction for future harm) should be granted when:
1. damages are imminent
2. damages will be substantial (even irreperable).
 HELD: No injunction was granted. Granted damages for damages already suffered. Failed to show that
future damage was imminent.
Miller v. Jackson (1977 CA) – factors considered when determining remedy
 P bought a house next to a well established cricket club; P used cricket club when balls caused damages
to their property and claimed they were being prevented from the use and enjoyment of their property
because afraid of getting hit by one of the balls; (negligence claim was about probability of damage as
relates to standard of care)
 What kind of nuisance remedy is appropriate?
Denning
 When an occupier of land tries to stop neighbor from doing something on his own land, the only
appropriate cause of action is an injunction, which is found in nuisance (as opposed to negligence)
 Tries to balance the rights of public at large to pay cricket and the interests of private individual to their
property.
 Emphasizes that injunctions are a discretionary remedy – there are no hard and fast rules.
 Decides not to grant an injunction because cricket club was there before house was built. The P choose to
build near the cricket club. Indicates that he wouldn’t even grant damages except for the fact that the club
has offered to pay damages.
 Denning’s decision is just wrong. The fact that the P moved (moved to the nuisance) beside the cricket
field is not a relevant issue in nuisance and not a defence for the cricket club.
Lane
 Granted an injunction but gives club 12 months before comes into force so can find somewhere else for
play. Finds damages would not be adequate.
 The danger to the P is real and not slight.
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 States that the fact that the P moved beside the cricket club is not a defense for the club and not relevant.
It is no answer to claim that the P brought the trouble on his own head by building or coming to live in a
house so close to the D’s premise that he would inevitably be affected by the D’s activities, where no one
had been affected previously.
Cumming-Bruce
 Finds nuisance, but in balancing of interests of both parties decides an injunction is not appropriate.
Stresses importance of cricket to villagers.
 Looks at the fact that P knew or should have known when building the house that the cricket club was
very close and that they received a benefit in terms on open space as a result. Finds that with these
benefits come restrictions.
 Grants damages for injuries to P’s property and says that P should stay indoors when cricket being
played.
NOTES
 In nuisance and especially in injunctions there is the opportunity for the court to show what they think is
socially importance. E.g. won’t close down a factory that is a nuisance because of all the jobs that it provides.
Work is frequently stressed as important by the courts.
Spur Industries Inc. v. Del E. Webb Development Co. (1972 Ariz. SC) –Ex. of creative remedy;
development
 P was a city planner and was planning to start up a new city; D is the owner of feedlot in an agriculture
area; The feed lot stank; P bought land around the feed lot to develop. It was cheap because the feedlot
was close by; Because of the smell from the feedlot P has problems selling off lots; P brings a claim of
nuisance and wants an injunction.
 Is there a nuisance and if so does the city planner have to compensate the feed lot because they will
have to shut down or move?
 Where the operation of a business is lawful in the first instance, but becomes a nuisance by reason of a
nearby residential area developing right by it, will the developer of the new residential area be required
to pay the owner of the business that now has to close or shut down?
 Yes PUBLIC nuisance because causing damages to the residential area as a whole and special
damages to the P because can’t sell lots. (developer has special damages and has standing).
 Finds that in the “coming to the nuisance” cases, a residential landowner may not have relief if he
knowingly came into a neighbourhood reserved for industrial or agricultural endeavors and such has
suffered damages
 P gets a permanent injunction not because of damages to P but because of the damage to the people
who have been encouraged to purchase homes in this area.
 But, court holds that it does not seem harsh to order the P to pay the feed lot for the costs of closing or
moving. Got land for cheap because nuisance if you then successfully bring nuisance claim you would
get a windfall. The courts resolution is trying to make it more economically fair for the parties. That is,
it is not too harsh to require a developer, who has taken advantage of the lesser values in a rural area as
well as the availability of large tracts of land on which to build and develop a new town or city in the
area, to indemnify those who are forced to leave as a result. P brought people to the nuisance to the
foreseeable detriment of D.
 This outcome is limited to cases in which a developer has, with foreseeability, brought into a previously
agricultural or industrial area the population which makes necessary the granting of an injunction
against a lawful business and for which the business has no adequate relief.
Chapter 25 - Strict and Vicarious Liability
1. Introduction
 In general people cannot beheld liable in tort law unless they were at fault.
 Exceptionally, liability may be imposed even though the D was not at fault, at least in the usual way
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 Strict and vicarious liability differ from other torts because they lack the traditional element of
fault i.e. Intention to bring about results or consequences of a particular act. Even if the D did not have
the intention to cause harm, if acted voluntarily and actions did cause harm then P should not be
denied compensated.
 This tort may not be lasting very long, though  being rolled into negligence in other some other
countries
 In Strict Liability - the D is held accountable because he breached an obligation, although not
intentionally or negligently.
 He did something that he should not have done. In these cases, the D engages in an abnormally
dangerous activity. As a matter of fairness, when that heighten risk manifests itself in injury, the D is
considered culpable and responsible.
 Can be personal injury / doesn’t have to be adjacent land
 ELEMENTS of Strict liability (as set out in Fletcher):
1. non-natural use of land.
1) In Gersten court indicated that in determining whether or not something is a nonnatural use of land, courts have not only looked at the thing but other factors as well as
purposes. The burden of proving that something is a non-natural use of land falls on the
P.
2) Factors to consider in determining if natural or non-natural (Need to balance
interests of parties involved): time, place, circumstances, purpose, community
impact, social patterns.
3) Note: definition of non-natural is hard to apply in future cases because so vague.
2. Escape. Read further defines as “Escape means, escape from a place which the D has
occupation of or control over to a place which is outside his occupation or control. It is the
duty of the D to keep a thing in. Preventing escape of something that may cause harm from the
area which the D occupies or controls.
3. P suffers damage
 See Richard and Acker for strict liability for damages caused by animals.
 Within the fault based regime of torts, strict and vicarious liability are anomalous and controversial.
SCC has offered compelling policy justifications for vicarious liability but strict liability is still
contentious. It is hard to know how SCC will treat it when case comes to it. Other areas of
commonwealth have begun to re-interpret strict liability more in accordance with fault.
2. Escape of dangerous Substances
a) Introduction
Rylands v. Fletcher (1868 HL) - example of strict liability; two-step test
 Explains principle of natural v. non-natural and principle of escape; Provides policy reasons.
 D built a reservoir on their property to provide water for a mill; Unknown to D, the reservoir was
constructed on an abandoned mineshaft that was connected to P’s property; Water from the reservoir
broke through the hidden mineshaft and flooded the P’s adjoining mine; P sued.
 Holding someone liable when use land in dangerous fashion causing damages to P; Whether the D can be
held liable even though he did not act intentionally.
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ANALYSIS/DECISION
 Non-natural use of land: D might lawfully use their land for any purpose in the ordinary course
of the enjoyment of land, and if this results in the damage to the P, then D not liable. This is
because it would be up to the P to protect themselves from damages suffered from their neighbor
using their land for natural purposes. Conversely, if the D goes beyond the natural use of their
land, using it for non-natural purposes, and the consequence is injury to P, then the D was acted at
their own peril and is liable. Also termed “LIKELY TO DO MISCHIEF” - Blackburn

Escape: If a neighbor brings something into their land, which was not naturally there, and which
is harmless to others as long as confined to their own land/property, But which they know or
should have known will be mischievous if it gets on to his neighbors property, then he is liable for
the damages that ensue if he does not succeed in confining it to his own property. “ If a person
brings or accumulates on his land anything which, if it should escape, may cause damage to his
neighbor, he does so at his own peril.” If it does escape and cause damages he is responsible,
regardless of how careful he was or what precautions he took to prevent the damages.
 The question is not whether or not the D acted with due care, but instead whether his acts have
occasioned the damage.
 Finds D is strictly liable - Used land for non-natural purpose and allowed escape
NOTES
 Policy: Fills in gap, ensures compensation for P, which is key to tort law. Serves as a deterrent. Doctrine is
found in good sense, for when one person in managing their own affairs causes, however innocently, damage to
another, it is obviously only just that he should be the party to suffer.
 Not too broad because of non-natural use criteria.
 BUT, is a mine any more “natural” than a reservoir? Why privilege one over the other?
b) Escape
Read v. J. Lyons & Co. (1947 HL) – escape must be away from defendant’s property
 R had a factory that filled shell cases with high explosives; A was an employee of Ministry that
oversaw the factory, whose duty it was to inspect the filling of the shell cases at the factory; When A
went to factory executing her duty, an explosion occurred and the A was injured. No evidence of
negligence on part of R.
 Is R liable under the doctrine of strict liability to someone lawfully on R’s property who is injured, even
though the injury was not due to R’s negligence?
 Court finds that essential element of escape is not present in this case.
 Escape means, escape from a place which the D has occupation of or control over to a place which
is outside his occupation or control. It is the duty of the D to keep a thing in. Preventing escape of
something that may cause harm from the area which the D occupies or controls.
 In this case, there was no escape from outside of the factory. The explosion happened inside/on the D’s
property.
 Strict liability is not limited to adjoining neighbors
 Finds that carrying on an explosive factory is a natural use of the land.
c) Non-natural Use
Gertsen v. Metro. Toronto (1973 Ont. HC) – Factors considered in determining non-natural use of land
 City of Toronto was dumping garbage in land fill in city of York with their consent; Methane gas
seeped out and caused an explosion when P started their car; P sued Toronto and York – nuisance,
negligence and strict liability
 Can city of Toronto/a municipality be held liable under doctrine of strict liability?
 Is this a non-natural use of land? How is this assessed?
ANALYSIS:
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o
o
o
o
o
Rule: Blackburn from R v. F: Persons who for their own purposes brings on his land 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 damages which is the natural consequence of its
escape.
In determining whether or not something is a non-natural use of land, Courts have not only looked
at the thing but the time, place and circumstances as well as purpose.
Court finds that landfill is a non-natural use of land. It was a small ravine that was surrounded by
heavily populated urban areas. Finds that the primary reason for using this ravine was selfish and
self-serving to Toronto. Takes this into consideration as well as the location and temporary and
permanent problems associated with the land fill and finds that it does not support public welfare.
Must consider the impact of the community.
The burden of proving that something is a non-natural use of land falls on the P.
D willingly brought garbage/accumulated garbage on land which then escaped and caused
damages.
RATIO:
 Factors to consider in determining if natural or non-natural:
o There must be some special use bringing with it increased danger to others…not merely
the ordinary use of land or such a use as is proper for the general benefit of the
community.
i. time
ii. place
iii. circumstances
iv. not excluding purpose
1. Need to balance interests of parties involved.
d) Defences to the Rule of Rylands v. Fletcher
1) Consent
2)
3)
4)
5)
6)
a. If D can establish that the P implicitly or explicitly consented to the presence of the
danger  complete defence to a claim under Rylands.
b. The courts may imply consent from the nature of the legal relationship between the
parties or from the physical circumstances.
Common Benefit
a. If the source of danger is maintained for the common benefit of both the P and the D, the
D cannot be held liable under Rylands. Can be treated as a form of applied consent.
Default of the Plaintiff
a. The P cannot recover if he voluntarily and unreasonably encounters a known danger.
Recovery will be denied if the P’s wanton, willful or reckless misconduct materially
increased the probability of injury. Nor will the D be held liable for damages which are
caused by the abnormal sensitivity of the P’s property.
Act of God
a. An act of God is a force of nature that arises without human intervention. To provide a
defence, the natural force must be so unexpected that it could not have been reasonably
foreseen and thus its effects could not have been prevented.
Act of a stranger
a. If the D can prove that the escape of the dangerous thing was due to a deliberate
unforeseeable act of a stranger, he will be absolved under Rylands.
b. The onus is on the D to show that he could not have prevented the escape with the
exercise of reasonable care.
c. The owner of a dangerous thing remains strictly liable for foreseeable harm caused by
third parties.
Statutory authority
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a. If the D can prove that his conduct giving rise to the actions was authorized by the
statute, he will have a defence.
b. Scope of this defence is a matter of statutory interpretation. If the statutory language is
mandatory in that it imposes an obligation on the D to supply the service, then the D will
not be held liable for acts done pursuant to that obligation in absence of negligence. If the
statutory language is permissive, the courts will not usually interpret it as authorizing the
D to violate the rule in Rylands. Would we use Sopinka judgment in this case, though??
e) A comment/criticism on Rylands v. Fletcher POLICY CONSIDERATIONS
 Modern common law judges have never been entirely at ease with the doctrine of strict liability.
 At least 2 aspects of Rylands are problematic:
1) Imprecision of the terms: dangerous substance, escape, non-natural use.
2) Fundamental fairness of SL and conflict with the other aspects of tort law such as negligence and
intentional fault. Other commonwealth jurists have concluded that SL is no longer appropriate – it
has outlived its usefulness. In 1993, in Cambridge Water Co v. Eastern Countries Leather the HL
found that knowledge or at least foreseeability of risk is a precondition of even strict liability. Some
have argued that this places it under the heading of negligence. In 1994, in Burnie Port Authorty v.
general Jones Pty. Ltd (New Zealand) the court stated that in the years since Rylands, there have
been crucially important legal developments , such as the emergence of a coherent law of negligence
that is sufficient to deal with unintentional injury and as such SL is not necessary. SCC have still not
undertaken a review of Rylands so still applicable in Canada.
3. Liability for Animals
a) Dangerous animals
Richard v. Hoban (1970 NBCA) – test for liability for domestic animals
 R’s dog allegedly attacked the A, who was 8 years old at the time; some evidence that boy had also
been attacked previously by same dog. After this owner investigated and found boy had not been
attacked and dog didn’t have rabies etc.
 Should the R be held liable for the injuries suffered by the A as a result of his dog?
 Court finds R is not liable. Court holds 2 and 3 (below) were not shown. Allows appeal
 The law assumes that animals, who from their nature are harmless or are rendered so by being
domesticated for generations, are not of a dangerous disposition and the owner of such an animal is not,
in absence of negligence, liable for an act of a vicious or mischievous kind, that it is not the animal’s
nature to usually commit. In order to be held liable for your animal, P must show:
1) That is was the animal in question that inflicted the harm.
2) That the animal had a savage propensity to commit the particular act of injury
3) That the owner knew of the animal’s savage propensity i.e had scienter
(knowledge or awareness that the dog caused similar injury) When this knowledge
exists the owner keeps the animal at their own peril and will be held liable for any
harm it causes.
4)
 Law distinguishes between domesticated and wild animals
o if wild animal  you are strictly liable
o if domesticated  need to prove three steps above
b) Cattle Trespass
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Acker v. Kerr (1973 Ont. Co. Ct.) – responsibility of owner of grazing animals to ensure that they don’t
escape
 P and D had adjoining land; P alleges that he sustained injuries to his crops as a result of D’s failure to
properly confine cattle owned by him and placed by him on his property; D argues that it was P’s own
fault because he failed to keep up and repair the portion of the fence between the 2 properties where the
cattle came in through.
 Should the D be held liable for the damages caused by the trespass of his cattle?
 Court: the owner of animals is bound to keep them under control and is liable if they escape for such
damages as it is ordinary in their nature to commit.
 It is the responsibility of the owner of the animals to ensure that they do not escape on to someone
else’s land. The P has no positive duty to maintain the fence between the properties. HELD: liable
4. Products Liability: Negligence or Strict Liability?
 In Canada, roots of product liability is Donoghue and it is dealt with under negligence – must show
breach of duty and standard etc.
 In Quebec and US product liability is dealt with under SL. A P needs only to prove that the product
was defective and that the defect caused an injury . Manufacturers are held liable more often under SL.
Supporters of the SL approach argue that manufacturers are profit driven to create risks, the consumers
are rarely in the position to evaluate the risks and that the manufacturer is in the best position to
minimize the defects and insure against loss. But critics argue that the real beneficiary are lawyers and
that it has a negative impact on efficiency and competitiveness in American industry. Call for “tort
reform”. POLICY: this may eliminate the fact the manufacturers sometimes don’t fix defects because
it is cheaper just to deal with the law suit. This is repulsive because money cannot truly compensate P
for loss. It serves as a deterrent and helps protect society.
5. Vicarious Liability
 Allows liability to be imposed on one person as a result of a tort committed by another.
 VL holds one person responsible for the misconduct of another because of the relationship between
them.
 Considered to be a type of strict liability because it requires no proof of personal wrongdoing on the
person subject to it.
 VL does not relieve the tortfeasor of responsibility.
 Employer can also be responsible for two torts: VL and something else employer has done negligently.
 [There are 3 options when a person wants to retain the services of a worker:
i) Agency: (See T.G Bright for policy justification for VL in this context - respondeat superior
ii) Employment: Primary instance of VL. If an employer is held VL, generally has the right to recover the
same amount from the employee because as between the 2 the primary burden falls on the tortfeasor. But,
employer usually doesn’t exercise this right because it may damage employee moral or the employee
might not have any money so it is useless, also the employment contract or bargaining agreement may
prevent the employer from recovering from the employee. The benefit of an exclusion clause between the
employer and the P is extended to the employee. Employer may be held VL and also personally liable for
own tort if hired someone incapable of doing the work – negligent in hiring. SEE B (PA) for test to
determine if VL and for policy reasons.
iii) Independent contractor: see 671122 Ontario and policy reasons. See non-delegable duties.
 VL is driven by policy consideration – to ensure that P is compensated by person who has the greatest
ability to prevent the risk; balance between social interest in furnishing innocent tort victim with
compensation, and not putting undue burden on business.
 Policy considerations:
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1) Remedy
2) Deterrence
3) Prevents an employer from benefiting form behavior that harms P without having to
compensate
a) Statutory Vicarious Liability
 The scope of vicarious liability has been extended by legislation that allows someone to be held VL
without the agency relationship usually required.
 Statutes vary somewhat across provinces
 E.g. owner of a car held liable if lend car to someone and they cause accident. This is policy driven. In
modern society vehicles are often instruments of harm. Insurance is ownership rather than operation
driven, so to ensure that P can be compensated they get access via VL to owners insurance.
b) Principle Agent relationships




In this type of relationship, the principle authorizes the agent to act in its behalf.
The principle may be held liable for the agent’s torts.
An agent may be an employee, in which case, doctrine of VL also arises.
Distinction between principle-agent v. employer-employee is not really relevant today.
T.G. Bright & Co. v. Kerr (1939 SCC) – principle needs control over agent to be liable
 Court considered whether the D, who is a wine dealer, was VL for the negligence of its motorcycle
deliveryman.
 Deliveryman was held to be the D’s agent, but Majority concluded that he was not the D’s servant
because the D had no control over the precise manner in which the task was performed.
 POLICY: Dissent: It is not unjust that he who has selected the agent and will have the benefit of his
services and bear the risk of his negligence in matters incidental to the doing of the acts the
performance of which has been delegated to him.
 Dissent: The principle is not liable for torts, etc of his agent in any matter beyond the scope of the
agency, unless he has expressly authorized them to be done or he has subsequently adopted them for his
own use and benefit (Lloyd v. Grace, Smith & Co 1912)
c) Master- Servant Relationship




Employer – employee context.
Most frequent occurrence of VL.
Sometimes difficult to determine whether or not a particular incident falls withint he scope of VL.
Must also distinguish between employees and independent contractors.
B. (P.A.) V. Curry (1999 SCC) – Salmond test for VL of employers
 P was sexually abused as child while in a residential care facility for troubled youth. Perp was a staff;
The Children’s Foundation ran the facility, including hiring staff; Foundation did a background check of
perp before hiring; When found out about abuse, perp. was fired.
 Is the employer (foundation) vicariously liable for acts of their employee who sexually abused the P?
 May employers be held vicariously liable for their employees’ sexual assaults on clients or person within
their care?
 Court: whether an employer is VL for the act(s) of their employee is governed by the Salmond test,
which holds employers VL for:
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1) employee acts authorized by the employer
2) unauthorized acts so closely connected with authorized acts that they may be regarded as modes
(although improper modes) of doing an authorized act. Often difficult to determine between an
unauthorized mode of performing an authorized act and an entirely independent and unauthorized
act. This cases adds the following mode for deciding:
- are there precedents which unambiguously determine whether VL should be imposed?
- If no clear prior cases, determine if VL should be imposed based on broader policy
rationales.
 Previous cases show 3 general categories for imposing VL and the rationales behind them. All have the
underlying theme of creation of risk by the employer’s enterprises which lead to the tort. Common theme
is that where the employee conduct is closely tide to a risk that the employer’s enterprise has placed in the
community, employer can be held VL.
1) Furtherance of employer’s aims (accident): rational is the same as with agents. Because the
employee was acting in furtherance of the employer’s aims, he or she is said to have ostensible or
implied authority to do the unauthorized act.
2) Employer’s creation of friction (accident-like intentional torts): rational is that if the
employer’s aims or enterprise incidentally created a situation of friction that may give rise to
employees committing torts, an employee’s intentional misconduct can be viewed as falling in the
scope of employment and the employer is VL. Idea of creation of risk by the employer. Extends
VL to intentional torts, e.g. punching
3) Dishonest employee (torts with no relationship to either agency-like conduct or accident): at
heart of this is the consideration of fairness and policy considerations. No connection to
authorized acts. But employer hired employee so should be held liable for his actions.
Does employer’s act increase risk?
Policy:
 is wrongful act sufficiently related?
 consider connection between employer’s creation or enhancement of risk and the wrong. Consider subsidiary
factors:
i.
ii.
iii.
iv.
v.
the opportunity the enterprise afforded the employee to abuse his power
the extent to which the wrongful act may have furthered the employer’s aims
extent to which the wrongful act was related to friction, confrontation or intimacy
inherent in the employer’s enterprise
extent of power conferred on the employee in relation to the victim
vulnerability of potential victim to wrongful exercise of the employee’s power.
 Applying above to sexual abuse by employees, there must be a strong connection between what the
employer was asking the employee to do (ie. Risk) and the wrongful act. Must be possible to say that the
employer significantly increased the risk of harm by putting the employee in his position and requiring him
to perform assigned tasks. Incidental factors like time and place are not enough because unlikely to have a
deterrent effect. Test must not be applied mechanically but with a sensitive consideration of policy
considerations such as fair and efficient compensation for wrong and deterrence. Must investigate the
employees duties and determine if they gave rise to special opportunity for wrongdoing. With child abuse
need to look at power & dependency.
 HELD: employer VL because employer’s enterprise created a foreseeable risk that led to harm – based on
opportunity and power relations, product of special relationship and respect fostered by the employer and not
just time and place.
d) Independent Contractors
 An employer will not be held VL for the torts committed by an independent contractor.
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671122 Ontario Ltd. v. Sagaz (2001 SCC) – distinction between employee and independent contractor
 P manufactured car seat covers. Sold to Canadian Tire; D also manufactured car sear covers. Hired
marketing company to try to get Canadian Tire’s business. Company bribed head of Canadian Tire
automotive division to get business; P sued for losses to company.
 What was the relationship between D and the marketing committee, employer-employee or independent
contractor?
 D not liable because marketing company was independent contractor.
1)
Central question is whether the person who has been engaged to perform the services is
performing them as a person in a business on his own account. It making this
determination consider:
i.
Entrepreneurship test
1. level of control the employer has over the worker’s activities.
2. ownership of tools
3. The degree of financial risk.
4. opportunity for profit
ii.
Integration test – more central to business more likely an employee
iii.
Enterprise test (don’t usually see this one)
1. how much control over worker?
2. can employer reduce the risk of loss for employee?
3. how does employer benefit from activities of worker?
4. whether costs of product or services borne by enterprise
e) Exceptions to IC = no VL, focus on Non-delegable
 Even though X is an independent contractor, employer is still liable because he can delegate task, but
can’t delegate responsibility
i. e.g. public highway maintenance (Lewis v. BC)
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