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Negligence
History of Negligence
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Modern law of negligence originated with system of writs
As the textbooks note, by the late 18th century, two main types of writ had emerged:
- Writs of trespass vi et armis: individuals were strictly liable for direct, forceful
interferences with another individual’s person or property
 Closest to intentional torts
- Writs of trespass on the case – provided for the award of a remedy where the
interference was not direct or forceful.
 π required to prove loss suffered is direct result of intentional or careless conduct
of ∆
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The system of writs laid down a defined list of categories (explicitly specified or recognized
by courts in a prior decision)
- Critique: Rules were inconsistent
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By end of 19th C, nearly all actions on the case required the plaintiff to show that the
defendant had failed to meet the standard of care expected of them, and that the harm was a
direct result of that failure.
Key limitation: π could only bring an action on the case if the alleged relationship between π
and ∆ 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.
- Difficult to recover for novel circumstances
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Modern Law of Negligence
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Framework of negligence law is typical of fault-based civil liability system
Theoretically: loss-shifting system based upon moral imperative that wrongdoers should be
individually liable for the damage they cause  corrective justice
Practically: predominantly a negligence/insurance system that spreads or distributes losses
caused by negligent conduct to a broad segment of the community  distributive justice
Elements in an action for negligence
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 ∆ to the
π and did the conduct in question fall short of that standard?
3) Causation: 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 too remote?
5) Actual Loss: Was the loss in question recognized by courts as recoverable?
6) Defences: Is there a defence available to the ∆?
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Palsgraf v Long Island Railroad Co., (1928) 248 NY 339 (CA)
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Facts: Guards helped passenger board moving train. Passenger dropped package containing fireworks,
exploded, caused scales at other end of platform to fall and strike π. π brought action for PI against railway
company
Majority (Cardozo):
- Whether a duty is owed depends on whether there was a reasonably foreseeable risk under the
circumstances
- To find conduct to be negligent, there must be a duty of care owed to the plaintiff, “the observance of
which would have averted or avoided the injury”  Rreasonable apprehension of risk of harm,
reasonably foreseeable
Dissent (Andrews):
- “Everyone owes to the world at large the duty of refraining from those acts that may unreasonably
threaten the safety of others.”
Held: Judgement for Long Island Railroad Co
Dunsmore v Deshield (1977), 80 DLR (3d) 386 (Sask QB)
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Facts: π injured right eye when glasses broke while playing touch football. π ordered Hardex lenses (more
impact-resistant) from ∆. Lenses were not Hardex. π sued ∆ for damages in negligence. ∆ pleaded
contributory negligence.
Reasoning:
- Mnft negligent in failing to supply Hardex lenses, and in failing to test whether they were Hardex before
delivery
- Deshield relied on Imperial’s test, accepting or adopting mnft’s negligence
- ∆’s wrong cannot be cause of the injury if it would have happened without the wrong: π must prove that
the impact would probably not have been sufficient to break Hardex lens
- “The defendants by their error failed in their duty to protect the plaintiff against the risk of breakage of
ordinary lenses. The risk was foreseeable whether or not they knew that he had athletic pastimes.”
Held: Both liable; Deshield indemnified from Imperial for the entire judgement.
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Duty of Care: Did the ∆ owe a duty of care to the π?
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Two main functions:
(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.
Other functions:
- One of the ways law allocates risks in society, by answering question of who should
bear consequence of a particular risk
- 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.
Old Tests
- Donoghue v Stevenson: π is foreseeable and duty of care is owed if:
1. Person in question is someone the ∆ ought reasonably to have in their contemplation
(reasonably foreseeable)
2. Person was someone who would be closely and directly affected by the act.
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Anns v Merton London Borough Council [1978 HL]: ∆ owes π a duty of care if
1. There is a “sufficient relationship of proximity based upon foreseeability”
2. There are no principled reasons why the court should not recognize a duty of care.
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Kamloops (City) v Nielsen [1984 SCC]: In determining whether a duty of care exists, courts
should ask:
1. Is there a sufficiently close relationship between the parties so that, in the reasonable
contemplation of the ∆, carelessness on the ∆’s part might cause damage to π?
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?
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Caparo Industries plc v Dickman [1990 HL]: ∆ owes π a duty of care if
1. π’s loss was a reasonably foreseeable consequence of ∆’s conduct
2. There was a sufficiently proximate relationship b/t the parties
3. It would be “fair, just, and reasonable” for court to impose a duty, taking into account
all relevant policy considerations.
Current Test
- Cooper v Hobart (2001 SCC): In determining whether a duty of care exists, courts ask:
1. Does the case falls within an existing category?
a. YES  directly or by analogy, then duty of care applies on the facts.
b. NO  proceed to Step 2
2. Was the harm in question reasonably foreseeable, and is there a sufficient proximity b/t
the π and the ∆ 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 recognized?
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Application
- Considering reasonably foreseeable harm and proximity:
- Reasonable foreseeability: where D has taken precautions against all forseeable
events, but accident arises out of unlikely unforeseeable event, D will not be held
liable: Moule v NB Electric
 Foreseeability of harm is relevant to three elements of a negligence action:
(1) A court will impose a duty of care only if the ∆’s conduct created a
foreseeable risk of injury to π
(2) The probability of injury is one of several factors considered in determining
whether the defendant breached the standard of care; and
(3) Π’s losses too remote if they were not a foreseeable result of the ∆’s breach
of the standard of care.
- Probability of injury?
 Probability is not a factor, unlike foreseeability: Haley v London Electric
 Just because you have a good and deserving π, doesn’t make them more
foreseeable: Nova Mink v Trans-Canada Airlines
- Are π’s losses too remote?
- Policy considerations
- Does law already provide a remedy?
- Problem of unlimited liability / indeterminacy?
- Broad policy reasons to deny the duty?
Discussion
- In Donoghue, Atkin focuses on explaining proximity.
- Heaven v Pender is the starting point for Atkin’s discussion of proximity. He uses the
precedent to develop an idea of proximity.
 Very general conception of proximity in Heaven v Pender
 Esher in Heaven v Pender: “The case is established that, under certain
circumstances, one may owe a duty to another, even though there is no K
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.”
- For Atkin, proximity is the key to the second part of the test:
 Proximity: “...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 careless act.”
 In order for there to be a duty of care, the π cannot be too removed from the ∆
- Why it is important to see this as a two part test:
 Reminds us that when we think about existence of duty of care, it is not a
physical notion of neighbourhood, rather a generalized notion.
 Privileges idea of proximity within the range of things that may affect whether
something is reasonably foreseeable or not  emphasizes idea there needs to be
some sort of direct cxn b/t π and ∆
- Anns test was the peak of the expansive attitude to negligence.
- Anns test is not an actual test to determine if duty of care exists. It sets out an approach
for analyzing existing categories of negligence and recognizing new categories in novel
situations.
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Anns Test has been repudiated by UK and Australia
 Really undermined the limits that Atkin was trying to put on duty of care
- Critique of Anns:
 Anns test doesn’t really consider what weight should be given to stages of test.
What happens in hard cases where there is foreseeabliity, but also problems of
closeness? Less emphasis on proximity is bad.
 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  very plaintiff friendly test
 Presumption in favour of the recognition of new duties of care opens the
floodgates to a whole raft of new categories of negligence
 In reality, it didn’t actually lead to huge expansion in the ambit of CL negligence,
and courts were quite cautious and slow to recognize new types of duties.
Neilson v Kamloops: SCC adopted Anns test
- Endorsed, but was more subtle and nuanced than Anns. Even more π friendly.
Caparo: overturned Anns
 Key difference: limiting third requirement of “fair, just, and reasonable”
 Shifts presumption in favour of finding a duty to a presumption against finding duty
 Deliberate return to more conservative and incrementalist approach to negligence,
strong presumption against developing new categories of liability
 Critique: Some suggest this is a return to the classic, pre-Donoghue position – where
negligence is organised around a limited number of set duty relationships. This is
something of an exaggeration, but gives some sense of how far the clock was turned
back by Caparo.
 Do you think that Caparo limits the creation of duties?
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Cooper: SCC joined retreat from Anns
Combines questions of foreseeability and proximity into the first stage of the test
- Different from Kamloops, because it explicitly recognizes importance of proximity
- Leaves questions of policy to second branch
- Practical effect: burden of arguing that there should be a duty of care placed on the π
- Supreme Court favours an incremental approach to the expansion of negligence.
After Cooper, Courts will consider:
- What is the likely effect of recognizing a duty of care on other legal obligations, the
legal system, and society more generally?
o Does the law already provide a remedy?
o Does finding duty of care raise question of an unlimited class of π’s or unlimited scope
of liability? (Floodgates argument)
o Are there other reasons of broad policy that suggest that duty of care shouldn’t be
recognized?
 Recognize difference b/t government’s policy and operational decisions
 General rule: Inappropriate for the court to second-guess the government’s policy
decisions. 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: Just v British Columbia
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Donoghue v Stevenson [1932] AC 562 (HL)
Facts
π discovered decomposing snail in bottle of gingerbeer. π sued mnft, alleging shock and severe
gastro-enteritis.
Majority
(Atkin)
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General duty of care as neighbour: “Who, then, in law, is my neighbour? The answer seems
to be - persons who are so closely and directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I am directing my mind to the acts or
omissions that are called in question . . . “
Must ask two distinct questions to determine whether duty of care is owed:
 Person must be someone who ∆ should have in reasonable contemplation
 Person was someone who would be closely and directly affected by the act
Proximity is key to the second part of the test: for there to be a duty of care, π cannot be too far
removed from the ∆
The revolutionary aspect of Aitkin’s judgment: basis of liability is anyone who is reasonably
foreseeable as someone who could be harmed by my negligence is a potential plaintiff.
Impossible to accept such a wide proposition
Takes a very narrow defn of “proximate” and of Heaven and Pender
Difficult to see how trade could be conducted if Atkin's principle was law.
Floodgates argument: no way to limit application of negligence if we apply Atkin’s
formulation
If such a duty of care existed, it must cover the construction of every sort of product, and not
just
Concern with scope of liability and problem of remoteness: how can you restrict the number of
claimants where there is a direct causative link b/t negligence and a given harm?
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Dissent
(Buckmaster)
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Dissent
(Tomlin)
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Anns v Merton London Borough Council [1978] AC 728 HL
Facts
Group of homeowners (lessees) sued the builders and the town council for negligently
inspecting the foundations and enforcing bylaws.
Majority
(Wilberforce)
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Two-part test:
(1) Whether there is a sufficient relationship of proximity based on foreseeability
(2) Whether there are principled/policy reasons why court should not recognize a duty
Prima facie duty can be negated, restricted, or modified to meet policy concerns
Proximity is really the same as foreseeability
The limit is really set by a policy question: are there reasons why we should have a duty of
care?
It makes it easier to establish duty of care. If it is reasonably foreseeable, it is by definition
proximate, thus shifting onus back to the Court
Kamloops (City) v Nielsen [1984] 2 SCR 2
Facts
Kamloops house had insufficient foundations, discovered upon city inspection. Stop work
orders were issued but not enforced. The house was sold to the Neilsens. On discovering the
construction deficiencies, the Neilsens sued the city for negligent performance of inspection.
Majority
(Wilson)
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Explicitly endorsed Anns test
Test:
(1) Is there a sufficiently close relationship between the parties (the local authority and the
person who has suffered the damage) so that, in the reasonable contemplation of the
authority, carelessness on its part might cause damage to that person? If so,
(2) Are there any considerations which ought to negative or limit (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 of
it may give rise?
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Caparo Industries plc v Dickman [1990] 2 AC 605 (UK HL)
Facts
Caparo acquired majority control of Fidelity, and found accounts in worse state than revealed by
directors and auditors. Sued for negligence.
Reasoning
(Bingham)
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Overturned Anns, move to more cautious classical approach to negligence
Returned to more distinct and recognizable categories of duty
Recognition of duty care, 3 part test requiring proof that:
(1) π’s loss was a reasonably foreseeable consequence of the ∆’s conduct
(2) There was a sufficiently proximate relationship between the parties  Reasserts
proximity requirement
(3) It is fair, just, and reasonable for the court to impose a duty of care in light of the
applicable policy considerations
Shifts to presumption against finding a duty
Less π friendly
Cooper v Hobart (2001) 3 SCR 537
Facts
π argued that ∆ was aware of serious wrongdoing by broker, but failed to notify plaintiffs and to
suspend broker’s licence. π argued that if ∆ acted expeditiously, they would have avoided or
lessened their losses.
Reasoning
(McLachlin and
Major)
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Holding
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Where new cases arise, must search elsewhere for assistance in determining whether, in
addition to disclosing foreseeability, the circumstances disclose sufficient proximity to
justify the imposition of liability for negligence
The correct approach to duty of care:
(1) Determine whether case falls within any recognized category of relationships where a
duty of care has previously been recognized or if it is closely analogous to a recognized
category
(a) If yes, prima facie duty of care may be posited
(b) If no, apply a modified Anns/Kamloops test
(2) Foreseeability of damage to π and proximate relationship b/t the parties
(3) Policy considerations (shifts to ∆, Childs v Desormeaux)
Proximity: Is it close enough to cause?
Remoteness: Is it too indirect? It is supposed to limit proximity.
Consideration of residual policy factors, that is, factors not concerned w/ relationship b/t
the parties but with the impact of the proposed duty of care on other legal obligations, the
legal system, and on society generally
Insufficient proximity b/t ∆ and π to find prima facie duty of care, and residual policy
factors support the conclusion (nature of ∆’s statutory function and risk of indeterminate
liability)
Just v British Columbia (1989 SCC)
Facts
Π injured, daughter killed by falling rocks on Hwy 99. Sued province for negligence.
Reasoning
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Holding
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Duty of care should apply to gov’t unless good reason to exclude
A true policy decision can constitute exclusion
BUT, operational decisions must be carried out properly
Distinction b/t 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.
New trial; decisions re hwy are matters of fact, not policy
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Moule v NB Electric (1960 SCC)
Facts
π electrocuted when he climbed tree to an unusual height, stepped on a rotten branch which
broke, causing him to fall onto wires (number of obstacles). Electric co. had cleared most
branches surrounding wires.
Reasoning
(Richie)
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Where ∆ has taken precautions against all foreseeable events, but accident arises out of
unlikely unforeseeable event, ∆ is not liable.
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A lot of jurisdictions say that it has to be quite a stretch to apply foreseeability to
children. What is reasonably foreseeable to an adult is not for children. Courts have said
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Holding
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children are ‘unable to resist”.
All factors combined to be “so fortuitous as to be beyond the range of foreseeable results”
Foreseeability of harm is relevant to three elements of a negligence action:
(1) A court will impose a duty of care only if the ∆’s conduct created a foreseeable
risk of injury to π
(2) The probability of injury is one of several factors considered in determining
whether the defendant breached the standard of care; and
(3) Π’s losses too remote if they were not a foreseeable result of the ∆’s breach of
the standard of care.
Company had a duty of care to π, but sequence of events was such that π’s injury was not
reasonably foreseeable.
The fact that the particular coincidence of events was very unlikely means that it was less
foreseeable.
Amos v NB Electric Co. (1976 SCC)
Facts
Tree by highway w/ leaves covering the power lines. π climbed the tree and was electrocuted.
Reasoning
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Holding
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Children known to play in area where poplar tree grew through electricity lines, but tree not
maintained
Risk clearly foreseeable: reasonably careful person would have trimmed the tree
Distinguish from Moule: Children had a number of obstacles to get to where tree
touched power line; here, child merely climbed tree. No due diligence here.
Company liable.
Haley v London Electric (1964 HL)
Facts
∆ put large signs and barriers around large hole in road. Blind π walked through barriers, fell in
hole.
Reasoning
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Holding
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∆ argued that only 1/500,000 people in UK were blind: not probable that someone visually
impaired would walk into the hole.
Rule: Probability is not the factor, but foreseeability is. It was foreseeable that a visually
impaired person could walk into the hole.
Company liable.
Nova Mink v Trans-Canada Airlines [1951 SCC]
Facts
Airplane flew over commercial mink farm, minks became upset and ate their young. Mink farm
suffered considerable financial loss.
Reasoning
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Often cited as authority that duty should only be imposed where it would deter harmful
behaviour. The deserving nature of the π doesn’t change the calculable reasonable
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foreseeability.
Holding
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No duty of care because loss was not reasonably foreseeable.
Special Duties of Care: Affirmative Action
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Key question: Whether courts should impose duties of care in cases where the defendant’s
failure or omission to act has caused harm to the plaintiff
Negligence law: you must not expose people to the risk of injury, not that you must help them
o Misfeasance: dangerous conduct
o Nonfeasance: omission to confer a benefit
CL has generally shied away from making people liable for non-feasance because:
(1) Requiring people to act in particular ways offended notion of personal autonomy
a. Unduly restricts personal freedom, de-emphasizes personal and responsibility
b. If tort law is about compensation, it is not as inherently moral as criminal law
c. Improperly substitutes legal compulsion for moral duties. Law should overlay
what we understand as basic moral principles.
i. Joseph Raz: Why do we obey laws?
1. Classical response: If you don’t, you are punished.
2. Raz: But you frequently make an active choice to obey even where
you know there is no chance you will be punished.
d. What you define as an act also, in a sense, defines what an omission is
i. Ex. Driving a car, but within the act of driving a car you can fail to do any
number of things. However, overall, it is still defined as an act.
e. If you require people to do things, you do not create a morally pleasant climate.
People report things for fear of being punished if they don’t, not because it is the
right thing to do.
(2) Rule against nonfeasance reflected a broader ideological commitment to capitalist
notions of choice and minimal legal interference with individual choices.
(3) Positive obligations are necessarily more intrusive than negative obligations not to act
Argument to impose affirmative duties of care: Doesn’t go far enough: humane and
compassionate society should impose duty of risk-free rescue on every citizen to fellow
citizens in situations of acute physical danger
Special relationship” ==> main conceptual vehicle used to extend range of duties of
affirmative action
o ∆ is under a duty of affirmative action if she stands in a special relationship to π
o Allows incremental and controlled expansion of the range of affirmative duties on a
case-by-case basis
Recognized special relationships
o Contractual and quasicontractual relationships
o Professional relationships
o Relationships of authority,
control, and supervision
o Relationship of occupier and
visitor
o Relationship b/t professional
rescuers and citizens in danger
Novel cases
Characteristics typical of special relationships
 Voluntary assumption of responsibility by the ∆ for the π
 Any authority, control, and supervision the ∆ has over the π
 Commercial benefits derived by the ∆ from the relationship with the π
 Close family or personal bonds
 Any reasonable reliance or dependence by π on the ∆
 Any expertise the ∆ may have in emergency services or rescue operations
 Extent of burden that would be imposed on the ∆
 Any direct or indirect contribution by the ∆ to the π’s peril
 Statutory obligations resting on teh ∆
 Comparison of the cost of affirmative action to the ∆ with the extent of the
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benefit it would bestow on the π
- When considering situations likely to generate duties of affirmative action:
- There are three views about imposing liability on a ∆ who voluntarily embarks on
course of conduct designed to assist a person in danger:
(1) Inappropriate to impose obligation b/c acting in selfless way
(2) ∆’s liability should be restricted to where he has made π’s position worse by
causing additional damage, abandoning rescue attempt after commencement of it
led other potential and willing rescuers to turn away
(3) Usual duty of care attaches to ∆ as soon as rescue commenced
a. This view is consistent with modern trends of negligence
b. Policy argument: creates significant disincentive to altruistic conduct
c. Good Samaritan legislation: limit rescuer liability to acts of gross
negligence or recklessness
o Where ∆, without fault, creates a dangerous situation, it is not unreasonable to expect
the creator of peril to take reasonable steps to abate it, warn of danger, or alert
appropriate authorities
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Duty to Rescue
- Rule: There is no common law duty to rescue: Osterlind v Hill (1928)
- Arguments in favour of a general duty to rescue:
(1) Reflects our common sense understanding of everyday morality
(2) Removes inconsistency 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.
- Exceptions: An affirmative duty to rescue may be imposed:
- Where duty is established by statute
- For example: Section 526 of the Canada Shipping Act 1927 – which requires that
the master or person in charge of a vessel must rescue anyone “found at sea and in
danger of being lost” in peril at sea
- Where there has been some voluntary assumption of responsibility on the part of the ∆
 Once a rescue is undertaken, rescuer has a duty to act and will be liable for
negligence: Matthews v Maclaren; Horsley v Maclaren
Osterlind v Hill (1928 Mass.)
Facts
∆ rented a canoe to visibly intoxicated π. Π overturned canoe. ∆ ignored cries for help.
Reasoning
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Reasonable foreseeability of harm, but judicial policy firmly opposed to imposing duties of
affirmative action.
Holding
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∆ had no legal duty to take reasonable steps to rescue the deceased.
Matthews v Maclaren; Horsley v Maclaren (1969 Ont HC)
Facts
∆ took intoxicated π’s on boat ride. Matthews fell off (no fault of ∆). ∆ reversed
engines in rescue attempt; Horsley then jumped off to try to save him. Both π’s died.
Reasoning
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∆ owner-operator of a pleasure boat is under a legal duty to take reasonable steps to rescue
a passenger who fell overboard through no fault of the ∆
Factors that made the relationship special:
 Authority and control that a boat owner has over his passengers
 Implied assumption of responsibility of the boat owner for the safety of his
passengers
Trust and reliance that his passengers place in the boat owner
Expertise and competence that passengers may reasonably expect of a boat
owner
Court held that liability could be imposed only if first rescue was conducted
negligently
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Holding
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∆ owner-operator of pleasure boat is under a legal duty to take reasonable steps to rescue a
passenger who fell overboard through no fault of ∆.
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Duty to Control Actions of Others
- Rule: No general duty to control conduct of others, but in some cases a duty will be imposed
where there is voluntary assumption of responsibility on the part of the ∆
- ∆ offer services to general public that include attendant responsibilities to act w/ special
care to minimize risk to the users of those services: Jordan House Ltd v Mewnow
- ∆ intentionally invite third parties to inherent or obvious risk they have created or have
contributed to: Crocker v Sundance
- Cases where there are paternalistic relationships of supervision and control producing
an imbalance of power and vulnerability, as in the parent-child relationship: Child v
Desormeaux
Jordan House v Menow (1973 SCC)
Facts
∆ bar owner ejected an intoxicated patron, who was hit by a car while walking home
Reasoning
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Holding
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Court began to explore affirmative duties that bar owners owe to patrons who become
intoxicated on their premises
Factors:
 Relationship of commercial host and patron
 ∆’s personal knowledge of the π
 Propensity to drink to excess
 Intoxication when ejected
 Special dangers that the π was served alcohol beyond the point of intoxication in
contravention of provincial liquor control legislation and the defendant’s own
house rules
A duty of care may be imposed where there is either a pre-existing relationship (like invitorinvitee 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.
∆ owner-operator of pleasure boat is under a legal duty to take reasonable steps to rescue a
passenger who fell overboard through no fault of ∆.
Crocker v Sundance Northwest Resorts Ltd (1988 SCC)
Facts
Reasoning
Holding
∆ ski resort organized inner tube race down moguls. π was visibly intoxicated, signed waiver, took
part in the race and was rendered quadriplegic when he fell of his tube
 Factors:
 Stressed authority and control ∆ had over the race
 Inherent danger in contest
 ∆’s knowledge of π’s incapacity
 ∆’s commercial and promotional interest in the contest
 Heightened danger of racing when intoxicated
 Rule: where someone creates a particularly dangerous situation like a dangerous competition,
they owe a duty of care to intoxicated participants.
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Duty to take reasonable steps to prevent the π from participating in the contest even though ∆
had supplied only a small amount of liquor consumed by him. 75% liable.
Stewart v Pettie [1995 SCC]
Reasoning
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
Duty to third parties for conduct of a person drunk to excess on the ∆’s premises
Commercial host and customer, foreseeability of harm to innocent third persons
Duty to take reasonable steps to control the conduct of the intoxicated customer, or in
13
some other way, to protect innocent persons
Childs v Desormeaux (2006 SCC)
Facts
NYE party, ∆ served a guest who was a known alcoholic and then let him drive home drunk.
Reasoning


Holding
Courts declined to add to duties of AA; first time used Anns test for AA
Prima facie duty of care based on Anns test, but negatived for policy reasons.
 Posited duty was novel being insufficiently analogous to duty of commercial host in
Stewart
 Neither foreseeability nor proximity elements were established
 Social hosts are not profiting from serving alcohol; not highly regulated as in a commercial bar;
commercial hosts have a better ability to monitor consumption.
Social hosts of private BYOB party don’t owe a duty of care to members of the public injured as a
consequence of an intoxicated guest’s operation of a car on leaving the party.
Duty to Warn
-
Rule: Police do not have a general legal duty to prevent crime, but they are under a duty to
warn: Jane Doe v Metropolitan Toronto Police
Jane Doe v Metropolitan Toronto Police (1998)
Facts
Reasoning
Rapist attacked π; four other women in same neighbourhood, all living in 2nd or 3rd storey
apartments, all white, had been victims
 She was in the foreseeable class of π’s (SWF, apartment 2 - 3 floors above the ground)
 Operational decision making versus policy decision making
 Policy: general decisions about resourcing within the police force
 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.
Duty to Rescuers
- Where ∆ has negligently placed B or herself in a position of danger, and π is injured or killed
in course of rescue attempt
- Claim of rescuer cannot be denied b/c the ∆ owes no duty of care to the imperiled person or
because ∆ has valid defence against claim made by imperiled person
- Futility of rescue is not a defence
- Liability may be imposed even though the person being rescued was already dead
- Contributory negligence difficult to establish b/c rescue usually involves instinctive and
spontaneous action where risk to one’s own safety unavoidable
- Rule: If ∆ creates a dangerous situation through negligent actions, and π acts as a rescuer,
then liability may be established: Videan v British Transport Commission, Horsley v
Maclaren
- “It seems to me that, if a person by his fault creates a situation of peril, he must
answer for it to any person who attempts to rescue the person who is in danger.
He owes a duty to such a person above all others. the rescuer may act instinctively
out of humanity or deliberately out of courage. But whichever it is, so long as it is
not wanton interference, if the rescuer is killed or injured in the attempt, he can
14
recover damages from the one whose fault has been the cause of it.”
-
Horsley v Maclaren (1972 SCC)
Facts
∆ owned a boat. Matthews (drunk) fell overboard. Π (rescuer) jumped overboard.
Reasoning
(Ritchie)




Holding



Maclean’s negligence in messing up rescue attempt resulted in Horsley jumping overboard to
save Matthews, and subsequently dying.
The key question is whether MacLaren’s negligent attempt at rescuing Matthews created a new
and distinct danger that induced Horsley 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.”
Cites Videan: if you create a dangerous situation through negligent actions, and other people act
as rescuers, then you can be liable
No duty of care to Horsley b/c initial falling overboard is not a consequence of Maclean’s
negligence
Horsley’s decision to jump in the water is not affected by MacLean’s botched rescue attempt.
Horsley is actually already in the water before the botched rescue attempt
Liability could be imposed only if first rescue was conducted negligently
Duties Owed to Unborn Children
Pre-conception wrongs
- ∆ carelessly causes an injury to a parent that then causes harm to a subsequently born child.
- Child has not been conceived at the time of the alleged negligence. But: 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
- Goold says this seems strange that there is no minimal duty of care to unborn child
Paxton v Ramji (2008 Ont CA)
Facts
Reasoning
Physician prescribed Accutane prior to when child was conceived. Meds had extreme side effects on
health of child.
 Dotcor had duty to mother, but not to child
 Imposing duty could create irreconcilable conflict b/t mother and future child, undermine
woman’s autonomy
 Unique relationship between a woman and her potential child, in that the law specifically
recognizes a woman’s complete autonomy over her body
 McLachlin J. in Winnipeg Child and Family Services v. G. [1997]
 “… 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.”
 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 unborn child, and this could result in physicians putting future children’s
needs before those of their patients.
 Women do not owe a duty to their future children. 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.
Wrongful birth and wrongful life
- Physician carelessly fails to inform a woman that she faces an unusually high risk of giving
birth to a child with disabilities; denies the mother opportunity to make an informed decision.
15
-
Rule: Generally 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.
Courts usually unwilling to grant wrongful life b/c ranks disabled life lower than no life at all
Wrongful pregnancy
- Cases typically involve carelessly performed abortions or sterilization, and liability will be
based on general principles of medical negligence.
- 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 child is born with disabilities: how does that affect the assessment of damages?
- Initial position of most Cdn courts: contrary to public policy to award damages for the cost of
caring for a healthy child.
Krangle v Brisco [2002 SCC]
Facts
Doctor failed to inform parents of Down Syndrome child
Reasoning


Parents were entitled to damages for non-pecuniary loss for the pain and suffering associated
with giving birth to, and raising, a disabled child
Court held the physician was only liable for costs of care to point of majority
Pre-natal injuries
- Do individuals owe a special duty of care to pregnant women?
- Bourhill v Young (1943): no special duty of care owed to a pregnant woman (not regarded by
the courts as a reasonably foreseeable plaintiff).
- Longstanding CL rule: legal personhood commences at birth
- Montreal Tramways Co v Leveille [1933]: 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.
- Duval v Seguin [1972]: pregnant women are foreseeable, endorsed “born alive” rule
- Dobson v Dobson (1999): Mother does not owe duty of care to her unborn child
- Child’s birth is said to impose retrospective duty of care on the person.
- Duty of care extends to both foetus and child, but only becomes legally actionable
when foetus becomes child.
Bourhill v Young [1943 HL]
Facts
Reasoning
Pregnant woman heard car crash and saw blood everywhere; suffered miscarriage as a consequence
of shock.
 For there to be a duty, there must be a special relationship between π and ∆
 Pregnant women in the public place not a foreseeable class of π’s
 Had the child been born, it would have had no cause of action. Such injuries not actionable
because of the longstanding CL rule that legal personhood commences at birth.
Duval v Seguin [1972]
Reasoning




Overturned Bourhill: pregnant women clearly foreseeable
It is possible, in principle, for there to be a claim for pre-natal injuries
Injuries to pregnant women are not actionable b/c of principles of legal personhood
Affirms “born alive” rule: "[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
16
suffered by the plaintiff ... since birth and which she will continue to suffer as a result of the
injury"
Health Professional’s Duty to Inform
- Rule: Doctors have a duty to inform patients of risks associated with a particular treatment:
Haughian v Paine
- Material risk = consideration of harm and risk
High risk
Material
Material
Big harm
Low harm
Material
Not material,
Low risk
. - Rule: Courts have generally held no liability for off-duty professionals: Smith v Rae
.
Haughian v Paine (1987 Sask CA)
Reasoning




Duty to inform patients of risks associated with a particular treatment
If they fail to disclose the risks of a particular type of treatment, they are liable
Material risk must be disclosed: harm + risk
 Big harm, low risk; big harm, high risk; low harm, high risk
 Only low harm, low risk is not material, though it can become material in a particular
individual’s case
The patient must show that a reasonable person would have refused treatment if aware of the
risks.
. Smith v Rae [1919]
Facts
Reasoning
A doctor who had agreed to attend the birth of a child didn’t show up. The child died in
childbirth.
 The agreement for doctor to come help with the birth was b/t the husband and the
doctor.
 Husband wasn’t harmed, wife had no contractual relationship, therefore had no cause
for action
.
. Manufacturer’s Duty to Warn
- Rule: warning must be clearly communicated as to risks related to normal use: Hollis v. Dow
Corning Corp (1995)
Hollis v Dow Corning Corp (1995 SCC)
Facts
Reasoning
∆ produced breast implants, but warnings only related to surgery, not post-surgery.
Surgeon argued that had he known, he would have used a different one.


Policy: shift risk from the consumer to the mnft, who in a better position to know risks and
so has a duty to be forthright as to all the risks (Greater risk = higher duty to warn)
Duty to warn not only at time of sale, but continues afterwards if new dangers discovered
17


Duty/standard can vary based on the nature of the produce and how harmful its inherent use
it - in this case, designed to go inside a body so standard is very high - clear, complete, and
current information
“Learned intermediary” rule: intermediary must be brought up to the level of knowledge of
the mnft
. Duty of Care Owed by Barrister
 Rule: Lawyers are not immune from a negligence claim based on their performance in a civil
case: Demarco v Ungaro
Demarco v Ungaro [1979]
Reasoning
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
-
Key problems with imposing liability for losses resulting from negligent misstatements:
o Problems of proximity
o Indeterminate liability
 Ultramares Corp. v. Touche (Cardozo): economic loss cases present the potential
for “liability in an indeterminate amount for an indeterminate time to an
indeterminate class.”
 Particularly for pure econ loss: A gives B negligent advice, causing 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?
 Prospect of tort interfering in market, compensating losses that are part of
everyday business life
 Not the role of the law to get involved in the market  falls to K law
(limits of consideration and privity)
 Economic interests have not traditionally been assigned the same value or
importance as personal or property interests
 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.”
 Market is a zero-sum game with winners and losers.
Factors in considering duty of care:
 Expertise and knowledge of the representor (special expertise? Represent self as expert?)
 Seriousness of occasion (reliance on info foreseeable and reasonable given nature of
occasion)
 Initial request for (shows ∆ that π has real interest in receiving the info, more likely to rely)
 Pecuniary interest (any direct or indirect benefit rec’d by representor increases cachet of info
and encourages reliance on it)
 Nature of the statement (predictions/opinions/forecast/advice not actionable: Hedley Byrne;
be flexible in approach b/c difficult to categorize representations)
 Disclaimers will usually prevent establishment of DOC b/c not foreseeable that person will
rely on info for which ∆ has disclaimed responsibility
 Insufficient notice of disclaimer, π acted in ignorance of it
18


Courts construe severely against ∆
May occasionally be reasonable to rely on info in spite of disclaimer
 K relationship between parties doesn’t negate tort liability: concurrent
liability, K trumps torts
TEST: Hedley Byrne
o For a duty of care to arise in a case of negligent misstatement, there must be a special
relationship between the two parties:
(1) Possession of a special skill by the defendant;
(2) Reliance on the exercise of that skill by the plaintiff; and
i. Note: reliance must be reasonable
(3) Knowledge or awareness of the possibility of reliance on the part of the defendant
 If these three factors are present, court is entitled to conclude that there
was a special relationship between π and ∆, which could then give rise to a
duty of care
 Representation must be untrue, inaccurate or misleading
o Representor must have acted negligently in making the misrepresentation
o Standard of care issue: reasonable person
o Representee must have relied on the representation
o Reliance must have resulted in detriment, damages have resulted
 Exception: While special relationship is important, analysis should focus on assumption of
responsibility and stressed the importance of foreseeable and reasonable reliance by the π:
Hercules Management Ltd v E&Y
 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) 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.
-

Goold says: Hercules is an exception to Hedley Byrne, and courts should not have used Anns
test.
Hedley Byrne v Heller (1963 HL)
Facts
∆ said Easipower creditworthy, and upon reliance, π extended credit. Easipower subsequently went
into bankruptcy, and could not reimburse π for expenses incurred in connection w/ their advertising K
Reasoning

(Reid)



No causes of action for econ loss: no K relationship (free report), no deceit, no fiduciary
relationship (bank and customer typically arm’s length unless special circumstances)
In certain circumstances, a duty of care may arise in providing “information, opinion or advice”
 Duty of care could not be defined solely by foreseeability of economic loss
 Foreseeability couldn’t keep liability within reasonable and appropriate boundaries
 Policy: would impose liability where words are spoken on social, family, and other
informal occasions, chilling effect on conversation
Info circulate quickly and spread to large numbers of persons: limit through special relationship
Factors in Hedley Byrne that supported the finding of a special relationship included:
 Plaintiff’s request for credit report, expertise of bank in such matters, seriousness of the
19



o
Held
occasion on which the report was given, reasonable and foreseeable reliance of the plaintiff
Most compelling factors in deciding whether or not there was a special relationship were the ∆’s
voluntary assumption of responsibility for the accuracy of her words and the π’s foreseeable and
reasonable reliance on the info
Statement must be voluntarily made and π must rely on it
Factors that pointed to opposite:
 Disclaimer in credit report ==> Rely on it to your own peril
 No responsibility being taken for the accuracy of the report and that no reliance should be
placed on it
Reid: decision not based on application of the neighbour principle in Donoghue v Stevenson.
 No comparison to be made between words and deeds.
 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.
 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.
Relationship between the parties in this case was "sufficiently proximate" as to create a duty of care.
Hercules Management Ltd v Ernst and Young (1997 SCC)
Facts
Audit prepared for company, but the s/h rely on it. It wasn’t prepared for the purposes of investment.
π argues that loss was foreseeable b/c they might foresee that someone might rely on the audit info
when making investment decisions.
Reasoning
(Reid)
-
La Forest: although negligent misstatement cases might require the courts to look at special
considerations (as stated in Hedley), the general rules of negligence still applied.
Applies the two-stage approach from Anns, and asks:
(1) Did the defendants owe the plaintiffs a prima facie duty of care?
 LaForest rejects that you need to have an idea of a particular plaintiff 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
 Negligent misrepresentation: π must establish that representer “ought reasonably to
have foreseen that the π would rely on his representation and that reliance by the π,
in the circumstances would be reasonable.”
(2) Were there policy reasons for restricting or denying the duty of care?
Prima Facie Duty of Care
 Info initially prepared for client under k, but subsequently circulated to broad range of non-privity
third parties who use it for a variety of purposes
 Severe indeterminacy problems in area of auditors’ liability
 Losses generated by auditor’s negligence would be extravagant and disproportionate to fault of ∆
 Increase cost, decrease availability of accounting services: disadvantageous to the public
Policy Considerations
 Second branch of test: Determine if prima facie duty creates sufficient concerns of indeterminate
liability that must be negated on grounds of public policy
 They don’t owe a duty to everyone who might rely on the statement, only to those for whom the
advice was specifically prepared. Restricting as a matter of policy.
 Negates prima facie duty of care to non-privity third parties unless ∆ knows that identifiable πs or
members of an identifiable class of π are going to rely on the information and the information is
used by them for the precise or specific purpose for which it was prepared.
Holding
-
Auditors excluded from liability for negligent misrep.
20
- Concurrent Liability
o Rule: Parties should limit liabilities in their contracts if that is their intention: BG
Checo v BC Hydro
o Rule: When negligent misrepresentation is made in a pre-K setting, it does not bar an
action in tort: Queen v Cognos
BG Checo v BC Hydro (1993)
Issue
Could BG Checo sue in both tort and contract?
Reasoning




Negligent misrepresentation also a K term.
K did not limit duty of care owed by Hydro to Checo
Checo did not waive its right to sue in tort
Rule: parties should limit liabilities in their contracts if that is their intention.
Holding

Checo could sue in both tort and K on basis of negligent misrepresentation
Queen v Cognos Inc (1993)
Facts
Appellant, who already had a secure job, applied for job with respondent. The appellant accepted the
job, moved across the country with his family, and was terminated 18 months later. The appellant
sued b/c the respondent had made a number of representations about the job in the interview.
Reasoning


Applied Hedley Byrne
1. Duty of care based on special relationship:
Yes, b/c prospective employers cannot make negligent misrepresentations
2. Must be untrue, inaccurate, misleading:
 They knew they couldn’t guarantee LT job
3. Representor must act negligently
 Clear they made them negligently because no reason to think he could guarantee
4. Reliance on statement
5. Reliance must result in detriment, damages, etc.
The fact that neg misrepresentation was made in a pre-K setting did not prevent an action in tort
for damages caused by the misrepresentations.
21
Pure Economic Loss
-
General rule: that there can be no recovery for pure economic loss
Feldthusen’s taxonomy of claims for pure econ loss:
(1) Negligent misrepresentation (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
- Each of the categories involve different policy considerations ==> The categories are not
closed, but the SCC indicated in Martel that they are unlikely to expand the number of
categories.
- Justifications why negligence should not be extended into pre-contractual negotiations:
(1) Always winners and losers in negotiations, and goal is to achieve the most
advantageous deal. No real economic loss to society, just transfer of wealth between
parties, no reason for courts to get involved.
(2) Observed that useful social and economic relations might be discouraged. Could
discourage economically efficient conduct resulting from “hard bargaining”.
(3) Torts should not be used as an insurance scheme for unsuccessful negotiations.
(4) Would result in courts examining every detail of pre-K negotiations. There are already
doctrines, such undue influence and economic distress, to deal with these issues.
(5) Court was worried about encouraging unnecessary litigation.
Negligent Performance of a Service
. - Negligent performance of gratuitous service to the π
1. Assumption of responsibility and foreseeable reliance
2. Proof of negligence
3. Damage generated by π’s reliance
. - Negligent performance of a K of service causing economic loss to a third party
1. Assumption of responsibility and reasonable reliance are influential in these cases
2. Problem of indeterminacy: large numbers of beneficiaries who indirectly or
incidentally stand to benefit from the contractual performance of the defendant
3. Consideration of duty of care may be given to size of pool of potential plaintiffs, end
and aim of the K, and whether or not it was intended that the π should benefit from the
performance of the K.



Courts have not denied recovery on policy grounds provided there is sufficient proximity
between the parties: B.D.C. Ltd. v. Hofstrand Farms Ltd. (1986)
Unclear if position is significantly altered by the ruling in James v. British Columbia (2005).
o Appropriate test to use in such cases is the Cooper test
o Not necessary to prove detrimental reliance, too onerous for the plaintiffs
o If no detrimental reliance, proof of voluntary assumption of responsibility on the part
of the ∆ will be enough.
Current rule: 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.
22
B.D.C. Ltd. v. Hofstrand Farms Ltd. (1986)
Facts
∆ courier entered into K with Crown to deliver envelope to land registry office; delivery delayed by
negligence and certain grants of land were not registered to π in sufficient time to allow it to perform a
lucrative K with another party
Reasoning
 Proximity: Courier had no knowledge of the existence of the respondent, nor could it reasonably
have known of the existence of a class of persons whose interests depended upon timely
transmission of the envelope
 Duty can also arise where respondent relies on representation or undertaking by the appellant
 Here: no assumption of risk in reliance upon the ∆’s undertaking to deliver the documents
 Risk created by terms of π’s K with third party, in conjunction with Crown refusal to allow
respondent representative to carry docs to PG himself.
 Court held ∆ didn’t owe duty of care to π since he had no knowledge of contents of the envelope,
no knowledge of the π, and no knowledge of π’s K
 No real basis for concluding that the ∆ had assumed responsibility to the π
James v British Columbia (2005)
-
Reliance unnecessary to extend liability for pure economic loss stemming from negligent loss
Does it undo BDC?
- If you can show voluntary assumption on the part of the defendant, that will be enough
- In situations of negligent performance of services, apply the Cooper test. At the policy stage, you either
have to show detrimental reliance, or show voluntary assumption of responsibility, then you can recover
damages.
Negligent supply of shoddy goods or services
 When π cannot show privity of K and has suffered econ loss due to shoddy goods or
structures.
 Usually π can’t show privity of K because they never had contact with the ∆
o i.e. ∆ supplied the goods to A, who then sold them to π.
Winnipeg Condominium Corp. No. 36 v. Bird Construction Co. (1995)
Facts
Contractor built a condo, which the appellant subsequently purchased form the original
land developer. The building later fell apart.
Issue
Whether a general contractor responsible for construction of a building can be held tortiously liable
for negligence to a subsequent purchaser of the building for cost of repairing defects in the building
arising out of negligent construction
Reasoning
o
(La Forest)

o
o
o
o
Court applied the Anns test:
(1) Is there a sufficient relationship of proximity between ∆ and π that the ∆ 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?
Person who participates in construction of a large and permanent structure which, if negligently
constructed, has the capacity to cause serious damage to other persons and property in the
community, should be held to a reasonable standard of care
Held that there was no problem of indeterminacy as the potential class of plaintiffs is limited
to owner and inhabitants of building.
No risk of indeterminate amount because it will always be limited to reasonable amount to fix
building of dangerous defects.
No risk of indeterminate time because limited to usefulness of the building. With time hard to
blame on contract and not just age
Caveat emptor (buyer beware) cannot serve as a complete shield to tort liability for the
contractors of a building, as the subsequent purchaser is not in the best position to bear the
23
risks of an emergent defect.
24
Standard of Care and Breach
-
Standard of care: behaviour required of the defendant to discharge or satisfy the duty of care.
Distinction between the duty of care and the standard of care:
o When considering the duty of care, we ask:
 Who is my neighbour?
 Who should I think about when I act?
 These are questions of law  answered by judge
o When considering the standard of care, we ask:
 What do I need to do?
 How should I act towards my neighbour?
 Questions of law and fact  answered by judge, and where there is one, jury.
Analysis:
- Establish that defendant owed duty of care to the π
- Formulate the standard of care
- Determine whether or not the standard was breached
The General Standard of Care
- Rule: ∆ must act according to the standard of care expected of a reasonable person: Blythe v
Birmingham Waterworks (1856), Arland v. Taylor [1955]
- Whether ∆ has acted reasonably and met the required standard of care, consider:
(1) The probability and severity of the harm;
(2) The cost of risk avoidance; and
(3) The social utility or value of the conduct
-
Treat factors as qualifications on the general reasonable person test, circumstances that the
courts have decided can be considered when assessing the defendant’s conduct.
Also treat as limits of reasonableness that help the court to define what constitutes
reasonable behaviour in the particular circumstances of the case.
-
Arguments for the reasonable person standard:
 Fewer problems in respect of proof of negligence: admin convenience and expedience
 Good policy to require a uniform standard of safety and security in society: predictability
of behaviour
 Objective standard provided judges and juries with abstract and malleable concept that
can be applied to all activities, in all circumstances, at any time
-
Arguments against:
 Historically, the laws have been made and arbitrated by men, so the conception is really
of the reasonable man. Biases and perceptions: a very gendered view.
 For example, slow burn provocation. Historically, the idea of provocation is the male
sense which involves immediacy.
 What constitutes reasonable behaviour? ==> Different societies have different norms
25
Arland v Taylor [1955] 3 DLR 348 (Ont CA)
Facts
π injured in a car accident. At trial, jury held that ∆ had not breached the requisite
standard of care and held for the ∆. The π appealed, objecting to the trial judge’s charge
to the jury.
Reasoning
o
o
Leading Canadian case, affirms Blythe
Court will ask: Would a reasonable person in the position of the defendant have acted in the
same way?
o
Trial judge charged jury to put themselves in driver’s seat of his car, and ask if they
would have done the same thing  Ten of them “set the standard of what is
reasonable under a given set of circumstances.”
“Standard of care by which a jury is to judge the conduct of the parties is the care that
would have been taken in the circumstances by a ‘reasonable and prudent man’.”
It is improper for jury to judge conduct in a given circumstance by considering what
he would have done or not done in the circumstances
(Laidlaw JA)
o
o
The Probability and Severity of Harm
-
-
Rule: The greater the risk associated with a
particular activity, the higher is the standard
of care: Bolton v Stone
Rule: The greater the potential harm
associated with the risk, the higher is the
standard of care: Paris v Stepney Borough
Council
Small Risk
Small Damage
Large Risk
Small Damage
-usu. no SOC
-usu. courts can discharge
at DOC stage
-may be a particular SOC
Small Risk
Large Damage
Large Risk
Large Damage
-may be a particular SOC
-definite SOC
Bolton v Stone [1951] AC 850 (HL)
Facts
π struck by cricket ball while standing in street. π argued that once a single ball had been hit onto
the street, it was foreseeable that it might happen again.
Reasoning

(Reid)





Holding

Blyth v Birmingham Waterworks Co: “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 prudent and reasonable man would not
do.”
Test: whether the risk of damage to a person on the road was so small that a reasonable man in
the position of the appellants, considering the matter from the POV of safety, would have
thought it right to refrain from taking steps to prevent the danger.
Distinguish b/t substantial and material foreseeable risks and highly unlikely foreseeable risks
(mere possibilities)
Not reasonable to expect people to guard against risk that is fantastical and far-fetched
 Life is necessarily about judging risk.
 Because modern life is so crowded, you have to accept some risks
To demand that conduct of citizens be entirely free of all foreseeable risk is excessively
burdensome and impractical
Ratio ∆ will not be liable for negligence if they took all the precautions a reasonable person
would have done in similar circumstances.
Appeal allowed, no liability ==> only because the risk was extremely small
26
Paris v Stepney Borough Council [1951] AC 367 (HL)
Issue
Whether a reasonable employers would supply goggles to a one-eyed workman who was knocking
bolts out of a chassis with a steel hammer, while the chassis was elevated on a ramp so the
workman’s eye was close to and under the bolt
Reasoning


(Oaksey)

Dissent
(Morton)



Standard of care: what an ordinarily prudent employer would take in all the circumstances
No greater risk of injury to the plaintiff, but there was a risk of greater injury to him, and a
reasonable employer would have taken greater care for an employee who had already lost sight
in one eye
Ratio Where there is a reasonable probability of harm and the injury resulting is severe, then
there is unreasonable risk.
Employer must take into account both the likelihood of an accident happening and the gravity
of the consequences
The more serious the damage which will happen if an accident occurs, the more thorough are
the precautions which an employer must take
It should be that both a one-eyed man and a two-eyed man who would have a remedy against
the employer for such an injury, or neither
The Cost of Risk Avoidance and the Social Utility of the Conduct
 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.
 Even if probability and severity of the potential loss are high, ∆ may be excused if the
activity is socially important.
o Court must balance society’s current degree of risk tolerance by labelling them as
either reasonable (no liability) or unreasonable (liability)
o No reason why courts should not also take into account the disutility of ∆’s
conduct
 Directly acknowledged by the courts but there is no reason to tolerate even
minimal risks arising from antisocial conduct of no redeeming value
Watt v. Hertfordshire County Council [1954]
Reasoning
(Denning)
o
o
Permissible for the defendant to run a high risk because the social utility of the conduct
(fighting fires) far outweighed the costs of the defendant’s conduct.
“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”
Vaughn v Halifax-Dartmouth Bridge Comm. (1961), 29 DLR (2d) 523 (NS SC)
Fact
Reasoning
Bridge operated and maintained by ∆ was painted. Flecks of paint were blown by the wind onto
nearby cars. The π, as owner of one of those cars, sued in negligence. The ∆ argued that it had
taken “all necessary and proper measures to prevent or to minimize injury to the π from paint
dripping from the bridge.
If cost of precaution is low, more likely to find negligence.
27
Standard of care expected of children
 Criminal law says they don’t want to criminalize children because:
o They don’t necessarily have moral culpability
o It is bad policy to criminalize children children because it increases the chances they
will be criminal later on (ancillary damage) since it breaks up their development,
makes them more vulnerable to criminal influence
 Same is true to a lesser extent in tort: If you make people legally liable at 13 or 14, what
would parenting be like?
o Children learn by trial and error: imposing legal liability would inhibit this type of
learning
 Rule: Children should be held to a modified standard of care. Trier of fact should ask
whether the child exercised the care to be expected of child of like age, intelligence and
experience: McEllistrum v. Etches [1956], Joyal v. Barsby (1965).
o Mixed objective/subjective test
 CHANGED rule: Heisler v Moke (1971 Ont HC)
o Should depend on capacity rather than age
o Law should distinguish b/t very young children (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): Tillander v. Gosselin
 Above tender age: Modified objective test - Did the D exercise the care
expected of a child of that age, intelligence, and experience?
o Consider: Is intelligence a useful standard to measure contributory negligence?
 If you’re going to use intelligence, why only children? Why doesn’t it apply to all
plaintiffs?
 Age and capacity make sense, but there is nothing particular to children that
makes intelligence more or less relevant.
 Exception: Child involved in an adult activity required to meet the SOC of a reasonable
adult: Ryan v. Hicksson (1974)

Rule: Parents, guardians, other supervisors are not usually vicariously liable for torts
committed by children under their care, but they will be held liable if the injury is a result
of their failure to control or monitor the child’s conduct. Standard: reasonable parent of
ordinary prudence. Thomas v. Hamilton (City) Board of Education (1994), (B.C. C.A.)
Joyal v Barsby (1965), 55 DLR (2d) 38 (Man CA)
Facts
Majority
Dissent
Infant π, conscious of traffic danger on hwy, ran out into side of ∆’s motor vehicle and suffered
grievous injuries. ∆’s counsel conducted appeal on the ground that infant guilty of contributory
negligence
 TJ considered conduct of child in context of the situation which confronted her: correct
 Child was distracted by horn, inattentive to traffic approaching from other direction. This would
be a similar response by other children of her age, intelligence, and experience.
 McEllistrum v Etches: “It should now be laid down that where the age is not such as to make a
discussion of contributory negligence absurd, it is a question for the jury in each case whether
the infant exercised the care to be expected from a child of like age, intelligence, and
experience.”  Modified standard of care
 She was heedless, careless, and negligent, despite her training and traffic experience
28
 Infant plaintiff thoroughly trained on dangers of the highway, had experience with the traffic
thereon, and without first looking, suddenly left a place of safety
Standard of care expected of people with disabilities
 Physical Disability
o May be good policy to draw a line between, on the one hand, obvious physical
disabilities that alert members of the public to the fact that a person has a physical
limitation affecting her ability to take care and, on the other, concealed physical
disabilities of which members of the public have no notice.
o Rule: physically disabled are req’d to meet only the standard of care of a reasonable
person with the same disability: Carroll and Carroll v. Chicken Palace Ltd. [1955]
(Ont. C.A.)
 Person w/ a physical disability has to recognize limitations and not take
unreasonable risks.
 Mental Disability
o Considerations of fairness, justice: mentally incapacitated ∆s should be free of liability
o Compensation and loss distribution policies favour application of the obj. standard of
reasonable care and the imposition of liability
o May render ∆’s action involuntary or prevent a volitional defendant from complying with
the normative standard of care
 In both situations, no liability in negligence
o Rule: Where a defendant is suddenly and without warning struck with a mental illness,
they will be absolved of liability if they can show, on the balance of probabilities: Fiala
v. Cechmanek (2001)
o ∆ had no capacity to understand DOC owed at the relevant time
o ∆ had no meaningful control over their actions at the time the relevant conduct
fell below the objective standard of care.
Fiala v Cechmanek (2001), 201 DLR (4th) 680 (Alta CA)
Facts
Majority
MacDonald experienced a severe manic episode which caused him to jump on the roof of a car,
break through the sunroof, and choke Cechmanek. Cechmanek involuntarily hit the gas pedal,
accelerated into the intersection, struck car owned and operated by Fiala and carrying her daughter.
 .TJ: MacDonald had no control over his behaviour and was incapable of appreciating either the
nature or quality of his actions (sudden onset of manic episode)
Test
 Negligence:
1. Act causing damage must have been voluntary
2. ∆ must have possessed capacity to commit the tort
3. Burden of showing absence of either falls on defendant
 ∆ must show either of the following on a balance of probabilities:
o ∆ lacked capacity to understand duty of care owed at the relevant time
o ∆ lacked control to discharge his duty of care at the time the relevant conduct fell below
the objective standard of care
o Onset of mental illness episode is sudden
Policy
 Reasons advanced for holding mentally disabled to the higher objective standard:
 When two innocent persons are involved in an accident, person who caused accident
should be liable for resulting damage
 Arbitrary: Courts would be unable to draw a line between incapacitating mental illness
and variations of temperament
 Holding them to higher standard would encourage their caregivers to take adequate
29
precautions
Any consideration of defendant’s mental illness will erode the objective standard to
such an extent that it will no longer be of consequence
 There are weaknesses to these arguments:
 Children are presumed incapable of negligence because they lack sufficient judgment to
exercise reasonable care
 Physically disabled defendants: courts routinely examine voluntariness of actions:
Given better understanding of biological or physiological roots of mental illness, why
distinguish between physical incapacitation (ex. epilepsy) or mental illness? ==> not
justified
 Practical difficulties associated with assessing mental illness should not prevent court
form creating test for mental illness defence in tort action ==> expert testimony
 Imposing liability on mentally ill does not effectively encourage caregivers to take
adequate precautions  More reasonable to impose liability directly on caregivers for
failing in duties
 Failure to acknowledge impact of mental illness risks undermining legitimacy of such
disorders

Jurisprudence
 Slattery v Haley: ∆ suddenly taken ill while driving and fell unconscious, and his car killed a
pedestrian - not responsible for the death, lack of volition
 Buckley v Smith Transport: Taylor’s mental illness was such as to prevent him both from
understanding the duty of care that rested upon him and from discharging that obligation ==>
not negligent
Standard of care expected of professionals.
o Higher SOC for persons who represent themselves as having special skill and knowledge that
allow them to perform tasks normally beyond the capacity of the ordinary person
o Specialists must comply w/ elevated knowledge, skill, care of the reasonable member of
specialty
 Rule: A professional should be judged by the standard of care of his profession: White v.
Turner (1981) (Ont. C.A)
 Rule: GPs req’d to exercise standard of care of a reasonable, competent GP, including
knowing when a patient needs a specialist: Layden v. Cope (1984) (Alta. QB)
 Rule: 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: Ter Neuzen v. Korn [1995]
White v Turner (1982 OntCA)
Fact
Reasoning
∆ plastic surgeon did not disclose risks of breast reduction. Post-op, π was scarred and poorly
shaped.
 Poor results, mistake don’t necessarily indicate negligence: med practice, no guarantee of
success
 Π must prove that ∆ performed surgery in a manner that a reasonable plastic surgeon would
consider less than satisfactory
 ∆ negligent b/c performed operation too quickly and failed to check his work before suturing.
Ter Neuzen v Korn (1995 SCC)
Fact
Reasoning
π underwent artificial insemination, contracted HIV. ∆ doctor screened donors using standard
medical practice. Risks of HIV not widely known at the time.
 ∆ could not have known the risks in 1985: Judge SOC by standards at the time of the conduct
30

Difficult/uncertain questions of medical treatment, or complex, scientific, highly technical
matters are beyond understanding of trier of fact  cannot find standard med practice
negligent.
Standard of Care and Breach
Was the breach of the SOC the cause of the loss?


Cause-in-fact: π must be able to prove that ∆’s negligence caused his or her loss.
o Cxn b/t π’s act and ∆’s loss  Justify imposition of liability
Cause-in-law: 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  questions of remoteness,
proximate cause
The But-for Test
 The basic test of causation used in negligence
 Whether the loss to the π have occurred but for the negligence of the ∆: Kauffman v. Toronto
Transit Commission [1960], Barnett v. Chelsea & Kensington Hospital [1969]
o YES: damage would have occurred whether or not the defendant was negligent, then
negligence is not a cause-in-fact
o NO: negligence is a cause-in-fact of the damage
 Steps:
1. Identify harm alleged to have been caused by ∆
2. Specific act or acts of negligence by ∆ must be isolated
3. Trier of fact must mentally adjust facts so ∆’s conduct satisfies standard of care of
reasonable person, being sure to leave all other facts the same
4. If the π’s harm would have occurred if ∆s had acted with reasonable care
5. Would the plaintiff’s damage have occurred but for the defendant’s negligence?
 BOP: π must persuade trier of fact that ∆’s negligence probably caused π’s loss
 ∆’s negligence does not have to be sole cause or predominant cause of π’s damage: so long as
∆’s act is a cause of the π’s damage, ∆ is fully liable for that damage
 In many cases, the but-for test does not provide a clear answer whether the π caused ∆’s loss.
 Difficulty arises as a result of what can be called causal indeterminacy
 Court may adopt a different test of causation to “get around” the limitations of the but-for test
Exception: Insufficient evidence (evidential gap)
 Arises when it is impossible to determine whether π’s injury was, on the evidence, actually
the but-for consequence of the ∆’s negligence as opposed to another non-tortious factor:
Walker Estate v. York-Finch General Hospital (2001) [SCC].
 Material contribution test: 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.
Exception: multiple insufficient causes
31

Where several factors combine to cause the π’s loss, but no single factor is itself the but-for
cause: Athey v. Leonati (1996)
Exception: multiple, independent sufficient causes
 This is the situation where the π’s loss arises from two independent acts, each capable of
causing the loss
o 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
Exception: materially increased risk
 π suffers an injury (ie. disease) that may have been caused by the negligent actions of ∆.
 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)
 Snell v Farrell
Kaufman v. Toronto Transit Commission (1959 SCC)
People fell at the top of an escalator, knocking another person into π, who fell and suffered severe
and permanent injuries.
 Ont. CA said TTC negligent in escalator design
 The design is irrelevant. There is no evidence that π would not have been injured if she were
holding a different handrail  not “but for” TTC’s negligence.
Fact
Reasoning
Barnett v Chelsea & Kensington Hospital (1969 Eng QB)
Fact
Hospital discharged π without seeing him; π died shortly thereafter.
Reasoning


Even if doctor had seen him, patient still would have died in the time it would take to do tests
and administer antidote to poison.
Breach of duty and standard, but no causation  ∆ not liable.
Walker Estate v. York-Finch General Hospital (2001) [SCC]
Fact
Three π’s were infected with HIV from transfusions of Red Cross blood. 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
Reasoning



TJ found for π, CA reversed.
Test for causation in negligent donor screenings is whether D’s negligence materially
contributed to the harm. “Material” here meant outside “de minimis” range.
Judgement for P upheld (trial found for P, then reversed on appeal).
Athey v. Leonati (1996 SCC)
Fact
P (with pre-existing back problems) is injured in a car accident. Resumes exercise on Dr’s advice,
herniated disc. TJ found that D materially contributed to the injury, but only 25% liable (due to the
pre-existing condition).
Reasoning


Not necessary to establish ∆’s negligence as sole cause of injury
If the one of the acts contributing to the loss is tortious, it would then be wrong to apportion
32


liability for the portion that is non-tortious.
Thin skull rule applied: but for the accidents the injury would not have occurred.
Rule: The law does not exclude ∆ from liability simply because other causal factors for which he
is not responsible helped produce the harm
Lambton v Mellish (1894 Eng)
Fact
∆ and co-∆ played loud music together. π sued for injunction.
Reasoning


Each ∆ loud enough to be a nuisance on their own.
Each is separately (severally) liable
Snell v Farrell (1990 SCC)
Fact
∆ surgeon continued cataract surgery on π even though anaesthetizing injection had caused
some bleeding behind her eye. Eventually, π lost sight in eye..
Reasoning






Trial: med experts unable to say surgery was cause; might have resulted from other causes, incl.
π’s high blood pressure and diabetes
Causation rules must be applied in a flexibile, pragmatic, and common sense approach
BOP for causation remains on π, but in the absence of conclusive scientific proof, inference of
causation may be drawn.
If ∆ provides evidence to the contrary, inference of causation can only be made if weight of
combined evidence supports an inference.
But-for test is inappropriate in medical malpractice cases where it is scientifically impossible to
prove causation and the medical knowledge rests with the ∆.
Materially increased risk = essentially a but-for test, but with lower standard of proof (below
50%)
33
Remoteness of damage
Is the damage reasonably foreseeable?


π 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.
Purpose: keep liability within fair and reasonable boundaries, even when negligence of the
defendant was the but-for cause of the plaintiff’s loss.
Similar to DOC analysis
 Similar to duty of care: means of defining and limiting the extent of the defendant’s liability.
 Different from duty of care: different language discussing the limits of duty and remoteness.
o Duties: neighbourhood and foreseeability; policy discussions quite concrete, if often
misguided (worries about floodgates and indeterminate liability)
o Remoteness: directness, probable outcomes, close consequences, and immediacy
 Courts distinguishing 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.

The directness test: a defendant is liable for all of the direct consequences of his or her
negligence: Re Polemis & Furniss, Withy & Co Ltd [1921]
o Directness: close temporal and spatial connection b/t D’s breach and P’s loss
o Initially used to determine whether outcome of negligent act was too remote
o When applying, distinguish between foreseeability and remoteness:
 Foreseeability – relevant to breach of duty
 Remoteness – relevant to the extent of liability
o Distinction based on idea that questions of wrongfulness should be confined to duty
and breach stage, and questions of extent of liability should be dealt with at causation
stage

The directness test was abandoned for the reasonable foreseeability test: The defendant will
only be liable for the reasonably foreseeable consequences of his or her negligence: The
Wagon Mound No. 1
o Court: new approach was fairer, simpler, and less weighted towards the defendant
o Court was keen to ensure that ∆ didn’t escape liability just b/c the damage indirect
Apply reasonable foreseeability in a generous manner.
 Courts take increasingly flexible approach to the question of foreseeability and remoteness –
arguably easier and easier for π’s to establish that the damage suffered was not too remote.
o Shift focus from the manner of the accident to the type of harm
 Not necessary to foresee manner in which accident occurred, mechanics of
accident, or precise sequence of events leading to the accident
 Principle: only the type of harm suffered needs to be reasonably foreseeable,
and not the exact manner in which the harm occurred. Hughes v. Lord Advocate
34

o
o
o
o
Critics: Hughes effectively makes it hard to see any situation where you would
fail to see that type of harm could be caused ==> very plaintiff focused
Possibility of damage
 Foreseeability that damage was a probable consequence of the negligent act:
Wagon Mound No. 1
 Foreseeability that damage was a possibility was sufficient: Wagon Mound No. 2
 Modification of foreseeability to include possible damage encompasses most
direct consequences of a negligent act and further dissipates pro-defendant
emphasis of Wagon Mound No. 1
Treat accidents as a sequence of discrete events, and then ask whether each step was
foreseeable: Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co.
(1971)
 Critique: If you break everything down into discrete steps, everything is
foreseeable. Goold doesn’t like this approach.
Demarcation of Damage
 The broader the defn, the more likely it is that the damage will be found to be
foreseeable
By focusing on fairness when deciding on the limits of foreseeability
 Foreseeability is flexible: courts are not normally receptive to argument that loss
is not foreseeable
The Wagon Mound (No.1) [1961] AC 388 (PC)
The foreseeability test
Facts
Reasoning
(Viscount
Simmonds)
Holding
Wagon Mound carelessly spilled oil onto wharf. R’s employees using welding equipment,
and some molten metal fell, igniting fire. R’s wharf, equipment severely damaged.
 Polemis is not a clear decision: it should no longer be regarded as good law
 Proposition is that unforeseeability is irrelevant if damage is “direct.” In doing so, have
inevitably insisted that the essential factor in determining liability is whether damage is of such
a kind as the reasonable man should have foreseen
 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
 π must foresee that damage is a probable consequence of the negligent act
Appeal should be allowed, and the respondents’ action so far as it related to damage
caused by the negligence of the appellants be dismissed with costs.
Hughes v Lord Advocate [1963] AC 837 (HL)
The kind of injury
Facts
Majority
(Lord Reid)
∆’s employees left paraffin lamp and open manhole unattended. Boy knocked lamp into
manhole, vaporized paraffin escaped from broken lamp caused an explosion. Boy fell into
manhole and was badly burnt
 If accident is unforeseeable, π must prove ∆’s fault caused accident, and there could be a
case where the intrusion of a new and unexpected factor could be regarded as the cause
of the accident rather than the fault of the defender
 Experts: explosion was so unlikely as to be unforeseeable
 ∆: explosion was the real cause of the injuries and that the explosion was unforeseeable
 Only the type of harm suffered needs to be reasonably foreseeable, and not the exact
manner in which the harm occurred
 Type of harm (burn) was foreseeable by leaving burning lamps unattended.
35
The Wagon Mound (No. 2) [1967] 1 AC 617 (PC)
The Possibility of Injury
Facts
Same incident as Wagon Mound (No.1): π were owners of two boats damaged in fire.
Reasoning
(Lord Reid)
 If a real risk is one which would occur to the mind of a reasonable man in the position of the ∆’s
servant and which he would not brush aside as far-fetched, and if the criterion is to be what that
reasonable man would have done in the circumstances, then surely he would not neglect such a
risk of action to eliminate it presented no difficulty, involved no disadvantage and required no
expense.
 Significance: Alters Wagon Mound (No. 1) by making it easier to find D liable ==> Moves from
probable consequence to possible consequence, lowers the threshold
Special Remoteness Issues: Thin-skull Rule
 Rule: As long as some physical injury to the π was foreseeable, ∆ is liable for all
consequences of the injury arising from the π’s unique physical or psychological makeup,
whether or not the consequences were foreseeable: Smith v Leech Brain & Co Ltd
 Good policy reasons supporting the rule:
o Promotes compensatory goals of negligence law in the field of personal injury and is
consistent with the strong protection given tot he π’s interest in personal security
o Relieves courts from unenviable and difficult task of determining the normal and
foreseeable consequences of trauma in the context of the uniqueness of individual
persons
 Crumbling skull rule: π must be returned to the position that he would have been in if
accident had not happened. ∆ not required to place the π in a better position than she would
have been in
o Wrongdoer is only liable for damage they have caused
Smith v Leech Brain & Co. [1962] 2 QB 405
The thin-skulled plaintiff rule
Facts
Reasoning
(Lord Reid)
Holding
π’s husband suffered burn from metal. Burn began to ulcerate, became cancerous, died.
 Tortfeasor takes his victim as he finds him
 Test is whether ∆’s could reasonably foresee the type of injury which he suffered (burn).
 What in the particular case, is the amount of damage which he suffers as a result of that burn,
depends upon the characteristics and constitution of the victim.
D were negligent, no contributory negligence, burn promoted the cancer in tissues which already had
a pre-malignant condition.
Marconato v Franklin [1974] 6 WWR 676 (BCSC)
Facts
Reasoning
(Aikins J)
π suffered major personality change from car accident caused by ∆’s negligence.
 Marconato had a peculiar susceptibility or vulnerability to suffer much greater consequences from a
moderate physical injury than the average person
 “Wrongdoer takes victim as he finds him, that he takes his victim with all the victim’s peculiar
susceptibilities and vulnerabilities.”
 π was predisposed to suffer the consequences and it was that predisposition which brought on the
unusual consequences of the injury. The defendant must pay damages for all the consequences of
her negligence.
36
Intervening Causes



Intervening act: causes or contributes to the π’s loss after the ∆’s breach has taken place.
Relieves ∆ of responsibility for damage precipitated or aggravated by it
Modern courts not as eager to protect ∆ from consequences of negligence, less likely to
regard intervening act as exculpatory
o More likely to treat intervening negligence as an opportunity to impose joint and
several liability on both wrongdoers than as reason to protect initial wrongdoer

Last wrongdoer doctrine: last tortfeasor in the chain of causation solely responsible for the
loss suffered by the plaintiff.
o Historically, intervening cause treated as a break in the chain of causation, original
tortfeasor would be relieved of responsibility.
o Doctrine and the idea of the novus actus interveniens (intervening act) = product of a
very artificial way of looking at the world.
o Thinking about “chain of causation” rests on 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.
Rejected by Canadian Courts:
o Distinguish between different types of intervening acts, based on the question of
whether the act could be regarded as naturally occurring or morally blameworthy.
(1) Subsequent acts that could be considered naturally occurring (storms,
earthquakes etc). Provided intervening act was not too unusual, it would not
break the chain of causation.
(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.
(3) Subsequent intentional, wrongful (or illegal) acts. General rule here is such acts
would always break the chain of causation.





Foreseeability test: If the intervening act was broadly within the scope of the foreseeable
risk created by the defendant’s negligence, then he will remain liable for the resultant
damage: Bradford v Kanellos
o Was the intervening act within scope of the risk created by the defendant’s negligence?
Contra Bradford: Canadian courts fairly conservative, classification-based approach in cases
involving intervening acts of medical negligence: Price v. Milawski (1977)
o Both defendants were liable in negligence. 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.
Where intervening act is a deliberate one: courts reluctant to hold the original defendant
liable, as it makes no real sense given that the act of the third party was intentional.
Courts reluctant to hold ∆ liable where loss triggered by deliberate and often criminal act of a
third person over whom the ∆ has no control
37
o Exception: General rule of foreseeability still applies in such cases, and the act of the
third party still needs to be foreseeable: Hewson v. Red Deer (1976)
Bradford v Kanellos (1973 SCC)
Fact
Employee of ∆ negligently caused minor grease fire, triggering automatic fire extinguisher. 3rd party
shouted that the restaurant was going to explode, π was knocked down in rush to get out of restaurant.
Majority

Intervening act was unforeseeable, ∆ not liable b/c actions of third person were
hysterical and idiotic and beyond the contemplation of a reasonable person.

Foreseeability is appropriate test, but intervening act was usual and normal human
response, therefore utterly foreseeable.
(Martland)
Dissent
(Spence)
Price v. Milawski (1977 Ont CA)
Fact
Π injured ankle; Dr. Murray ex-rayed only his foot and said no injury; ankle was actually brokenDr.
Carbin, who relied on Murray’s x-rays - did not order new ones, applied a cast b/c thought it was a
strained ligament; 3rd doctor found actual break - longlasting disabilities.
Majority


Reasonably foreseeable that other doctors would rely on Murray’s x-rays once they were part of
the record .
Both defendants were liable in negligence. 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.
Hewson v Red Deer (1976 Alta)
Fact
∆ negligently left a tractor unattended, 3rd party drove the tractor and caused damage.
Majority



The act of the third party was not an intervening cause because it was foreseeable that someone
might be tempted to drive it
Rule: General rule of foreseeability still applies in such cases, and the act of the third party still
needs to be foreseeable
∆ is liable.
38
Nervous Shock and the Thin Skull Rule
 Traditionally, courts extremely reluctant to allow recovery for psychiatric injury
(1) Concerns about floodgate
(2) The problem of processing and testing the validity of psychiatric claims
a. Based on the arg that psychiatric injuries are easier to fake than physical
injuries, therefore it is much easier for plaintiffs to mount fraudulent claims.
(3) The continuing stigma attached to mental illness.
a. Courts traditionally resistant: didn’t understand the nature of mental illness,
and didn’t regard it as sth that should be classed as recognised form of damage






Current Approach: Plaintiff must be able to show:
The type of psychiatric injury complained of must fall into the category of nervous shock
o Rule: There is no liability in negligence for psychiatric injury unless it satisfies the
legal concept of nervous shock.
o Nervous shock: severe emotional trauma manifests as physical disorder or some
recognisable psychiatric illness, ie. clinical depression or post-traumatic stress disorder.
 NOT emotional upset, mental distress, grief, sorrow, anxiety, worry, or other
supposedly transient or more minor psychiatric injuries.
The injury must be reasonably foreseeable
o Rule: ∆ 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
Courts reasonably willing to allow recovery where direct relationship between the parties 
rarely a problem of indeterminacy, and so floodgates arguments do not usually apply
More difficult where π is secondary victim, and suffers nervous shock as a result of the
defendant causing some harm to a third party (relational victims).
o Typically a result of seeing, hearing, or being told of a tragic or horrifying event.
o Generally courts rejected on the grounds that such π’s weren’t foreseeable, and that
there were compelling policy reasons to deny recovery (floodgates arguments)
Court laid down a number of conditions that has to be met in cases of nervous shock to
relational victims: Alcock v. Chief Constable of South Yorkshire Police [1991]
 Relational proximity: π must show a "sufficiently proximate" relationship to
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.
 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 proven
 Locational proximity – The secondary victim must view the "shocking event"
with his or her own unaided senses.
39


Be eyewitness to the event, hear the event in person, view immediate
aftermath.
 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
Temporal proximity – The shock must be sudden, and not the result of what the
court described as a "gradual" assault on the claimant's nervous system.
 Prevent recovery where a plaintiff develops a psychiatric condition like
depression as a result of living with a relative debilitated by the accident

Court also argued that the π can only recover if was reasonably foreseeable that a person of
"normal fortitude" would also have suffered psychiatric damage.
o The closer the tie between the claimant and the victim, the more likely it is that he
would succeed in this element.
o The court argued that close family members were by definition more foreseeable
o Thin skull rule was also held to apply in nervous shock cases – if some recognised
psychiatric damage was foreseeable, it does not matter that the claimant was
particularly susceptible to that particular psychiatric illness.

Provided it is reasonably foreseeable, then any subsequent psychiatric injury may be
recoverable (even if it wasn’t foreseeable). Secondary victims are covered by the Alcock
rules: Page v Smith
Rule: Court stressed that question is one of reasonable foreseeability. The test 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: Mustapha v Culligan
 Court explicitly rejected the decision in Page
The thin skull rule - If the injury to π was foreseeable, π can recover in full even if they
suffered greater damages than an ordinary π (due to a pre-existing condition or vulnerability):
Leech Brain
o Distinguish from: Crumbling skull rule: 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.


Alcock v. Chief Constable of South Yorkshire Police [1991 HL]
Fact
Large crowd at soccer game; pushed on barrier, which collapsed and killed 90. Broadcast on TV.
Police liable for negligence.
Majority



Relational - show relationship to victim (strong presumption for parents, spouses; have to show
ties if not)
Proximity - close in time and space/“immediate aftermath”  not ID’d until later, no proximity
Means - TV not foreseeable means; not equated with seeing it
Page v Smith [1995 SCC]
Fact
Traffic accident: no-one physically injured, but the plaintiff later had a relapse of chronic fatigue
syndrome as a result of the accident.
Majority


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)
Physical injury doesn’t have to materialise. Provided it is reasonably foreseeable, then any
40

subsequent psychiatric injury may be recoverable (even if it wasn’t foreseeable)
Note that the court held that secondary victims are covered by the Alcock rules (p.384)
Mustapha v. Culligan Canada (2006 Ont CA)
Fact
Man found fly in water, suffered major depressive disorder
Majority




Although no Canadian courts explicitly endorsed Alcock, policy considerations raised in that case
were relevant ones.
Rule: Court stressed that question is one of reasonable foreseeability. The test 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.
Court explicitly rejected the decision in Page on the grounds that:
 It removes the need for foreseeability of psychiatric harm;
 The distinction between primary and secondary victims is an artificial one that
“camouflages the policy choices” that have to be made; and
 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.
Reaction too abnormal for recovery
41
Defences


Don’t jump to the defences. Make sure you’ve gone through all the steps before you do
defences because courts are typically reluctant to accept defences.
BOP is on the defendant, and that they can argue multiple defences simultaneously
Contributory Negligence
 Courts traditionally deny recovery if π contributed to the harm: complete defence,
 All-or-nothing approach extremely unfair  last clear chance (or “last opportunity” rule): π
could recover even if contributory negligent if it could be shown that the ∆ had a chance to
avoid the accident and failed to take it.
 SCC abolished CL rule, doesn’t apply in the absence of legislation: Bow Valley Husky
(Bermuda Ltd. V. Saint John Shipbuilding Ltd. (1997)
 Rule: π contributorily negligent if their conduct carelessly contributed to the harm suffered
as a result of the ∆’s negligence.
 To establish the defence, the defendant must show:
o That the plaintiff did not take reasonable care of himself; and
o That the lack of care contributed to the injury
o Walls v. Mussens Ltd. (1969) – NBCA; Gagnon v. Beaulieu (1977) – BCCA
 What constitutes reasonable care in the circumstances?
 Once ∆ has established the defence, the court apportions damage according to legislation
 BC Negligence Act 1996:
 Apportionment on basis of fault. 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 apportioned according to Section 1 (Section 3)
Walls v Mussens Ltd. (1969), 11 DLR (3d) 245 (NB CA)
Fact
∆ repairing timberjack, negligently caused fire. Some of the employees of the P attempted to smother
the fire by throwing snow on it. P arrived, and also tried to help. D alleged defence: damage suffered
by P was caused wholly by negligence or breach of duty by P
Majority
 No antecedent negligence on part of P, he had no part in repair work carried out by Morrison
 Test: Whether what P did was something an ordinarily prudent man might reasonably have done
under the stress of an emergency  Agony of the moment rule
 P’s reaction to emergency was merely to do what the others were doing and I cannot say
that it was something an ordinarily prudent man might not reasonably have done in the
circumstances.
 Appeal on this ground should fail.
Gagnon v Beaulieu (1977 BCSC):
Fact
P suffered injury, partially because he wasn’t wearing a seatbelt. P argued that the seat belt would not
have made a difference: his subjective belief.
Majority
 Court held that his personal belief about effectiveness of seat belt is irrelevant.
42
Mortimer v Cameron (1994) (SCC)
Fact
π and ∆ play fighting, fell through an exterior wall. π was rendered a quadriplegic. City and Stingray
(mgmt co.) argue π and ∆ guilty of contributory negligence.
Majority
 Contributory negligence will not limit P’s recovery unless it is a proximate cause of his injury.
 It was reasonable for Cameron and Mortimer to assume that what purported and appeared to be a
properly constructed wall was in fact a properly constructed wall
 TJ erred in apportioning liability city 80%, Stingray 20%
 Substantially greater degree of fault ought to have been attributed to Stingray
 Under an “ongoing duty” to properly inspect
 Circumstances were such as to require affirmative action on its part as occupier to
see that its premises were reasonably safe for persons in the position of the π
Held: 60% against Stingray and 40% against city
Voluntary assumption of risk (Volenti non fit injuria):
 Where a person engages in an activity, knowingly accepts the accompanying risks, they
cannot sue in negligence if subsequently injured. Will likely arise where:
o There is express agreement: most common where π enters K, expressly assumes risk
o There is implied agreement – no express consent
 Complete defence, and precludes recovery
 Basic principle behind volenti: If you explicitly accept the risk, you cannot ask for damages.
 If you choose to do something foolish and something bad happens, you have to accept the
consequences. People shouldn’t be protected from their own choices


Elements of the defence: Dube v. Labar (1986) – SCC.
(1)
∆ must prove π knew of and understood the risk he was incurring
(2)
That the plaintiff voluntarily assumed the risk
st
1 element: π has knowledge of the precise risk, not just general
o 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.”
Dube v Labar (1986), 27 DLR (4th) 653 (SCC)
Fact
A/P and R/D participated in evening of drinking and partying. R/D drove car when A/P
couldn’t start it after stalled. R overturned car causing personal injuries to to A.
Majority




Held
D must prove that the P expressly or by necessary implication agreed to exempt D from liability
for any damage suffered by P, occasioned by the D’s negligence.
Volenti will arise only where the circumstances are such that it is clear that the P, knowing of the
virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a
result of any negligence on the defendant’s part.
Defence of volenti is necessarily inapplicable in the great majority of drunken driver-willing
passenger cases
Must keep two defences distinct because contributory negligence is more flexible and more
appropriate response in majority of cases in which negligent conduct of P is argued to support a
volenti defence
Dismiss appeal with costs to respondent
43
Participation in Criminal or Immoral Act – Ex turpi causa non oritur actio
 Rule: No cause of action is available in tort where the plaintiff is participating in an illegal
act
 Defence can operate only when the integrity of the legal system is threatened by allowing the
claim
o π not permitted to use a tort action to make a direct profit from illegal conduct
o Tort may not be used to circumvent, subvert, or negate a criminal penalty
o For all practical purposes, makes defence of illegality inapplicable to negligence
actions
o Court has shown clear preference to apportion damages in cases dealing with
undeserving πs
 However: b/c it is complete defence, the courts have tended to interpret it very narrowly:
Hall v. Hebert (1993) – SCC.
Hall v Hebert (1993), 101 DLR (4th) 129 (SCC)
Fact
π and ∆, both drunk, drive muscle car, have an accident. P claims D should not have let him drive; D
claims P acted illegally and cannot sue.
Majority

ex turpi can be a defence to negligence, but only available where:
 The P stands to profit from his criminal behaviour; or
 Compensation would amount to an avoidance of criminal sanction

Practical reasons for finding ex turpi causa as defence
 Onus on P to show why they should not be disentitled by way of their conduct
(McLachlin)



Held
Power to preclude recovery on basis of immoral or illegal conduct is an exceptional
power, and so appropriate onus of establishing exceptional circumstances should rest
with the D
Duty of care approach is all or nothing: cannot be applied selectively to discrete heads of
damage
 If it operates as factor negating duty of care, not possible to treat an action in the
selective manner that justice seems to require
This defence is really irrelevant because all of this can be dealt with at the duty stage
o Cory J: 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.
This appellant need not be denied recovery since these grounds are not relevant to his claim
Inevitable accident
 Rule: 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
Rintoul v X-Ray and Radium Indust. Ltd. [1956] SCR 674 (SCC)
Fact
Car brakes failed, ∆ applied hand brake, crashed. ∆ argued accident inevitable, did everything to
avoid.
Majority
o
(McLachlin)
o
To establish defence of inevitable accident: D would need to show that the failure of the brakes
could not have been prevented even with the exercise of reasonable care.
Rule: 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
44
π's appeal allowed.
Held
Liability for Public Authorities


Ask: Can public authorities be liable for tort?
Public authorities: Typically gov’t departments and elected officials.
o Encompasses bodies that exercise delegated government authority: marketing boards, licensing
boards, professional boards, regulatory agencies, investigatory commissions, prison
administrations, police agencies, labour arbitrators, municipal gov’ts

3 essential types of power  public authority will often operate at least one, if not all
(simultaneously)
(1) Legislative power – the power to enact rules or regulations
(2) Judicial or quasi-judicial power – the power to resolve disputes
(3) Administrative power – the power to implement and administer policies

STEP 1: What is the type of power being exercised? What are they doing?
o Rule: Public authorities can only be held liable in tort for losses resulting from the negligent
exercise of administrative powers: Wellbridge Hldg. Ltd. v. Winnipeg (1970)
 Only liable in negligence for results of operational, not policy or judicial decisions
 Why? Courts don’t review legislative or judicial powers because of the separation of
powers. It is inappropriate / unhealthy for judiciary to stand over the shoulder of the
gov’t because it politicizes the judiciary

Consider Legislative Immunity
o Immunity usually only extends to actions directly or indirectly related to legislative activities.
o SCC: municipal governments not liable in negligence for losses resulting from adopting,
amending, or repealing a by-law, even if such an action causes a foreseeable economic loss
o Policy: Allowing liability in negligence for legislative activities would make governing
impossible

Consider Judicial Liability
o Rule: Judges not liable for losses or damage flowing from exercise of their judicial authority
 Broad view: extends to cover judges of any court of record, and justices of the peace.

BC Provincial Court Act affirms CL approach
o Section 27.3: Immunity protection  grants broad immunity, looks like blanket immunity
“(1) Subject to subsection (2), no legal proceeding for damages lies or may be commenced or maintained against a
tribunal, a member of a tribunal or a person acting on behalf of or under the direction of a tribunal, because of anything
done or omitted
(a) in the performance or intended performance of any duty in relation to an inquiry, or
(b) in the exercise or intended exercise of any power in relation to an inquiry.
(2) Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted by that
person in bad faith.”

Section 42: Immunities from civil liability
“Judges and justices have, for things done or not done by them in their official capacity, the same immunities from civil
liability as judges of the Supreme Court have for the things done or not done by them in their capacity as judges of the
Supreme Court.”
45

Policy: Should judges be liable for things like intent, malice, corruption, etc?
o You have grounds for appeal, not civil liability
o Critique:
 Appeal is not sufficient:
 Belief in judiciary likely undermined
 Financial costs of going to appeal
 No deterrence for judge, no compensation for victim
o Get around the wording of the statute:
 Acting out of their judicial powers  ultra vires
 Acting maliciously is not a judicial power, so it is not protected by the legislation
 Ultra vires doctrine applies to everything, not just constitutional

Note: Can’t compel judges to give evidence about reasons behind their decision: basic constitutional
principle that judges need to be protected from scrutiny and criticism by the legislature and executive
Note: Unclear as to whether individuals acting in a quasi-judicial capacity are protected. Also unclear
as to whether mediators are covered

Basic Rule for liability of public authorities:
 PA only liable in negligence for way in which they implement policy or discharge statutory obligation
(administrative and operational decisions)
Operational Decisions
(1) Decisions that are made to fulfil a statutory public duty
General Rule:
If the statutory duty requires the public authority to act in a particular
way – i.e. there is no discretion as to how to fulfil it – then the public
authority cannot be held liable for damages resulting from the proper
exercise of the duty
No discretion, only liable if the public authority performs the task
carelessly or fails to fulfil the duty, then they can be held liable for losses
resulting form their negligence
(2) Decisions that are made under a statutory discretionary power  MORE COMMON
General Rule:
The question of whether a public authority can be held liable will depend
on whether the decision taken was a policy decision or an operational
decision.
Policy: courts will not review it and will not allow actions for negligence
in relation to losses alleged to have resulted from the policy.
Operational: then the courts may review it and it is possible to claim in
negligence for losses alleged to have resulted from the operational
decision.
46
Just v. British Columbia (1989)
Fact
Π injured, daughter killed by falling rocks on Hwy 99. Sued province for negligence.
Reasoning
(Cory)
o
o
o
o
o
Held
Significance
Argued in favour of a narrow definition of policy decisions, and referred to what Corey J.
called “true policy decisions” – which normally involve the broad allocation of funding at a
high level of government.
Inspection system at issue = operational, open to judicial scrutiny
Attempts to implement policy decisions: Claim concerned manner in which inspections
carried out (frequency/infrequency of inspections; how and when trees would be cut, etc.)
Stressed the need to look at all the surrounding circumstances when determining the appropriate
standard of care that should be applied to the duty of care arising from the operational decision
Specifically referred to the need to consider budgetary restrictions and the availability of
qualified personnel and equipment
Province owes DOC of reasonable maintenance to users of highway; new trial ordered to determine
if there was negligence
 Commentators have generally argued that the decision in Just shows a willingness on the part
of the Supreme Court to expose government decision-making to greater levels of judicial
scrutiny than has been the case in the past.
Brown v. British Columbia (1994)  Adds texture and slightly narrows decision in Just
Reasoning
 Corey J. clarified the idea of the “true policy decision” and noted that policy decisions
(Cory)
are not necessarily made at the highest level of government, and that it was important
for the court to look at the nature of the decision when determining whether it was
policy or operational
 Wrong to focus too much on who makes the decision, and instead should consider
whether the decision-maker must take into account social, political, economic,
financial, personnel, and union considerations. Those factors point to a policy decision.
Misfeasance in public office – GOOLD SAYS NOT EXAMINABLE.
o
Two types of misfeasance:
(1) Conduct specifically intended to injure a person or class of persons
(2) Conduct where the officer knows their action is outside of the power granted by the public office
and that it is likely to injure the plaintiff
In both cases have to prove:
(i) Public officer must have engaged in deliberate and unlawful conduct in his capacity as a
public officer; and
(ii) Public officer must have been aware that his conduct was unlawful and likely to inure the
plaintiff
Now:
In cases of Type (1), proof of intention to harm will usually be taken by the court as proof
of (i) and (ii)
However:
In cases of Type (2), plaintiff will have to prove both (i) and (ii) independently
47
Statutory Torts
Two main ways in which statutory provisions can affect tort liability:
(1) By creating an independent cause of action
o Statute creates a cause of action in tort – i.e. by specifying that a duty of care is owed in
particular circumstances.
o Typically will also specify the standard of care required, type of relief that is available where
there has been a breach of the duty.
o Based on statute and not CL: constrains the extent to which the judiciary can interpret the
ambit of the tort.
(2) By creating, changing or limiting the operation of a common law duty or tort
o Statute creates, modifies or restricts the scope of a CL duty tort.
o Can be direct – i.e. a statute could limit the scope of negligence actions against the police –,
but it is usually indirect - effect comes via judicial interpretation.
o
Rule: Courts cannot create implied statutory causes of action: R. in Right of Can. v. Sask. Wheat Pool
R. in Right of Can. v. Sask. Wheat Pool (1983)
Fact
∆ delivered infested wheat to the Board in violation of s.86(c) of the Canada Grain Act. The Board
sought damages based on this statutory breach.
Reasoning
(Cory)
o
o
o
o
o
o
o
Holding
o
There have been two approaches to determining if π can sue in tort for breach of statutory duty
where statute is silent as to question of civil liability.
(1) Statutory prohibition – used by the court as an argument for the recognition of a common
law duty of care – which can then provide the basis for a civil action
a. SP – CLDC – CLCA
b. US position: prohibit direct reliance on statutory breach, require recognizing CL
DOC  tantamount to treating breach of statute as evidence of negligence
c. This approach still requires the court to go through the normal Anns or Cooper
analysis, and be prepared to recognise a common law duty of care
(2) Statutory prohibition – used by the court as an argument for the recognition of a common
law duty of care – which can then provide the basis for a civil action
a. SP – CLCA
b. UK position – allows direct reliance on statutory breach, bypasses need for CL
DOC  tantamount to recognizing tort of statutory breach
Canadian courts have tended to oscillate b/t these two positions
Treating a breach of statutory as evidence of negligence as prima facie evidence of negligence
is the best approach, and is better than recognising a separate tort of breach of statutory duty
Civil consequences of breach of statute should be subsumed in teh law of negligence
Notion of a nominate tort of statutory breach giving a right to recovery merely on proof of
breach and damages should be rejected, as should the view that unexcused breach constitutes
negligence per se giving rise to absolute liability
Proof of statutory breach, causative of damages, may be evidence of negligence
The statutory formulation of the duty may afford a specific, and useful, standard of reasonable
conduct
Action fails: negligence neither argued nor proven.
48
. The Charter and Torts Liability
 Two ways in which the Charter may affect torts liability:
o An individual whose Charter rights have been violated may have an express statutory cause of
action under Section 24(1)
o The Charter may alter existing common law causes of action and defences
Galaske v O’Donnell
o
o
o
o
∆ driver failed to ensure that child passenger was securely fastened in seat belt
Breach of statute (Motor Vehicle Act) not conclusive of the issue of due care
∆ had clearly taken no steps to ensure seat belt was fastened, so negligence readily found
In other cases, might be more difficult to determine issue of reasonable care and that it might depend upon age
of driver, relationship among the passengers, and other relevant circumstances
Ryan v Victoria (City of) (1999)
o
o
o
π motorcyclist attempted to cross the ∆’s railway track. Front wheel of motorcycle wedged into gap along inside
edge of track, was thrown off his motorcycle and injured
∆ argued it was not negligent because it was in compliance with all statutory rules and regulations in respect of
its track
SCC held that compliance with statutory obligations was not a complete defence to negligence
 Evidence of reasonable conduct, but controlling standard is common law standard of reasonable care
 More weight will be given to compliance where legislation prescribes specific statutory standards of
conduct and the case falls comfortably within the scope of the legislation
 Less weight where legislation prescribes general and discretionary standards of conduct
49
Occupier’s Liability
PURPOSE: determines the level of care owed by those persons who control land (occupiers) to visitors
who enter on to that land (premises)



Think of CL approach to occupier’s liability as a graduated standard of care based on the status of the
visitor who was injured
Relationship to Negligence
o Continues to develop as a separate area of law: it has its own rules, principles, and cases
o One of the things you have to do when dealing w/ questions of people entering land is to
determine if it is covered by occupiers’ liability
Four main categories of visitors:
1. Licensees
2. Invitees
3. Contractual Entrants
4. Trespassers
(1)
Licensees: McErlean v Sarel
 Licensee was defined as a visitor who had express or implied permission to be on the land
 Rule: Occupier responsible for preventing injury from hidden dangers of which the
occupier had actual knowledge (relatively low standard of care)
(2)
Invitees
 Visitor who had express or implied permission to be on the land – but occupier also had
some economic interest in them being on the premises
 Difference from licensee is like distinction between a social guest (no economic interest –
licensee) and a paying customer in a retail store (invitee – economic interest)
 Rule: Occupier responsible to take reasonable care to prevent unusual dangers that the
occupier either knew about or ought to have known about (higher than the standard of care
owed to licensees)
(3)
Contractual entrants
 Visitors whose right to enter the land was based on contract – i.e. visitors who had bought a
ticket to a sporting event or concert: Finigan v Calgary
 Rule: Responsibility of the occupier as typically held to be governed by the terms of the
contract, but over time the courts eventually developed an additional requirement –
namely that the contract would be held to contain an implied warranty that the premises
were as safe as reasonable care could make them
(4)
Trespassers
 Someone who had no express or implied permission to be on the land
 Rule: Occupier owed no duty to make the premises safe for trespassers, but occupier could
not intentionally or recklessly injure a trespasser they knew was on the land (or was likely
to come on the land)
 Courts have gradually began to relax the rules in relation to trespassers to make them a little
less restrictive and friendlier to plaintiffs by:
(1) Began to treat child trespassers as licensees on the basis of fictionalised consent
(2) Began to distinguish between different types of trespassers
50


Rule: Occupier aware of the presence of a trespasser or that the presence of a trespasser is
likely must act within “common humanity” to prevent injury resulting from dangers of
which he is aware: Veinot v. Kerr-Addison Mines Ltd. (1975)
o Not an especially onerous duty:
 No duty to inspect the property for danger
 Duty is dependent on variety of factors within the discretion of the court, such as:
(i)
The degree of danger on the land
(ii)
The age of the trespasser
(iii)
The reason why the trespasser was on the land
(iv)
The knowledge and resources of the occupier
(v)
The cost of preventative measures
Over time, distinction between licensees and contractual entrants has been eroded at common law
o Rule: An occupier must take reasonable care to protect a licensee from an unusual danger
that the occupier either knows of or ought to know of: Bartlett v. Weiche Apartments Ltd
 Now very little difference between the position of licensees and contractual entrants
Occupier’s Liability Analysis
 Regardless of whether you are dealing w/ CL or statutory regime, you have to ask:
1. Premises: Are there premises?
2. Occupier: Is the person you want to sue the occupier?
 Person who has control over the premises: Occupiers’ Liability Act, Palmer v St
John
 Why is control the test?
o Best position to know the state of the property
o Management
3. Visitor: Were they a visitor?
4. What was the standard of care owed?
5. Harm
Exceptions and Modifications to the General Rules
o Age of trespasser
o Reason for trespass (innocent vs malicious)
o Knowledge and resources of the occupier
 If you have a vast property, might be unreasonable to expect you to know what is going
on with everything
o Cost of preventative measures
51
The Occupiers’ Liability Act 1996
 In British Columbia the question of whether an occupier owes a duty of care to a particular entrant is
determined by statute – The Occupiers’ Liability Act 1996.
 The scope of the act – and with it the boundary between occupiers’ liability and negligence – is
defined and limited by the meaning of occupier and premises. Definitions are contained in Section 1
Definition of Occupier:
Defined as a person with either:
(1) Physical possession of the premises; or
(2) Responsibility for – and control over – the condition of the premises, the activities conducted on
the premises, and the persons allowed on the premises
 Key concept here is the idea that with control comes responsibility. As a result – don’t
have to be the owner of the premises or even in physical possession of it.
 All that has to be shown is that you had control over the premises.
 Follows from this that it is possible to have more than one occupier – i.e. in situations
where control is shared in some way
Definition of Premises: Defined broadly and includes not only land and buildings, but also movable
places like cars, ships, and aircraft (although note that this is only the case when they are not in operation)
Key section in the Act is Section 3: Replaces the common law with a general standard of reasonable
care.
 According to section 3(1), and occupier owes a duty of reasonable care to see that a visitor – as
well as any accompanied or unaccompanied property – is reasonably safe.
 Attempt to bring occupiers’ liability in line with the law of negligence – that is, it endorses the
same standard of care as that found in the common law tort of negligence.
o Effect: Increases the level of care owed to trespassers and licensees, and reduces the
level of care owed to contractual entrants
 Note that under the Act, the standard of care is applied broadly, and is relevant to:
(1) The foreseeability of damage
(2) The degree of risk of injury
(3) The gravity of the threatened injury
(4) The kind of premises
(5) The burden of preventive measures
(6) The practice of other occupiers
(7) The purpose of the visit

Note: occupiers continue to be subject to other Acts or rules of law that impose a higher standard
of care in respect of any particular class of person or kind of premises.
CONSIDER: whether or not certain classes of visitors should be excluded from the protection of the
general duty of care.
 Issue arises mostly in respect of trespassers
 According to the BC Act, the general duty of care is also owed to trespassers except those with
criminal intent or trespassers on agricultural or rural ground.
o The only duty owed to criminal intent or trespassers on agricultural or rural ground: to
avoid injuring them intentionally and to not act reckless disregard for their safety.
o To a large extent, this general approach mirrors that previously taken by the CL
52
After Section 3, the next most important part of the Act is Section 4
 Allows occupiers to restrict, modify, or negate the statutory duty of care by express agreement or
notice
 Limitations:
(1) Reasonable notice must be given of any alternation of the general standard, and only those
privy to an express agreement are subject to the restricted standard
(2) The statutory duty cannot be excluded or modified with respect to those who are empowered
to enter the premises without the occupiers’ consent
(3) Where the occupier is bound by the terms of a contract to allow entry to persons who are not
parties to the contract (i.e. third parties), those entrants are owed the usual standard of care
and are not subject to the exclusionary words in the contract
Section Five:
 Deals with the question of the duty of care owed to independent contractors (such as contractors
employed to work on the premises, maintain the premises, repair things on the premises etc)
 Rule: Occupier is not liable for the acts of an independent contractor provided that it was reasonable
to have retained an independent contractor to do the work in question and reasonable care was taken
in the selection and supervision of the independent contractor.
 Old CL rule:landlord could not be liable for any harm caused to visitors of his or her tenants
o Three reasons:
(1) No contractual liability because the visitors were not parties to the lease
(2) Landlord (an owner out of possession) was not the occupier
(3) No duty of care could be owed in negligence because it was an area supposed
covered by occupiers’ liability
Section Six:
 Seeks to remedy this situation by treating the landlord as an occupier for the purposes of the Act
(provided the landlord has a duty to maintain and repair the premises under the terms of the lease)
 Plaintiff can only recover if they can show that the injury was a result of the landlord’s failure to carry
out repairs as specified in the lease
Palmer v St John (1969), 3 DLR (3d) 649 (CA)
 Facts: P injured when tobaggan went over a hump that was inadvertently created by a city work crew.
P sued the Horticultural Association responsible for maintaining the park, and the city.
 Reasoning (Hughes JA):
o City made annual grants to Association to be used to provide recreational facilities in the Park
o Salmond on Torts: “... The person responsible for the condition of the premises is he who is in
actual occupation or possession of them for the time being, whether he is the owner of them or
not, for it is he who has the immediate supervision and control and the power of permitting or
prohibiting the entry of other persons.”
o Duncan v Cammell Laird & Co.: Importance of establishing that the D who invites is the
occupier of the premises lies in the fact that with occupation goes control
o Application:
 City, at time of P’s accident, did not operate the slide or regulate its use.
 Sometimes consulted for work to be performed, but sometimes done without
consultation
 However, City was vicariously liable for the negligence of its work crew
 Holding: Appeal dismissed
53
Finigan v Calgary (1967), 65 DLR (2d) 626 (Alta CA)
 Facts: π at an exhibit, tripped on a stump left on the pathway, because it was difficult to see, injured.
 Reasoning (Cairns JA)
o Had the pathway been properly constructed, stump would not have been left there
o ∆ should have noticed it in one of many inspections made to ensure public safety
o π paid an admission fee, entered into a K w/ ∆ that she might enjoy those privileges provided
she exercised prudence herself w/o risk fo danger so far as reasonable care could make
premises safe
o Francis v Cockrell rule, affirmed in Carriss v Buxton: “Where A enters B’s structure under a
contract entitling him to do so, it is an implied term in the contract that the structure shall be
reasonably fit for the purpose for which it is intended; but this does not extend to any unknown
defect incapable of being discovered by reasonable means.”
o Implied warranty that the place is reasonably fit for the purposes for which it was intended
 Held: Liable to appellant in damages for failure
McErlean v Sarel (1987), 42 DLR (4th) 577 (CA)
 Facts: π collided w/ ∆, severly injured. ∆ on the wrong side of the road when they collided. City of
Brampton owned the gravel pit where π was racing, and knew that trail bike riders used the pit, but
made no attempt to stop or warn them. City was held liable as occupier, 75% fault
 Reasoning:
o McErlean was licensee and not a trespasser  Licence to enter or remain on property may be
given by conduct which manifests consent or permission
o A made no effort to exclude (signs, fencing, supervision, etc.)  can reasonably be construed
as tacit permission to their entry, toleration of presence
o CL approach: respondent must be treated as a licensee, and occupier’s liability determined on
basis of that relationship
o Duty owed by occupier of land to licensee:
 Duty to warn of concealed dangers or traps of which occupier had actual
knowledge: Hambourg v T. Eaton Co. Ltd
 Duty to invitee: duty to take reasonable care to prevent damage from unusual
danger of which the invitor knew or ought to have known: Indermaur v Dames
o General principle governing liability of occupier to licensee
 “to take reasonable care to avoid foreseable risk of harm from any unusual
danger on the occupier’s premises of which the occupier actually has knowledge
or of which he ought to have knowledge b/c he was aware of the circumstances.”:
Hanson et al v City of St John et al
o Occupier’s liability limited to unusual dangers, not every danger that might be found thereon
o Whether at the time and place of the accident there was an unusual danger on the occupier’s
premises creating a foreseeable risk of harm
54
Nuisance
o
Protect a plaintiff’s interest in and enjoyment of land from unreasonable interference
NUISANCE FACT PATTERN
1. Both D and P have to have land.
2. Unreasonable interference?
a. Damage (standard is high)
b. Enjoyment (standard is low)
c. 8 factors in Huron
3. Defences
4. Remedies
Differs from Negligence:
(1) Negligence: the court will look to the reasonableness of the defendant’s conduct. In nuisance, the
court instead looks to the reasonableness of the effects of the defendant’s conduct.
 In negligence: Did the defendant behave unreasonably?
 In nuisance: Was the interference with the plaintiff’s enjoyment of land unreasonable?
(2) In negligence, the question of proximity and the limit of liability is determined by a general
requirement of neighbourhood (based on foreseeability). In nuisance, the question of proximity
and the limit of liability is determined the by the need for physical neighbourhood
Differs from Intentional Tort (Trespass to Land)
o Trespass to land is direct interference with land; Nuisance is indirect
Why keep nuisance as a free-standing tort?
o What constitutes reasonable enjoyment of land is based on circumstance
 Ex. if you live in a neighbourhood near factories, or an expensive enclave
 One of the arguments about nuisance was that the idea of “reasonable enjoyment” entrenches
the gap between poor and rich
 Ideological discussions in torts are pretty rare
o Places onus on landowners that their land doesn’t interfere with other people ==> They have a
responsibility to look after their land
Private nuisance: protecting people from interferences with their use and enjoyment of land
(1) Where the conduct of the defendant causes physical damage to the plaintiff’s land; or
(2) Where the conduct of the defendant interferes with the plaintiff’s enjoyment of their land
o
o
Intrusive interference – i.e. where something comes from the defendant’s land, crosses the border
into the plaintiff’s land, and then causes some damage or loss of enjoyment – most common
Non-intrusive interference - Pugliese v. Canada (National Capital Commission) (1977) - D was
held liable in private nuisance even though the interference was caused by the removal of water rather
than the invasion of some substance on to the property
55
First Kind: Where the conduct of the defendant causes physical damage to π’s land:
o Courts tend to take a very strict approach to physical damage to property: almost always regard it as
an unreasonable interference
o No need for continual interference, an isolated incident causing physical damage can be enough: Tock
v. St John’s (City) Metropolitan Board
o Elements
o Mere proof of physical damage is not enough to succeed in an action for private nuisance
o The damage is not trivial, it is beyond what the courts have often referred to as the
bounds of reasonable tolerance.
o The damage is not a result of the abnormal sensitivity of the plaintiff’s land: Robinson v.
Kilvert (1889) [Ratio: Cannot constrain ability of others to use their land]
 Courts will now take a more generous view if it can be shown that the defendant
knew the plaintiff’s land was particularly sensitive and acted with malice or spite:
Hollywood Silver Fox Farm Ltd. v. Emmett [1936]
 BC Court of Appeal has pushed this exception even further and imposed
liability in the absence of malice: MacGibbon v. Robinson [1953]
Second Kind: Where the conduct of the defendant interferes with the plaintiff’s enjoyment of their land:
o Rule: Courts expect landholders to be fairly tolerant of occasional interferences with the enjoyment
of their land – especially in urban environment where a certain amount of give and take is expected
o Ultimately, question of whether there has been unreasonable interference will depend on all of the
circumstances of the particular case at hand.
o
Factors in considering whether the interference is unreasonable: 340909 Ont. Ltd. v. Huron Steel
Products (Windsor) Ltd.
FACTOR
RULE
Character of the
neighbourhood
Intensity of the interference
Duration of the interference
Time of day, day of week
Zoning designations
Have to look to the character of the neighbourhood when deciding
whether the interference is unreasonable or not. Generally
interference in rural neighbourhoods will be viewed as more
significant
The interference must be of sufficient intensity to be intolerable to
the ordinary Canadian citizen.
Application: No liability for such things as occasional loud
noises, the barking of a dog, the smoke from a BBQ, or a transient
bad smell,
The interference must be more than temporary or short-lived. Have
to establish that the interference is persistent and long-term in
order for it to qualify as unreasonable
The time of day and the day of the week may be particularly
relevant in cases of noise. Courts have held that in residential
areas, it is reasonable for people to expect less noise at night than
during the day.
Canadian courts have tended to ignore zoning when it comes to
considering whether or not conduct amounts to a nuisance. As a
result, compliance with zoning restrictions is not treated as a
defence to private nuisance
However: Zoning designations and restrictions can be referred to
when determining the character of a neighbourhood and the
appropriate standard of tolerance to be applied
56
Utility of defendant’s
conduct
The nature of the
defendant’s conduct
Sensitivity of the plaintiff
The fact that the defendant’s conduct / use of their land is
beneficial to the public is not a defence to private nuisance
However: It can be taken into account when the court determines
whether it should be tolerated (and therefore whether the
interference is reasonable or not)
Courts will look at the defendant’s conduct when deciding on the
reasonableness of the interference – less likely to protect the land
use of a defendant who acts unreasonably and is motivated by a
desire to cause discomfort or annoyance
There is no liability if the plaintiff is abnormally sensitive – the
standard is that of the reasonable and ordinary resident in that
particular geographic area
Defences to Private Nuisance
DEFENCE
RULE
Statutory authority and
immunity:
where a statute specifically
abolishes liability in private
nuisance for a certain activity
Actual Rule: Not enough to show that reasonable care had been
taken, but rather had to prove that the nuisance was an inevitable
and unavoidable part of the activity: Ryan v. Victoria (City of)
Basic Rule: Where the conduct complained of is being carried out
according to statute, there is no liability for nuisance.
Revised: statutory authority will only be a defence in cases where
the statute gives no discretion to the defendant as to the time,
location, or performance of the statutory duty: Took  criticised
for being too uncertain – given that most statutory authorities are
discretionary, hard to imagine a situation in which the defence
would apply  Resolved to actual rule (Ryan)
Consent
Although very unusual for this defence to succeed, it is a defence
to nuisance if you can show that the defendant consented to the
conduct or actively encouraged it
Prescription
Where a defendant has carried out the activity continuously and
uninterrupted for more than twenty years – and the plaintiff has
been aware of the activity for that time and has not taken any steps
to prevent it - then there is the defence of prescription.
Contributory negligence
This amounts to the court recognising and protecting an easement
to carry out the activity
Extremely rare to see this defence – plaintiff is usually not in a
position to move away or do anything about the nuisance. Also,
courts have been very unwilling to require the plaintiff to take
steps to reduce the nuisance (such as keeping windows closed etc)
It is no defence to claim that the defendant came to the nuisance
(Sturges v. Bridgeman (1879) HL)
57
REMEDIES FOR PRIVATE NUISANCE
REMEDY
RULE
INJUNCTION
Three basic forms of injunction:
(This is the most common
remedy in nuisance cases, and
courts look to all the
circumstances when making a
decision as to whether to
impose an injunction)
(i)
Prohibitory: Requires the defendant to completely
stop the activity
(ii)
Mandatory: Requires the defendant to adjust their
activity to reduce or eliminate the nuisance
(iii)
Interlocutory: Often also referred to as interim
injunctions – issued prior to the hearing of the case –
normally requires the plaintiff to show that there are
serious issues to be tried, and that they will suffer
irreparable harm if the injunction is not granted
DAMAGES
Most often awarded where the nuisance has ended, although can
also be awarded in combination with an injunction. Can be
awarded for both past and future losses.
ABATEMENT
This is essentially a self-help remedy. Courts have held that in
certain circumstances a plaintiff can take matters into his own
hands and take steps to reduce or eliminate a nuisance (especially
where the nuisance is relatively trivial)
Limitations:
Where abatement requires entry into the
defendant’s property (i.e. to unblock a drain or to put out a fire),
the plaintiff must give proper notice unless there is an emergency
(like a fire or something else that threatens life or property)
Public Nuisance
o Much richer history in England than most common law countries
o Less important than private nuisance
o The Common Law Meaning and Section 180(2) of the Criminal Code
o Section 180: Common Nuisance
(1) Every one who commits a common nuisance and thereby
(a) endangers the lives, safety or health of the public, or
(b) causes physical injury to any person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding
two years.
(2) For the purposes of this section, every one commits a common nuisance who does
an unlawful act or fails to discharge a legal duty and thereby
(a) endangers the lives, safety, health, property or comfort of the public; or
(b) obstructs the public in the exercise or enjoyment of any right that is common to all
the subjects of Her Majesty in Canada.
58
Strict and Vicarious Liability
Strict Liability in Torts
 Strict liability: impose liability without fault
 Increasingly insignificant part of Cdn torts
 Courts more likely to deal with situation that would have been dealt with by strict liability with
imposing higher standard duties of care
 The advantages of strict liability:
o Easier - administratively efficient; no duty, standard, breach, etc.
o Predictability - people know in advance what they will be liable for; deterrent effect
 Econ argument - people have to internalise the cost
 Two types:
o Strict Liability for Escape of Dangerous Substances: Rylands v. Fletcher
o Vicarious Liability
Strict Liability for Escape of Dangerous Substances
o Pre-Rylands, only torts available were nuisance or negligence
o Not nuisance b/c it was single incidence, and use of land was not unreasonabl
o Rule: The person who, for his own purposes, brings on his land and collects and keeps there anything
likely to do mischief, if it escapes must keep it in at his peril, and if he does not do so is prima facie
answerable for all the damage which is the natural consequence of its escape.
Element
What is required to establish the element?
Non-natural use of Land

Initially confined to artificial uses of land, but gradually morphed
into what textbooks say is dangerous, extraordinary, or has no
general benefit to the whole community at large.

If inherently dangerous, courts will assume use of land is nonnatural (ex. explosives, storage of nuclear materials, storage of
water in bulk, storage or use of biological agents)

Where danger is les obvious, Courts will assess dangerousness on
a variety of factors



The degree of danger of the land use
The utility and normality of the land use
The circumstances of time and space
Note: Once you start thinking about what constitutes dangerousness,
you are implying some degree of fault (similar to negligence)
Mischief and Escape


Damage
Once you answer question of dangerousness, you essentially
answer the question of mischief  non-natural use = dangerous =
capable of causing mischief
Escape: Strict application: Read v. J. Lyons & Co. [1947] (HL). If
π was injured on the defendant’s land, then they cannot not claim
under the rule in Rylands v. Fletcher
Cambridge Water [1994 HL] - suggest some notion of remoteness has
to apply; the damage caused in some sense has to be foreseeable
59
DEFENCES TO AN ACTION UNDER RYLANDS
DEFENCE
RULE
Consent
(difficult to sustain)
No liability where the plaintiff either expressly or impliedly
consented to the defendant’s non-natural use of the land.
This rule has been interpreted quite liberally – sufficient to show
that the plaintiff knew of the dangerous use of the land and entered
or remained in the place of danger
Mutual Benefit
Where the activity is of benefit to the defendant, then court is less
likely to view it as a non-natural use.
For example, Supreme Court in Tock held that a sewer system was
not a non-natural use of land, but π benefited from it.
Default of the Plaintiff
Where the escape is in part the responsibility of the plaintiff, then
no liability.
Mirrors the old common law rules of contributory negligence.
Note that most legislation that has modified the rules of
contributory negligence does not apply here, and so the defence
remains a complete bar to recovery
Act of a Stranger or Act of
God
The intervening events that cause the loss must be so
unforeseeable that the defendant could not have guarded against
them – note that this rule seems to contradict the idea that the rule
in Rylands v. Fletcher is one of strict liability
60
Vicarious Liability
 Important to note that vicarious liability is not really a separate tort – instead refers to the fact that
there are certain situations in which the law of torts holds one person strictly liable for the acts of
another
 Most common situation in which this occurs is in the context of employer-employee relationships
To establish vicarious liability, plaintiff must show:
(1) That the individual who caused the harm was an employee and not an independent contractor
 Basic Rule: employee is someone who is under the direct control and supervision of the
employer  look for evidence that the employer was empowered to tell the employee how,
when, and where to do the work
 However:
Courts have supplemented the control test with other tests:
(a) According to the court in Montreal (City of) v. Montreal Locomotive Works Ltd.
(1946) (PC), the control test can be enhanced by reference to entrepreneur test –
adds new factors that can be taken into account, including ownership of tools, the
chance of profit, and the risk of loss (all of these factors will be treated as evidence
that the person is an independent contractor)
(b) Organisation test – focuses on the extent to which the employee has been integrated
into the employer’s business organisation
 The relationship between these tests considered in 671122 Ontario Ltd. v. Sagaz Industries
Canada Inc. (2001)
o Supreme Court:
The central question is whether the person who has been
engaged to perform the service is performing them as a person in business on his
own account (Major J.)
o In making this determination, court can look to:
 Level of control employer has over the activity
 Whether the worker provides his own equipment
 Whether the worker hires his own helpers
 Degree of financial risk assumed by the worker
 Degree of responsibility for investment/management by the worker
 Worker’s opportunity for profit in the performance of the activity
(2) That the harm was caused by the employee in the course of his or her employment
 Basic Rule: Employer is only liable where there is some connection between the wrongdoing
and the employment relationship
 Key points to note:
(a) Even if the conduct is wrongful or unauthorised, it may still held to be within the course of
employment if it was carried out for the purpose of the employment
(b) The fact that the conduct is expressly prohibited by the employer does not necessarily rule
out liability
 Rule: Express prohibitions that forbid any work being done are effective, but prohibitions on
the way in which the work is done are not
 Example:
Employee is prohibited from driving a car as part of his work (to get between
different locations on a work site) = effective; prohibition on driving an uninsured car will not
be (i.e. if he drives and causes harm, employer will still be liable) – decision in Canadian
Pacific Railway Co. v. Lockhart [1942] (HL)