NEGLEGENCE
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances.[1] The area of tort law known as negligence involves
harm caused by carelessness, not intentional harm. The core idea of negligence is that people should exercise reasonable care when they act by taking account of the
potential harm that they might foreseeably cause harm to other people. In Tort law, a plaintiff can find a defendant liable for negligence when the defendant has
negligently caused some harm to the Plaintiff. In order to do so, the P must find that the D owed a duty of care, that the D breached the standard of care under this duty,
and that the breach actually caused the harm in question. First, the duty of care is established. Then, the standard to uphold this duty is qualified. Then, the courts
establish whether there was actual damage sustained, and establish whtehr or not the breach caused the damage. Finally, remoteness is considered.
1. Duty of Care
a duty of care is a legal obligation which is imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could
foreseeably harm others. It is the first step of the negligence analysis. The claimant must be able to show a duty of care imposed by law which the defendant has
breached. This duty of care is phrased as a GENERAL duty to take reasonable care…
Normal medical malpractice case: I suffered harm because of medical treatment. • The doctor is under a duty to use reasonable care when treating me. • The doctor
failed to take reasonable care and exposed me to
excessive risks of harm • The failure to take care caused the harm that I suffered. • It was harm of a reasonably foreseeable type, no bizarre chain, no intervention that
broke the chain etc.
Normal Product Liability Case: Manufacturer produced a defective dangerous product • By doing so breached duty by exposing me to excessive risk • caused harm •
Harm was not remote.
Informed consent cases: I suffered harm from Dr’s treatment • The treatment was not administered negligently • However, the doctor failed to provide me with
sufficient information about the treatment. Had I been provided with the information I would not have had the treatment, and would not have suffered the harm.
Rule
Case
Analysis
Galloway
Wrongdoing plus causation is not enough: there Palsgraf
You owe a duty to a limited group of people
Note Andrews in this case: a duty is owed to
needs to be a duty element.
Cardozo
when you do something dangerous. The limits of everyone. He uses a freeze frame analsysis.
this group: “ordinary vigilance” and “the orbit of
danger”
At the time of a wrongdoing, if a normal vigilant Palsgraf
Level or risk sets this status quo. Low risk, less
person would have thought there was a duty of Cardozo
chance there is a duty owed. The closer the
care owed to the plaintiff, there is a duty of
relation, more chance there is a duty.
care.
Neighbor principle: owe a duty to whom you
Donoghue
Manufacturer: owes a duty of care to the
This is really about proximity.
should have in your contemplation when acting
ultimate consumer to prevent defects in its
because it is reasonably foreseeable that they
products which are likely to cause damages to
will suffer harm. Courts have adopted this
person or property
(reworked in Cooper).
Policy reasons may justify not recognizing a
Home Office
Also known as Anns test: (1) establish prima facie
duty to such a person
duty of care, then ask (2) if it should be negated
due to policy reasons
Is this a case of misfeasance or nonfeasance?
Misfeasance is a positive action done to hurt the P. However, nonfeasance is an omission that was owed that may have
caused harm. This case is likely nonfeasance. This will affect the proximity analysis done in the Anns test.
Cooper v.
Foreseeability: First, whether harm to the plaintiff was a foreseeable consequence of the defendant’s
1. Anns/Cooper Test
Hobart
conduct. A person is not under a duty to take steps to prevent the unforeseeable. Was harm
First: Is there precedence? Para 36: if a case fits
reasonably foreseeable due to defendant’s acts? Good enough if the person belongs to a class who
into a precedent category, you don’t need to go
might reasonably be harmed. While necessary this aspect of the relationship is not sufficient to
into the next steps. THIS IS WRONG. If no…
establish a duty.
Second: Anns Test
1. Reasonable foreseeability of Harm?
Proximate relationship? (Prima Facie
duty met here)
2. Residual policy factors
Proximity: nature of the relationship between P and D. Is there something about this relationship that
makes it “just and fair” to hold the defendant liable for foreseeable harm?

Physical, social, circumstantial, casual, assumption of responsibility, reliance, reasonable
expectations. Such a nature that the D may be obliged to be mindful of the Ps legitimate
interests in conducting his affairs. Look to Donoghue.

Community

Autonomy of victim

Statutory obligations
Manufacturer:

YES Donoghue
Psych Harm:

At scene of crime?

Close relative or not?

Yes in Vankek, Hussack

From manufaturer defect? Treat like phsycal mustpha.
Doctors? Already established duty to warn.
Abandonment of “golden thread”
Anns/Cooper: Police have a duty to investigate
Ohdavji Estate
Residual Policy Considerations: Look beyond the relationship between the parties and consider
reasons of social policy.

Too many legal actions?

Deals with vulnerability?

Jepoardizing the development of important social policies?

Cannot owe to everone, no unlimited classes. Government policy makers cannot be liable
for shortcomings of their policies because they are elected.
Reasonable foreseeability: It was reasonably foreseeable that officer’s failure to cooperate with
investagion would harm appellants.
Proximity: “Close Casual”- activity lead directly to harm. “members of public” reasonably expect police
to be mindful of injuries that might arise.
Policy considerations: none found.
Main idea: there is a party that is helplessly vulnerable to police actions.
Duty and Nonfeasance
Bars: owe a duty of care to their patrons who
become intoxicated with the result that they are
unable to look after themselves
Allowing drunk drivers to drive your car: Owe a
duty of care. Parties equally at fault when the
owner knows about it.
Nonfeasance: to ignore a duty of care.
Misfeasance: to intentionally give incorrect advice or take inappropriate
action Malfeasance: hostile, aggressive behavior taken to injure P
Jordan House
1. Invitor/invitee relationship exists (suggesting commercial benefits)
2. Awareness of drunken condition
3. Violation of liquor laws
4. Knowledge of the Ps propensity o drink
5. Hotel operator’s instruction not to serve him when alone
These created a duty.
Hempler
Jordan house principles modified
Owner knew or ought to have known that he was placing the drunk in a position of danger
Allowing someone to operate dangerous
vehicle/machinery: owe a duty of care.
Stermer
Commercial Hosts and Intoxication: commercial
hosts owe a duty to take care of patrons when
they are in charge, provide liquor, knew of
inebriation, well aware of risk.
Crocker v.
Sundance
Commercial Hosts and Intoxication: commercial
hosts owe a duty to third parties who might
reasonably be expected to come into contact
with the patron, and to who the patron may pose
some real risk.
Social hosts and intoxication: being a social
host alone is not enough to attract a duty of care
towards the person and other road users. They
must do something extra…
Imposing a duty of care onto social hosts:
Feed alchohol to ppl who they know are drunk
and know will be using the roads (maybe)
Stewart v.
Pettie
Social VS Commercial Hosts: commercial hosts
owe a duty of care because…
Childs v.
Desmoreaux
Childs v.
Desmoreaux
Jordan House principles applied…
1. D knew or ought to have known that the P did not have sufficient experience or knowledge
to operate powerful motorcycle safely
2. Risk of harm great and foreseeable considering the HP
Easily could have warned or prevented use of bike
Used Jordan House principles…
Note: warning P is not enough
No reason to owe a duty to a stranger.
Note: very high standard used in relation to
Employees in charge, provided liquor, knew of
voluntary assumption of risk
inebriation, well aware of heightened chance of
injury.
Class of 3rd parties: ppl on highway driving.
First: proximity test: the reasonability is based on
proximity. Is there a relationship? If so… does
this present a situation where it is reasonably
foreseeable to expect that the person will harm
themselves?
Second: Reasonable foreseeability test:
Court says irrelevant to the question of
whether in this particular occasion person
will get hurt or not. Counter: Laskin says
that the relationship was so close that the
host should have recognized the probability
that someone would have gotten hurt
A reasonable person will make a judgment
about the reasonable foreeseeability on
their actual knowledge. Askin more is too
much.
1.
2.
3.
Policy reasons:
1. Homeowners insurance premiums would go
through the roof
2. Insurance claims would go thru the roof to
begin with. Changes the whole nature of
private parties.
NOTE: Law makers create a middle ground where
members of the public get a special liquor license in
some circumstances.
Easier to control drinking; monitoring system set up for commercial institutions
Level of regulation: in order to get your operation off the ground you follow regs.
Commercial hosts have an incentive to over sell; reason to intoxicate ppl. But why apply
tort law where it is only socially needed. This can be challenged.
Proximity: 3 categories where we recognize a positive duty to act:
1. D creates danger himself.
2. Supervision or dependency
3. Exercising a public/commercial ent.
The factors that are in these situations are:
#1 Implication in risk, #2. Autonomy of the victim, #3. Reasonable reliance.
In social situation, none of these are present in a social host situation
Owing a duty to the public at large for parties Here, Parties: we may want to say that your duty to the public doesn’t relate necessarily to your relationship to the
but not individual.
individual. It telates to the general activity that you’re engaging in.
For example, parties by themselves aren’t a danger.
But some parties, given their size, drift into the realm of endangering the public.
There is a statistical likelihood that someone will get intoxicated and hurt
You may then owe a duty to the public, for exposing them to a risk, but not an individual.
Commercial private operations
Here, you need a special liquor license and have to behave like a commercial host.
This form of special event indicates that there is something about money.
So… it seems as it is about 1. PROFIT: incentive to get ppl drunk, and 2. SIZE: danger to public
BUT if you were to have a wedding and not charge, you would be in a public space and would need the same
license
License creates a reliance by public to control their guests
People who are dying or being hamred: no duty Horsley v.
No common law duty
Note: is the duty NOT to make things worse, or to
on D to help person dying if it is unrelated to the MacLaren
Good Samaritan Act: legislature that assumes
make things better??
D, even if little risk is taken in rescuing. A good
Samaritan does not owe a duty.
People who are dying or being harmed while
in a relationship with a
carrier/master/captain: If D did not create
danger and decides to initiate negligent rescue
procedure, if the P acts to rescue, D is held
liable for all ppl who get caught up in the bad
rescue.
Employers always owe a duty of care to their
employees
that there is a duty of care owed by a good
Samaritan but is discharged very easily.
If you enter the picture to help somebody
and screw up, don’t worry.
Does not apply to ppl whose job it is to
help, and ppl who are doing it with a view
to gain.
Horsley v
Mclaren
Once master voluntarily begins to resuce, he/she NOTE: D did not create the danger. Matthews fell
is responsible because he/she has entered into a in, accidental.
relation of responsibility.
At this point, he will be liable for any failure
to use reasonable care in dealing with him
(especially if abandons him)
Paris v. Stepney
Borough
Council
Duty to Warn
Both medical professionals and manufactures are under a duty to warn their ultimate consumers/patients about any
relevant information that could affect them
Doctors: This notion suggests that doctors have a duty to respect the patient’s autonomy, and they are thus held under a
duty to warn about relevant information. Failing to respect the patient’s autonomy is a failure of a duty.
Manufacturers: Due to a knowledge imabalance, manufacturers must give information relating to the danger of products
to allow conumers to decide whether they want to use their products or not.
Manufacturers
Manufacturers: Continued duty to warn arises
when…
1. Product is placed on the market for
use by the general public
2. Product is dangerous when used for
it’s intended purpose
3. The manuf. Knows or ought to know
of the danger
4. The public does not have the same
awareness of the danger as the
manufacturer
Learned Intermediary rule: Manufacturers are
under a continued duty to warn doctors who
will pass on products to patients.
Doctors: patients are owed a duty from doctors
to warn inform them about all relevant risks so
that the patient can make their own
autonomous decision.
Psychiatric Harm
Manufacturers: Whther it was the consumer or
buyer, still owes a duty. The PH should be
treated no differently than physical harm.
Simply use Donoghue
Pure Economic Loss
Negligent misrepresentation
Proper test: Modification of Anns test is
necessary to accommodate the special features
of negligent misrepresentation.
Special Relationships: Where someone of a
special skill undertakes to apply that skill for the
assistance of another who reasonably relies
upon that skill or duty, a duty of care will arise.
This is a vehicle to express a judicial conclusion
that on the facts of the case the speaker was
obliged to exercise care.
Manufacturers are under a duty to warn consumers of dangers in herent in their use of products. The leading decision in
Lambert v. lastoplex Chemicals where the SCC found D liable because warnings provided were insufficient to allow the
product to be used safely. Typically, these cases either involve a defective product or products that must include
warnings that are inherently dangerous.

Lambert
Hollis v. Dow
Reibl
Applicable when either the product is highly
technical and is only intended to be used under
expert supervision OR where the nature of the
product is such that the consumer will not
receive a direct warning from the manufacturer
before use.
Material risks
Mustapha
As noted in Dorset Yacht, the foreseeability of economic losses does not give rise to liability itself. In fact, we expect to
see competitors suffering economic losses in a competitive industry. Under the Anns test noted above, the courts must
determine when defendants actually are in a relationship that gives rise to this type of liability.
This occurs in cases where the defendant takes a voluntary assumption of liability for the accuracy of their words, and
the P foreseeably and reasonably relies on the information, causing harm.
Hercules
SCC
Hedley Byrne
Factors:
1.
Request for information, or just
given?
If requested, more reasonable to rely on
someone.
2. Expertise or Giver of information
3. Seriousness of the occasion on which
report given
Unless P puts D on guard by notifying seriousness
4.
Reasonableness and foreseeable
reliance of P
5. Nature of Statement
Probably not actionable if only prediction or
opinion.
Disclaimers: may not be valid if insufficient
notice, if speaker profits, if there was no other
way to get the info,
De-emphasized the language of special
relationship…
ESTABLISHES MODIFIED ANNS TEST FOR THIS
NEW AREA:
1st branch of test:
P must establish
1. representor ought to reasonably
have foreseen that the P would rely
Hedley
Hercules
Hercules
Financial interest? Special skill? Advice provided
in the course of business? Not a social occasion?
In response to an inquiry?
4/5 suffice
on his representation 
His reliance was in fact reasonable
Person must rely on the information
for the reason it was given
2nd Branch:
Determine if the prima facie duty creates
sufficient concerns of indeterminate liability
that it must be negated on the grounds of
public policy.
THEREFORE MAY RETURN BACK TO HEDLEY
2.
3.
Policy concerns not to have duty of care:
shouldn’t hold firms liable for unlimited liability
to a huge group of the public for an unlimited
amount of time.
Relational Economic Loss
Relational Economic Loss: Negligent supply of
a service
As in Cognos, special relationship used, even
though there is no reliance, it is analogous:
affectively assumed responsibility because of
the potential harm. Duty owed.
Same principle applies in lawyer cases.
Lawyer cases: lawyers are liable to beneficiaries
of wills when their drafting of it was negligent.
Neglegent supply of Shoddy/Dangerous
housing: even though no harm has occurred
Tort law may step in when a consumer has to
pay money to render an item safe.
But what about ppl who don’t have any
danger posed to them, and only own the
house?
Neglegence in supply of general products.
Loss due to tainted water, couldn’t sell bottled
water.
This view may no longer be the majority as
courts are returning to the notion of proximity with
McLachlin.
Lower courts are now finding it difficult fo separate
themselves from the actual logic that Laforest is
stating in Hercules.
Hercules
Statements prepared for many may produce a
flood of claims. This could in turn cause prices go
skyrocket. This is sufficient to negate a prima
facie duty.
Haskett
Courts will recognize losses for negligent
information and for negligently provided services
even though there is no reliance.
Wilhelm
Doesn’t matter if the person didn’t even know
the lawyer existed. Reliance is implied.
When one item is shoddy as part of a unit:
1. It is suggested that the person making the good has the capacity to cause serious damage
and thus should be held to a reasonable standard of care.
2. Duty of care exists because of Donoghue.
3. But usually, if consumer knows, he is supposed to avoid using the product. It is different
with houses… But you probably cannot render it safe without moving out. Cannot discard.
There are also future inhabitants that need to use the home safely as well.
4. The question then becomes what a real substantial danger is. Dangers must post a true risk
to health. Not just mould, bad smell, etc.
5. In this case, real danger if left unchecked. (problem: may give ppl an incentive to wait on
things that will eventually become a danger in order to get them paid for)
Investors can still win… This is due to policy reasons. We don’t want houses to be discarded because
they are too expensive to repair. We also have to think about the fact that we want people to
eventually live in them.
Needs to provide evidence that the product is
truly dangerous.
Winnipeg
Condo Corp.
Winnipeg
Condo Corp
Pepsi
2. Standard of Care
Once a duty of care is established, the court must find out what action must be executed to uphold that duty. The standard of care is what the defendant must actually do
to act out their duty. As established in Vaughan v. Menlove, the reasonable person is used to establish the standard of care; “adhere to the rule which requires in all cases a
regard to caution such a man [person] of ordinary prudence would observe.” Here, the onus of proof is on the plaintiff to prove that the defendant did not act like a
reasonable person. Various factors should be considered when determing the standard of care. These can include the foreseeability of the risk, cost of preventative
measures, utility of the defendant’s conduct, professional standards, statutory standards, emergencies, and more.
Foreseeability of the Risk and Seriousness of the The first factor to be taken into account when determining the appropriate standard of care is the foreseeability of the
Harm
risk of the harm happening. If the harm is reasonably foreseeable to the person or ordinary prudence, the defendant is
more likely to be held liable for the harm.
Foreseeability: Safety element is determined by Bolton v. Stone To demand that all ppl be free from all foreseeable risk is a huge burden.
thinking about the relationship of the D and the
1. Liable if the risk you’ve created is substantial: probability, seriousness of injury
Public. Relationship to the P is irrelevant: must
2. Difficulty of remedial measures irrelevant: just because they’d have to stop playing is
consider public aspect when using reasonable
irrelevant
foreseeability. If a small risk that the public
In this case, the foreseeability of harm to the general public was so unlikely that the club was not held
should get hurt, D will less likely be liable.
liable for Bolton’s injuries. They upheld their standard of care for having the safety net up like they did.
Difficulty of Remedial measures is irrelevant
Severity of threatened harm: when high,
standard of care is thus higher.
Severity of the threatened harm: can look at
individual’s circumstances when determining
severity of the harm.
Neglect of a proper precaution: “omission
should be commonly done by other persons in
like circumstances or show that it was so
obviously wanted that it would folly anyone to
neglect to provide it.”
Magnitude of the risk = (likelihood of the
damages)(seriousness of the harm)
Cost of Preventative Measures
Algebraic method: Liability depends upon
whether the burden is less or more than the
magnitude of the risk.
Bolton v. Stone
Paris v. Stepney
Borough
Council
Paris v. Stepney
Borough
Council
Morton v.
William Dixon
Seriousness of the injury was too great not to
provide safety goggles.
NOTE: this goes against Bolton because it looks at
the individual’s condition and thus raises the
severity of the case.
Looked at worker without one eye already.
If this results in doing something less than a
reasonable person, don’t use this test. It is simply
used for gaining clues as to what the SofC is.
Paris v. Stepney The higher this value, the higher the standard of
Council
care is.
Another factor is the cost of lowering the risk of the harm or preventing it altogether. Here, the magnitude of the risk
must be balanced with the cost of the measures. The policy behind this idea is that there is no point in paying a lot fo
remove minimal risks. If there is a cheap way to prevent possible harm, as in Ware’s Taxi, the standard of care is seen to
be more reasonable.
Carroll Towing If social cost is higher than cost of prevention,
then the standard of care associated is justified.
Manufacturer Defects: use method like Carroll
towing, but not quite as strict.
Rentway
Canada
If breach of algebra analysis, held liable. In this
case, held liable.
Rights based method combined with Carroll
Towing Method
Utility of the Defendant
Ryan v. Victoria Can combine.
Assessing cost of change is a problem for a
number of reasons.
1. Allows corporation to measure cost of
life when making products: Ford Pinto
case
2. Floodgates: if something that is really
cheap to fix must be fixed, then every
single little thing must be fixed and may
double the cost of manufacturing. ***
This shows that Reid may have been
right: if probability so high, then you
must simply stop doing it.
A higher standard of care is applied to things that provide the public with utility. Corporations? Probably a high standard
of care. Cricket fields? Lower. Sewage? Lower.
Fill in with Osbourne stuff
Commercial Hosts and Intoxication: Standard is
upheld by preventing the patron from driving
after drinking.
Positive obligation: occurs when there is a special
relationship (neighbor) as in Sundance and
Jordan House.
Remaining vigilant is not the same
If WITH a responsible, sober adult, standard of
care is upheld when you assume they will drive.
Good enough for 3rd party risks.
Unreasonableness and Fault
Children
Children: TEST for holding a child negligent
1. Capacity for negligence
2. Age, intelligence, experiences
3. Adult activity
Here, we must consider whether it is reasonable to hold the D to the standard of care offered by the reasonable person
standard.
Heisler et al. v.
Moke et al.
1.
2.
3.
Children: defines “adult activities” for part 3 of
the Heisler test
Children: “adult activities” must be the actual
activity that gave rise to the harm, not the
overall activity
Pope v. RCG
Management
Inc.
Nespolon
Objective test. Are you dealing with
someone who has the capacity for
negligence? Does it make sense to hold the
child accountable? Or absurd? If yes…
Subjective analysis was it reasonable for a
child of: their age, intelligence,
experiences… If no…
Was the activity an “adult activity?” They
would be held to a reasonable person test
Cars, snowmobiles, power boats, motorcycles,
trail bikes, etc… All adult activities
Kids drop off drunk friend. Under a duty of care.
It was not the driving, but the dropping off that
was the activity.
Problem with adult activity: absurd. For
example… Newborn child gets behind a hummer
and releases the handbrake. Is this an adult
activity?

Insurable: probably adult activity

Very dangerous
This exposes a tension: sometimes we want to have
kids under an objective test and sometimes we
don’t
Note; there is judicial unhappiness in this third
critera
Abella J seemingly arbitrarily chooses the
activity.
ME: should be jumbled into one category:
impaired judgment
Children and drinking: children have a lower
capacity to underatand the effects of drinking
Mental Illness
Nespolon
Part 2 of test: have they ever been drunk?
Knowledge of what it would be like?
The defendant’s mental illness must also be taken into account when deciding the appropriate standard of care.
Typically two things may occur if the mental illness is to prevent liability: the illness may render the D’s actions
involuntary, or it may prevent a volitional defendant from complying with the normative standard of care. Fiala v.
Cechmanek establishes that under Canadian tort law, people suffering from serious mental illness may not have to
comply with the reasonable person standard. It may be unfair to hold people liable for accidents they are capable of
Involuntary act: where the D’s bodily
movements is not directed by the D’s conscious
mind
Volition: illness prevents D from both
understanding duty of care and from discharging
that obligation
Start: Mental Illness: With serious mentall
illness, no capacity to understand standard of
care, no capacity to discharge, and no capacity to
ANTICIPATE that this was going to happen…
Cannot be held to a reasonable standard of care.
avoiding. However, no allowance is made for those who are merely deficient intellectually. Same with drugs or
drunkenness. Tort law is a system of corrective justice that should not be distorted by a robust pursuit of compensatory
goals. As noted in “The role of Fault and Policy in Negligence Law”  negligence is about wrongdoing. Loss distribution
ought to remain as the consequences of the tort action and not be seen as the purposes of the tort action.
Stokes v.
D was asleep in the back seat of a car and caused
Carlson
the driver to crash.
Slattery v.
Haley
Buckley v.
Smith
Transport
Fiala
D driver of a car suddenly taken ill and lost
consciousness. Killed a person.
Illness was found to prevent him both from
understanding the duty of care and from
discharging the obligation.
If the courts began to favour the compensatory
goals behind tort law, the fault element would
become irrelevant
Mental illness and anticipation: should use a Galloway notes We can justifiably hold people accountable for knowing their limits. People should know if a mental
similar test to the Children test. “age, experience,
illness is likely to become a problem and present a risk to others.
intelligence” should be used to establish whether
the person could reasonably anticipate an onset.
Mental illness, Child cases, novices: argument Galloway notes Argument against this: If this is true, we would expect people with physical, mental, or age judgment
against hold them (and children, and novices)
impairment to live a less full life than others. Isn’t it a worthy social goal to allow these people to live
liable to reasonably limit their activities.
fuller lives at a small cost to us?
Custom and Professional Standards
Social practices: if in establishing the social
practice, the group has given thought to public
safety, then we can take the practice into
account.
Social practices: Crystallization – not enough to
get D’s opinion. Expert evidence of a social
practice can give it more weight
Social Practices: Evidene of a social practice will
only be allowed into the case when it is relevant.
Social practices: Strength of social practice
depends on how widespread it is, purpose of it,
uniformity.
General practices: defer to experts unless it goes
against all common sense.
Professional standards: pros held to the
standard of of someone of “ordinary
competence” in their field, and in the same
circumstances. Therefore the jury does not
decide what the reasonable standard is.
Statutory Standards
Canada takes on the US view: any statutory
breaches should be dealt with entirely through
negligence.
Statutory breach creates prima facie evidence
of negligence, but does not necessarily
constitute negligence.
1. Provision must be aimed at helping the P
from the risk that materialized. If the P has
suffered damage that was outside the ambit of
what the provision was designed to protect, D is
not held liable. If outside the ambit of the
statute… It is an exceptional case
Exceptional Cases: when the statute does not
apply directly to the case, it is exceptional. In
exceptional cases, normal SofC applies.
Same goes for novices in a particular field: blue baby example. If we held these ppl to a normal SofC,
they would not take risks.
Courts will also take customs and professional standards into account when assessing whether or not it is reasonable to
uphold defendant to a reasonable standard of care. Social practices, practices that developed through relying on an
expert, and established professional standards of care can be used to shed light on the appropriate standard of care in
the circumstances.
Waldick v.
Icy driveways normal in the area
Malcolm
This was just habitual behaviour, didn’t account
as a genuine social practice.
Waldick v.
Malcolm
Brown v. Rolls
Royce
Brown v. Rolls
Royce
Warren v.
Camrose
Ter Neuzen v.
Korn
D held liable.
Floating Standard: depends on an analysis about
the existence, reasons for practice, uniformity.
Experts come in to say that swimming pools
don’t use “no diving” signs because swimmers
will get experience about using their own
judgment.
Don’t look back in hindsight. Therefore, if
knowledge is sub-standard compared to today, it
doesn’t deem the conduct sub-standard.
Different S of C for private pools.
If profession is changing, doctors who have
access to the information are held to a standard
that expects them to be aware of it.
Statute that impose standards on people can also be used to shed light on the appropriate standard of care in a given
cirumstance.
Canada v. Sask.
Wheat Pool
Canada v. Sask
Wheat Pool
Gorris v. Scott
Ryan v. Victoria
City.
Statute may afford a useful level of conduct that
we could impose. Proof of statutory breach
causing damages may be evidence of negligence.
Sheep overboard because ship didn’t comply
with act. Point of the provision was to prevent
disease by ensuring footholds (prevents
overcrowding). Different harm. Not liable.
1.
2.
3.
4.
5.
Strange decisions have been made because of
this… Statute that made it illegal to have a hood
ornament on car. Someone was gored by a hood
ornament. Instead of it happening when the car
was in motion, it happened when a pedestrian ran
into the hood of the car. Court said “this isn’t the
type of accident that the legislature had in mind.”
Didn’t hold owner liable.
D’s breached the statute
It causes the P’s loss
Object of statute standard is related to the harm caused
P is the party the statute meant to protect
Statute is usually stric liability so harm is irrelevant
Ordinary case: compliance is PROBABLY enough.
Exceptional case: outside ambit of statute. Here, regular SofC applies to fill in the gap. (Here it was
highway crossing standards as opposed to ped crossing) therefore outside scope. Railway company
knew the risks, saw previous accidents.
Amount of weight given to compliance equalling Ryan v. Victoria
the standard of care: goes up legislation is strict, City
detailed
Nature of required warnings from doctors
As mentioned earlier, doctors must give the patients enough knowledge in order for them to make an autonomous
decision for themselves. Doctors who have access to information must not decide what to do for their patient based on
best medical knowledge. What this standard is has been decided in case law.
Risks associated with anaesthetic do not have to Videto v.
be disclosed
Kennedy
1. Surgeon has a duty to disclose what he knows Videto v.
This is based on the reasonable person, NOT
It was seen that a patient wasn’t reasonably going
or should know the patient deems relevant to
Kennedy
based upon standard practice.
to be concerned about a scar.
his or her decision.
Nonetheless, Galloway thinks this is wrong.
2. Medical Professionals: doctors owe patients
Reibl v. Hughes The scope of this duty was determined in Hopp:
a duty to disclose all material risks.

Answer any questions

Disclose nature of treatment

Gravity

Material risks

Special or unusual risks
This should ultimately be decided in the
circumstances
8 elements
Video v.
1. asdf.
Kennedy
2. Asdf.
3. Asking if the patient if anything he/she considers relevant
4. Risk, if a mere possibility, may not need be disclosed but unless the severity of harm is high
5. Nature of operation
6. Inherent danger: NOT needed (same inproducts)
7. Always on a case by case basis
8. Therapeutic prevelege: if patient “emotionally taut” then doctor may not want to warn
Definition of material risks with examples:
Videto
A mere possibility has to be treated as a material Here, scars were not a material risk.
courts use their discretion to determine what a
risk if its occurrence may result in serious
Hopp: risk of prolapse in Brito, was material: only 1material risk is.
consequences such as death or paralysis.
3%, but catastrophic if it happens
3. Doctor obliged to tell patient about all
options
Doctor, even if patient is young, if able to
understand, must tell of all available options as a
competent adult is entitled to reject a treatment
or select an alternative form of treatment.
Non therapeutic cases:
Where P is emotionally taught, doctors may
generalize or conceal information
Psychiatric Harm: from product failures
Can use the “low risk bad consequences test” in
Rawlings. This states that “unusual or
improbable risk should be disclosed if its effects
are serious.”
Brito v. Woolley Even if a mere possibility, “low risk bad consequences” should have told always.
Van Mol
Doctor failed to notify that hsing a prophylactic made it safer, and that he wasn’t going to, and that
others would use it.
Brito
Reibl
Doctors are under an even higher obligation because the treatment is unnecessary.
This is because it would prevent the person from getting treatment that is needed in fhte firmst place.
Mustapha
As established in Donoghue, manufacturers owe a duty of care to their consumers. Consumer doesn’t
have to be the purchaser.
3. Causation
Next, we must find out whether the defendant’s wrongdoing actually caused the harm in question. This is known as establishing causation. In tort, causation is the notion
that there is a factual causal link between the wrongdoing and the harm. The plaintiff must prove causation on a balance of probabilities.
1. Is the harm divisible or indivisible?
Divisible and Indivisible Harm
Divisible Harm: 2 Ds, 2 separate injuries. Both will be responsible for their own harm. Several liability.
Indivisible harm: each person’s negligence was necessary for the result to occur. Each wrongdoer is responsible for
100% of their injury (jointly and severally liable). Here we need to look at the contributory negligence act, judge must
apportion for damages between the 2 Ds.
Previously in BC…
Long v.
Look at it like 2 different accidents, figure out what consequences of the incidents are.
Thiessen
1st person: assess liability at the moment before the second accident occurred.
2nd person: what is the total cost of the injury before any of the accidents, and subtract the amount of
money that we would charge the first tortfeasor.
Now in BC…
Bradley v.
This is because they were the initial cause of the accident and the single injury.
Groves
Joint and several liability applies.
2 Injuries: One inflicts harm, next one
contributes to previous harm:
First wrongdoer is responsible for 100% of harm
that has happened, even after the seond
accident occurred.
Second wrongdoer is also responsible for 100%
of the damage, not just the dropped %
2. BUT FOR TEST
Principle test for causation is the BUT FOR test
Athey v. Lionati
Weaknesses:
as affirmed in Athey and confirmed in Clements.

Where an alternative would have
Asks us to compare the current situation with
what would have happened without the
defendant’s failure. Requires the P to show that
the injury would not have occurred BUT FOR the
negligence of the D. We should use a robust
application of the BF test, as affirmed in
Clements as seen in Snell. This means that


brought about the same result
Two independent events produce the
same result (two polluters)
Major J: good factor in determining
when a factor is a cause, but not when it
isn’t. Therefore supplement needed.
Nonethtless, it is not the conclusive test….
But many cases until 2012 have supplemented
this with the MATERIAL CONTRIBUTION, using it Athey
to meet the BUT FOR test.
Shows use of BF and MC test up until Clements in
2012
Snell v Farrell
Idea from Myers, causation can be established where the defendant’s conduct materially contributed
to the occurrence of the injury.

Need not be too rigid, no need for scientific precision, rather use ordinary common sense

Does not need to be the sole cause
25% was enough to establish MC to meet the but for test. Creates 100% liability.
Used common sense when supplementing

Courts use “reasonable” language, i.e. 51% probability
This should not be used when the result would allow Ps to recover damages in the absence of
evidence of any connection at all
Courts unclear about when MC should be used still… Ultimately less clear than Athey
Changed MC test to MCR test. Use when…
1. It is impossible for the P to prove causation on the BF test. Number of tortfeasors, all are
at fault, one or more has in fact caused the Ps injury, each can point the finger at another

This excludes cases where the injury “may very well be due to the factors unconnected to
the D and not the fault of anyone” like in Snell.

Anything with single tortfeasors is UK only: finding these ppl liable does not compel Canada
because it would work outside the corrective justice notions of the law
2. Clear that the D breached his duty of care in a way that exposed P to an unreasonable risk
of injury
Galloway notes Clements ignores the idea of actual contribution to the injury, like in Athey. It could be extremely
problematic in cases of nonfeasance. This is because there is one tortfeasor in a situation where it isit
is extremely hard to prove that their omission actually caused the harm.
Developes a possibly misleading test. This is really about Cook when two parties, through their
negligence have tonrtibuted to the risk, and we KNOW one of them caused the harm.
Seems as if the trial court was right, when they used the MC test like previous cases. ERROR IN LAW to
send back to trial judge.
1. Clements v.
Clements
Argument against Clements
What about cases where two ppl contributed, and can’t tell if both or only one is liable? Polluters. This
doesn’t work very well here either.
Filling in the gap left by Clemens…
Cook v. Lewis type situations: D can be held
liable for 2 things:
1. Dangerous activity; and
2. Making it more difficult if not impossible to
prove the possible damaging results of his own
act.
Ediger v.
Johnston
Cook v Lewis
Onus is then shifted to the D to prove his or her
innocence. Negligence alone is enough to do
this. Each is then held fully liable.
Police Officers and their duty to investigate:
BM v. BC
BUT FOR test is still primary. MC, inference or
risk tests are applied only in cases of where proof
of causation is precluded by the limits of
scientific knowledge or where the D controls all
possible physical agents of harm.
In the absence of scientific evidence, matter is thrown to a jury. Relized the gap in Clements possibly
Ratio: when 2 or more wrongdoers restrict the
P’s power of proof, onus shifts onto the Ds to
prove that they did not cause harm.
Negligence alone is enough to reverse onus.
What if there is a D, and the other harm causer is a
rock fall or something?

This seems to suggest that the onus
reversal would not apply.
What if the P was contributorily negligent?

This apparently makes a difference
What if 3 Ds in Cook?

Seems worse to reverse the onus, but
material contribution to RISK should be
enough.
Dissent: should use inference principle:
Majority:
Using BF test: inadequate.
Using MC test: failure by police did not materially Where a breach occurs and damage is shown to
contribute or increase the risk of harm to the
have arisen within the area of risk which brought
extent that they had to bear the responsibility.
the duty into being, and neither party can prove
whether that caused the loss, we can infer that the
Inference principle should be restricted to rare
breach materially contributed to the loss.
cases where it is clear that the defendants
conrolled all possible physical agents of harm
and it is impossible to ID scientifically the sources
of harm.
Failing to supply something that merely reduces McGhee
Lord Wilberforce: Breach of duty and associated
risk of harm…
risk occurs, onus is reversed.
Reid: to materially increase risk is to materially
contribute.
Loss of a chance: no loss of chance doctrine in
Lawson v.
If failure did not directly contribute to harm, then
Canada.
Laferriere
not liable.
Doctors + manufacturers: Failure to warn
But for is NOT the test for causation with doctor’s duty to warn. It is the “reasonable person” test for causaion.
1. Manufacturer to learned intermediary: use
Hollis
Subjective test. This is because the patient has no ability to consult or discuss with the manufacturer.
pure subjective test.
Also because manufacturers have a massive info advantage over consumers and are more likely to
overemphasize inforamation. Finally, consumers are expected to act more self-interested, and the
subjective test is desirable from a policy perspective to hold the manufacturer to a strict standard of
warning.
2. Patient does NOT need to prove that the
doctor would have relayed the information.
Doctors + Patients: Failure to Warn
1. Doctor to patient: use combined subjectiveobjective test. Use the following considerations:
Hollis
The fact that the doctor might not have discussed the risk with the patient has no effect.
Reibl
Using Reibl test:
Brito
As opposed to the objective test, this takes special considerations into perspective.
Patient’s concerns must be reasonably based
Fears not related to material risks should be put aside
Economic considerations could reasonably be considered here
Low risk of catastrophe, strong views that operation would be OK by other doctors.
Under Reibl test, the patient would have opted to have the surgery.
No temporal limitation period on damages to be applied, and no reduction of damages to cover only
the “gap” period between the operation and when the P might have finally had the operation had he
had full information
2. Doctor claiming patient will have operation in Martin v.
future? This is not considered in the courts.
Capital Health
Doctor claiming patient will have operation in
Chester
the future? Some judges in this case said that the
doctor only needs to compensate for the “gap”
mentioned in Martin v. Capital health
Psychiatric Harm
Manufacturer defect
Mustapha
The harm caused the person’s psychiatric problems. Go to remoteness.
4. Remoteness
Even if there is causation in the case, there is a second control device for negligence known as remoteness. It addresses whether or not the harm itself is reasonably
foreseeable. Courts have slowly applied a more liberal approach over time to what they judge as remote.
Use the reasonable foreseeability rule
WM I
1st Rule: Mechanics/Bizarre Chain of events:
Cameron v.
Cow escapes, ran down main street, sent into
cannot hold someone liable for a chain of events Hamilton’s
door of apartment, turned on tap, flooded floor,
that is so far fetched.
Auction Marts floor boards break under cow’s weight.
Ltd.
Cannot see preceise concatenation of events.
Only responsible for harm that is caused by a
Wagon Mound Overrules Polemis: Responsible only for the reasonably foreseeable consequences (whatever caused
“reasonably foreseeable” (probable) chain of
1.
the harm) of one’s acts. Not reasonably foreseeable that dumping furnace oil would cause an
events (i.e. explosion causing burns).
explosion.
If pre-existing circumstances bizarre, not liable.
Only responsible for probable harm itself. I.E.
burns alone, no matter where they came from.
Courts take out chain of events.
Possibility of the result over the Probability of
the result
START Accepted rules from WM II and Hughes.
Confirmed all.
Hughes v Lord
Advocate
WM II
Assiniboine
School Division
v. Hoffer
Should be based on fairness, not directness. Our notions of fairness inform our duty of care analysis,
and should also apply here.
D said not liable because explosion was too
Courts show a reluctance to tie a chain of events
remote. BUT courts said that burns in general
to the foreseeability.
were reasonably foreseeable. Therefore liable.
Otherwise it WM 1 would require too much
precision.
This is more strict: events that are merely
possible now fall into reasonably foreseeable.
Looking at WM1, Hughes, WMII, we now see that
it is the general harm that must be foreseeable,
and not impossible. Therefore, in bizarre chains
of events, it is possible to find liability.
Policy considerations: Sucks now… far fetched
chains of events will cause people to be afraid of
doing things that could lead to an open set of
consequences.
Only if the final harm is farfetched will the court
find remoteness.
Thin Skull Rule
The thin scull rule stipulates that when a defendant has breached a duty to someone and caused physical harm, the
defendant should take their victims as they find them. This is to say that where the victim’s pre-existing condition
produces results that are more serious than you would ordinarily expect, you are still liable for the full extent of the
injury.
My arguments for: Want to treat everyone as equal, “golden rule” do onto one… Normal rule might create an incentive to treat others as means rather than ends.
My arguments against: “reasonableness” should be based on the average person. If we had a duty to think about susceptibility for individuals, we would have much higher
standards of care. This also goes against the corrective notions of tort law.
Start: Thin skull rule: P entitled to compensation Bishop v. Arts
(Door which usually resisted didn’t)
based on own special physical requirements
and Letters
In hospital for ages. Recognized condition.
Then add: Crumbling Skull rule: D not liable for
Athey v.
Level of compensation should discount any
for any debilitating effects of the pre-existing
Leonati
losses that the P would have suffered without D’s
condition that would have happened anyway.
intervention
With psychological issues:
Eggshell personality: physical leading to mental
distress due to a medical mental condition:
courts have assumed that this is the same as the
thin skull rule.
If there is no physical injury at all, no eggshell
personality: when no physical damage, can’t
claim eggshell personality, SCC says. D not held
liable.
People who don’t want to treat physical injuries Blau
Seen as novus actus (religion) as is the link
between the thin skull rule. Autonomous choice,
not liable for death.
The language of causation commits us to use a metaphor of the chain of events. There is reluctance to hold a wrongdoer
liable for the unforeseeable intervention of a second wrongdoer because we consider these actions to be remote.
Where ther is an invervening act that breaks the causal chain, there is no liability as seen in Bradford. An intervening act
is an “unusual” or “unforeseeable” or “bolt from the blue” as well.
Duty to look after something: even if not a party Stansbie v.
If you undertake to protect a person from a third Example: negligent bodyguard, negligent
to a crime, if a failure to uphold a duty results in Troman
party intervention but are negligent you may be tradesman.
the very thing that the duty was designed to
liable for the result.
If unlocked door, and someone burned down the
protect, D found liable.
Duty to lock the door. Didn’t. Theft. Liable
place, seems like this is a break in the chain of
causation. More unusual.
Hysterical conduct causing injuries: if a person’s Bradford v.
(Fire extinguisher restaurant)
Dissent: Should have reasonably anticipated such a
reaction to your creation of a risk is out of the
Kanellos
reaction of hysteria.
ordinary and in turn injures someone else, this is
an intervening act.
Intervening act is negligent: Commercial
Smith v. Inglis
Manufacturer makes defective product, “fixes it”
applications
somehow. It is reasonably foreseeable that the P
will alter product negligently. D still liable
Medical: intervening act is negligence in medical Galloway
Doctor is negligent, patient is then involved in a
applications.
second wrongdoing because of the illness. This
does not break chain of events.
First wrongdoer gives the second one a criminal Galloway
opportunity: courts need to draw the line
somewhere. Wallet versus murder.
Product liability: consumer sees defect, takes
Goodwear
Vendor who sells product and knows about risk, Problems: take any product, say rope. Buyer says
risk and uses product, despite known danger to
Treaders
after warning, is not liable to the person who
“I’m going to use it to hang somebody.” According
other people.
actually used them. That is their own risk.
to this case, you’ve implicated youself in this
Vendor is in breach of a duty to 3rd parties.
This being said, consentor has not consented for purpose.
ppl on the road.
This shouldn’t happen with safe products. It looks
Court says that the vendor is sharing a common more like a “Y” chain where 2 ppl join together.
intention or aim. Therefore no intervention.
Psychological Harm
The court in Mustapha looked at psychological damage in a way that they would look at physical damage. The courts
have generally expressed that plaintiffs are responsible for letting yourself slip into an obsessive state. When this occurs,
the psychological harm that stems from a breach of a duty is said to be too remote. In other words, while the harm may
be a cause in fact, if too remote, it may not be a cause in law.
No physical injury: Psychological Harm: P must Mustapha
Here, the reaction was highly unusual and very
In this case, it was an obsessive person who
show…
individual.
couldn’t let go.
1. That the risk is not too far-fetched
2. Then show that the person of
Damage was caused in fact but not in law
Note: don’t have to worry about weak minded
ordinary fortitude would have reacted
members of society.
that way.
Once reasonable fortitude is met, and the
Mustapha
patient reacted initially, the D must take the
person as they come from any further damages.
Application of Mustapha: recognition that there Vanek
Parents react to kid drinking gasoline with
is an ordinary standard of resilience.
unusual sensitivity. Didn’t hold M liable.
Issue 1: Contributory negligene…
If people are responsible for their own obsessions, shouldn’t we just call this contributory negligence?
Issue 2: Thin Skull Rule: MUST be physical harm Mustapha
in the first place. Won’t work without absence of
physical harm.
Issue 3: professionals who are trained to deal
with it: More than an ordinary amount of
resilience is expected.
Issue 4: Time. If a long time is given, more likely
that the harm is remote.
Physical injury included: where the psychiatric
Hussack
injury is consequential to the phsical injury, the D
is also responsible for the psych injury even
when this is unforeseeable.
Defences: once negligence is proven
1. Contributory negligence
2. Voluntary assumption of risk
3. Illegality
Novus Actus Interveniens