James Lee – Torts (Galloway) Spring 2012
**Disclaimer: May need to make necessary adjustments to reflect new law and lecture content**
Framework
Plaintiff must prove on a BoP:
1. Damages beyond the de minimus range: a) Physical or property harm, b) Psychiatric harm, c) Economic loss
2. Duty of care
3. Breach of the standard of care
4. Causation
5. Remoteness
Defendant may assert:
1. Contributory negligence
2. Voluntary assumption of risk
3. Illegality
4. Inevitable accident
Damages
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A claim of negligence requires damages beyond the de minimus range. Damage is the vital element that
triggers the claim and launches the litigation process (Osborne)
Duty of Care
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To impose liability on the defendant, the plaintiff must successfully establish that the defendant was under a
legal duty to avoid injury to the plaintiff’s interests (Le Lievre)
Cooper Test: The current approach to duty is a reformulation of the Anns test, which was adopted in Canada in
Kamloops v. Neilson and reformulated in Cooper. Cooper is the leading Canadian authority on the duty of care and
involves two stages. The first stage concerns whether the harm that occurred was a reasonably foreseeable
consequence of the defendant’s acts and whether the relationship between the parties are sufficiently proximate for
tort liability. The second stage concerns whether there are policy considerations outside the relationship of the
parties that should negative the finding of a duty of care (Cooper ¶ 30).
 If the relationship between the plaintiff and the defendant is one that falls within a pre-existing category
where proximity has been recognized, along with a duty of care, a Cooper analysis is not likely required and
a duty of care will be established if the plaintiff’s injury was reasonably foreseeable (Childs).
o “The second step of Anns generally arises only in cases where the duty of care asserted does not fall
within a recognized category of recovery.” (Cooper ¶ 39)
 If there is no existing category that would give rise to a duty of care, the plaintiff must undertake a full
Cooper analysis and prove only reasonable foreseeability at stage 1 in cases of misfeasance, which is the
active creation of the risk of harm, and both reasonable foreseeability and proximity at stage 1 in cases of
nonfeasance, which is the failure to act (Childs). When the distinction between misfeasance and nonfeasance
is blurred, it is likely that the claimant will have to prove both reasonable foreseeability and proximity.
 Pre-existing categories:
a) Duties of affirmative action, where a failure to act (nonfeasance) can give rise to liability:
i.
Where the defendants intentionally invite third parties to an inherent or obvious risk that they
have created or to which they have contributed (Crocker)
ii.
Commercial hosts: The defendant is in an economic relationship with the plaintiff.
 There is a duty of care of commercial hosts towards patrons when the owner or
employees know of the patrons and potentially harmful behaviour (Jordan House)
 This duty includes third-party users of the road (Stewart); This duty includes
organizers of dangerous activities and events for benefit, even if the commercial
establishment does not actively or directly endanger the patron (Crocker);
iii.
Paternalistic relationships of supervision and control producing an imbalance of power and
vulnerability: parent-child, employer-employee, doctor-patient, teacher-pupil, custodian-prisoner
(Osborne)
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The person to whom the duty is owed is usually dependent on the other for assistance
and the person who owes the duty usually has the power to prevent the injury
iv.
Public Duty (i.e. professional rescuer-citizen): Where the defendants offer services to the general
public that include attendant responsibilities to act with special care to minimize risk to the users
of those services (Fullowka).
 The duty of mine inspectors to care for the safety of miners (Fullowka); Fullowka rules:
a) reasonable expectation of the miners that the defendant would take reasonable care
to secure their safety, b) the undertaking by the defendant to protect persons and
property and control the danger posed by the strikers, c) the reliance of the replacement
workers on the defendant, and d) the miners were a well-defined and identifiable group
 Duty of public authorities with specific statutory duties intended for the benefit of
members of the public (i.e. police) to assist others (O’Rourke)
 Duty of the government to enforce building safety by-laws (Kamloops)
 Duty of the government to adequately monitor and maintain rock safety on the highway
(Just)
 Duty of police in the context of police investigations (Hill), but the court decides to
proceed incrementally when dealing with the liability of police (Galloway)
b) Duty owed to rescuers, where the defendant has negligently placed a third-party and him/herself in a
position of danger and the plaintiff is injured or killed in the course of a rescue attempt (Horsely)
 Liability may be imposed even though the person being rescued is already dead, and
the futility of the rescue is not a defence (Horsely)
 Duty to rescuers extends to post-traumatic stress (Chadwick)
c) Duty to rescue – Generally, there is no duty between private parties to rescue and be good Samaritans.
However, Jessup JA and Schoeder JA suggest in Horsely that liability should be imposed on good
Samaritans only if their intervention worsened the victim’s condition. This view is supported by the
Good Samaritan Act which says that there is no liability for volunteers who offer emergency assistance
at the scene of the accident in the absence of gross negligence. What constitutes gross negligence is to be
determined under the standard of care.
 Duty of the owner/master of a pleasure craft to rescue a passenger who falls overboard,
regardless of who’s fault it was, as long as the rescue can be performed without putting
the owner/master or others at risk (Horsely)
d) Duty to avoid causing psychiatric harm – In order to establish a duty, the claimant must establish both
reasonable foreseeability that a mental injury would occur in a person of “ordinary fortitude” (Mustapha)
and proximity (Rhodes)
e) Duty to warn
i.
Manufacturers: A manufacturer has the duty to warn of known risks to the consumer, and can
satisfy this duty by adequately warning a learned intermediary where the learned intermediary is
the primary and most practical source of information about the product (Hollis)
ii.
Doctors: The basic duty of the surgeon is to disclose all material risks attending the surgery
which is recommended (Reibl)
 Absolute duty of disclosure in cases of elective medical procedures, even if the risks
are considered minimal (Hankins, White)
Stage 1 – Prima facie duty
o Reasonable foreseeability: The plaintiff must first prove that the harm to the plaintiff was a
reasonably foreseeable consequence of the defendant’s conduct (Cooper ¶ 30)
 Psychiatric injury:
 Requires reasonable foreseeability that a mental injury would occur in a person of “ordinary
fortitude” (Mustapha) – proximity is likely not required when misfeasance was the direct
cause of the mental injury and there was no breach of a pre-established duty; however the
claimant will have to prove the other elements of negligence
 Mental injury stemming from breach of an established duty: Where the psychiatric injury
was allegedly cause by an established duty (i.e. duty of manufacturer to consumer) that was
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already breached (i.e. a fly in a water bottle), this requirement acts as a qualifier hold the
defendant liable for mental injury (i.e. establishes that the mental injury is not remote).
 Primary victims: Requires only the reasonable foreseeability component (Mustapha)
 Secondary victims: Requires both the reasonable foreseeability component and
proximity (Rhodes)
o Proximity: Next, the plaintiff must show that he/she and the defendant were in a sufficiently close
and direct relationship to constitute a proximate relationship. It invites a consideration of factors that
differentiate the relationship between the plaintiff and the defendant from that of the defendant and
the rest of the world (Osborne). Although novel duties may be recognized, proximity is generally
established by reference to categories of relationships that gave rise to a duty in the past (Cooper ¶
31).
 Factors that may indicate proximity include: a) physical closeness, social closeness,
circumstantial closeness, causal closeness, and b) closeness created by expectations,
representations, reliance, and the nature of property or type of interests involved (Osborne,
Cooper ¶ 34)
 At this stage, the court may consider whether there are any policy reasons, focusing only on
the relationship between the parties, why it might be unjust to impose a duty of care here
(Cooper ¶ 30)
 Social hosts:
 The proximity is not sufficient for social hosts to owe a duty of affirmative care to third party
users of the road (Childs) – distinguished on the capacity to monitor guests, strict government
regulations that shape public expectations, and the profit gaining nature of the relationship
 Government officials:
 If the defendant is a statutory authority, proximity should be determined by the statute under
which they operate (Cooper)
 It is less likely that proximity will be found where they are required by statute to balance
competing interests or are performing a quasi-judicial role (Cooper)
 Consider whether their public duty conflicts with or is consistent with their private (tort) duty
(Odhavji)
 Psychiatric harm:
 Proximity is required when the claimant is a secondary victim (Rhodes)
o Locational proximity – the plaintiff needs to have directly experienced fright terror or
horror at the scene of the accident through unaided senses (Rhodes); mental harms
caused by learning about the accident from a distance is not compensable (Rhodes)
o Temporal proximity – is concerned with the time lapse between the incident and
when the plaintiff saw it or found out about it; the plaintiff must not have had the
opportunity to brace themselves unless they were in a loving relationship with the
injured person (Galloway)
o Relationship proximity – is concerned with the strength of the relationship between
the plaintiff and the victim of the tragedy and who can maintain a claim
 Duty to rescue – factors that lead to a finding of proximity in Horsely: a) inviting them into
an inherently risky situation, b) elements of control and supervision, and c) reliance by the
passengers that they would be brought safely to shore
 New duty? – Proximity is not found between parties in the tendering process where the
plaintiff has the opportunity to protect themselves by a contract
o Proximity If reasonable foreseeability and proximity are established, there is a prima facie duty of
care and the analysis proceeds to the second stage
Stage 2 – Residual policy considerations
o At the second stage of the analysis, the defendant can raise policy considerations, unrelated to the
relationship between him/her and the plaintiff, to justify denying or restricting liability (Cooper ¶ 30)
 Factors considered: a) whether the law already provides a remedy for the interest at stake, (b)
the concern for indeterminate liability and its impact on the legal system, (c) if the defendant
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is a public authority or quasi-judicial body, whether the loss or harm resulted from a policy or
operational decision, and d) other broad policy reasons that make the imposition of a new
duty undesirable (e.g. effect of the duty on taxpayers, desirability of certain activities to be
immune from tort law)
 Government officials:
 Policy/operational distinction: Policy decisions are the initial or threshold public decisions as
to what needs to be done if anything, and are typically made by high-ranking officials.
Operational decisions are lower-level decisions about the implementation of policy decisions.
 The Supreme Courts thinks that courts should show deference to decisions where the
government actor is directly or indirectly responsible to the electorate (Galloway), unless
these decisions stray too far from what can be considered bona fide (Kamloops)
 Operational decisions may be subject to a tort duty of care (Kamloops) – the reasonableness
of operational decisions must be assessed in light of the actual context in which the defendant
has to operate (Just)
o If there are no sufficient residual policy reasons to deny a new duty, a new duty is found
Standard of Care
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After the plaintiff has established a duty of care, he or she needs to establish that there was a breach of the
standard of care. The general standard of care that must be met by the defendant is that of a reasonably
careful person in the circumstances of the defendant. This is an objective test (Vaughan).
Characteristics of the reasonable person: The reasonable person does not share the defendant’s personal
characteristics, thought processes, or subjective awareness. Reasonable conduct is based on the foresight and
knowledge that could have been attributed to the defendant at the time of the incident. The reasonable person
conducts him/herself based on ordinary or ideal community standards. The defendant is only required to act
in a manner consistent with the reasonable person for risks of harm that were reasonably foreseeable.
The defendant’s actual conduct and the steps they took to prevent the materialization of the risk of harm
(question of fact) is compared with the normative standard of what the reasonably careful person in the
defendant’s circumstances. There is no breach of the standard of care, and hence, no liability on the
defendant if their conduct was consistent with or exceeded the normative standard; if their conduct fell below
the normative standard expected of them, they exposed the plaintiff to an unreasonable risk and they were
negligent.
Unreasonable risk: The defendant is subject to liability where their conduct was unreasonable, meaning that
they created a reasonably foreseeable risk of harm to the plaintiff without taking the steps that a reasonable
person would have taken to prevent the risk from materializing (Stewart). Substandard conduct by the
defendant per se is not sufficient to ground liability if the reasonable person would not have acted any
differently.
The factors point to or negate the reasonableness of the defendant’s conduct are: a) the likelihood of the
injury occurring, b) the seriousness of the threatened harm should it materialize, c) the cost of avoiding the
injury, and d) the social utility of the conduct
o Likelihood of injury occurring: The defendant is required to guard against conduct that creates a
substantial risk of injury and not mere possibilities of injury (Bolton)
o Seriousness of the threatened harm: The more serious the threatened injury, the greater the degree of
care expected of the defendant (Bolton)
o Cost of preventative measures: The less onerous it is for the defendant to eliminate the risk or prevent
its materialization, the more likely it is for his/her conduct to fall below the standard of
reasonableness (Rentway Canada)
o Social utility: Some leniency may be given to the defendant with regards to his/her conduct if the
defendant’s activities were socially useful and they tried their best in the situation (Osborne)
The likelihood of injury is multiplied with the seriousness of the injury (Paris) to determine the requisite
level of care owed by the reasonable person: “the amount of care will be proportionate to the degree of risk
run and to the magnitude of the mischief that may be occasioned.” (Mackintosh)
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o Greater care is owed to people who will suffer from more serious consequences from the
materialization of a foreseeable harm, even though the likelihood of injury may be the same for
everyone you owe a duty to (Paris)
Learnedhand formula: The learned hand formula is the principle that a risk is unreasonable where the
seriousness of injury multiplied by the likelihood of injury is greater than the cost of avoiding the harm
(Carroll Towing). If the cost of precautionary measures is less than the likelihood of injury multiplied by the
magnitude of the risk, it is negligent to fail to take the precautionary measures (Rentway Canada)
o The utility of the defendant’s conduct also factors into the equation. A risk of harm is often
inevitably attached to activities that serve a socially useful purpose (i.e. modern transportation).
When the social utility of the conduct that creates a foreseeable risk outweighs the risk, the risk will
likely be considered reasonable. Many foreseeable risks must be tolerated because they are integral to
the kind of society that we have chosen to live in (Osborne)
Custom: Courts will consider whether the defendant’s behaviour was consistent with the established
practices and customs of other citizens carrying out similar activities and tasks.
o The onus is on the defendant to establish the existence of a custom and its reasonableness in the
circumstances (Waldick)
o Following a clear custom can be strong evidence to show that the defendant was not negligent
(Warren), but it is not determinative (Waldick)
o Whether compliance with a custom is evidence of due care depends on: a) duration of the custom, b)
universality of the custom, c) status and reputation of the profession or trade and its members, d) the
degree of difficulty of the conduct in question, and e) evidence of additional precaution that may
have been available (Osborne)
o Compliance with a custom will not be indicative of due care in unusual circumstances of which D
is aware (Paris)
o Departure from a custom in the circumstances can constitute prima facie evidence of negligence,
which the defendant then has rebut (Brown): a) by showing that the normal methods were not
appropriate in the circumstances, b) showing that’s there’s no difference between the conduct and the
customary practice, or c) he/she acted carefully in any event
Statutory Standards:
o Statutes may serve as a guide to what is reasonably careful conduct and what is not, but it is not
determinative and to be weighed against other evidence at the court’s discretion (Sask. Wheat Pool)
o The plaintiff must be part of the intended beneficiaries of the legislative duties (Kelly v. Henry M.)
o The statute must have intended to safeguard the kind of loss complained of (Gorris)
o The defendant’s conduct must have violated the statute (Gorris)
o The defendant’s breach of the statute must have caused the plaintiff’s loss (Gorris)
o Where a statute is general or gives discretion, mere compliance is unlikely to exhaust the standard of
care, so the defendants are bound by the common law standard to take all reasonable steps to
minimize foreseeable harm (Ryan) – statutes carry more weight if specific precautions are defined
Professional Standards: People who hold themselves out as possessing special skills and knowledge are
subject to a higher standard than the reasonable prudent person. This is an objective standard and the conduct
is considered reasonable where it is consistent with or exceeds the standard of a reasonably competent or
average member of their group.
o Lawyers:
 The SoC for lawyers is what the reasonably competent and diligent lawyer doing similar
work would do or know in the circumstances (Central Trust v. Rafuse) – all aspects of a
lawyer’s work are subject to the same reasonableness test (Folland)
 Compliance with the reasonable standard and current practices of lawyers doing similar work
would normally be a defence to a malpractice suit unless the practice is questionable in the
face of known risks or is contrary to the client’s specific instructions (Brenner)
o Doctors: The SoC for doctors is to practice in accordance with the conduct of a prudent and diligent
doctor in the same circumstances (Ter Neuzen)
 Specialists should be assessed in light of the conduct of other specialists (Ter Neuzen)
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Children:
o General two-part test (Heisler et al.):
 Subjective: Is the particular child capable of appreciating the nature and circumstances of the
risk? (Consider: age, intelligence, general knowledge, alertness, and experience of the child)
 Objective: Bearing in mind the characteristics of the child, what would be the reasonable
conduct of a similar child in these circumstances?
o Adult activity:
 An adult activity is generally considered to be activities with a minimum age requirement,
but may be stretched to cover activities normally associated with adults, like golf (Nespolon)
 When the child is engaged in an adult activity, the adult reasonableness test applies (Pope)
 Mental Illness:
o Mental illness is not a complete defence to a negligence action and depends on the extent to which
the conduct in question was affected by the defendant’s mental illness (Fiala)
o Subjective test: In order for the defendant to be relieved by reason of mental illness, the defendant
must prove that he/she was unable to appreciate the duty of care imposed on him/her or was
incapable of discharging that duty due to mental illness. This exception should be narrowly construed
and limited to cases of serious mental illness (Fiala)
Standard of Care for pre-existing categories:
a) Duties of affirmative action, where a failure to act (nonfeasance) can give rise to liability:
i.
Where the defendants intentionally invite third parties to an inherent or obvious risk that they
have created or to which they have contributed (Crocker)
ii.
Commercial hosts: The defendant is in an economic relationship with the plaintiff.
 The SoC for commercial vendors of alcohol to their drunk patrons is to take reasonable
steps to see that they got home safely (Jordan House)
 The SoC for commercial vendors of alcohol to third parties is to take reasonable steps
to control the conduct of the person intoxicated, or in some other way, to protect
innocent persons (Stewart)
 The SoC of organizers of dangerous events for profit to their patrons is to take
reasonable steps to make sure they are not injured (Crocker)
iii.
Paternalistic relationships:
 The SoC for the person under authority is to take reasonable steps to prevent injury to
hose under his/her charge and also to prevent them from injuring others
iv.
Public Duty:
b) Duty owed to rescuers
c) Duty to rescue – If a Good Samaritan volunteers to assist another, they are only expected to do what is
reasonable in the circumstances. There is no breach in the absence of gross negligence. (Good Samaritan
Act)
d) Duty to avoid causing psychiatric harm
e) Duty to warn:
i.
Manufacturers: The SoC is to take reasonable steps to ensure that the consumer is adequately
warned of the known risks to the consumer or the learned intermediary (Reibl)
ii.
Doctors: The scope of the duty and its breach must be decided on a case-by-case basis (Reibl)
 Professional standards are a factor to consider in determining whether there was a
breach in disclosure but it’s not determinative (Reibl)
 The duty of disclosure embraces what the surgeon knows or ought to have known that
the patient deems relevant in their decision to undergo the surgery (Reibl)
 The materiality of the risk must be assessed not only on the odds of the event occurring
(1-4% in Brito), but also by reference to the seriousness of the consequences (Reibl)
 A risk which is a mere possibility usually does not have to be disclosed unless its
occurrence may result in serious consequences (Reibl)
 A patient is entitled to be given an explanation as to the nature and gravity of the
operation (Reibl)
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Subject to the above requirements, the dangers inherent in any operation does not have
to be disclosed (Reibl)
Therapeutic privilege: in certain cases, the emotional condition of the patient and the
patient’s apprehension and reluctance to undergo the operation may justify the surgeon
in withholding or generalizing information that would otherwise be a breach (Reibl)
There is a breach of the SoC when the patient is not given an opportunity to evaluate
knowledgeable the options available and the risks attendant upon each (Van Mol)
Causation
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Next, the plaintiff must establish a sufficient causal or physical connection between the defendant’s
negligence and the plaintiff’s injury to justify the imposition of liability on the defendant (Snell)
The “but for” (“BFT”) is the default test of causation (Clements) and if the plaintiff can prove that “but for”
the defendant’s negligent action, the harm to him/her would not have occurred, causation is satisfied. The
defendant’s negligent actions need not be the sole cause to satisfy causation using the BFT. As long as the
negligent act was a necessary precondition, or in other words, a necessary part of the “chain” of causation,
causation is satisfied using the BFT.
o However, the BFT is a test of inclusion and not a test of exclusion; this means that every time that a
harm-causing factor meets the BFT, causation is satisfied, but causation is also recognized in some
cases where the factor does not meet the BFT. In other words, a failure to meet the BFT does not
preclude the finding of causation. When the BFT does not work in a particular case, courts have,
almost as a rule, resorted to the material contribution test (“MCT”) to find causation where it would
be unjust to deny the plaintiff of recovery due to the failure of the BFT. This is a problem because the
test for causation is confusing, and it is difficult to determine whether we have a BFT or a
contribution test, and when we can or cannot use the MCT if the BFT doesn’t work.
3 main situations where the BFT does not work, but the courts have used the MCT to find causation:
o When a negligent act is one of many multiple independent causes that may bring about a single harm,
and there is no “chain” of causation (Snell)
 Where the plaintiff cannot meet the BFT but produces satisfactory evidence and there is an
absence of evidence to the contrary (drawing inferences from the other party’s silence). Here,
the courts may infer causation. (Snell)
o Where proof of factual causation depends on establishing that one party would have done if another
party had not acted in a negligent manner (Walker Estates)
 Walker suggests that the court can resort to the material contribution test when the BFT will
operate unfairly (para 88) – this suggests that only is needed unfairness to use the MCT
In the special situation where there are two negligent defendants but only one caused the harm, and the
plaintiff cannot establish which one did it, the onus is reversed from the plaintiff to the defendants if the
plaintiff wasn’t contributory negligent (Cook v. Lewis) – there is a presumption of fault against both
defendants unless someone can show on a BoP that they didn’t do it
In Resurface, the SCC held that the basic and primary test is the BFT, and laid out the requirements for when
the MCT can be used:
o They said that the MCT may be used in limited circumstances where: a) it is impossible for the
plaintiff to prove causation by using the BFT through no fault of their own, and b) the harm suffered
by the plaintiff was of the kind what is within the scope of risk generated by the D’s negligence
 Essentially, impossibility was the requirement to trigger the use of the MCT
 They also said that Cook v. Lewis was a situation of MCT rather than a BFT, which means
that both the defendants actually contributed to the plaintiff’s harm when they didn’t
o Resurface was a confusing decision that did not clarify the key issues
The BCCA in Clements held that BFT is the primary test of causation and that Resurface does not support
the idea that the MCT can be used whenever it is impossible for the plaintiff to prove causation using the
BFT. They supported Professor Knutsen’s view that a judge can resort to the MCT in only two situations
where it is impossible to prove causation using the BFT: a) circular causation – when the BFT makes it
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impossible to determine which of two negligent parties caused the damage to the plaintiff (Cook v. Lewis),
and b) dependency causation – where proof of factual causation depends on what one party would have
done if another party hadn’t acted in a negligent manner (Walker Estates).
o “There is generally nothing unfair about the fact that a plaintiff is unable to prove that the negligence
of a particular defendant was a cause of his or her injuries.”
o The Court held that the trial judge should have dismissed the action once he found that the plaintiff
could not prove causation using the BFT
Failure to Warn and Causation:
o Doctor-Patient Causation Test (Reibl): The test for causation for a failure to warn of material risks
is a modified objective one. The key question is: Would the reasonable person in the plaintiff’s
position, have agreed or not agreed if all material and special risks of going ahead with the surgery or
foregoing it were made known to him?
 If the risks of foregoing the surgery would have been considerably greater to a patient than
the risks attendant upon it, the objective standard would favour exoneration of the surgeon
who breached the duty of disclosure (Reibl); Factors: The plaintiff’s reasonable concerns and
economic factors are relevant
o Cases should assign little weight to the subjective views and hindsight of the claimant (Brito)
o Medical Manufacturer-Patient Causation Test (Hollis): Hollis adopted a subjective test with
regards to what the patient would have done had the manufacturer not breached the duty to disclose.
 This is not an undue burden on medical manufacturers because they have an enormous
informational advantage over consumers and escape liability relatively easily by providing a
clear warning of the dangers they know or ought to known of (Hollis)
 La Forest J. distinguished the relationship between doctors and manufacturers because
manufacturers have strong self-interested motives, whereas doctors have a duty to give the
best medical advice they can give to their patients (Hollis)
 If a manufacturer breaches their duty to provide information of the risks to the plaintiff by
informing the intermediary, they cannot raise the defence that the intermediary could have
ignored this information and not passed it on (Hollis)
 In a discussion between the doctor and the patient about risks, the doctor must employe
language that is clear and in layman’s terms (Martin)
 Note: the issue of whether or not it would be overcompensation if the plaintiff would have
undergone the surgery at a later date was not addressed in Martin
 Lord Bingham (dissent in Chester): “The timing of the operation is irrelevant to the
injury P suffered – that injury would have been liable to occur whenever the surgery
was performed and whoever performed it.”
Lost Chances and Medical Malpractice
o The issue in cases where the doctor’s negligence results in the loss of chance of a pursuing
alternative treatments or the increase in risk of an unfavourable outcome is that the outcome if the
doctor had not been negligent remains uncertain
o Some scholars think that the loss of the chance should be the injury itself and may say, “but for the
doctor’s negligence, the plaintiff could have had the chance of success” – the problem with this
argument is that the plaintiff is claiming compensation for her physical injuries, and the value of a
loss of a chance in itself can never be determined without knowing what the actual outcome would
have been
o The SCC has rejected the loss chance approach for personal injury claims (Laferriere)
Causation and Industrial Torts
o When employers breach their duty to of care not to expose employees to life-threatening chemicals
(i.e. asbestos), proof on a BoP that an employer’s negligence has materially increased the risk of an
employee contracting the disease will be taken as proof that the employer has materially contributed
to the plaintiff’s injury
 Applies in cases of contributory negligence (Chorus); No joint and several liability given that
employers are not proven to have caused the loss (Chorus)
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o For drug manufacturing negligence involving multiple companies, each company is liable for the
market share that they hold if their proportion of causation cannot be proven (Sindell)
Remoteness
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The defendant is not liable for every consequence of a breach of a duty of care. Remoteness limits liability
and the plaintiff cannot recover for damages that are so different from what one might have expected, so
disproportionate to the level of fault, or so bizarre that it would be unfair to hold the defendant liable for it.
o Unforseeable damage is too remote and unrecoverable. In order for the plaintiff to recover damages,
their injury must be of the type that was reasonable foreseeable to the defendant (Wagon Mound #1)
 It is not the probability of the result but the possibility of the result that leads to responsibility
(Wagon Mound #2)
o Foreseeability is confined to the type of injury and not the precise concatenation of events in which
the injury occurs or the extent of the plaintiff’s injuries (Hughes)
 Canadian courts adopted the idea that you don’t have to see the precise concatenation of
events, and that foreseeability relates to possibilities (Hoffer)
 The plaintiff may recover provided that the event giving rise to the damage is not regarded as
impossible (Hoffer)
o Linkage – Canadian courts have given a broad interpretation to reasonable foreseeability and have
sometimes broken down the sequence of events into discrete foreseeable consequences in a way that
makes the ultimate injury foreseeable to the defendant (Assiniboine)
o Remoteness can be raised at two junctures. First, at the stage of determining liability, and second, at
the stage of assessing damages (Lauritzen)
 Losses stemming from a wife leaving a husband as a result of a husband’s injuries has been
recognized as being too remote (Lauritzen)
o Thin-Skull Rule: The thin skull rule is the idea that where you’ve breached a duty to someone and
caused physical harm, you have to take your victim as you find them. Where the victim’s unusual
pre-existing condition produces injuries that are more serious than the defendant would expect, they
are still liable for the full extent of the injury, even if the injury is of a different type (Bishop)
o Crumbling skull doctrine: The crumbling skull rule operates so that the defendant need not
compensate for the debilitating effects of the plaintiff’s pre-existing condition which would have
occurred anyways (Athey)
o Interventions: An intervening act occurs when after the defendant’s initial negligence, the plaintiff’s
own subsequent conduct or the unforeseeable act of a third party triggers the injury or exacerbates an
already inflicted injury. In these situations, the defendant is not liable for the extent of the injuries
caused by the intervening act (Bradford)
 If you undertake to protect a person from a third party intervention but are negligent, you
may be liable for the result (Stansbie) – the fact that a third party directly caused the incident
does not bring about an intervening event if their conduct was within the foreseeable risk of
the defendant’s negligent actions
o Manufacturers, Distributors, Contractors:
 There is no intervening event when a particular act that caused the harm is common practice,
and hence, foreseeable (Smith v. Inglis)
 When you know or ought to have known that someone is going to be using your product in a
dangerous way, even though you gave them a warning and even though the product is not
dangerous in itself when used normally, you still owe a duty to third party who may be
foreseeably injured by the person using your product. The use of the product in a dangerous
way despite the warning is not an intervening event for your liability to the third party
(Goodwear)
o Subsequent Medical Errors that Aggravate a Plaintiff’s Original Injuries
 If you cause a person to require medical attention, it should be reasonably foreseeable that
they could be victims of medical errors resulting in aggravation of the original injuries.
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James Lee – Torts (Galloway) Spring 2012
Hence, the original wrongdoer and the negligent medical professional could be jointly liable
for the aggravation of the plaintiff’s injuries (Katzman)
 Psychiatric harm
 When mental injury results from a breach of a duty to create the risk of physical harm, the
defendant will be held liable for the mental harm if it was reasonably foreseeable a person of
“ordinary fortitude” would suffer from a mental injury as a result of the breach (Mustapha)
o The “ordinary fortitude” requirement is a threshold test for determining
compensability of damages at law and is not to be confused with the thin-skull rule;
the thin-skull rule only applies after the threshold and the other requirements of
negligence are met and the damage inflicted proves to be more serious than expected
(Mustapha)
 Psychological injury is compensable but it must be serious and prolonged and rise above the
ordinary annoyances, anxieties, and fears that people in society generally accept (Mustapha)
 The failure of a person to brace themselves and have some thick skin will likely be viewed by
courts as an intervening factor (Mustapha)
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