TORTS Spring 2011- Professor Goold
SUMMARY NOTES ON NEGLIGENCE (Edited)
Prepared by Simon Lin based on Professor Goold’s Summary Notes
Contents
Lecture 1:
Introduction to the Law of Negligence ........................................................................................................... 3
Historic ............................................................................................................................................................................................. 3
The modern law of negligence ................................................................................................................................................ 4
Donoghue v Stephenson........................................................................................................................................................ 4
Six elements in an action for negligence: ....................................................................................................................... 5
Lecture 2:
The Duty of Care (1) ............................................................................................................................................... 6
Functions of Duty of Care .......................................................................................................................................................... 6
Limiting Principles under Duty of Care ............................................................................................................................... 7
Proximity..................................................................................................................................................................................... 7
Ann’s Test ........................................................................................................................................................................................ 9
Caparo (retreat from Anns) ...................................................................................................................................................... 9
Lecture 3:
The Duty of Care (2) .............................................................................................................................................10
Cooper Test for Duty of Care in Negligence .....................................................................................................................10
Lecture 4:
Special Duties of Care: Affirmative Action...................................................................................................12
Reasons to not Impose Affirmative Action .......................................................................................................................13
Reasons in favour of a general duty to rescue: ...............................................................................................................13
Generally no duty to rescue, unless.... .................................................................................................................................13
(1)
Duty established by statute ...................................................................................................................................13
(2)
Voluntary assumption of responsibility on the part of the defendant .................................................14
Osborne’s View of Imposing Duty ........................................................................................................................................15
Lecture 5:
Special Duties of Care: Miscellaneous ...........................................................................................................15
Duties owed to rescuers...........................................................................................................................................................15
Duties owed to unborn children ...........................................................................................................................................16
Pre-conception wrongs (injury to parent causing harm to unborn child) ......................................................16
Wrongful birth and wrongful life (doctor failing to inform about potential birth defect) ........................17
Wrongful pregnancy (careless abortions or sterilizations) ..................................................................................17
Pre-natal injuries (injury to pregnant woman) .........................................................................................................17
Other special duty categories: ...............................................................................................................................................18
A Health Professional’s Duty to Inform .........................................................................................................................18
Manufacturers Duty to Warn ............................................................................................................................................18
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Duty of Care Owed by Barrister .......................................................................................................................................18
Lecture 6:
Special Duties of Care: Negligent Misrepresentation ..............................................................................19
Problems with Pure Economic Losses ...............................................................................................................................19
Development of Recovery for Pure Economic Losses (Hedley Byrne) ..................................................................20
Lord Reid’s Test for Duty in Case of Negligent Misstatement ..............................................................................20
Negligent Misstatement Elements? ................................................................................................................................21
Canadian Position on Negligent Misstatement ...............................................................................................................21
Establishing Duty of Care for Misstatement (Hercules) .........................................................................................21
Other steps under Negligence ...........................................................................................................................................23
The question of concurrent liability ....................................................................................................................................23
Lecture 7:
Special Duties of Care: Pure Economic Loss ...............................................................................................23
Reasons not to Extend Negligence to Pre-Contract Negotiations............................................................................23
Types of Recoverable PURE Economic Losses ................................................................................................................24
Negligent performance of a service ................................................................................................................................24
Negligent supply of shoddy goods or structures .......................................................................................................25
Relational economic loss(NOT EXAMINABLE) ..........................................................................................................25
Lecture 8:
The Standard of Care ...........................................................................................................................................26
The General Standard of Care ................................................................................................................................................26
The Probability and Severity of the Harm. .......................................................................................................................27
(a) Bolton v. Stone [1955] ..................................................................................................................................................27
(b) Paris v. Stepney Borough Council [1951] .............................................................................................................28
The Cost of Risk Avoidance and the Social Utility of the Conduct ...........................................................................28
Lecture 9:
Special Standards of Care ...................................................................................................................................29
Standard of care expected of children ................................................................................................................................29
Standard of care expected of people with disabilities .................................................................................................29
Standard of care expected of professionals......................................................................................................................30
Lecture 10:
Causation in Negligence .................................................................................................................................30
The difference between cause-in-fact and cause-in-law .............................................................................................30
The But-for Test ..........................................................................................................................................................................31
Exceptions to the But-for Test ...............................................................................................................................................31
Notion of the evidential gap...............................................................................................................................................31
The problem of multiple insufficient causes ...............................................................................................................32
The problem of multiple, independent sufficient causes .......................................................................................33
The problem of materially increased risk ....................................................................................................................33
Lecture 12:
Remoteness .........................................................................................................................................................34
Lecture 13:
Remoteness and Intervening Causes ........................................................................................................37
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Lecture 14:
Nervous Shock and the Thin Skull Rule ...................................................................................................39
Liability for Nervous Shock ....................................................................................................................................................39
Current Approach: Plaintiff must be able to show: .......................................................................................................39
The type of psychiatric injury complained of must fall into the category of nervous shock ....................39
The injury must be reasonably foreseeable ................................................................................................................39
Conditions to Meet in Cases of Relational Victims .........................................................................................................41
The thin skull rule ......................................................................................................................................................................43
Lecture 15:
Defences in Negligence ...................................................................................................................................43
Four main defences available in negligence.....................................................................................................................43
(1) Contributory Negligence..............................................................................................................................................43
(2) Voluntary assumption of risk ....................................................................................................................................45
(3) Participation in Criminal or Immoral Act – Ex turpi causa non oritur actio ............................................46
(4) Inevitable accident .........................................................................................................................................................46
Lecture 1:
Introduction to the Law of Negligence
Historic
Can trace the origins of the modern law of negligence back to the common law system of writs, and in
particular the writ of trespass on the case.
Two main types of writ had emerged:
(1) Writs of trespass vi et armis – which established that individuals were strictly liable for direct,
forceful interferences with another individual’s person or property; and
(2) Writs of trespass on the case, which provided for the award of a remedy where the
interference was not direct or forceful.
According to most writs of trespass on the case, in order to be awarded a remedy by the court, the
plaintiff was required to prove that the loss suffered was a direct result of the intentional or
careless conduct of the defendant.
Additionally, an action on the case would only be available if the particular circumstances of
the case could be made to fit a category or scenario either explicitly specified in a writ, or
which had been recognised by the courts in a prior decision about the ambit of the writ.
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By the end of the 19th century in England, actions on the case were available in the context of a
limited range of relationships between the plaintiff and defendant, and typically where the plaintiff had
been harmed by:
(1) The user of a public roads;
(2) A doctor
(3) The keeper of an animal or some other inherently dangerous object or thing.
Writ system was interesting because over time the individual writs became increasingly harmonised
around a series of established principles of fault, and in particular the idea that individuals owed each
other duties of care in certain, pre-defined circumstances.
The key limitation of the writ system, however, was that a plaintiff could only bring an action on the
case if the alleged relationship between the plaintiff and the defendant fell into one of the categories
either explicit recognised in a writ or which had been held by the courts to be within the scope of the
writ.
The modern law of negligence
Donoghue v Stephenson
It is against this background that we have to look at the decision of the House of Lords in Donoghue
v Stephenson, which is generally regarded as the source of the modern law of negligence in
common law countries like England, Canada, and the United States.
The majority judgment of the Lords was delivered by Lord Aitkin, who argued that the fact that
there was not a specific, pre-existing contractual relationship between Donoghue and
Stevenson should not prevent Donoghue from recovering. Instead, he argued that Stevenson
owed Donoghue a general duty of care as her neighbour:
“There must be, and is, some general conception of relations giving rise to a duty of
care, of which the particular cases found in the books are but instances. ...The rule that
you are to love your neighbour becomes in law you must not injure your neighbour; and
the lawyer's question: Who is my neighbour? receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems
to be - persons who are so closely and directly affected (proximity)by my act that I ought
reasonably to have them in contemplation (foreseeability)as being so affected when I
am directing my mind to the acts or omissions that are called in question . . . a
manufacturer of products, which he sells in such a form as to show that he intends them
to reach the ultimate consumer in the form in which they left him with no reasonable
possibility of intermediate examination, and with knowledge that the absence of
reasonable care in the preparation or putting up of products will result in an injury to the
consumer's life or property, owes a duty to the consumer to take that reasonable care.
This can arguably be judicial law making. But put another way, can argue that all Aitkin was
doing was deriving a general principle of negligence from the raft of existing torts established
under writs for action on the case.
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Dissents in the case:
(1) Lord Buckmaster argued that it was impossible to accept such a wide proposition and stated
that it was difficult to see how trade could be conducted if Lord Atkin's principle was law.
(2) Lord Tomlin also dissented, but on a different point. Argued that if such a duty of care
existed, it must cover the construction of every sort of product, and not just He then went on to
refer to the example of the Versailles train crash of 1842, which had been caused by a
defective axle.
According to Tomlin, if the court were to endorse Atkin's view, then every party injured
in the crash would be permitted to sue the axle manufacturer.
Now: What is fascinating about these dissents is that they anticipated two of the most recurring
criticisms of the general approach to negligence.
Lord Buckmaster’s argument is essentially a floodgates argument – i.e. that there is
no way to limit the application of negligence if we apply Aitkin’s formulation.
In contrast, Lord Tomlin’s objection is based on a concern with the scope of
liability and the problem of remoteness – i.e. he wants to know how you can
restrict the number of claimants where there is a direct causative link between
the negligence and a given harm.
The torts theorist Winfield has argued that the modern law of negligence emerges from four areas of
the common law:
(1) Nuisance
(2) Liability based on control of dangerous things (rule in Rylands and Flecther)
(3) Duties voluntarily assumed; and
(4) Duties cast upon bailees and other persons pursuing a common calling.
Focusing on the first of these, it is important to note that one of the problems for the common law
prior to the decision in Donoghue was the question of how best to limit exposure to liability where
harm results from carelessness.
Two obvious ways to do this:
(1) Base liability on the failure to meet a pre-existing duty or obligation; or
(2) Base liability on some other limiting factor, such as an interest in land
The revolutionary aspect of Aitkin’s judgment is that he finds a basis of liability that is not based on
physical neighbourhood, but on the idea of the foreseeable claimant – i.e. anyone who is
reasonably foreseeable as someone who could be harmed by my negligence is a potential
plaintiff.
Six elements in an action for negligence:
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(1) The Duty of Care - Did the defendant owe a duty of care to the plaintiff?
(2) The Standard of Care and Breach - What was the standard of care owed by the defendant to
the plaintiff, and did the conduct in question fall short of that standard?
(3) Causation - Was the loss suffered by the plaintiff caused by the defendant’s failure to meet
the required standard of care? Put another way, was the breach the cause of the loss?
(4) Remoteness of Damage- Was the loss suffered sufficiently proximate? Was the loss
reasonably foreseeable, or was it instead too remote?
(5) Actual Loss; and - Was the loss in question recognised by the courts as recoverable?
(6) Defences - Is there a defence available to the defendant - such as contributory negligence or
a voluntary assumption of risk on the part of the plaintiff?
Lecture 2:
The Duty of Care (1)
Functions of Duty of Care
The duty of care performs two main functions in context of negligence claims:
(1) Provides an overall framework for the broad range of situations in which liability for careless
conduct may arise; and
(2) Acts as a limit on liability and sets the boundaries within which one person can be held liable
to another for the consequences of careless behaviour.
We can also take a slightly broader view, and argue that the duty of care is one of the ways in which
the law allocates risks in society. Looked at in this way, the question that the idea of the duty of
care seeks to answer is: Who should bear the consequence of a particular risk? Should potential
claimants or potential defendants bear the risk of injury occurring?
Looked at in this way, the duty of care is just a mechanical device for which helps judges decide on
how risks should be allocated. A good summary of this argument can be found in the decision of
McDonald J in Nova Mink v. Trans Canada Airlines [1951], in which he states that where:
“[A] court holds that the defendant was under a duty of care, the court is stating as a conclusion of
law what is really a conclusion of policy as to responsibility for conduct involving unreasonable risk. It
is saying that such circumstances presented such an appreciable risk of harm to others as to entitle
them to protection against unreasonable conduct by the actor. It is declaring also that a cause of
action can exist in other situations of the same type, and pro tanto is moving in the direction of
establishing further categories of human relationships entailing recognised duties of care …
Accordingly there is always a large element of judicial policy and social expediency involved in the
determination of the duty problem, however it may be obscured by the use of the traditional
formulae…
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Limiting Principles under Duty of Care
Now: Returning to the judgment in Donoghue, Aitkin argues that there we have to ask two distinct
questions when deciding a particular plaintiff is foreseeable and therefore a duty of care to
them exists.
(1) That the person in question must be someone the defendant ought reasonably to have in
their contemplation – that is, they must be reasonably foreseeable; and
(2) That the person was someone who would be closely and directly affected by the act
Returning to the text of Aitkin’s judgment, we can see that he goes to some lengths to explain
this second requirement. Begins by referring to the comments of the former Master of the Rolls
Viscount Brett in Heaven v. Pender(1883), where he argues on page 509 that:
“Whenever one person is by circumstances placed in such a position with regard to
another that everyone of ordinary sense who did think would at once recognise that if he
did not use ordinary care and skill in his own conduct with regard to those
circumstances he would cause danger of injury to the person or property of the other, a
duty arises to use ordinary care and skill to avoid such danger.”
Perhaps because this statement is quite general, Aitkin then turns to the case of Le Lievre v.
Gould(1893) in which Brett and Lord Justice Smith flesh out the ideas first advanced in
Heaven. In Le Lievre Brett (who was by then known as Lord Esher) argued that:
“One man may owe a duty to another, even though there is no contract between them.
If one man is near to another, or is near to the property of another, a duty lies upon
him not to do that which may cause a personal injury to that other, or may injure his
property."
Agreeing with Esher, Smith is even more explicit about the need for some sort of
closeness between that plaintiff and defendant, and makes the point on page 504
that:
"The decision of Heaven v. Pender was founded upon the principle that a
duty to take due care did arise when the person or property of one was in
such proximity to the person or property of another that, if due care was
not taken, damage might be done by the one to the other."
Proximity
For Aitkin, it is this idea of proximity that is the key to the second criteria as regards the existence of
a duty, and immediately after quoting from Smith he goes on to state that:
“If proximity be not confined to mere physical proximity, but be used, as I think it was intended,
to extend to such close and direct relations that the act complained of directly affects a person
whom the person alleged to be bound to take care would know would be directly affected by
his act.”
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Now: It is important to understanding Aitkin’s reasoning here. What he is at pains to do is to
show that mere foreseeability can never be enough to establish the existence of a duty
of care. In addition, a plaintiff will need to show that they were sufficiently proximate to
the defendant, such that they should have considered them. LEGAL PROXIMITY
Put another way, in order for there to be a duty of care, the plaintiff cannot be too
removed from the defendant.
Some textbooks don’t bother to draw this distinction, and will simply say that according to Aitkin in
Donoghue the question whether there is a duty of care simply turns on reasonable foreseeability.
The argument here is typically that reasonable foreseeability encompasses the idea of
proximity, and as such it is wrong to speak of it being a two-stage test. To some extent, this is
all a matter of semantics. Personally, I think it is helpful to think of the question of whether
there is a duty or not as a two-stage test for two reasons:
(1) It is helpful insofar as it reminds us that when we are thinking about the scope of the duty,
we are not restricted to thinking about people who are physically close to the defendant.
Instead, the second part of the test emphasises that the key is a more general notion of
proximity. Strikes me that this is the main reason why Aitkin takes so much time over this
in his actual judgment; and
(2) It privileges the idea of proximity within the range of things that may affect whether
something is reasonably foreseeable or not. That is, it places a degree of emphasis on
the idea that there needs to be some sort of some sort of direct connection between the
plaintiff and the defendant.
Now: Most textbooks note that the English courts were initially reluctant to use Aitkin’s formulation as
the basis for extending the scope of the law of negligence, and tended to confine themselves
to the categories that had existed before Donoghue.
Gradually, however, this began to change. In particular, the decisions of the House of
Lords in Hedley Byrne & Co Ltd v.Heller & Partners Ltd and Home Office v. Dorset
Yacht Co Ltd – cases we will look at in detail later in the term – marked a slow shift
away from a conservative, incrementalist approach to duties of care, and towards a
more expansive attitude to the limits of negligence law.
The high point of this trend (or low point, depending on your perspective) came with the decision of
the House of Lords in Anns v. Merton London Borough Council [1978]
The key judgment in the case comes from Lord Wilberforce, who argued in favour of an expansive
view of the neighbourhood principle laid down by Lord Aitkin in Donoghue. According to Wilberforce:
“Through the trilogy of cases in this House, Donoghue v Stevenson, Hedley Byrne & Co Ltd v
Heller & Partners Ltd and Home Office v Dorset Yacht Co Ltd, the position has now been
reached that in order to establish that a duty of care arises in a particular situation, it is not
necessary to bring the facts of that situation within those of previous situations in which a duty
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of care has been held to exist. Rather the question has to be approached in two stages. 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 there are 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.”
Ann’s Test
Wilberforce’s approach is now typically referred to as the Anns Test, and can be summarised as a
two-stage approach to the question of whether the defendant owes the plaintiff a duty of care.
According to this test, the court must satisfy itself that:
(1) There is a ‘sufficient relationship of proximity based upon foreseeability; and
(2) There are no principled reasons why the court should negate the duty of care.
Now, the key to understanding the approach taken by the court in Anns is to recognise that the test is
not really a test at all, or at least it is not a test in the normal sense.
In his judgment, Wilberforce does not actually provide a specific test for determining when a
duty of care exists, but instead sets out an approach for analysing existing categories of
negligence and recognising new categories in novel situations.
It has also been argued by some torts scholars that the problem with the Anns test is that it
starts from the assumption that the court should find that there is a duty of care, and then only
deny or restrict that duty when it can think of a good, principled reason to do so.
Put another way, the test creates a presumption in favour of the recognition of new
duties of care, and therefore opens the floodgates to a whole raft of new categories of
negligence.
As an aside, many of the same academics who initially criticised Anns have had
to admit that the case didn’t actually lead to a huge expansion in the ambit of
common law negligence – in practice, the courts were actually quite cautious and
slow to recognise new types of duties.
Caparo (retreat from Anns)
In England, Anns was criticised in a long list of cases (you can find reference to some of them on
page 284 of Solomon), and eventually overturned by the House of Lords in the case of Caparo
Industries plc v Dickman [1990]
According to Lord Bingham, the court should only find that a duty of care exists where:
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(1) The plaintiff’s loss was a reasonably foreseeable consequence of the defendant’s
conduct;
(2) There was a sufficiently proximate relationship between the parties; and
(3) It would be “fair, just and reasonable” for the court to impose a duty, taking into account
all relevant policy considerations.
The main difference between this approach and that adopted in Anns is that it adds the limiting third
requirement – namely that the imposition of the duty must be “fair, just and reasonable”.
In the most simple of terms, it marks a departure from the Anns approach in that it shifts the
presumption to be applied when deciding on whether there is a duty – from the presumption in
favour of finding the existence of a duty to a presumption against finding the existence of a
duty
General view is that the decision in Caparo marks a deliberate return to a more conservative
and incrementalist approach to negligence and the question of duties of care – an
approach which favours a slow expansion in the ambit of negligence, and one where there is a
strong presumption against the development of new categories of liability.
It is often said that the decision in Caparo marks a return to the classic, pre-Donoghue
position – where negligence is organised around a limited number of set duty
relationships.
Lecture 3:
The Duty of Care (2)
In Canada, the courts have been less critical of the decision in Anns than their counterparts in other
common law countries.
For many years, the leading case was Kamloops (City) v. Nielsen[1984], in which Justice
Wilson explicitly endorsed the two-stage Wilberforce test from Anns. According to Wilson J on
pages 10 and 11, when determining whether a duty of care exists in torts, the courts should
ask:
(1) [I]s there a sufficiently close relationship between the parties … so that, in the
reasonable contemplation of the [defendant], carelessness on its part might cause
damage to [the plaintiff]? If so,
(2) Are there any considerations which ought to negative or limit the (a) the scope of the
duty and (b) the class of persons to whom it is owed or (c) the damages to which a
breach may give rise?
Cooper Test for Duty of Care in Negligence
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The Canadian Supreme Court has, however, now arguably joined the retreat from Anns, and in
Cooper v. Hobart (2001)adopted a different approach to the question of duties of care that – while
not identical to the approach taken in Caparo – is more restrictive that that in Anns or Kamloops.
Court put forward a new three-stage test for the determination of a duty, which can be
summarised as follows:
(1) Was the harm in question reasonably foreseeable consequence of the defendant’s act?
(2) Is there a sufficient degree of proximity between the plaintiff and the defendant to justify
the imposition of a duty of care?
(3) Is the situation in question one in which a new duty of care should be recognised?
Can argue that this approach is different from that that adopted in Kamloops in that it
combines the questions of foreseeability and proximity into the first stage of the test (note
that the test in Kamloops makes no specific reference to the idea of proximity), and then
leaves questions of policy to the second limb.
Practical effect of this? Places the burden of arguing that there should be a duty of care
firmly on the plaintiff.
Sends a message that Supreme Court favours an incremental approach to
the expansion of negligence.
Note also that according to Cooper, the court should begin by asking whether the case falls within an
existing category. If the answer to this is yes – either directly or by analogy – then a duty of care will
apply on the facts.
Now: Looking at the second part of the Cooper test, the main question for the court is: What is the
likely effect of recognizing a duty of care on other legal obligations, the legal system, and
society more generally?
Other questions the court might ask include:

Does the law already provide a remedy?

Would recognition of duty of care create spectre of unlimited liability to an unlimited
class?

Are there other reasons of broad policy that suggest that duty of care shouldn’t be
recognized?
Note: It is at this third stage that the courts recognise the difference between
government’s policy decisions and operational decisions. The general rule here
is that it is inappropriate for the court to second-guess the government’s policy
decisions.
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Need to be aware of the decision in Just v. British Columbia [1989], where the
court held that there is a distinction between policy (government decisions which
lie outside realm of negligence) and operations (actions undertaken to implement
policy, which can be found negligent).
Rule: Government can make policy decision not to implement certain policy, but
if they commit to a certain policy then the actions implementing the policy
must be non-negligent.
Now: There are a series of cases that have discussed the first part of this test, and the requirement
that the risk of injury to the plaintiff was reasonably foreseeable.
For example, the court in Moule (1960) asked whether the sequence of events was “so
fortuitous as to be beyond the range of the foreseeable results which a reasonable man
would anticipate as a probable consequence”
Note: Court noted that the issue of foreseeability of harm is relevant to three elements
of a negligence action: duty, standard of care, and remoteness of damage. That
is:
(1) A court will impose a duty of care only if the defendant’s conduct created a
foreseeable risk of injury to the plaintiff;
(2) The probability of injury is one of several factors considered in determining
whether the defendant breached the standard of care; and
(3) The plaintiff’s losses will be held to be too remote if they were not a
foreseeable result of the defendant’s breach of the standard of care.
Note that in Moule, Richie J. suggests that the fact that the particular
coincidence of events was very unlikely means that it was less foreseeable.
However:
Lecture 4:
Need to put this in the context of many other cases on negligence,
which have held that probability alone is not the determinant of
whether something is foreseeable or not (such as Haley v. London
Electricity (1964))
Special Duties of Care: Affirmative Action
Focus for this lecture is on whether courts should impose duties of care in cases where the
defendant’s failure or omission to act has caused harm to the plaintiff – that is, whether the law
should impose what are called “duties of affirmative action”
Good examples of duties of affirmative action include the duty to rescue and the duty to
control the conduct of others.
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Reasons to not Impose Affirmative Action
Important to note at the outset that the common law has generally shed away from making people
liable for failures to act (non-feasance). Three main justifications for this:
(1) The idea that requiring people to act in particular ways offended against allegedly English
notions of personal autonomy
(2) That the rule against nonfeasance reflected a broader ideological commitment to capitalist
notions of choice and minimal legal interference with individual choices.
(3) That positive obligations are necessarily more intrusive than negative obligations not to act
Reasons in favour of a general duty to rescue:
(1) Reflects our common sense understanding of everyday morality
(2) Removes in consistency in the law – why recognise a duty to rescue in regards of special but
not general relationships? Why penalise people who have voluntarily assumed the duty, but
not those who choose to do nothing?
(3) Utilitarian argument (Bentham) – idea that provided the benefit derived from the rescue
outweighs the cost to the rescuer, it should be required – because society as a whole benefits.
Generally no duty to rescue, unless....
Now: At common law, there is no general duty to rescue, as illustrated in the case of Osterlind v.
Hill (1928) (case of renting the canoe and waiting for the person to scream for 30 minutes)
However:
There are two major situations in which an affirmative duty to rescue might be
imposed:
(1) Where the duty is established by statute; and
(2) Where there has been some voluntary assumption of responsibility on the
part of the defendant.
(1)
Duty established by statute
Key case here is Horsley v. Maclaren (1969).(case where the passenger had to jump in to
help rescue because the captain was incompetent in the rescue. Both rescuer and the person
being rescued died.) The court referred to Section 526 of the Canada Shipping Act 1927 –
which requires that the master or person in charge of a vesselmust rescue anyone “found at
sea and in danger of being lost” in peril at sea – and by analogy found that Maclaren was
under a duty to rescue Matthews. Alsoheld that once a rescue is undertaken, the rescuer has a
duty to act
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Key Points from the judgment:
(1) Court concludes that even in the absence of the statutory requirement that provides the
basis of the duty, once a rescue attempt is made, the rescuer is then under a duty to act
and will be liable for his negligence.
Key point here is the voluntary assumption of responsibility – very similar reasoning to the
criminal law case of Stone and Dobinson.
(2) Court concludes that the drunkenness of the passengers is irrelevant to issue of duty of
care.
(3) Burden is on the plaintiff to show that the defendant’s negligence was the effective cause of
the harm.
Basic point from the case: The courts are open to the possibility of recognising a duty to
rescue provided that it can be based on some pre-existing obligation or a relationship created
by the actions of one of the parties.
(2)
Voluntary assumption of responsibility on the part of the defendant
In most cases, this arises where there may be a duty to control the actions of others. Most
often arises in the case of intoxicated people.
Rule in Jordan House Ltd v. Mewnow (1973) (bar owners duty to patrons who
became intoxicated):A duty of care may be imposed in situations where there is either a
pre-existing relationship (like the invitor-invitee relationship that exists between the
owner of a hotel and his patrons) or where the intoxication has been allowed to take
place in breach of some statutory requirement – i.e. that the establishment not serve
people who are obviously drunk.
However:
Crocker v. Sundance Northwest Resorts Ltd. (1988) (ski racing
competition and supplied alcohol to participants) suggests that where
someone creates a particularly dangerous situation like a dangerous
competition, they owe a duty of care to intoxicated participants.
Note also the decision of the Supreme Court in Childs v.
Desormeaux(2006). (BYOB party) Court found that there was a prima
facie duty of care (applying the Anns test), but negatived it for policy
reasons. Also held that social hosts are different form commercial hosts
for three reasons, all of which affect the degree of proximity:
(1) Commercial hosts have a greater ability to monitor alcohol
consumption;
(2) Social hosts are not heavily regulated like commercial hosts; and
(3) Social hosts do not profit from the sale of alcohol.
14
Note that the police do not have a general legal duty to prevent crime, but they are under a duty to
warn.
Court in Jane Doe v. Metro Toronto Police (1998): (sexual assault case where the police did
not warn and left the victims out as bait) Tort applies to operational, not policy decisions.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.
Osborne’s View of Imposing Duty




Duty of affirmative action imposed IF there is a special relationship
Special relationships
o Employer/employee
o Fiduciary relationships
 Parent/child
o Professional relationships
 Doctor/patient
o Relationships of authority, control and supervision
 Teacher/pupil
o Occupier/visitor
o Relationship between professional rescuers/citizens in danger
Not exhaustive list
Novel cases:
o Courts will examine relationship to see if it exhibits the characteristics that are typical in
previously recognized special relationships
 Ie. Cost of affirmative action to the defendant vs benefit on the plaintiff
 Statutory obligations (above)
 Contribution to defendant’s peril
 etc
o Then consider if there are a sufficient number of factors to differentiate the defendant from
other members of the public to justify a duty
Lecture 5:
Special Duties of Care: Miscellaneous
Duties owed to rescuers
The main case in this area is Horsley v MacLaren (1972). (the drowning case with an
incompetent captain) One of the questions for the court was whether MacLaren owed a duty of
care to Horsey as a rescuer – i.e. was he responsible for Horsey’s death because he created a
situation which encouraged Horsey to risk his own life to save Matthews?
According to Justice Ritchie, the key question is not whether MacLaren caused
Matthews to fall overboard, but rather whether his negligent attempt at rescuing him
created a new and distinct danger that induced Horsey to act as he did.
15
“Any duty owing to Horsey must stem from the fact that a new situation of peril
was created by MacLaren’s negligence which induced Horsey to act as he did.”
Duties owed to unborn children
Pre-conception wrongs (injury to parent causing harm to unborn child)
Key point here is that the child has not been conceived at the time of the alleged negligence. Note,
however, that the child has to be born in order for there to be a claim.
Rule:No duty of care to a child that has not yet been conceived
Paxton v. Ramji(2008):Ontario Court of Appeal held that physicians never owe such a
duty to the future children of their female patients. According to the court, imposing such a
duty could create an irreconcilable conflict between the mother and her future child, and
undermine a women’s autonomy.
Decision is based on two key arguments:
(1) There is insufficient proximity between the physician and the potential child, who is not
a separate legal entity until it is born; and
(2) There is a unique relationship between a woman and her potential child, in that the law
specifically recognizes a woman’s complete autonomy over her body.
Note that this second argument is based on the decision of McLachlin J. in Winnipeg
Child and Family Services v. G. [1997]at para. 27, where she argues:
“Before birth the mother and unborn child are one in the sense that “[t]he ‘life’ of the
foetus is intimately connected with, and cannot be regarded in isolation from, the life
of the pregnant woman” … It is only after birth that the foetus assumes a separate
personality. Accordingly, the law has always treated the mother and unborn child as
one. To sue a pregnant woman on behalf of her unborn foetus therefore posits the
anomaly of one part of a legal and physical entity suing itself.”
Two further points also emerge from the case:
(1) The Court held that whether conceived or not, a duty of care could never be owed from
physicians to the future children of their female patients. The physician would often have
to choose between the interests of the mother and those of her unborn child, and this could
result in physicians putting future children’s needs before those of their patients.
(2) The court also stated that in law, women do not owe a duty to their future children. For
example, a woman may abuse substances while seven months pregnant. If her child is born
with birth defects as result, the child cannot sue the mother. Imposing a duty on physicians to
the future child curtails a woman’s ability to freely make choices about her body by reference
to the future child.
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Wrongful birth and wrongful life (doctor failing to inform about potential birth defect)
Rule:
Usually dealt with In terms of the general duty of care owed by doctors to patients, and in
particular the duty to inform patients of risks.
Wrongful pregnancy (careless abortions or sterilizations)
Key questions include:
(1) What damages can the parents claim?
(2) Can they claim the cost of raising the child to the age of majority, or beyond?
(3) What if the child is born with disabilities: how does that affect the assessment of damages?
Note the initial reaction of most Canadian courts in wrongful birth cases was that it would be contrary
to public policy to award damages for the cost of caring for a healthy child.
However:
This position changed in Canada in the 90’s (although much earlier, with a number
of Canadian cases awarding substantial damages under this head (see: Joshi v.
Wooley (1995); Suite v. Cooke [1995])
With regards to disabled children, the key case is Krangle v. Brisco [2002]
Court:
Parents were entitled to damages for non-pecuniary loss for the
pain and suffering associated with giving birth to, and raising, a
disabled child
Pre-natal injuries (injury to pregnant woman)
According to the rule in Bourhill v Young (1943), no special duty of care is owed to a pregnant
woman (not regarded by the courts as a reasonably foreseeable plaintiff). BAD LAW.
However: Since Duval v. Seguin [1972] the law has recognised that pregnant women are
foreseeable.
Note: Court in Bourhill also argued that had the child been born, it would have had no
cause of action. According to the court, such injuries were not actionable because of
the long-standing common law rule that legal personhood commences at birth.
This position has been rejected by the Canadian courts. In Montreal Tramways Co.
v Leveille [1933], the Supreme Court held that when a child is born alive, it is
permissible for the purposes of a negligence suit to pretend that the unborn child
was already an independent legal person at the moment that the careless act was
committed.
17
This approach (known as the “born alive” rule) was later endorsed by the Supreme
Court in Duval v. Seguin [1972] 2 OR 686, where According to Fraser J:
"[I]t is not necessary ... to consider whether the unborn child was a person in
law or at which stage she became a person. For negligence to be a tort there
must be damages. While it was the foetus . . . who was injured, the damages
sued for are the damages suffered by the plaintiff ... since birth and which she
will continue to suffer as a result of the injury" (at 701)
Note that a mother does not owe a duty of care to her unborn child. According to the Supreme Court
in Dobson v. Dobson (1999), a mother not liable to fetus for “lifestyle choices”
Other special duty categories:
A Health Professional’s Duty to Inform
Basic rule: According to Haughian v. Paine (1987), doctors have a duty to inform their patients of
the risks associated with a particular treatment. Material Risks - i.e. 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. Low risk/low harm is considered immaterial
unless a circumstance of the plaintiff is unique.
However: The patient must show that a reasonable person would have decided
differently if fully informed of the risks. (ie. There was some reliance)
Manufacturers Duty to Warn
Key question here is whether manufacturers owe consumers a duty to warn them of the
possible dangers associated with using their products.
Rule: In Hollis v. Dow Corning Corp (1995), the court held that a warning must be clearly
communicated as to risks related to normal use
Key: Court notes that the policy is to shift risk from the consumer to the manufacturer,
as the manufacturer is in a better position to know risks
Also: Since the 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)
Note: The case also sets out what has come to be known as the
“learned intermediary” rule – rule that the intermediary must be
brought up to the level of knowledge of the manufacturer
Duty of Care Owed by Barrister
Rule: Lawyers are not immune from a negligence claim based on their performance in a civil
case. According to the court in DeMarco v. Ungaro (1979), an “attorney must exercise
18
reasonable care, skill and knowledge in the conduct of litigation . . . and must be
properly diligent in the prosecution of the case.”
Lecture 6:
Special Duties of Care: Negligent Misrepresentation
Problems with Pure Economic Losses
Traditionally, courts have been unwilling to compensate plaintiffs for losses resulting from negligent
misstatements, primarily for because of alleged problems of proximity and fears about the
indeterminate liability question. Economic interests have not traditionally been assigned the same
value or importance as personal or property interests. The limiting principle in Donaghue (proximity)
cannot be applied outright in cases of pure economic losses. In addition, the area of economic loss
was traditionally an area of contract law.
Also: They were unwilling because the main type of damages claimed was likely to be pure
economic loss. Two reasons for this:
(1) The indeterminancy problem is particularly acute in cases of pure economic loss.
For example, imagine A gives B negligent advice, which causes B to make a bad
business decision and lose money. B then orders less of a particular good from
supplier C. Should C have a claim against A?
(A metaphor used by jurists to reflect the fear of opening up one area of law to a
flood of litigation. Such an opening can easily be created either by statute or by case
law and judges often express their fear of “opening the floodgates,” – that is, to
claims in law “undeterminant in amount, time and class” (Ultramarine Corp. v
Touche 174 NE 441 (NY 1931 ) per Cardozo J at 444)
a. Indeterminant liability
b. Indeterminant class of plaintiffs
c. Indeterminate time
Why floodgate argument sucks?
 Wrongly implies that law can escape our control
o When a judge makes an exception, other judges will be obliged to making
more exceptions (this ignores the way of judicial decision making)
 As a matter of logic, making an exception in one case obliges the exception in
another case
 Psychological – allowing exception to the rule, it will discourage people from
following the rule
o There is no evidence of this
(2) Raised the prospect of tort law interfering in the market, with a view to compensating
for losses that are really just part of everyday business life.
Key Point here: The law expects business people to manage their affairs to protect
themselves from unanticipated losses through the use of contracts and insurance.
19
This point is reflected in an interesting statement by Lord Oliver in Murphy v
Brentwood DC (1991): “[t]he infliction of physical injury to the person or property
of another universally requires to be justified. The causing of economic loss does
not.”
Development of Recovery for Pure Economic Losses (Hedley Byrne)
Now: The traditional position as regards negligent misstatement and recovery for economic loss was
substantially revised in 1963 by the decision of the House of Lords in UK case of Hedley
Byrne v. Heller (credit worthiness report check on a customer issued from the bank)
Court concluded that the relationship between the parties in this case was "sufficiently
proximate" as to create a duty of care. Key judgment was delivered by Lord Reid, who stated
that:
[It] follows and that it should now be regarded as settled that if someone possessed of a
special skill undertakes, quite irrespective of contract, to apply that skill for the
assistance of another person who relies upon such skill, a duty of care will arise. The
fact that the service is to be given by means of or by the instrumentality of words can
make no difference. Furthermore, if in a sphere in which a person is so placed that
others could reasonably rely upon his judgment or his skill or upon his ability to make
careful inquiry, a person takes it upon himself to give information or advice to, or allows
his information or advice to be passed on to, another person who, as he knows or
should know, will place reliance upon it, then a duty of care will arise.
NOTE: Duty of care cannot be defined solely by the foreseeability of economic loss.
Lord Reid’s Test for Duty in Case of Negligent Misstatement
According to Reid, in order for a duty of care to arise in a case of negligent misstatement, there
must be:
(1) Possession of a special skill by the defendant;
(2) Reliance on the exercise of that skill by the plaintiff; and
(3) Knowledge or awareness of the possibility of reliance on the part of the defendant
If these three factors are present, then the court is entitled to conclude that there was a special
relationship between the plaintiff and the defendant, which could then give rise to a duty of care.
Note:
The court noted at the time that the reliance must be reasonable – and this has been
repeatedly confirmed in subsequent decisions in both the UK and Canada.
Another key point to note: The presence of these three factors is not in and of itself
enough – still a matter for the court to look at all the facts when deciding whether a duty
of care exists.
20
Compelling factors in deciding special relationship include defendant’ voluntary
assumption of responsibility and the plaintiff’s foreseeable and reasonable
reliance on the information.
Interesting to note that on page 483 Lord Reid makes it very clear that his judgment is not based on
an application of the neighbour principle in Donoghue v Stevenson.
Argues that there is no comparison to be made between words and actions, and that the question
of whether there is a duty depends on whether it is possible to find a way of making the bank
responsible for the loss without exposing them to unlimited liability or opening up the floodgates more
generally.
On the basis of this alone, one can argue that the recognition of liability for negligent misstatement
and the relaxation of the rules against recovery for pure economic loss has less to do with the gradual
development of the law and more to do with the policy concerns of a single court.
The defendant can be argued to have undertaken some voluntary assumption of responsibility. The
issue is not a neighbourhood question but a concern for indeterminacy. Therefore reasonable
reliance and knowledge will act as a key to control the indeterminacy issue.
Negligent Misstatement Elements?
Now: Most commentators and textbooks argue that Hedley establishes a five-stage test for
determining whether there is liability for a negligent misstatement – subsequently applied in
Queen v Cognos:
(1) There must be a duty of care based on a “special relationship” between parties
Note: this is answered by going through the three-stage Reid test (above). Special
relationship acts as a limiting principle
(2) The representation must be untrue, inaccurate or misleading
(3) The representor must have acted negligently in making the representation
(4) The representee must have relied on the representation
(5) The reliance must have resulted in detriment, and damages resulted.
Canadian Position on Negligent Misstatement
Position in Canada is stated in Hercules Management Ltd. v. Ernst & Young (1997 SCC).
(investors relying on financial statements by auditors) Key decision is that of La Forest – argues that
although negligent misstatement cases might require the courts to look at special considerations (as
stated in Hedley), the general rules of negligence still applied.
Establishing Duty of Care for Misstatement (Hercules)
21
Based on this observation, La Forest applies the two-stage approach from Anns, and asks:
(1) Did the defendants owe the plaintiffs a prima facie duty of care?
Note:
Rejected the idea that the defendant had to have knowledge of the particular
plaintiff (or class of plaintiffs), or the requirement that court should look at the use
to which the statements were put when determining whether there is a duty.
Argued that these are questions for the second stage of the test – i.e. are
questions of policy.
Insufficient to show that the defendant might reasonably foresee damage to the plaintiff.
Plaintiff must establish that the representor ought reasonably to have foreseen that the
plaintiff would rely on his representation and that reliance by the plaintiff, in the
circumstances, would be reasonable.
Factors to consider:
a. Expertise and knowledge of the representor.
 imbalance of information between the defendant and the plaintiff is a reliable
indicator of a prima facie duty of care
 represent themselves as having greater expertise than they have in fact
b. Seriousness of the occasion
c. An initial request for information
 A request is not conclusive
 Must take into account mass distributed information which may not be
foreseeable or reasonable to be relied on unless reliberately tailored
d. Pecuniary interest
 Influential factor in establishing duty
 Does the representor receive direct or indirect financial benefit?
e. Nature of the Statement
 Fact, opinion, conclusion?
 Courts in Hedley seem to say that reliance upon facts is more reasonable than
reliance upon opinions
f. Disclaimers
 Disclaimers require notice as in contract law
 Sometimes it may be reasonable to rely on the information despite a disclaimer
because the info is not available from any other source and is impossible to verify
(2) Were there policy reasons for restricting or denying the duty of care?
 Indeterminacy? Non-privy parties usually can be struck out based on policy
concerns
Now: As discussed in class, there are a number of different ways to approach the decision in
Hercules Management Ltd. Perhaps the best way to understand the decision of La Forest is
as follows:
(1) Argues that negligent misstatement is not a separate area (as suggested by Lord Reid in
Hedley), and as such should be approached using the general rules of negligence laid out
in Anns;
22
(2) He then draws on the rules set out in Hedley when considering the first stage of the Anns
test.
Other steps under Negligence
 Defendant is not a guarantor of truth of the information!
 Liability is not based solely on the accuracy o fhte information
 Reliance plays a role in the duty stage AND the causation stage
 Person must have actually relied on the information, not just reasonable to have relied
on it
 Standard is to exercise such reasonable care as the circumstances require to ensure that
representations made are accurate and not misleading (Queen v Cognos)
The question of concurrent liability
Key Case here is BG Checo International Ltd. v. BC Hydro & Power Co. (1993). Issue in this
case was whether Checo had 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?
Held: 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.
Majority of the Supreme Court held that Checo could sue in both tort and contract on the basis
of the negligent misrepresentation.
Lecture 7:
Special Duties of Care: Pure Economic Loss
In recent years the Canadian courts have moved away from the general rule that there can be no
recovery for pure economic loss, and have instead begun to adopt a more flexible approach.
Reasons not to Extend Negligence to Pre-Contract Negotiations
Note that the court in this case also set out five detailed justifications as to why the tort of
negligence should not be extended into pre-contractual negotiations: (Martel Building v
Canada)
(1) Observed that someone always wins and someone always loses in negotiations, and
that the goal is to achieve the most advantageous deal. No real economic loss to
society, just transfer of wealth between parties – hence no justification for the court
getting involved.
(2) Observed that useful social and economic relations might be discouraged. Could
discourage economically efficient conduct resulting from “hard bargaining”.
(3) Argued that tort law should not be used as an insurance scheme for unsuccessful
negotiations.
23
(4) Argued it would result in the courts examining every detail of pre-contractual
negotiations. There are already doctrines, such undue influence and economic distress,
to deal with these issues.
(5) Court was worried about encouraging unnecessary litigation.
Types of Recoverable PURE Economic Losses
Textbooks also note that the courts have begun to follow the taxonomy of claims set out by the
academic Feldthusen, and have divided claims for pure economic loss into five main categories:
(1) Negligent misstatement (last lecture)
(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
Important to note that although the categories above are not closed – the Supreme Court
indicated in Martel Building Ltd. v. Canada(2000) that it may be reluctant to permit any
significant expansion in the categories in the future.
New categories not falling under the above 5 require applying the Kamloops 2-step test.
Negligent performance of a service
Here the courts have generally applied the normal rules of negligence – i.e. the Anns and then
the Cooper tests – and have not denied recovery on policy grounds provided there is sufficient
proximity between the plaintiffs. Key case in the area is B.D.C. Ltd. v. Hofstrand Farms Ltd.
(1986)
Note:
Unclear as to whether the position is significantly altered by the ruling in James v.
British Columbia (2005).
Here the court argues that the appropriate test to use in such cases is the Cooper test,
and then also goes on to state that is not necessary to prove detrimental reliance (as to
require this would be too onerous for the plaintiffs).
Instead: The court says that in the absence of detrimental reliance, being able to
show that there was a voluntary assumption of responsibility on the part of
the defendant will be enough.
So what is the current state of the law?
24
Apply the Cooper test as normal. Policy stage should consider whether there has been either
detrimental reliance or some voluntary assumption of responsibility. If either is present, then
should allow recovery.
Negligent supply of shoddy goods or structures
Usually deal with this sort of case when the plaintiff cannot show privity of contract and has
suffered economic loss rather than personal injury or property damage as a result of shoddy
goods or structures.
Note:
Usually the plaintiff cannot show privity of contract because they never had contact with
the defendant – i.e. the defendant supplied the goods to A, who then sold them to the
plaintiff.
Key case:
Winnipeg Condominium Corp. No. 36 v. Bird Construction
Co.(1995).Considered whether a general contractor be held liable for
negligence to a subsequent purchaser of the building (who does not have
a contract with the contractor) for the cost of repairing defects in the
building arising out of negligent construction.
Court applied the Anns test, and asked:
(1)
Is there a sufficient relationship of proximity between defendant and
plaintiff that the defendant should reasonably have known that
carelessness would result in damage to plaintiff?
(2)
If yes, are there any policy issues that should negate a finding of
liability?
Concluded that there was no problem of indeterminacy as the potential
class of plaintiffs is limited to owner and inhabitants of building.
Also:
(1) No risk of indeterminate amount because it will always be limited to
reasonable amount to fix building of dangerous defects. Real and
substantial danger is not necessary in Australia, but must have it in
Canada. DUTY CANNOT BE NEGATED BY EXISTENCE OF
CONTRACT WITH ANOTHER PARTY.
(2) No risk of indeterminate time because limited to usefulness of the
building. With time hard to blame on contract and not just age
Note comments by La Forest: Principle of caveat emptor (buyer beware)
does not apply here, as the subsequent purchaser is not in the best
position to bear the risks of an emergent defect.
Relational economic loss(NOT EXAMINABLE)
25
Describes a pure economic loss resulting from injury to the property or person of someone else (a third party). Example: A injures B, which results in loss to C. Traditional approach was to deny
recovery in such cases.
Position changed with the decision in Canadian National Railway. v. Norsk Pacific Ltd (1992) [SCC] “The Jervis Crown”
However:
Court:
Argued that adoption of the Anns /Kamloops two stage approach provided a brake on the problem of indeterminacy, and would prevent the
floodgates from being opened in cases of pure economic loss.
However:
Strong dissent by La Forest. Argued that recovery for relational economic loss should be denied except invery limited
cases as previously recognised at common law, namely: joint ventures, general average contributions, and possessory
interests.
Note that this dissent is important because it becomes the basis of the majority decision in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. (1997)five years later.
Court:
Relational economic loss is recoverable only in special circumstances, as reflected in the recognition of number of key 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); and
(3)
Cases where the relationship between the claimant and the property owners is a joint venture
Court also stated that although the categories are not closed, an incremental approach must be adopted. Basic approach is to use the Anns test, but second (policy) stage
should be very restrictive and stick to the pre-established categories
Lecture 8:
The Standard of Care
The standard of care refers to the behaviour required of the defendant to discharge or satisfy the
duty of care. Put another way, it determines how the defendant ought to have acted.
We can understand the distinction between the duty of care and the standard of in the following way:
(1) When considering the duty of care, we ask:
 Who is my neighbour?
 Who should I think about when I act?
(2) When considering the standard of care, we ask:


What do I need to do?
How should I act towards my neighbour?
There is also an important distinction when it comes to answering these questions. Questions about
the duty of care are questions of law, and therefore answered by the judge alone. Questions of
standard are typically a combination of questions of law and questions of fact, and therefore are
answered by the judge and (where there is one) the jury.
The General Standard of Care
The basic rule is that the defendant must act according to the standard of care expected of a
reasonable person, objectively assessed without consideration of the individual
characteristics or personal attributes. Reasonable person is above average who may make
mistakes but is more alert to risk and cautious by nature than most people. One of the earliest
statements of the rule can be found in Blythe v Birmingham Waterworks (1856), where the court
held that:
‘Negligence is the omission to do something which a reasonable man guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a reasonable and prudent man would not do.’
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The standard of care describes the way in which a person should act to make sure that they do not
breach their duty of care. Hence, the court will ask: would a reasonable person in the position of
the defendant have acted in the same way?In Canada, the leading case on this is Arland v.
Taylor [1955], which affirms the approach taken in Blythe.
When determining whether the defendant has acted reasonably and met the required standard of
care, the courts often look at three main factors:
(1) The probability and severity of the harm;
(2) The cost of risk avoidance; and
(3) The social utility or value of the conduct
There are a number of ways of thinking about these factors, all of which essentially amount to the
same thing.

Can treat them as qualifications on the general reasonable person test. That is, they are
circumstances that the courts have decided can be considered when assessing the
defendant’s conduct.

Can also view them as factors that determine the limits of reasonableness, or rather help the
court to define what constitutes reasonable behaviour in the particular circumstances of the
case.
Additional factors:
 Emergency situations
 Custom and approved practices
 Post-accident precautions
 Judicial policy
 Economic analysis
 Equity of the case
 Hindsight bias
 Agony of the moment (Walls v Mussens)
The Probability and Severity of the Harm.
The basic rule: The greater the risk associated with a particular activity increases, the higher is the
standard of care. Equally, the greater the potential harm associated with the risk, the higher is the
standard of care.
The two main cases that have discussed this are Bolton v. Stone [1955] (playing cricket) and Paris
v. Stepney Borough Council [1951] (one eyed employee and goggles)
(a) Bolton v. Stone [1955]
According to the court, when determining whether the defendant has fallen short of the standard of
care to be expected, it should consider the following test:
27
“Test is whether the risk of damage to a person was so small that a reasonable person in the
position of the appellants considering the matter from the point of view of safety would have
thought it right to refrain from taking steps to prevent the danger.”
Put another way, the court held that a person will not be liable in negligence if he takes all the
precautions a reasonable person would take in the same circumstances to prevent damage likely to
arise from his or her actions. The court also held that it is not reasonable to expect people to guard
against risks that are “fantastic and far-fetched”
Few important points to take away from this case:
(1) Court acknowledged that life is necessarily about judging risks. Lord Reid observed that
“[i]n the crowded conditions of modern life, even the most careful person cannot avoid
creating some risks and accepting others.”
(2) The court also noted that if the risk of associated with an activity is high and unavoidable,
this may be a reason to prohibit the activity altogether. According to Lord Reid: “If cricket
cannot be played on a ground without creating a substantial risk, then it should not be
played there at all.”
(b) Paris v. Stepney Borough Council [1951]
Here the court affirmed Bolton v Stone and concluded where there is a reasonable probability of
harm and the injury resulting is severe, then there is unreasonable risk.
The Cost of Risk Avoidance and the Social Utility of the Conduct
The basic rule: When determining the standard of care to be applied, the court should consider the
cost of risk reduction and the social value of the conduct in question.
It follows from this that even if the probability and severity of the potential loss are high, the
defendant may be excused if the activity is socially important.
Key case here is Watt v. Hertfordshire County Council[1954]
Court held that it was permissible for the defendant to run a high risk because the social utility
of the conduct (fighting fires in this case) far outweighed the costs of the defendant’s conduct.
Denning, L.J.: “It was well settled that in measuring due care you must balance the risk
against the measures necessary to eliminate the risk. To that proposition ought to be
added this: you must balance the risk against the end to be achieved.”
The main Canadian case on this point is Vaughn v. Halifax-Dartmouth Bridge Comm. (1961),
which held that if cost of precaution is low, more likely to find negligence.
28
Lecture 9:
Special Standards of Care
Standard of care expected of children
According to the decision in McEllistrum v. Etches [1956], children should be held to a modified
standard of care – that is, the court (or jury) should ask whether the child exercised the care to be
expected of child of like age, intelligence and experience.
This approach was most recently endorsed Joyal v. Barsby (1965). (children crossing street
on rural road and accused of contributory negligence) However, a slightly different approach
was taken in a later case in Ontario. According to the decision in Heisler v. Moke (1971) [ON
HC]
Here, the court argued that in tort law, the question of whether a child can be held liable
for negligence should depend on capacity rather than age. Went on to suggest that the
law should distinguish between very young children (those of tender age) and older
children:
Tender age:
Child is not capable of appreciating the reasonable risk. Cannot be
liable in tort. No set age for this (maybe 5). Authority is Tillander v.
Gosselin
Above tender age: Modified objective test should be used. Did the D exercise the care
expected of a child of that age, intelligence, and experience?
Note: The courts have consistently held that a child involved in an adult activity – such as driving a
car, hunting, or snowmobiling – will be required to meet the standard of care expected of a
reasonable adult(see Ryan v. Hicksson (1974) – accident caused by negligence of children
on snowmobiles)
Note: Although parents, guardians, and other supervisors are not usually held to be vicariously
liablefor torts committed by children under their care, they will be held liable if the injury is a
result of their failure to control or monitor the child’s conduct. Standard here is of a
reasonableparent of ordinary prudence. See Thomas v. Hamilton (City) Board of Education
(1994), (B.C. C.A.)
Standard of care expected of people with disabilities
According to the decision in Carroll and Carroll v. Chicken Palace Ltd. [1955] (Ont. C.A.), the
physically disabled are required to meet only the standard of care of a reasonable person with the
same disability.
However:
According to the court in Carroll, a person with a physical disability also has to
recognize limitations and not take unreasonable risks.
Note: The rule has been applied in cases of mental illness. According to Fiala v.
Cechmanek (2001), where a defendant is suddenly and without warning struck
29
with a mental illness, they will be absolved of liability if they can show, on the
balance of probabilities:
(1) As a result of the mental illness, the defendant had no capacity to
understand or appreciate the duty of care owed at the relevant time
OR
(2) As a result of mental illness, the defendant was unable to discharge their
duty of care as they had no meaningful control over their actions at the
time the relevant conduct fell below the objective standard of care.
These cases differentiate between fault and blame, but it might not be fair to the plaintiff who was
wronged and has no insurance against these cases.
Standard of care expected of professionals.
According to White v. Turner (1981) (Ont. C.A.), a professional should be judged by the standard of
care of his profession.
Note also the decisions in:
Layden v. Cope (1984) (Alta. QB): General practitioners are required to exercise the standard
of care of a reasonable, competent general practitioner, including knowing when a patient
needs a specialist.
Ter Neuzen v. Korn [1995]
Standard expected of a doctor is that of a prudent and diligent doctor in the same
circumstances. As a result, specialists must be assessed in light of the conduct of other
ordinary specialists
Killips TV Services (2000)
Volunteers are not held to the same standard as professionals
Lecture 10: Causation in Negligence
The difference between cause-in-fact and cause-in-law
Cause-in-fact refers to the fact that the plaintiff must be able to prove that the defendant’s
negligence caused his or her loss. Cause-in-fact focuses on the connection between the plaintiff’s act
and the defendant’s loss, and provides a justification for the imposition of liability.
Contrast this with the notion of cause-in-law: this is the idea that there may be good reasons
to limit liability for reasons of fairness, even though the defendant may have been the factual
cause of the loss. This is what we are talking about when we consider questions of
remoteness. Also sometimes referred to as proximate cause.
30
Note that we often refer to cause-in-fact as factual causation, and cause-in-law as legal
causation. Factual causation does not determine legal causation
The But-for Test
The basic test of causation used in negligence is the but-for test. Requires the court to ask the
question: “Would the loss to the plaintiff have occurred but for the negligence of the defendant?”
Note:
The idea of but-for causation is illustrated in two cases that appear on the
reading list– Kauffman v. Toronto Transit Commission [1960] (TTC handrail where
the person would have been injured anyways) and Barnett v. Chelsea & Kensington
Hospital [1969] (doctor was negligent but escaped liability because he was not the butfor cause. Since torts is about compensation, not punishment then there is nothing to
compensate)
Steps to applying (Robertson’s “The Common Sense of Cause in Fact”)
1. Harm alleged to have been caused must be identified
2. Specific act or acts of negligence by the defendant must be isolated
3. Trier of fact must mentally adjust teh facts so that the defendant’s conduct satisfies the standard of
care of the reasonable person, being sure to leave all other facts the same
4. Must ask if the plaintiff’s harm would have occurred if the defendant had been acting with
reasonable care
5. Answer the question
Defendant’s negligence need not be the sole cause or the predominant cause.
Exceptions to the But-for Test
In many cases, the but-for test does not provide a clear answer to the question of whether the plaintiff
caused the defendant’s loss. Typically, the difficulty arises as a result of what can be called casual
indeterminacy.
Four basic types of causal indeterminacy problem:
(i)
(ii)
(iii)
(iv)
The problem of evidential insufficiency (the “evidential gap”)
The problem of multiple insufficient causes
The problem of multiple sufficient causes
The problem of materially increased risk
In each of these situations, the court may adopt a different test of causation in order to “get around”
the limitations of the but-for test
Notion of the evidential gap (materially contribution test)
This is a situation of causal indeterminacy that arises when it is impossible to determine whether – on
the available evidence – the plaintiff’s injury was actually the but-for consequence of the defendant’s
negligence as opposed to another non-tortious factor.
Perhaps the best Canadian example can be found in the case of Walker Estate v. York-Finch
General Hospital (2001) [SCC]
31
Facts: Three Ps were infected with HIV from transfusions of Red Cross blood. Donor was given the
warning used in 1983 with no specific reference to HIV risk factors/symptoms. In 1984 the
warning was changed to include mention of the risk of male-male sex with multiple partners.
Donor testified that he thought it was safe to give blood as he had stopped having sexual
relations with men two years before. Also claimed that had he been given the 1984 warning,
he would have talked to the nurse about being gay (and then possibly not given blood). Red
Cross sued for negligent screening.
Held: Judgement for P upheld (trial found for P, then reversed on appeal). Although the butfor test remains the general test for causation, it is unworkable in some situations. Test
for causation in negligent donor screenings is whether D’s negligence materially
contributed to the harm. “Material” here meant outside “de minimis” range.
Now: The approach adopted in Walker is usually referred to as the material
contribution test. According to this approach, it is not necessary for the
defendant’s actions to be the sole cause of the damages suffered by the
plaintiff. Instead, a material contribution is established if their actions caused or
contributed to the damages.
Material Contribution Test NOTE
The Court in Resurfice Corp. V Hanke seem to say that the primary test for causation is but-for. The
material contribution test is applicable only in exceptional circumstances where 2 criteria are met. 1. It
is impossible because of factors beyond the plaintiff’s control (ie. Science knowledge) for the plaintiff
to prove that the defendant’s negligence caused the plaintiff’s loss on the but-for test. 2. The harm
suffered by the plaintiff must be of a kind that is within the scope of the risk generated by the
defendant’s negligence conduct
The problem of multiple insufficient causes
This second causal indeterminacy problem arises where several factors combineto cause the
plaintiff’s loss, but where no single factor is itself the but-for cause.
Good example of this problem can be found in Athey v. Leonati (1996)
Facts: P (with pre-existing back problems) is injured in a car accident. On advice from his doctor, he
later resumes exercise and sustains a herniated disk. Trial judge found that D materially
contributed to the injury, but then only held D 25% liable (due to the pre-existing condition).
Held: D was found to be fully liable. Court argued that if the one of the acts contributing to the
loss is tortious, it would then be wrong to apportion liability for the portion that is nontortious. Furthermore, the court concluded that while the trial judge was correct
inholding that D materially contributed to the injury, she erred in holding D only 25%
responsible.
Instead:
Court held that the thin skull rule applied, on the grounds that but for the
accidents the injury would not have occurred.
32
Rule: The law does not exclude D from liability simply because other
causal factors for which he is not responsible helped produce the
harm
The problem of multiple, independent sufficient causes
This is the situation where the plaintiff’s loss arises from two independent acts, each of which was
capable of causing the loss. Typical example is where two different bullets, each of which is fired
negligently by two independent defendants, hit the plaintiff.
In these kinds of cases, the courts have tended to apply what is known as the significant or
substantial factor test. If it can be concluded that the acts of one defendant would have led – by
themselves – to the loss, then that defendant will be held liable (Lambton v. Mellish)
The problem of materially increased risk (inference of causation)
This is the situation where a plaintiff suffers an injury (such as a disease) that may have been caused
by the negligent actions of the defendant. Problem here is that it may be extremely difficult to prove
that the injury would not have resulted but for the actions of the defendant (because with complex
conditions like diseases it is often impossible to identify the cause with even partial certainty).
Good example of this sort of situation is the case of Snell v. Farrell (1990)
Facts: D performed cataract surgery on P’s eyes. Hemorrhage occurred, increasing risk of stroke in
optic nerve. D ought to have halted surgery, but continued on, in breach of the standard of
care. Months later P suffered stroke in optic nerve, becoming blind. Medical evidence could not
conclusively show whether the stroke was a result of the negligent surgery or from natural
causes.
Key Issue:
Should the burden of proof for causation shift to D (to disprove a medical causal
link)? If the burden remains on P can causation be inferred without conclusive
medical evidence?
Held: Court found for the plaintiff and concluded that the but-for test is
inappropriate in medical malpractice cases where it is scientifically
impossible to prove causation and the medical knowledge rests with the
D. Court held that although it is for the plaintiff to prove causation, an
inference of causation may be drawn in the absence of conclusive
scientific proof. If D provides evidence to the contrary, the inference can
only be made if the weight of the combined evidence supports an
inference of causation.
Key quote: “The legal or ultimate burden remains with the plaintiff, but in
the absence of evidence to the contrary adduced by the
defendant, an inference of causation may be drawn,
although positive or scientific proof of causation has not
been adduced.”
33
Lecture 12: Remoteness
Breach of duty and causation are not enough to establish liability. Plaintiff must also be able to
establish that the damage complained of was not too remote, and that there were not intervening
events or acts that should prevent the defendant from being found liable.
Best way to understand the idea of remoteness is to see it as means by which the courts seek to
limit the implications of a finding of factual causation, usually for reasons of policy and general
fairness.
In this sense, the role of remoteness is ensure that liability is kept within fair and reasonable
boundaries, even when it is the case that the negligence of the defendant was the but-for cause of
the plaintiff’s loss.
Put another way: The idea of remoteness was developed to allow the courts to exclude liability in
situations where the loss suffered is so different to what might normally be expected, or so
disproportionate to the magnitude of the fault, that is would just be unfair to hold the defendant
responsible in law.
Now: Can argue that the idea of remoteness is similar to the notion of the duty of care – in that it is
invoked as a means of defining and limiting the extent of the defendant’s liability.
However:
Differences become apparent when you look at the different language used by
the courts when discussing the limits of duty and the idea of remoteness.
When they talk about duties, they typically talk about notions of
neighbourhood and foreseeability, and confine their policy discussions to
quite concrete – if often misguided – worries about floodgates and
indeterminant liability.
In contrast, when you look at the language of remoteness, you
see reference to things like directness, probable outcomes, close
consequences, and immediacy.
Reason for this is that I think the courts are trying to distinguish between two quite different types of
limiting principles:
(1) Limitations based on concerns about the scope of negligence (the duty problem); and
(2) Limitations based on a concern with the logical implications of strict adherence to factual
causation.
Directness Test (abandoned)
Now: Initially, the courts referred to ideas of directness when determining whether the outcome of a
negligent act was too remote – this is the rule in Re Polemis & Furniss, Withy & Co Ltd
[1921]
34
According to the directness rule, a defendant is liable for all of the direct consequences of his
or her negligence.
Also important to note that when applying this rule, the courts were careful to distinguish
between the foreseeability and remoteness.
(1) Foreseeability was relevant to breach and duty
(2) Remoteness was relevant to the extent of liability
The distinction was based on the idea that questions of wrongfulness should be
confined to the duty and breach stage of the calculus, while more practical questions of
the extent of liability should be dealt with at the causation stage.
Foreseeability Test
Now: The directness test was abandoned in The Wagon Mound (No. 1)
Court held that even though the crew were careless and breached their duty of care, the
resulting damage by fire was not foreseeable by a reasonable person.
Directness/indirectness does not matter. The key is foreseeability and the capacity to
do something about it.
Viscount Simonds:
“It is, no doubt, proper when considering tortious liability for negligence to analyse its
elements and to say that the plaintiff must prove a duty owed to him by the defendant, a
breach of that duty by the defendant, and consequent damage. But there can be no
liability until the damage has been done. It is not the act but the consequences on
which tortious liability is founded. ... Who knows or can be assumed to know all the
processes of nature? But if it would be wrong that a man should be held liable for
damage unpredictable by a reasonable man because it was "direct" or "natural”, equally
it would be wrong that he should escape liability, however "indirect" the damage, if he
foresaw or could reasonably foresee the intervening events which led to its being done.
Key here is that the court established a new test based not on directness but on
foreseeability. Court argued that the new approach was fairer, simpler, and less
weighted towards the defendant.
But also important to note that the court was keen to ensure that
defendant’s didn’t escape liability just because the damage in question
was indirect.
Test: The defendant will only be liable for the reasonably foreseeable
consequences of his or her negligence.
Wagon Mound (No. 2): establishes a lower standard than Wagon
Mound #1, only need a “possible foreseeable risk” rather than probable
35
Thin-skull rule applies to pre-existing illnesses and defendant takes them the way they are (Smith v
Leech, Marconato v Franklin)
Flexibility for Remoteness
Note: The courts have taken an increasingly flexible approach to the question of foreseeability and
remoteness, with the result that it has arguably become easier and easier for plaintiffs to
establish that the damage suffered was not too remote.
Have done this in three main ways:
(1) By shifting the focus from the manner of the accident to the type of harm;
Basic approach:
Courts have generally held that the exact mechanics of the
accident are not crucially important, and that it is not necessary for
the precise manner of the accident to be foreseeable. Instead,
foreseeability relates to the type of harm suffered by the
defendant.
This point is illustrated by the decision in Hughes v. Lord Advocate
Lord Morris:
“My Lords, in my view there was a duty owed by the defenders to
safeguard the pursuer against the type or kind of occurrence which in fact
happened and which resulted in his injuries, and the defenders are not
absolved from the liability because they didn’t envisage “the precise
concatenation of circumstances which lead up to the accident.”
Key point:
The case established the principle that only the type of
harm suffered needs to be reasonably foreseeable, and not
the exact manner in which the harm occurred.
(2) By showing a willingness to treat accidents as a sequence of discrete events, and then ask
whether each step was in and of itself foreseeable – example of this can be found in
Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co. (1971)
(3) By focusing on fairness when deciding on the limits of foreseeability
One last thing to note about the idea of remoteness.
Tony Weir in his Introduction to Torts makes a really good point about the operation of foreseeability
in the context of remoteness.
He argues that it is helpful to think of the requirement as a requirement of normality – i.e. the
injury or harm complained of has to be somehow a normal consequence of the act
complained of, and not so abnormal that no-one would have thought it could have resulted.
Now: Need to be careful here. The courts don’t use the language of normality, but I
think Weir is right when he suggests that this is really the essence of the
approach. What he is getting at is the desire of the courts to ensure that a finding
36
of causation (factual and legal) is not so at odds with what we would ordinarily
expect that it someone offends against our everyday notions of fairness.
Lecture 13: Remoteness and Intervening Causes
According to Solomon (p.582) an intervening act is one that causes or contributes to the plaintiff’s
loss after the defendant’s breach has taken place.
Example:
A contractor carelessly blocks a sidewalk, which forces the plaintiff to walk on the road.
A negligent driver then hits the plaintiff. Given that both the contractor and the negligent
driver contributed to the plaintiff’s injuries, the question is whether one or both of them
should be held liable for the loss.
Historical Approach – Last Wrongdoer Doctrine
Now: Historically, courts have tended to treat the intervening cause as a break in the chain of
causation – with the result that the original tortfeasor would be relieved of responsibility.
This approach was often referred to as the last wrongdoer doctrine, in that that last
tortfeasor in the chain of causation was held solely responsible for the loss suffered by the
plaintiff.
Now: Very easy to see that the doctrine of the last wrongdoer – and the idea of the novus
actus interveniens (intervening act) – is also a product of a very artificial way of
looking at the world.
The notion of that we can think about accidents in terms of chains of causation
derives from the but-for test’s assumption that causes in the world are linear –
that is, that events happen in sequences, and that we identify links in the chain
with the voluntary actions of individual tortfeasors. This allows people to escape
joint liability based on moral luck.
Retreat from Traditional Approach
However:
Canadian courts abandoned this approach, and tried to develop other ways of dealing
with the problem of intervening causes in the context of the but-for test. Argued that it
was possible to distinguish between different types of intervening acts, based on the
question of whether the act in question could be regarded as naturally occurring or
morally blameworthy.
Put simply, the courts distinguished between three kinds of intervening acts:
(1) Subsequence acts that could be considered naturally occurring (such as storms,
earthquakes etc). General rule here was that provided the intervening act was not
too unusual, it would not break the chain of causation.
 Generally held not to break the causal chain in act is not too unusual
37
(2) Subsequent negligent acts of a third party (for example, negligent medical
treatment in response to an injury caused by the negligence of the first tortfeasor).
General rule here was that such acts could break the chain of causation.
 Generally held to break causal chains
(3) Subsequent intentional, wrongful (or illegal) acts. General rule here is such acts
would always break the chain of causation.
 Breaks the causation chain UNLESS the original tortfeasor had a duty to
prevent the subsequent act (Hewson v. Red Deer)
This approach was then abandoned in favour of principles that now govern the idea of remoteness,
and the courts adopted a new test based on foreseeability.
Scope of the Risk Test
Test: If the intervening act was broadly within the scope of the foreseeable risk created by the
defendant’s negligence, then he or she will remain liable for the resultant damage or whether
the intervening act itself was within the scope of the risk created.
Key case in this area is Bradford v. Kanellos (1973) (restaurant fire
hissing noise causing patrons to run around)
Note: Despite the decision in Bradford, it is important to note that the Canadian courts have
continued to adopt a fairly conservative, classification-based approach in cases involving
intervening acts of medical negligence.
This is evidenced by the decision in Price v. Milawski (1977) (three doctors and the broken
ankle)
Held: Court concluded that the original tortfeasor could still be held liable if both the
subsequent negligent act and resulting additional harm were a reasonably foreseeable
consequence of the original negligence.
Now: Also need to consider the situation where the intervening act is a deliberate one. In such
cases, the courts have been reluctant to hold the original defendant liable, as it makes no real
sense given that the act of the third party was intentional.
However: Need to consider the Hewson v. Red Deer (1976) (case of city employee not
keeping the truck locked)
Facts: Defendant negligently left a tractor unattended – third party then drove the tractor and
caused damage.
Held: The act of the third party was not an intervening cause because it was
foreseeable that someone might be tempted to drive it
38
Key point:
This case is support for the argument that the general rule of
foreseeability still applies in such cases, and that the act of
the third party still needs to be foreseeable
Lecture 14: Damage: Nervous Shock and the Thin Skull Rule
Liability for Nervous Shock
The key question in this area is whether plaintiffs should be allowed to recover for psychiatric
injuries/damages suffered as a result of the defendant’s negligent act.
Reasons for not Allowing Recovery
courts have been extremely reluctant to allow recovery in such cases, for a variety of distinct reasons.
(1) Concerns about floodgates
(2) The problem of processing and testing the validity of psychiatric claims
This objection is based on the argument that psychiatric injuries are easier to fake than physical
injuries, and therefore it is much easier for plaintiffs to mount fraudulent claims.
(3) The continuing stigma attached to mental illness.
Can argue that the courts were traditionally resistant to claims for psychiatric injuries because they
– like much of society at the time – didn’t understand the nature of mental illness, and didn’t
regard it as something that should be classed as an recognised form of damage
Current Approach: Plaintiff must be able to show:
(1) The type of psychiatric injury complained of must fall into the category of nervous shock; and
(2) The injury must be reasonably foreseeable and there must be a sufficient degree of proximity
The type of psychiatric injury complained of must fall into the category of nervous shock
General rule: There is no liability in negligence for psychiatric injury unless it satisfies the legal
concept of nervous shock.
Basic rule: Nervous shock is defined as a severe emotional trauma that manifests itself in a
physical disorder or in some recognisable psychiatric illness, such as clinical depression or posttraumatic stress disorder.
Note: Nervous shock does not include things such as emotional upset, mental distress, grief, sorrow,
anxiety, worry, or other supposedly transient or more minor psychiatric injuries.
The injury must be reasonably foreseeable
39
General rule:The defendant will only be liable if it was reasonably foreseeable that the negligent act
would produce nervous shock in a person of average psychological resilience
No recovery is permitted if the injury is triggered by an abnormal sensitivity on the part of the plaintiff
or a predisposition to psychiatric illness or injury
Now: Key question is what is reasonable in this context? In what sorts of contexts have the
courts concluded that nervous shock is reasonably foreseeable?
Useful to distinguish between two types of situations:
(1) Where the act of the defendant has a direct effect on the plaintiff’s psychological
well-being; and
(2) Where the plaintiff is a secondary or relational victim – i.e. where their nervous
shock is the result of the defendant causing harm to a third person
Primary Victims
Okay: As you might expect, the position is much clearer in when we look at the first type of cases –
that is, the courts have been reasonably willing to allow recovery for nervous shock where
there is a direct relationship between the parties.
Why? Because there is rarely a problem of indeterminacy, and so floodgates arguments do
not usually apply
For example: The courts in England have held that a duty of care is owed where the
defendant negligently causes nervous shock by:



Directly threatening the plaintiff’s safety;
Falsely telling someone that a family member has died
Failing to take steps to minimise the trauma of telling someone that they may have been
exposed to HIV
Secondary Victims
The more difficult cases are those where the plaintiff is a secondary victim, and suffers nervous
shock as a result of the defendant causing some harm to a third party. Often refer to such victims as
relational victims.
The most typical scenario is where the relational victim suffers from nervous shock as a result
of seeing, hearing, or being told of a tragic or horrifying event.
Generally speaking, the courts rejected them. Refused to recognise them on the grounds that such
plaintiffs weren’t foreseeable, and that there were compelling policy reasons to deny recovery
(floodgates arguments)
40
However:
Over the course of the last fifty years, the courts have gradually begun to take a
different approach.
Have argued that provided the injury is foreseeable and the relational plaintiff is
sufficiently proximate, then they can recover.
Conditions to Meet in Cases of Relational Victims
Key case here is Alcock v. Chief Constable of South Yorkshire Police [1991]
Case is significant because the court laid down a number of conditions that has to be met in cases
of nervous shock to relational victims. These can be roughly summarised as follows:
(1)
Relational proximity–The plaintiff must be able to show a "sufficiently proximate" relationship
to that person injured or killed as a result of the defendant’s negligence. The courts referred
here to the need for a "close tie of love and affection", such as the ties are presumed to exist
only between parents and children, as well as spouses and fiancés.
Key point here is that there would be a presumption in favour of recovery in such cases.
Where the relationship does not fall into that category, then (i.e. siblings) then the ties of
love and affection must be proved.
(2)
Locational proximity – The secondary victim must view the "shocking event" with his or her
own unaided senses. In practice, this means they must be either be an eyewitness to the
event, or hear the event in person, or view its immediate aftermath.
Point of this condition is to impose a requirement of minimal physical proximity, and
prevent recovery by secondary victims who see the events on TV or hear about them
from a third party
(3)
Temporal proximity – The shock must be a sudden, and not the result of what the court
described as a "gradual" assault on the claimant's nervous system.
Key point of this requirement was to prevent recovery where a plaintiff develops a
psychiatric condition like depression as a result of living with a relative debilitated by the
accident
Now: In addition to these rules, the court also argued that the plaintiff can only recover if was
reasonably foreseeable that a person of "normal fortitude" would also have suffered psychiatric
damage.
Key point here is that the closer the tie between the claimant and the victim, the more likely it is
that he would succeed in this element.
41
That is:
The court argued that close family members were by definition more
foreseeable.
Note also that the thin skull rule was also held to apply in nervous shock
cases – that is, once it is established that some recognised psychiatric
damage was foreseeable, it does not matter that the claimant was
particularly susceptible to that particular psychiatric illness.
Now: There have been various cases since Alcock that have sought to clarify the position.
The most controversial of these is Page v. Smith [1995]. Case involved a traffic accident – noone physically injured, but the plaintiff later had a relapse of chronic fatigue syndrome as a
result of the accident.
Court: Drew a distinction between primary victims (those placed in direct physical
danger by the negligence) and secondary victims (people not placed in physical
danger), and argued that liability for psychiatric injury is possible provided that
the possibility of physical injury was foreseeable.
Key point:
Physical injury doesn’t have to materialise – provided it is
reasonably foreseeable, then any subsequent psychiatric may be
recoverable (even if it wasn’t foreseeable)
Note that the court held that secondary victims are covered
by the Alcock rules
(See textbook at page 384)
Canadian Position for Psychiatric Injuries
Ontario Court of Appeal in Mustapha v. Culligan Canada (2006) noted that although no Canadian
courts have explicitly endorsed the position in Alcock, they noted that the policy considerations
raised in that case were relevant ones.
Rule? Court stressed that question is one of reasonable foreseeability, and stated that the test for the
existence of a duty of care is whether it is reasonably foreseeable that a person of normal fortitude or
sensibility is likely to suffer some type of psychiatric harm as a result of the defendant’s negligence.
Also: Court explicitly rejected the decision in Page on the grounds that:
(1) It removes the need for foreseeability as regards the psychiatric harm;
(2) The distinction between primary and secondary victims is an artificial one that
“camouflages the policy choices” that have to be made; and
(3) It represents a misunderstanding of the thin skull rule – which is about quantum of
damages (not forseeability) – i.e. you only consider the particular sensitivities of the plaintiff
(i.e. that they may suffer psychiatric injury) once you have established liability based on
breach of duty. (so look at it in the award of damages)
42
The thin skull rule
Main point to remember is the general principle from Leech Brain: If the injury suffered the plaintiff
was foreseeable, then the plaintiff can recover in full even if they suffered greater damages than an
ordinary plaintiff (due to a pre-existing condition or vulnerability).
Note: Have to distinguish the think skull rule from the crumbling skull rule discussed in Athey
Crumbling skull rule: Where the onset or deterioration of a condition is hastened by
the defendant’s negligence, they will only be responsible to the extent that they
worsened the condition.
Example given in the textbook at p.574: If the defendant’s negligence caused the
plaintiff’s skull to crumble two years earlier than it otherwise would have, then the
defendant’s liability is confined to that period.
Lecture 15: Defences in Negligence
Four main defences available in negligence
1. Contributory negligence
2. Voluntary assumption of risk
3. Public policy and illegality
4. Inevitable accident
Note that in each case the burden of proof is on the defendant, and that they can argue multiple
defences simultaneously
(1) Contributory Negligence
Traditionally, the courts would typically deny recovery if it could be shown that the plaintiff contributed
to the harm. Note that because the courts also did not permit the apportionment of losses, the net
result of this would be that if you could show contributory negligence, then it would be a complete
defence and the plaintiff’s claim would completely fail.
Now: Because the courts recognised that this all-or-nothing approach could be extremely unfair, they
developed the last clear chance (or “last opportunity” rule)
Idea of the rule:
According to the rule, the plaintiff could recover even if they were
contributory negligent if it could be shown that the defendant had a chance
to avoid the accident and failed to take it.
The main strength of this rule was it gave plaintiffs who had been negligent a chance of
recovery.
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However:
The weakness of the rule was that it perpetuated the all or nothing approach –
i.e. if it could be shown that the defendant had failed to take the “last chance” and
avoid the accident, then they would bear the entire loss.
As Solomon notes (p.647), this all-or-nothing approach was eventually abandoned as legislation
allowing for the apportionment of liability in negligence cases was gradually enacted.
The book also notes that the Supreme Court has effectively abolished the old common law
rule, and held that it doers not even apply in the absence of apportionment legislation – see:
Bow Valley Husky (Bermuda Ltd. V. Saint John Shipbuilding Ltd. (1997)
Basic definition of Contributory Negligence
A plaintiff will be held to have been contributory negligence if it can be shown that their conduct
carelessly contributed to the harm suffered as a result of the defendant’s negligence. MUST HAVE
REASONABLE FORESEEABILITY TO BE LIABLE FOR CONTRIBUTORY NEGLIGENCE (Mortimer
v Cameron).
To establish the defence, the defendant must show:
(1) That the plaintiff did not take reasonable care of himself; and
(2) That the lack of care contributed to the injury
Contributory Negligence can arise in 3 ways
1. Plaintiff’s negligence may be a cause of the accident
2. Plaintiff may not have caused the accident but he has put himself in a position of foreseeable
harm from the defendant’s negligence
3. A plaintiff may fail to take protective measures in the face of foreseeable danger
Note that once the defence of contributory negligence is established, the court will then apportion
liability according to the relevant statutory rules. In British Columbia, the statute is the Negligence
Act 1996
The key question for the courts is what constitutes reasonable care in the circumstances.
Cases in the textbook go through a number of different scenarios where the courts have been
forced to interpret what is meant by reasonable care. See: Walls v. Mussens Ltd. (1969) –
NBCA; Gagnon v. Beaulieu (1977) – BCCA
Now: Once the defendant has established the defence, the court must then decide how to apportion
damages. As the textbook notes, in most provinces this is done according to the rules laid
down in statute, and typically apportionment is on the basis of fault
That is:
The legislation permits the court to divide responsibility and apportion liability
according to the relative degree of fault.
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The main things to note in the BC Negligence Act are:

Apportionment is on the basis of fault. Note that where the distribution of fault cannot be
determined, then liability is split equally (Section 1)

Damages can be offset if both parties are at fault (Section 2)

Liability for legal costs are apportioned according to the principles set out in Section 1 (Section
3)
(2) Voluntary assumption of risk (complete defense)
According to the principle of volenti non fit injuria(“to one who is willing, no harm is done”), where a
person engages in an activity and knowingly accepts the accompanying risks, they cannot sue in
negligence if subsequently injured.
Broadly speaking, we can divide the situations in which the defence is likely to arise into two main
categories:
(1) Where there has been express agreement – most common in cases where there the plaintiff
enters into a contract and expressly assumes the risk.
(2) Where there has been an implied agreement – where there is no express consent (inferring
from the conduct)
Important to note two things when considering the defence of volenti:

It is a complete defence, and precludes recovery;

It is very hard to establish, mainly because the courts prefer to apportion damages in such
situations according to the principles of contributory negligence.
As the textbook notes, the defence now really only ever arises in the context of sports, and even then
it is usually interpreted very narrowly.
The elements of the defence are as follows:
(1)
Defendant must prove that the plaintiff knew of and understood the risk he was
incurring; and
(2)
That the plaintiff voluntarily assumed the LEGAL and PHYSICAL risk
Note that for (1), the courts have generally held that the plaintiff must have knowledge of the precise
risk, and not just be aware of the general risks associated with the activity.
Key issue is usually whether (1) has been made out. Good example of the issue can be found in
Dube v. Labar (1986) – SCC. Here the court held that in order to establish the defence of volenti, the
defendant must prove that the plaintiff consented to both the physical and legal risk
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Rule: “Volenti only arises where the circumstances are such that it is clear that the plaintiff, knowing
of the virtually certain risk of harm, in essence bargained away the right to sue for injuries
incurred as a result of any negligence on the defendant’s part.”
(3) Participation in Criminal or Immoral Act – Ex turpi causa non oritur actio
Basic Rule: No cause of action is available in tort where the plaintiff is participating in an illegal act
However:
Need to note that because it is a complete defence, the courts have tended to interpret
it very narrowly.
Key case here is Hall v. Hebert (1993) – SCC. Plaintiff and defendant (both equally drunk) get in and
drive a muscle car, and have an accident. P claims D should not have let him drive; D claims P acted
illegally and cannot sue.
Court Majority held that ex turpi can be a defence to negligence, but only available where:
(1) The P stands to profit from his criminal behaviour; or
(2) Compensation would amount to an avoidance of criminal sanction
Note that Cory J. argued that the question of illegality should be dealt with at the duty stage.
The majority of the court rejected this on the grounds that by keeping ex turpi as a defence, it
was maintaining a desirable degree of flexibility in the application of the principle.
(4) Inevitable accident
Basic rule is that if you can show that the accident was inevitable, then the defendant will not be held
liable
Rintoul v. X-Ray and Radium (1956) – SCC
Facts: Car brakes failed, D applied hand brake, then crashed. D argued that the accident was
inevitable and that he did everything he could to avoid it
Court: Held that the D would need to show that the failure of the brakes could not have been
prevented even with the exercise of greatest reasonable care. Person relying on a defence
of inevitable accident must show that something happened over which he had no control, and
the effect of which could not have been avoided by the greatest care and skill. Court concluded
D didn’t establish this was the case.
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