TORTS Spring 2011- Professor Goold
DRAFT PARAGRAPH SUMMARIES NEGLIGENCE (Edited)
Prepared by Simon Lin based on Professor Goold’s Summary Notes
Establishing Negligence
To establish a claim of negligence, the plaintiff bears the burden of proving 5 elements: 1. The
defendant owes the plaintiff a duty of care. 2. The defendant breached the standard of care. 3.
Defendant’s breach in-fact caused the plaintiff’s harm. 4. The harm was not too remote. 5. Judicially
recognized damage has been sustained by the plaintiff. Then the onus shifts to the defendant to
establish any possible defences.
Establishing a Duty of Care
Establish a duty of care is the first (and key) step in bringing a negligence claim. It acts as a
gatekeeper (limiting factor) for establishing liability under negligence. The seminal case for
establishing a duty of care is Donoghue vs Steveston where Lord Atkin’s articulated 2 factors: a
reasonably foreseeable plaintiff and a proximate relationship between the defendant and plaintiff.
Lord Buckmaster and Lord Tomlin dissented in the case and their key concerns were the opening of
floodgates and how best to limit the scope of liability. Donoghue vs Steveston was a case from the
House of the Lords based on an appeal from the Scottish courts.
Donoghue has been followed in most common law jurisdictions. In Ann’s (also a UK case), the court
modified the test and established that duty of care can be found by answering 2 questions: Is there a
relationship of proximity based on foreseeability? If so, then a prima facie duty of care is established.
Then the court will find any policy reasons to negate that duty. This arguably makes it easier for the
plaintiff to establish a duty of care. The UK courts in Caparo (1990) has shifted away from Ann’s and
made it more difficult to establish a duty of care. In Caparo the courts require: 1. Harm that is
reasonably foreseeable; 2. Sufficient relationship of proximity; and 3. Whether it is fair, just and
reasonable to impose the duty. There are 2 major changes in Caparo. First, it imposes an additional
element of “fair, just and reasonable” in the 2nd stage of the test. This arguably shifts the onus on the
plaintiff to establish that a duty should be recognized rather than presuming a duty which needs to be
rebutted by the defendant. Second, it splits up the idea of proximate relationship and reasonably
foreseeable harm into separate questions. Proximity and foreseeability are separate ideas and should
be considered in and of itself. The Caparo test is still being used in the UK, but has not yet been fully
accepted in Canada. In Canada, a modified version of Ann’s test is still in use to establish novel
duties of care.
In Canada, the Ann’s test was accepted in Kamloops (1984). The Kamloops/Ann’s test was refined in
Cooper (2001). Cooper is the seminal case in Canada for establishing a duty of care in novel cases
and is arguably a slight retreat from the Ann’s test but it is not as big a retreat as the Caparo case
(which is most defendant friendly). If a duty of care has not been established in a past case, then teh
courts must consider whether to establish a duty by looking at 3 elements: 1. The harm was
reasonably foreseeable. 2. There is a sufficient relationship of proximity. 3. The situation is one in
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which a new duty of care should be recognized. The key difference between Caparo and Cooper is
the last stage where the courts consider whether a duty should be recognized. In Caparo, the court
considers whether it is “fair, just and reasonable” but it is not explicitly considered in Cooper.
To determine the first element (whether the harm was reasonably foreseeable), the court can
consider the case of Moule and consider 3 questions: whether there is foreseeable risk of injury,
probability of injury, and whether the plaintiff’s losses are too remote. [answer questions]
The 2nd element (relationship of proximity) is a question of legal proximity, not just physical proximity.
The key is whether the plaintiff and defendant are so “close” such that the defendant will have the
plaintiff in his/her contemplation when acting. [answer questions]
The final element requires various considerations including: whether the law already provides a
remedy for this issue, whether there is a risk of indeterminate liability (unlimited loss, unlimited
plaintiffs), and any broad policy reasons to deny the duty. [answer questions]
Keeping in mind that the Cooper test is not as defendant friendly as Caparo, we know that the
Canadian courts in Cooper are starting to retreat from Ann’s/Kamloops (which has a plaintiff friendly
approach). If a duty of care can be found under the Cooper test, counsel for the defendant could
argue that the test that should be applied is Caparo and appeal up to the SCC to see whether they
are willing to further refine the test to be in sync with the UK. The SCC likes to take incremental
approaches to changes and they may seize an opportunity to do so when the right case comes
around. The key difference between Caparo and Cooper is the 3rd stage where Caparo requires it to
be “fair, just and reasonable” to impose the duty, but this requirement is not in Cooper.
Special Duties of Care
Osborne mentioned that generally duties of affirmative action is imposed if there is a special
relationship. These relationships can include (not exhausitive): Employer/employee, fiduciary
relationships, Professional relationships, Relationships of authority, control and supervision,
Occupier/visitor, Relationship between professional rescuers/citizens in danger.
In novel cases the courts will examine relationship to see if it exhibits the characteristics that are
typical in previously recognized special relationships such as: Cost of affirmative action to the
defendant vs benefit on the plaintiff, statutory obligations, contribution to defendant’s peril.
Duty to Rescue
Generally, there is no duty to rescue under common law (Osterlind). The last tends to target
misfeasance rather than non-feasance (non-action) because it respects personal autonomy, respects
personal choice, and avoids intruding into everyday life. However, there are 2 scenarios where an
duty to rescue may be imposed: when there is a duty established by statute (Horsley) or where there
has been some voluntary assumption of responsibility by the defendant.
Statute
In 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
said 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.
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Another similar case Stone and Dobinson the courts also found a duty to rescue and said that this
duty can be based on some pre-existing obligation or a relationship created by the actions of one of
the parties and the drunkenness of the passengers is irrelevant in considering the duty of care.
However, the courts also stated that the plaintiff must bear the burden of showing that the defendant’s
negligence was the effective cause of the harm – arguably this is the courts trying to put a limit on
liability to avoid chilling effect to society.
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. In Jordan
House Ltd v. Mewnow (1973) (bar owners duty to patrons who became intoxicated) the courts said
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. Furthermore, in
Crocker v. Sundance Northwest Resorts Ltd. (1988) (ski racing competition and supplied alcohol
to participants) the courts suggests that where someone creates a particularly dangerous situation
like a dangerous competition, they owe a duty of care to intoxicated participants. However, this duty is
not absolute and may differ whether it is a commercial host or social host (Childs v Desormeaux). A
commercial host will bear a heavier burden than social hosts.
Duty to Prevent Crime
The police do not have a general legal duty to prevent crime, but they are under a duty to warn. The
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) said that a tort action arises in relation 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.
Duties owed to rescuers
In Horsley v MacLaren (1972). (the drowning case with an incompetent captain) the court
considered 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? 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. “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)
In Paxton v. Ramji(2008), the Ontario Court of Appeal held that physicians never owe such a duty to
the future children of their female patients because there is insufficient proximity between the
physician and the potential child, who is not a separate legal entity until it is born; and there is a
unique relationship between a woman and her potential child, in that the law specifically recognizes a
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woman’s complete autonomy over her body (Winnipeg Child and Family Services v. G.). It appears
reasonable not to establish a duty of care on the physician as it can create conflicts between the
interest of the unborn child and the mother. Furthermore, a women does not owe a duty to their future
children, thus the children cannot sue their mothers for lifestyle choices that cause them birth defects
(Dobson v. Dobson).
Wrongful birth and wrongful life (doctor failing to inform about potential birth defect)
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 considerations for such claims are: what damages can the parents claim, can they claim the cost
of raising the child to the age of majority, or beyond, and what if the child is born with disabilities: how
does that affect the assessment of damages? Initially Canadian courts in wrongful birth cases said
that it would be contrary to public policy to award damages for the cost of caring for a healthy child.
But this position changed in Joshi v. Wooley (1995); Suite v. Cooke [1995]) and courts are starting
to award damages for healthy children.
With regards to disabled children, in Krangle v. Brisco [2002] the courts said that 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)
Traditionally, in Bourhill v Young (1943) there is no special duty of care is owed to a pregnant
woman (not regarded by the courts as a reasonably foreseeable plaintiff) and also that there is no
cause of action by an unborn child (since it has no legal personhood). However, this is no longer
followed. The court in Duval v. Seguin [1972] said the law has recognised that pregnant women are
foreseeable.
In Montreal Tramways Co. v Leveille [1933], the SCC 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 (born alive rule). The
Court in Duval v. Seguin [1972] 2 OR 686, stated "[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"
A Health Professional’s Duty to Inform
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.
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The key is the patient must show that a reasonable person would have decided differently if fully
informed of the risks. (ie. There was some reliance on the advice from the doctor)
Manufacturers Duty to Warn
In Hollis v. Dow Corning Corp (1995), the court held that a warning must be clearly communicated
as to risks related to normal use. The 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. The greater the risk, the
greater the duty to warn. This 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
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 reasonable care,
skill and knowledge in the conduct of litigation . . . and must be properly diligent in the prosecution of
the case.”
Negligent Misrepresentation
Hedley Byrne
Traditionally courts were unwilling to compensate plaintiffs for economic losses resulting from
negligent misstatements. 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. The courts were also considered about indeterminacy (unlimited
loss, unlimited plaintiffs) and interference with the free markets.
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). The Court concluded that
the relationship between the parties in this case was "sufficiently proximate" as to create a duty of
care. The court said that a duty of care cannot be defined solely by the foreseeability of economic
loss.
Lord Reid, in Hedley Byrne, established a 3 stage test for a duty of care in negligent misstatements.
There must be:
(1) Possession of a special skill by the defendant;
(2) Reasonable 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 may conclude that there was a special relationship
between the plaintiff and the defendant, which could then give rise to a duty of care. The courts also
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consider other factors such as defendant’ voluntary assumption of responsibility and the
plaintiff’s foreseeable and reasonable reliance on the information. The reasonable reliance and
knowledge factors act as a limiting principle in this tort since the notion of proximity (from Donoghue)
cannot apply as easily when it is dealing with words rather than actions.
Hedley also established a five-stage test for determining whether there is liability for a negligent
misstatement which was 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.
Hercules
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), however the general rules of negligence still applied and La Forest used the
approach from Ann’s.
(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
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
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;
(2) He then draws on the rules set out in Hedley when considering the first stage of the Anns
test.




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)
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? A contract does not limit the duty of care owed. 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.
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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.
(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 (not examined)
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.
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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?
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?
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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.
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