Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
CASE
FACTS
DECISION
Athey v.
Appellant suffered
 BUT FOR TEST
Leonati
back injuries in 2
 A factor is a cause of a result of the result would
successive motor
SCC 1996
not have happened but for that factor
vehicle accidents,
o AKA that factor is a cause if it is a necessary
went to the gym
after, and then
pre-condition
 Tortious acts: car accidents – caused back injury
experienced disc
(causation established)
herniation
o But for can still be used for multiple
wrongdoers
 Non-tortious act: stretching exercises – worsened back
injury
 BOTH contribute to the harm
 HELD: but for the tortious acts, there wouldn’t be
the harm. Causation found, liability
 BUT there can be more than one cause – the
negligence doesn’t have to be the SOLE cause of the
injury!
 As long as the D is part of the cause, then the D is
liable, even though his act alone was not enough to
create the injury
 Although held contributorily
 ISSUE: the BUT FOR TEST is sometimes unworkable (Athey)
 WHAT DOES “NOT WORKABLE MEAN?
o 1) a test that points in the wrong direction (ie we know the right answer but
the test doesn’t provide it – and therefore there’s a way to get to the right
answer) OR
o 2) a test that doesn’t provide an answer OR
o 3) a test that provides an unfair answer (not that the answer is wrong – but
we don’t like it because it’s unfair)?
 SITUATIONS IN WHICH CAUSATION IS TRICKY
o Ordinarily we attribute causality in circumstances where the event would still
have happened. Examples:

1) Three people independently pull ropes that open a floodgate. Only two
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
were needed

2) Two people shoot a victim through the heart at the same time

3) I dig a hole that you fall into; if I hadn’t dug it someone else would
have dug it and you would still have fallen in (pre-emption)
o 1) and 2) are examples of “over-determination” where >1 factor contributes

Belt + suspenders

In the first case, the extra person eases the effort of the other people,
but is otherwise redundant
o 3) is one where the defendant’s act pre-empts the operation of another
element

If no belt, then suspenders
 PROBLEM 1 OF THE BFT: it can extend to an indeterminate number of things!
o It’s excessively inclusive: the gunman who shot the victim is a cause, the person
who sold the gunman the gun, the person who made the gun, the parents of
the person who made the gun … (at the end of Athey)
o SOLUTION:

1. When we use the but for test, we don’t use it in the ordinary sense
of the words

We distinguish between background factors (taken as given) and
causes

Causes are unusual interventions that operate against the
background, that help to explain the occurrence of an event or the
non-occurrence of an event that should have happened

2. In tort we differentiate between factual cause and proximate cause (in
crim, legal cause)

FIRST we look at factual cause: is there a causation?

THEN we look at proximate cause. Proximate cause is more
normative and value laden … given the factual cause, is it fair to
hold proximate cause?
 PROBLEM 2 OF THE BFT: there may be several chains of causation!
o Courts have been seduced by the metaphor of a “chain” of causation
o Each link is a necessary precondition - if you remove a link you break the chain
o If you reject the metaphor, you reject the reason for the BFT
o ISSUES: what if your chain is not linear? What if you have several chains feeding
into the main one – if you break one chain, it would still happen
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
 PROBLEM 3 OF THE BFT: (the first major problem)
o It is a test of INCLUSION

Yes - if the BFT is met, the factor is a cause
o It is NOT a test of EXCLUSION

Just because a factor FAILS the BFT doesn’t mean it isn’t a cause!
o That is to say: it does not allow us to determine when the factor is not a
cause (it can give rise to false negatives)
o For THIS REASON, it is sometimes not workable!
 Note on MATERIAL CONTRIBUTION
o Law saying we need to supplement the inclusive part of the BFT with the MC
test
o Supplementing the BFT with a MC test does address cases where we would
commonly identify causality, but it doesn’t address the pre-emption case unless
we say that in that case the factor is MATERIALLY CONTRIBUTING

Just because if I didn’t do it someone else would – does that attribute
material contribution?
o But if that is the case why don’t we just dispense with the BFT?
 ISSUE:
o Material contribution SOUNDS like a great supplemental test because we use it
in ordinary life
o We use the word CONTRIBUTE rather than CAUSE to indicate that many
factors were operational
o But what stops the MC test from SUPPLANTING the BFT? Then we’re just
supplementing a problematic test with another problematic test.

According to Athey there are always multiple factors (the fire is caused
by the match, O2, waste paper) so every case is a case of contribution
o The BUT FOR TEST tells us that a cause is a necessary precondition (a
synonym), AS WELL AS a method for defining when something contributes
o The MATERIALLY CONTRIBUTION test provides a synonym, BUT does not show
us when something is contributing or not
o The idea of material contribution fits best where we take background conditions as
given and have two interventions that combine to bring about a result:

Ex: where 10 drops of poison kill, A gives one drop and B independently
gives 9 drops. A has materially contributed to the death

Same where A gives a drop to someone who has already taken 10 drops
but is not yet dead (they’re gonna die anyways, but you give one more
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
for luck – adding to the mess)

Is A responsible? Factually, we accept they’ve contributed (requirement 1)
 Once we introduce material contribution as a test, it threatens to supplant the BFT
rather than supplement it
o So why does the SCC hold onto the BUT FOR test at the primary test?
o Every BF factor is a contributing factor, some contributing factors that will
count as causes are not BF factors
o If all count as causes then we have a contribution test of causality rather than
a BFT
 In fact, BFT is a factor which we can use to help us determine if something is MC
o But once we use the MC test to supplement the BFT, then the BFT is no longer
the test, the MC test is
o What we really want is a valuation of the extent of something’s cause

It’s a FAIRNESS test then, not a factual test
Snell v.
Respondent
 INFERENCE OF CAUSATION
Farrell
consented to have
 Tortious act: Dr
a cataract
 Non-tortious act: stroke? Diabetes?
surgically removed.
 Causation was not proven – do not know that but for
SCC 1990
Surgery was
performed
negligently (Dr
should have
the Dr’s negligence the plaintiff would not be blind
 P: we should move away from the but for test!
o McGhee

realized bleeding
and stopped) –
shower

lead to blindness
in right eye due
Brick kiln worker, had to cycle home to
Contracts dermatitis, argues Coal Board
responsible for not providing showers

Coal Board: showers don’t remove every
to atrophied optic
grain of dust – you even if we had
nerve but unsure
supplied a shower we don’t know if you
whether it was
would’ve gotten dermatitis anyways!
the surgery, a

stroke (due to
diabetes) or
glaucoma
SOLUTION 1 – reverse the onus
(Wilberforce)

SOLUTION 2 – material contribution is
material increase (Lord Reid) – P just
has to show material increase!

ISSUE: material increase in risk and
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
material contribution are collapsed
into one here and they’re not the
same!

Only the later changes the state of
the world!

SOLUTION 3 – cook v. lewis: both
plaintiffs equally liable, onus reversed

In this case, one neg and one non
neg cause!

There P hasn’t established they’re
a victim of tort! Cannot reverse
onus
 Spokina does not accept any of these – if we did
insurance for Drs would go through the roof
 SOLUTION:
 All the knowledge is with the defendant (Dr)
therefore inf of causation
 If you’ve established there’s a tortious and nontortious cause but don’t know which one caused the
harm – assume Dr is liable, and Dr can show evidence
to rebut
 Note: “not shifting the burden”, and keeping the
“robust and pragmatic approach” to causation using
the but for test
 Galloway: this “non shift” is problematic – what if D
doesn’t have extra info? Does this only apply to Drs?
Why are we focussing on the integrity of evid?
Cook v.
Lewis
 ALTERNATIVE LIABILITY THEORY (SUBSET OF
MATERIAL CONTRIBUTION)
 Two tortious act
SCC 1951
 Only one act causes the harm (two bullets, one bullet
hole) but it’s not know which one caused the harm
 Since they’re both tortious, they should sort it out
among themselves: presumption that both are liable,
onus of proof shifts to wrongdoer to show each is not
the sole wrongdoer
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
 HELD: Liability was split! Liability
BM v.
RCMP at Prince
 MATERIALLY CONTRIBUTION TEST
BCAG
George failed to
 DISS (Donald) – it’s time for change!
investigate
o Found duty, breach and causation
BCCA
complaint of
o This case is like McGhee
2004
domestic violence
o Just and fairness: RCMP should’ve investigated
(reoccurring
and didn’t (policy reasons – right to police
incidents in which
protection high)
RCMP were
o P: if I am unable to show causation and am not
involved, F was
compensated, there’s something wrong with the
forgiving of M) –
legal system! Donald agrees
7 weeks later he
o If material contribution above de minimis range,
shot his. M shoots
friend and
then it’s a cause
o 4 part Haag formulation re: when we should
daughter, kills
apply a relaxed notion of causation:
friend. M suing

1. Where a breach of duty has occurred,
RCMP

2. The damage has arisen within the area
of risk which brought the duty into being

3. The breach of duty materially
increased the risk that damage of that
type would occur (contentious)

4. It’s impossible, in a practical sense, for
either party to lead evidence which would
establish either that the breach of duty
caused the loss or that it did not
o All we know here is that police intervention =
effective deterrent, and that there was a
breach of a duty in this case (tortious cause)
 MAJ
o HELD: No causation – no evidence that RCMP
intervention would have lead to a different
outcome, there were already disincentives in
place
Walker
HIV + man, not
asked HIV
screening question
 ISSUE (Major):
o Breach of duty – did the RC ask enough Qs in
screening people?
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(Canadian Red
o Causation – if the individual had been given the
Cross Society
proper warning would he have gone ahead and
failed its duty to
donated?
implement
 Finds BFT unworkable (seems to have
adequate donor
overdetermination in mind) because multiple
screening measures
independent factors are contributing – but (Athey)
ex. pamphlets),
there are ALWAYS multiple causes! Multiple causes
donates tainted
creating independent series of events adding together
blood.
is what overdetermination is really about
 So this us a fairness issue! 3rd type of unworkability!
 The question is – was the failure a sufficient
condition. Is this the right Q?!
o Galloway: NO! Sufficiency is the wrong notion
to introduce – you really don’t know what the
donor would’ve done
 Major finds: we use MC when but for doesn’t work –
but for doesn’t work in situations like this where you
can’t be sure – and yet Major concludes the but for
test works!! Claims to adopt Snell reasoning?!
Nonsensical …
 HELD: CRCS/ hospital liable
Resurfice
Hanke placed
v. Hanke
water hose into
for test (even for multiple wrongdoers), material
gasoline tank of ice
contribution is only for cases when it’s impossible for
SCC
resurfacing machine
the P to prove that the D’s negligence cause the
2007
rather than water
injury using but for
tank. Hot water
overfilled gas tank,
vaporize gas,
 Whatever Donald J said, prima facie we use the but
 Causation is showing breach of duty exposed plaintiff
to suffer that form of injury
 The SCC ends up saying the same thing as Donald J
released into air,
(the 4 factors as being a situation when MC is
ignited by
appropriate) –they characterize it broadly but then
overhead heater,
read it as leading to a NARROW number of cases
causing explosion
that apply!
and fire. Breach of
duty due to
mislabelling of the
 2 situations in which MC is appropriate:
o Cook v. Lewis type = MC instead of causality

ISSUE – this is actually an onus reversal,
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
tank – caused a
burn.
not MC at all!
o Impossible to prove what a person in the causal
chain would have done had the D not
committed the negligent act (Walker type)

ISSUE – Walker is incoherent! (Galloway)
 And just because you fail at but for doesn’t mean
you can move onto MC!
 But for causation is appropriate in this case
 HELD: no but for causation, no liability
Clements
Joan severely
v.
injured while riding
Clements
as passenger on
motorcycle driven
 Issue; would the accident still have happened if the D
had been careful about weight and speed?
 Mr. Clement liable for all 5 factors except #3 (tire
puncture)
BCCA201
by husband – 1)
0
overloaded, 2)
determining factual causation – rather it provides a
pulled out to pass
basis for finding legal causation when there’s a
another vehicle
possibility that the D’s negligence could have been the
(speeding), 3) hit
factual cause
a sharp object and
 Material contribution test is not a test for
 Therefore use of MC is not a test of causation – it’s
punctured rear
a policy-driven rule of law to allow P to recover in
tire, 4) unevenly
cases despite their failure to prove causation
loaded 5) excess
 BCCA: no – if MC applies every time but for fails,
speed considering
then but for isn’t even a rule! If you fail but for it
weather (pouring
means you fail causation – not than you can move
rain). Mr.
onto MC
Clements Felt it
 2 situations in which MC is appropriate:
weave, unable to
o Circular causation: Cook v. Lewis
regain control,
o Dependency causation: Walker
flipped over
 This is just a case where we don’t know and it’s not
causing serious
unfair to left the D off the hook – BFT should
injury.
operate! Are we convinced? Are we just turning
causation into a fairness test?
 HELD: applies but for causation - no causation, no
liability
o Hypothetically:
o P: but for the overloading/speeding in the rain
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
etc. (4 factors that were Joe’s fault) the
accident would not have happened, therefore
Joe’s at fault
o D: no – we don’t know that but for those
things the accident would know have happened
because there’s still the issue of the rock! Even
without those things the rock could still have
caused it – so we can’t prove that Joe caused
it
o P: FINE, MC, so Joe’s at fault
 Just because but for doesn’t produce the wanted
result (you fail on it) doesn’t mean you can ditch it
- it means you've failed causation! Can’t move onto
MC!
o Need to decide whether or not to apply but
for FIRST and THEN apply if. If it shows no
causation, then that’s the end!
 Tort is only where lack of care causes harm – there
must be FAULT and we don’t ascribed fault unless we
can prove causation on but for
 What should the decision of Clements say?
 FIRST PRINCIPLE

If plaintiff can show that the BFT is met on the balance of probabilities, then P
has proved causation

Therefore the BFT is a strategic device that P can use to meet the burden
of proof but there are other ways to meet it as well

But if P cannot, P can turn to other strategies! Failing to meet BFT doesn’t
necessarily show that the P fails.
 SECOND PRINCIPLE: Cook v. Lewis

If P can show that he was the victim of a negligent act but there were more
than one negligent actors that might have done it, P can rely on a reverse onus.
Each of the negligent actors is deemed the cause unless they can show on the
balance of probabilities that they were not

Ex. Each defendant trying to find THEIR bullet is somewhere else, to prove
their actions are uninvolved

ISSUE: does this apply to more than 2 wrongdoers? We don’t know.
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

This is about FAIRNESS of BURDEN OF PROOF, not causality
 THIRD PRINCIPLE: overdetermination
Two independent series of events may combine or come together


2 independent shots hit the mark

Although redundant, a factor may sometimes be cited as a cause

A full explanation would note the combine operation of two independent factors

ISSUE: can this also be applied to reasons?

1. If you give someone an incentive to do something that they probably
would have done anyways you still contribute to their decision (you “seal
the deal”)
o Although some things count as incentive, though, and others don’t

2. Likewise if you fail to provide a disincentive, you contribute to the
decision (reversing the first point)
o This move would allow us to explain Donald J in B.M. and maybe
even Walker
o Donald (BM) and Major (Walker): in B.M. – if the police are under a
duty to change the assailant’s reasoning, it doesn’t matter what the
assailant would have done! The negligence is so big that by doing
nothing, they’ve contributed to that person’s decision EVEN IF the
assailant has made their mind up
o BM Majority judge: the assailant had his mind made up! He already
had disincentives in place! And they didn’t stop him, so the police
couldn’t have stopped him!
 Galloway’s hypothesis:
PART ONE

Plaintiff must provide an explanation of how we got from past to present

The plaintiff will cite factors and must show that there are serious reasons for
believing these factors played a role
o Galloway: We usually talk about proof and a bop – but really we have a
flexible notion of proof operation here
o Plaintiff, we will allow you to succeed if there are serious reasons for
believing any of the elements they played a role in the result
o Therefore in the case of causation, we’re asking for less than a balance of
probabilities. We’re asking for a serious belief

Ex. If you failed an exam but there was an ear splitting whistle in the exam
room at the time
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
o Would I have to prove that this jeopardized my performance on a bop?
o Or would you say that I was a terrible student and would’ve failed
anyways?
o Despite the fact that I may have failed anyways, we’re not going to ask if
I had done better without the whistle. We ask if there’s a serious reason
for believing the whistle would affect my exam results

If the plaintiff will succeed unless the defendant can show (on a bop) that the
factor didn’t play a role
o If there are serious reasons for believing the factor played a role, then the
plaintiff will succeed
o The defendant’s job is to say that their behavior didn’t play a role!

Merely showing that it probably would still have happened is not enough for the
D to succeed
o Saying “on a balance of probabilities it would have happened anyways” is
not sufficient
Summary
 What we have done is reduce the plaintiff’s onus: if P can show that there are serious
reasons for believing that a factor played a role then it is a cause unless D can show
otherwise
 Saying “I have a serious reason for believing the Dr’s negligence did it” will be enough
for the plaintiff. So the Doctor in Snell would be liable unless he can show that
negligence was unrelated or trivially related to physical deterioration.
 Plaintiff met the burden of proof in this case!
 The police are liable in B.M. unless they can show that their failure played a trivial
role
Clements:
 P has a responsibility to show there are serious reasons the factors played a role
 P cites factors: overloading and speed
 P now has a good explanation for what happened – there are serious reasons to believe
that these elements has a bearing on the outcome because these factors tent to
produce accidents like this one
 Now to the D
 Evidence from the defendant that there is no bearing of the overloading and speed on
the crash, that they played no role
 That they did not in the circumstances make it more difficult to control the
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
bike
 Because they had an effect on the chain of events leading to the difficulty in
controlling the bike
 Evidence from the D that the accident would have happened anyway is not enough to
defeat the claim!
 Therefore, we’re dealing with FAIRNESS, RISK ALLOCATION, and using language that
meets our intuition. It’s not about reversing the onus or proof or using 2 tests. It’s
just about REDUCING the burden of proof and seeing what happens …

Material contribution test is only really at home in the over determination cases

Instead of asking “would dermatitis have happened even if they had the shower?”
under material contribution, ask “is there a serious reason for believing that not
having a shower is related to dermatitis?” and then the defendant’s responsibility to
prove otherwise, under the reduced onus version of the causality test
 USUALLY: subjective test
 DRs: standards are much higher, personalized, therefore policy reasons to use modified
objective
 MANUFACTURER OF MEDICAL GOODS: information imbalance,
Reibl v.
Underwent serious
Hughes
surgery, suffered a
massive stroke,
SCC 1980
 Duty of Drs: to warn of all material risks (via BC
Health Care Consent Act)
 1. Severity –
found that the
o Objective ex. death and
plaintiff did not
o Subjective standard ex. scarring (ex. Videto), if
have informed
the Dr is made aware
consent because he
 2. Likelihood
wasn’t warned.
 After Dr found to have breached failure to warn of a
Suing for damages
procedure, issue is whether, if informed of all of the
in battery and
risks, if they would have gone through with the
negligence. Pension
treatment anyways
would vest in 1.5
years.
 Instead of normal causation: modified objective based
on all the circumstances (reasonable person in all the
circumstances of the accused), including gender, age,
beliefs etc. – a reasonable patient in that decision, of
but for test
 No one in hind sight would say they would have had a
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
procedure that went so badly
 10% chance poor outcome
 HELD: reasonable person would’ve opted against the
surgery, liability
 Note: if there’s no causation of harm, there’s no
negligence – so if nothing bad happened to you but
your Dr failed in his duty to warn, still no neg
 The court is telling us there’s an objective test of causation for medical cases and that
this is coherent with the current test of causation. HOW DO RE RECONCILE THIS?
o SOLUTION 1: the but for test itself is bad – because the objective test is NOT
even a test of causation! It’s actually an argument about fairness. Because it’s not
fair to hold a Dr liable in certain situations

Ex. if the reasonable person would have gone through the operation

This isn’t about the world anymore, it’s about what’s fair etc.
o This allows us to distinguish this case from Hollis, in which case you aren’t
dealing with Drs!

When the manufacturer of a product fails to warn the consumer, we use
the normal subjective test – would this person have taken the product if
she had been warned?

Therefore, this is not an issue of causality between what happens, it’s
actually about a favouritism towards Drs that doesn’t apply to
manufacturers

ISSUE: In this case, there are situations in which plaintiff can show
causality, and yet the plaintiff is losing. Is this saying that the but for
test isn’t working for plaintiffs anymore?
o SOLUTION 2: The test is good! We are really using the subjective test in both!
The problem with the but for test in Reibl v. Hughes though is not the BFT itself
– it’s that the subjective test is not the way to go

Relying on the plaintiffs evidence of what would have happened had they
been given the information is unreliable

The best we can rely on is what the reasonable person would have done,
to replace what you would have done

This means we don’t have to change the test of causation or have two
different test (one in the manufacturing cases, one in the doctor’s cases)

We have ONE SUBJECTIVE TEST – what would this person have done?
It’s just supplemented by a rule of evidence – can’t reply on plaintiff’s
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
words so go to what a reasonable person would’ve done

Therefore Laskin: maintaining the subjective test, but just changing rules of
evidence

ISSUE: the concerns of a plaintiff must be reasonable based

Galloway: you don’t want the objective test because of bitterness
and hindsight – that’s the only evidence you want to exclude. This
has nothing to do with the reasonableness of a plaintiff’s concerns.
The idea of autonomy means you can decide the weight of your
fears yourself. Therefore Laskin overstepped and went too far.

Galloway: if you were really consistent though, you should be
avoiding the bitter hindsight evidence in Hollis as well
Hollis v.
Plaintiff isn’t
Dow
informed of the
Hollis would’ve elected otherwise, 2 – whether Dr.
Corning
risk of breast
Birch would’ve warned Hollis had they known) is found
implants. Implant
to be irrelevant
SCC 1995
rupture, causing
harm
 The fact that there are two factors (1 – whether
 Poor policy to allows manufacturers who breach their
duty to escape causation by questioning what the Dr
would have done
 The ultimate duty of manufacture is to warn the
plaintiff adequately – for practical reasons the law
permits it to acquit itself that duty by warning an
informed intermediary. Having failed to warn the
intermediary, the manufacturer has failed in its duty
to warn the plaintiff who ultimately suffered injury
 Perhaps: learned intermediary is already the courts
going halfway, so really unforgiving when the
manufacturers fail to come back the other half!
 HELD: causation found on the but for test,
manufacturer liable for failing to disclose the dangers
to the P
 ISSUE 1: Arndt v. Smith (2 years later in 1997)
o Dissent (CJMac) – you can’t have different
tests for doctors and manufacturers! The
subjective test should be used in all cases
o This shows how unsure this area of law is
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
 ISSUE 2: the causation test in the learned
intermediary rule
o Court abandons any notion of causality in this
issue
o An argument by the manufacturer (when it
fails to inform doctors) that even if they had
passed onto the information onto a Dr the Dr
wouldn’t have passed it on will not stand

Court: if manufacturers are going to
make it easier for themselves by using a
learned intermediary, then they cannot
rely on the normal rules of causation!

“The ultimate duty of the manufacturer
is to warn the plaintiff adequately …
having failed to warn the intermediary,
the manufacturer has failed in its duty
to warn the plaintiff who ultimately
suffers …”

Brito v.
Plaintiff vaginally
 Professional women, (therefore had respect for other
Woolley
delivers twins,
professionals?), had 2 children vaginally previously with
second twin’s cord
no complications
BCJ
prolapses causing
2003
severe mental
advice and the lower likelihood of risk, rather
disability to the
than the emotional response she claims after
child. Plaintiff
claims that the
doctors failed to
present her with
the material risk
o Suggests that she would have followed the Dr’s
o Received medical advice from more than one Dr
who concurred
 <1% poor outcome (although dire consequence, so
material risk)
 HELD: no causation – would have opted for a vaginal
of prolapse and
delivery even if she had been informed of the risk, and
present her with
a reasonable Fr would have recommended vaginal
the option of
delivery, no liability
having a caesarean
section
 ISSUE: just because a doctor recommends something
doesn’t mean it would be unreasonable to not follow
those directions: Laskin is very wary of this
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
 Donald in this case though, holds to the idea that if
a doctor recommends something the plaintiff (and a
reasonable person, a “loving mother”) would have
always followed the doctor’s recommendation
regardless of what kinds of warnings/ information was
given
o This is exactly of the antithesis of Laskin’s
judgement!
o Laskin wanted to allow patients to reject
doctors and make up their own minds!
o Galloway: goodbye autonomy? Can only win legal
action if you follow doctor’s recommendations?
This is the issue with the objective test!
o Laskin’s method of using the subjective test
but excluding certain information is much better
Martin
Martin needed
surgery, but not
 Duty of Drs: to inform of all material risks in a
manner that the patient would understand
ABQC
immediately. Dr
 Dr knew that Martin was looking forward
2007
warned of bleeding
 In this case, high risk of harm, disclosed, but not
in the brain, but
disclosed adequately – used language that was too
not sufficiently
medical (‘bleeding in the brain’ not ‘stroke’)
using the proper
language. He made
it clear to the Dr
 P: you owe me damages for the rest of my life for
this surgery: care, remodelling of the home etc
o The surgery would have occurred later, and at
he was looking
the later surgery date, there would still be the
forward to his
same chance of the harm occurring!
retirement and
dancing with his
daughter at her
o Causation test is the mixed subjective/ objective
but for
o Therefore if something’s going to happen
wedding. P claims
anyway, you’re only responsible for the amount
if he had been
you sped it up (crumbling skull)
warned, he
would’ve had the
surgery after his
daughter’s
 D: no – we only owe the addition costs in between
the two dates
 COURT: because we don’t know what would have
happened at the surgery on the later date (unwilling
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
wedding.
to predict), they awarded the entire period (whole
life!). Rejects the crumbling skull type analysis
 HELD: but for causation, liability
 ISSUE: how can you hold THIS Dr liable if the next
Dr would have done the exact same thing?!
Chester v. Woman goes to
 Deprivation of choice held sufficient for liability!
Afsher (H
doctor for medical
 Although not followed in Canada (Galloway – this case
of L)
treatment. Not
explained by
doctor the
possibility of nerve
is shocking)
 But for test is met by plaintiff, but still not going
to find causality!
 HELD: the but for test is easily satisfied … but the
damage, and she
doctor isn’t going to be liable because the doctor’s
suffers nerve
duty to warn didn’t cause the injury. The risk was
damage. Plaintiff
the same irrespective of when or at whose hands she
is a witness who is
had the operation
absolutely honest,
 Galloway: this is revolutionary! It’s not who caused
and says she
the injury – it’s whether the doctor’s breach of duty
doesn’t know if
INCREASED the risk of injury! We should only hold
she would have
the Dr liable when we say yes. Since the plaintiff
had the operation
could have had the operation later and would have
– BUT she says
been subject to the same risk then, we shouldn’t hold
she knows that
the Dr liable for ANYTHING
she wouldn’t have
 US and UK trying to put less weight on causality and
at the operation
willing to recognize lost opportunity/ chances, since
then
the traditional tort rules don’t always lead to fair
results
 Canada is really resistant to this!
o In personal injury the question is who caused
the injury, NOT who increased the risks!
 In Canada, can you sue the doctor who took the
opportunity to decrease the risk of cancer?
 No! That’s not enough! There has to be harm!
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
Sindell v.
Generic drug on
Abbott
the market, for
US
pregnant women
 Normal solution would say that plaintiffs would not
meet their case
 Issue is vast majority of plaintiffs unable to identify
to prevent
12 years later the specific company which
morning sicknesses.
manufactured the pills
12 years later,
 Solution: should hold each company liable for the
finds that the
proportion of the injury that reflects their market
drug causes
share (how much of the drug they marketed during a
increase in risk to
particular period)
cancer to
o This means we don’t expect the plaintiff to tie
daughters
the harm they’ve suffered to a specific
wrongdoing – we treat the companies as risk
creators
o Instead of joint and several liability for the
whole harm, we divide the harm and allocate
responsibility by market share
 This is a rethinking of the tort law of negligence! It’s
all about holding people liable for losses suffered

UK:
References the
Barker v.
Fairchild case:
Corus
Suffering from
 House of Lords: Both should be liable. In reaching this
decision, there are 6 factors (pg 126)
o Doesn’t say why these 6 factors count (court
asbestos related
hasn’t figured it out)
disease
o When you satisfy all these factors, there will be
Working at two
workplaces over
the time where it
could be
contracted – and
evidence suggests
no other source.
Two negligent
activities,
happening one
after the other
(not
liability

Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
contemporaneously
) but either one
or both brought it
about even though
we don’t know
which
 Hypotheticals
o 1st employer has asbestos, but there’s no reason at that time for the employer
to worry about asbestos because there’s no evidence of its harm
o Employee might’ve contracted disease from first employer, but they weren’t
negligent
o Would the negligent party have to pay for anything??
 House of Lords rethinking Fairchild case in Barker v. Corus
 It’s not just a Cook v. Lewis issue with 2 negligent parties – going back to McGee
o Pg. 128: HOL – materially increasing the risk is not the same as materially
contributing!! Unlike the SCC who made this mistake, we are avoiding it!
o The employers have materially increased the risk of contracting mesothelioma so
we should hold each liable to the degree they contributed to the illness –
therefore liability is not for the harm but for the increasing of the risk
o What if the plaintiff also worked with asbestos at home? HOL recognizing it’s
still possible to apportion the risk based on the increase of risk by other parties

Therefore severally liable only
 UK leg didn’t like this solution so wrote a statute
o Worried about the impact on the economy, since lots of mesothelioma cases
o Compensation Act (2006) – returning to the familiar situation

If you’re pointing the finger, it must be done in relation to causing the
harm, not increasing the risk

So you have to go after each


If there’s more than one, defendants can be jointly and severally liable
Contributory negligence won’t necessarily deny liability, but just decreases the
amount that will be paid
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
 In BC, Workers Compensation schemes would deal with this
o Is this the best way to deal with this?
o Only 40% make workers comp claims – therefore something is preventing people
from seeking insurance redress. Why?

Knowledge isn’t filtering to individuals
 This still raises causality problems - what’s the fairest way to solve a causality
problem? Don’t know.
REMOTENESS
 There’s been a breach of duty, a causal link, but D is saying “I shouldn’t be liable for
THIS”
Wagon
Another ship in
Mound 1
the harbour
releasing bunker oil
in the water –
 Re Polemis
o 2 stevedores working on a boat unloading planks
of wood
o Drop a plank into hold of the ship, hits bottom
this was negligent
of boat, spark is caused, burned down ship
because it’s mucky
o Defendant: okay – we caused the loss of the
to clean (but no
boat but we shouldn’t be held liable because it’s
one recognized it
so bizarre and unforeseeable
was flammable). In
o Court: you’re liable! For all the consequences
Vaughan v.
that directly fall from your negligence –
Menlove –
whether or not they’re reasonably foreseeable
haystacks are

recognizably easy
to light on fire,
Initially we saw battery to be direct and
negligence to be indirect

Yet here, they want to say you’re
but not bunker
negligent for everything you directly
oil. On docks,
cause!
people are welding.
Molten metal gets
on wood, a piece

For it to be indirect, there has to be
some element of intervention
 Cameron v. Hamilton Auction Mart (Scotland)
of cotton on top
o Excited cow that went up the stairs into a
of that, bunk oil
house, fell through floor, in its struggles,
reaches this and a
turned on a water tap, flooding the unit, cow
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
fire’s created, and
thrashing lost property
the dock burns
o Issue: too remote? Yes!
down
o Court: you can’t hold people liable for
unforeseeable consequences just because they’re
direct!
 Court: over-ruled Polemis. HELD: you should be liable
for consequences that you should have foreseen as a
reasonable man! Following Cameron v. Hamilton
o Responsible only for the reasonably foreseeable
consequences of one’s acts, and it was not
reasonably foreseeable that dumping durance oil
on water would cause conflagration
 This case is less bizarre, but the same conclusion being
released
 PC: we use reasonable foreseeability – we hold you
liable for only the probable consequences of your acts
o ISSUE - Duty of care: you owe a duty to
someone if it’s reasonably foreseeable you’ll
harm them
o For what harms are you liable? You’re only
liable for reasonably foreseeable harms, in terms
of probability
o So we’re using the same standard for duty of
care and remoteness!
o
Hughes v.
Post office
 Modified Wagon Mound
Lord
employees left
 COURT: You’ve created an allurement – we don’t
Adcovate
manhole open, so
expect children to listen to their parents, we expect
put lamps and a
them to explore what you’ve created!
tent around the
hole. Kids find it
alluring and explore
 Def: this is like wagonmound! Too improbable to
foresee that explosion would result!
 HOL: no – this is within proximity, not too remote
it. Kids climb
o Relaxing the standard
down, climb back
o Burns were reasonably foreseeable, these kids
up, knock lamp
suffered burns. They’re worse burns than
into hole, there’s
would’ve been foreseeable due to this strange
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
a gas leak
unfolding – but that’s not relevant!
(unbeknown to
o Why not? Being able to foresee the precise way
anyone) and it
the world unfolds is too hard – BUT if the
explodes causing
eventual consequence (last chain) is generally
injury
foreseeable, then we should hold the defendant
liable
 Lord Reid p143: I agree that we shouldn’t be too
sensitive about how things unfold, BUT there could be
a case where the intrusion of a new and unexpected
factor could be considered the cause of the accident
instead of the act of the defendant
o But that’s not the case here. The fact that
there were kids is not a new factor – it’s a
normal concatenation of circumstances
o OKAY so what would count as a new factor?
Lord Reid is thinking about the excited cow
case! The damage caused is the same sort of
damage as if the cow just barged into a place.
But in that case the circumstances got so
bizarre that liability wouldn’t apply

What’s the difference between this
situation and the cow story? It’s the
difference between tragedy and farce –
that some things are so strange that they
are out of the world of drama and into
the world of comedy
 Galloway: a reluctance to use foreseeability to describe
the actual chain of events, and looking more towards
the foreseeability of result!
 In the ensuing years, the compatibility of Hughes and
Wagon Mound I has been questioned.

Assibinoin
Dad rigs up
 Held: not too remote!
e
snowmobile for kid
 Dickson J: Polemis, Wagon Mound I, Hughes, Wagon
to be able to
start, but it can’t
Mound II (not the cow case)
o Claims the force of WMI has been dissipated by
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
stop. Kid loses
Hughes (which is more plaintiff friendly) –
control of the
minor modification changing the emphasis
snowmobile, it hits
(although not overruling)
the gas pipe of a
o WMI says that if the unusual happens, then
school, which
that’s a categorical difference v. Hughes in
floats up into an
which we don’t recognize a categorical difference
intake vent and
o Don’t need to foresee the precise concatenation
lights the school
o Foreseeability doesn’t go to probabilities, it goes
on fire
to possibilities
 Wagon Mound II (1966)
o Plaintiff was another ship that burned down
o What happened between 1961 (WMI) and
1966?

1961: if plaintiff was contributorily
negligence, def would get off the hook
completely

In 1961 (WMI), that plaintiff argued
Polemis – you’re liable for direct
responses, plaintiff trying to underplay
their own contributory negligence and
trying to downplay the negligence of the
bunker oil release

In 1966, this plaintiff was innocent, so
claiming it’s negligent to release bunker
oil! Evidence was therefore very different
o Lord Reid: replay of Bolton and Stone! Very
different than WMI!

The reasonable person would concede that
discharging the oil is a bad idea primarily
because it adheres to the dock, but
secondarily because it would go on fire

Therefore even if it isn’t probable
or foreseeable, it’s a possibility
that a reasonable person would cite
it as a reason for not discharging
the oil
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

Therefore it counts as a reason not
to do it!

In the cow case, a reasonable person
wouldn’t cite the flooding as a reason for
not caring for the cows
o Plaintiff friendly! Pltf only needs a reasonable
possibility to win a case
 This is the test accepted by Hoffer: it is enough to
fix liability if one could foresee in a general way the
sort of thing that happened
o WMII is the high water mark
 SCC: action can be successful if this is not impossible
to expect. You lose liability only with the bizarre and
far fetched
 Conclusion: recovery may be available provided the
event giving rise to the damage is not regarded as
“impossible”
o When you rig up a snowmobile like this, this
result is NOT bizarre and far-fetched!
o It is enough to fix liability if one could foresee
in a general way the sort of thing that
happened
 The idea seems to be that if a reasonable person with
his/her understanding of the circumstances would cite
the consequence as a reason for not doing the act the
defendant can be held liable
 But is the consequence to be understood as the type
of harm, the way in which the harm occurred, or the
story of the events?
Lauritzen
Two Albertans
 Held: not too remote – held liable
driving from pub
 Although the wife’s departure is seen as too remote.
to pub, getting
This reveals that remoteness can be raised at two
severely drunk, one
junctures
interferes with
o First, at the stage of determining liability and
the driver, driver
o Second, at the stage of assessing damages
objects, causing car
 Lauritzen hypothetical
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
to go off road,
o Lets say driver walks out in the blizzard, walks
lands in ditch in
into refrigeration truck, truck driver locks up
middle of nowhere
drives off and driver gets frostbite!
in winter. Driver
o Because frostbite is in the realm of possible
gets out to try
circumstances (the final event is foreseeable), it
and go for help,
seems that the SCC would say that it doesn’t
gets frostbite,
matter how it happened
wife leaves him.
o Galloway: but that’s not the law

Maybe the final event is foreseeable but
the concatenation of events is so bizarre
that you’re not in the world of
reasonableness

So what are we applying foreseeability to?

1. The eventual consequence; AND

2. The concatenation of events!!

Pulling it all together
1. In some cases, the courts regard the defendant as acting against a set of stable
circumstances. Where the defendant’s act produces a highly unusual type of harm
because one of the pre-existing circumstances was unusual, the courts may see it as
too remote and deny liability. (Dropping a plank - ship explodes) (Re Polemis)
2. On the other hand, if the harm is of the same type as could be reasonably expected,
the court will be disinclined to deny liability. (Hughes: explosion and burns)
3. Where the defendant’s act modifies the pre-existing circumstances in a highly unusual
way, the courts will be disinclined to deny liability. (You don’t have to foresee the
precise concatenation of events) (Assiniboine, Lauritzen)
4. Only if the final result is farfetched or bizarre will the court find remoteness
(Assiniboine, Lauritze )

Since 1961, courts trying to use the reasonably foreseeable standard for remoteness
o But do you apply it to the result or chain of events? The former.
THE THIN SKULL RULE
•
Where you have breached a duty to someone and caused physical harm, you take your
victim as you find them
•
Where the victim’s unusual pre-existing condition produces results that are more
serious than you would ordinarily expect, you are still liable for the full extent of the
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
injury
•
This goes beyond Hughes, since it suggests that an injury of a different type would
also be covered!
Questions
•
Why do we have this rule?
•
The general rule is not that you take pre-existing circumstances as you find them.
•
Does it have something to do with the idea that it is your duty to treat all
individuals as unique?
•
It’s problematic to think that you hold someone accountable only for harms a
reasonable person would suffer
•
Treating people as autonomous agents means treating them as people – we’re all
special! The law does not want to work to deny the uniqueness of individuals
and individuals’ bodies
•
Bodies are unlike houses
•
It’s something that defines us
•
The normal rule might create an incentive to treat others as means rather than ends
•
Does it apply beyond the body to the mind?
•
•
Does it apply to the “thin personality” rule?
•
Not really. Because fortitude is something you’re responsible for
•
If your body defines you, surely your personality defines you!
Consider a person with a pre-disposition to anxiety or depression who may become
severely anxious or depressed after being exposed to danger (return to this)
•
Consider also the person who for religious reasons does not treat an injury negligently
caused by D and it becomes worse (see interventions)
•
•
If your personality defines you, surely your religious beliefs define you!
Would it also apply in a case where a person committed suicide? What if you’re
negligent to someone, they suffer harm and they commit suicide – are you liable? (see
interventions).
Bishop
Man is expecting
 Thin skull applies
resistance from
 One would in most circumstances expect (at most) a
opening door,
there is none, he
falls through. Sues
for negligent
failure to warn
simple fracture and an uneventful recovery
 Here “the congenital condition becomes grossly
exaggerated by trauma of any sort”
o This isn’t a more serious injury of the same
sort, it’s the bringing of distinct consequences
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
against the door.
that fall within the realm of liability!
Serious injury
Athey v.
Appellant suffered
 Crumbling skull doctrine: although D is held liable for
Leonati
back injuries in 2
the injury that is precipitated by the pre-existing
successive motor
condition, the level of compensation should discount
vehicle accidents,
any losses that would be suffered without D’s
went to the gym
intervention
after, and then
experienced disc
herniation
INTERVENING ACT
Stansbie
Painter in the
v. Troman house, doesn’t lock
it. Burglar goes in
and robs it.
 Offers one clear situation: if you undertake to
protect a person from a third party intervention but
are negligent you may be liable for the result
o The issue at tort is not the intervention of
the third party
o It’s that the relationship that gives rise to any
tort liability at all is the undertaking to
prevent certain results from happening
 Held: liable
 Ex. why do you have locks in the house? To keep
burglars out, vandals out
o What about the person who goes into the
house and burns it down? This is strange - you
could’ve set the fire outside
o Is the defendant liable for that? Unsure
o There are some crimes are so bizarre that even
the person who has undertaken to look after
your interests is not held liable
 Therefore just because a third party has intervened,
doesn’t mean the original wrongdoer won’t be held
liable
 The negligent body guard, the negligent tradesman
Bradford
Restaurant –
v.
grease fire because
Kenellos
the grill is poorly
 The Supreme Court is divided on where to draw the
line.
 If we expect that a certain kind of intervention will
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
cleaned. Causes
occur through the ordinary course of events, then the
state of the art
original wrongdoer is not absolved of liability
sprinkler system
 The majority regard the intervention as “freakish”.
to put it out but
The link between D’s negligence and the result is
someone at the
broken by “hysterical” conduct that is not within the
restaurant sees
risk created by D’s negligence
the fire, hears a
o You’re not liable for the strange conduct of a
hiss and thinks
third party
there’s a gas leak
o Is it so far fetched that it’s unfair to hold the
and there’s going
original wrongdoer responsible for the
to be an explosion.
consequences?
Cause everyone to
 In dissent Spence (citing Fleming), says that what
panic, someone
happened was “part of the ordinary course” of things
gets trmpled.
o There’s no intervention of a third party!
 The court sees it as critical that the hissing sounds
leading to harm is based on a remedial action trying
to resolve the harm, as opposed to the harm itself
o This seems to really ignore the fact that their
negligence did cause the fire in the first place!

MANUFACTURERS, DISTRIBUTORS, CONTRACTORS AND REMOTENESS
Smith v.
Everyone in a
 Held: liable
Inglis
Nova Scotian
 The manufacturer of the fridge should have foreseen
society cuts off
that someone would cut off the third prong of the
the third prong of
plug (Everyone in the business knew or should have
a plug for the
known that this happens). Again the ordinary course
refrigerator. The
of events
refrigerator
manufacturer uses
a cheap circuit,
that is not safe
to cut off the
o The intentional decision to cut off the third
prong is within the ordinary course of events
 Can you rely on the argument that people weren’t
supposed to cut off the third prong?
 No. It’s not an intervention – you can trace it to
third prong.
the malfunctioning of a fridge. Anything anyone
Someone gets
regularly does is not an intervention, it’s part of the
shocked.
ordinary realm
o You have a duty to look out for the interests
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
of other parties
o You have to look out for how they’ll actually
behave
Good-
Good-Wear sold
 Q1 Did Good-wear breach a duty to roadusers? Q2 If
wear
retreaded tires to
Treaders
Pash that were
o Pash’s decision to use the tires is not regarded
not dangerous in
as an intervention. The matter is resolved at
themselves but
the duty/breach stage. A result like this is the
knew that Pash
very reason behind the duty
so, did the breach cause the death?
was going to use

There’s a duty to road users to make
them in a
sure they’re not subjected to this kind of
dangerous way.
harm
Pash is warned not

to use them in
someone will be hurt (at the duty
that way. Pash
uses them and 3
stage), then you have a duty to not sell
a tire that you know will be used in a
rd
party is killed
through the use
Court: because it’s foreseeable that
dangerous way! Remoteness isn’t an issue.
 The facts are described in para 17 as rare. Is this
true?
o Court claims that this issue will only come up
in rare situations

Rarely would the seller know that the
buyer would be using their products in a
dangerous manner

Good-wear has an obligation to road users
– so we hold them to normal negligence
standards (normal tort principles) … in
terms of “who do I have to think about”
includes road users
o Is this actually rare? This is a subjective
standard – but is there a way of stopping from
moving to an objective standard?
 Pash’s negligence doesn’t “block or isolate” any prior
negligence
 Galloway: this is very intriguing! And much broader
implications than what the court would suggest
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
SUBSEQUENT MEDICAL ERRORS
 Def 1 hurts plaintiff
 Dr (Def 2) is negligent and makes it worse
 Is Def 1 responsible for the Dr’s negligence as well?
 1970s: if a wrongdoer puts a person in the hospital, theyre responsible for the
plaintiff having to be in the hospital, but not for Dr’s negligence
o Dr negligence is so unusual and strange that it breaks the causal link
o This is different than negligence by someone else (non Dr) because negligence by
others can be expected
 Galloway and modern law: this is likely wrong (Katzman)
o Dr’s negligence is fairly common now, we don’t se it as being so unusual that
it’s freakish
o At some stage, the Dr’s negligence may be seen as bizarre so at some stage
we’re in the realm of the unexpected BUT this is not the usual case
DEFENCES?

There are some defences to negligence actions, but they’re limited
o 1. Voluntary assumption of risk

We will only impose this in situations where it’s absolutely clear that the
plaintiff knows there are risks, and are also aware of the legal risks
(waiving legal rights)

And these factors must be clearly articulated to the plaintiff

If it’s unclear, then this defence will be limited
o 2. Illegality (ex turpi causa)

Limited – if you’re a bank robber you can’t sue your fellow bank robber
for not having shot the cop

BUT this is narrow – just because you’re doing something illegal doesn’t
mean you can’t have an action in negligence
o 3. Contributory negligence (partial defence)
o 4. Inevitable accident?

No – this really isn’t a defence!

It’s a historical anachronism that hasn’t gone away yet – a car accident
looks a lot like a battery and originally to defend against battery, had to
argue inevitable accident (non intentional or negligent)

Later, car accidents were treated as two cars hitting each other (not just
one party hitting the other), and may be non battery and non negligent
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
as well
PURE PSYCHIATRIC HARM
A HISTORY (discussed in Devji)

Emotional disturbance itself will not be allowed as a tort action. Why not?
o It’s more subjective than physical injury – it affects being vastly differently
o We are responsible for our own wellbeing?
o Compensating for the harm is very challenging, and there are perhaps evidentiary
issues? What about the possibility of junk science?
o Is creating an emotional disturbance really a wrong? Is it actually harmful?
o Floodgate! We’ll have many claims and also, we won’t be able to distinguish
between those that are worthwhile and those that aren’t – where would we
draw the line?

Courts: there is such thing as psychiatric harm BUT we must be dealing with recognized
illnesses. Just general emotional distress won’t be enough
o Seriously, likely long lasting would be more convincing

Two questions re: the nature of this tort action:
o 1) DUTY: when do you have a duty to look after someone else’s mental
wellbeing? And to take measures to prevent a person from suffering psychiatric
harm? Do you have the same duty to peoples’ mental wellbeing as their physical
well-being?

Dorset Yacht: YEAH – there’s a different set of circumstances where
you’d recognize a duty to physical harm as you would to psychological
harm

Post Cooper: when will you be in a close enough relationship that you owe
a duty to not harm someone? When are you in a sufficiently close
relationship that is reasonable and just to hold someone to such a duty?

Is proximity for psychiatric harm issues the same as for physical
harm?
o 2) REMOTENESS: If you breach a duty to a person and create the risk that
they will suffer physical injury, should you be liable if they instead suffer
psychiatric harm? Pre Cooper, duty is used in remoteness language as well

WARNING! The courts of OFTEN confused the two questions
o In Mustapha, the issues is REMOTENESS. SCC emphasizes the need to keep them
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
apart
o Plaintiff has shown a negligent breach of duty – issue is whether the defendant
should be liable

Another question:
o What if you breach your duty and cause physical harm, and then as part of that
also cause psychiatric harm (ex. depression?)

If you’re liable for a breach of duty, causing harm, including psychiatric
harm, then courts have little problem holding individuals responsible for
the psychiatric harm (psychiatric harm caused by or concomitant with the
physical harm)
o Courts will talk often about pure vs. impure (resulting from physical harm)
psychiatric harm

There are 3 general types of cases we see commonly:

1. Duty case – when do I have a duty to pure psychiatric harms? To look
after someone else’s mental health?

2. Remoteness case – I have breached my duty, but instead of causing
physical harms it only caused psychiatric harms

3. Impure case – I have breached my duty, caused physical harms, and also
psychiatric harms

1. When do you owe a duty to look after someone else’s mental health?
o Pre-Cooper: part 2 Anns test says that reasonable foreseeability to decide
liability, but we need control mechanisms

There are some cases that are deserving, and some that are not
o Courts seem to think that the suddenness of shock is more likely to lead to
mental illness than a prolonged experience

Therefore the difference between a deserving and undeserving person is
whether is someone’s been subject to a sudden impact on the mind
(deserving)
Devji v.  Devji v. Burnaby
Burnaby

Victorian Rlwy Comrs. (para 18) P171: 1888 – negligence causing near
collision, leading to shock but no physical harm
Yasmin

Breach of duty, but the only thing suffered is nervous shock
Devji is

Court: will not recognize the harms
killed in a

IF she had also suffered physical injury, then we’d consider your nervous
car
shock
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
accident,

the family
(father,
Court: concerns due to 1) floodgates and 2) wide field for imaginary
claims

mother,
Dulieu (miscarriage case)

two
Pregnant woman frightened when a carriage is negligently driven through
the window of the pub in which she is
sisters)
o HELD: there cannot be recovery for nervous shock without
are told
immediate fear of personal injury to plaintiff
o This means that a defendant can be liable for psychiatric harms IF
by a
police
there’s an immediate fear of bodily harm
officer at

Remoteness case: duty was breached
their

No physical injury, but found liability for nervous shock!
home and

Hambrook
asked to

Looks like a duty analysis
go to the

Mother suffers shock at the sight of an accident in which one of her
hospital
children is injured due to defendant’s negligence
to
o Court: If you expose children to the dangers of the road, you
identify
don’t owe a duty to all witnesses, but you do owe a duty to
the
the MOTHER in addition to the other road users
deceased.
o This is true even if the mothers are not exposed to physical
They go
almost
danger

immediate
Hay

ly to the
Motor cyclist driving too fast, hits a vehicle. Hay looks at the carnage,
and while she wasn’t in immediate danger herself, suffers from shock
hospital,

Miscarriage like Duliu
view the

Court: Loses on the ground of reasonable foreseeability
body, and

Court’s Duty refinement: the test of liability for shock is reasonable
foreseeability of injury by shock!
then
claim they

suffered
nervous
Held: no duty owed here – woman’s decision to look at the accident
was her own

Chadwick
shock

Rescuer, rescuing people during a train wreck
injury

Traumatized by role, sues the train

Held: there’s a duty to rescuers, extends to post traumatic stress even
if they aren’t exposed to original risk and haven’t suffered physical harms
o There’s a duty to not only those who use trains, but also those
who help save the train situation
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

McLoughlin v. O’Brian (Lord Wilberforce, HL)

Starting to use proximity to define the ambit of duty – introduces
language of proximity when defining the ambit of the duty

FACTS: car accident, victims raced to hospital with serious injuries.
Mother told about the accident, raced to the hospital, sees the kids in
the aftermath of the accident.
o This is a parasitical claim: injury is caused to kids, but extends to
problems suffered by parents etc.

HELD: where physical injury has been caused negligently to someone else,
a duty will be owed to a limited class of people in regards to their
mental health
o 1. Closeness of family tie (mother, not just witness)

Your connection doesn’t have to be mother: could be
father, friend perhaps
o 2. Proximity to accident (witnessing the accident or its
immediate aftermath vs. hearing it on the telephone)

Time and Space
o 3. Means by which the shock is caused

Is there a difference between actually witnessing something
first hand vs. through a medium (TV etc.)

In the UK: yes – there’s a dominant line between real and
virtual experiences
o But the less the relationship, then the close you’ll have to be to
the accident

2 BCCAs that buy into McLoughlin

1) Beecham v. Hughes

Husband and wife in a car accident

Husband suffers no injury, wife suffers severe physical injury, husband
has to take care of wife constantly, husband sinks into darkness and
psychiatric care

Husband sues defendant and loses
o Held: psychiatric harm is a result of sorrow as opposed to as a
result of the accident

2) Rhodes

Plaintiff heard about the accident on the radio, and thinks
the son is on the train
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

Starts driving from Vancouver Island to the train wreck in
Alberta

She’s not allowed to get close to the train, she’s diverted,
she’s given false information, and eventually learns that son
was killed on the train

Mother was sent the body parts by mail (although railway
company was not responsible for that)

Held: she can’t recover because (unanimously) she didn’t
experience fright, terror or horror at the scene at the time of
the accident
o She head a long time to get to the train and get
control of her emotions
o You must trace your psychiatric harm to fright/ terror/
horror to have a successful action

There lacks the immediacy of the horror

What is this immediacy all about? It’s about limiting claims
(see below)
JUDGMENT
 The law expects people to be of ordinary fortitude

We don’t all have the same resilience

But we want and expect people to take responsibility for
their own mental health – if they’re overly sensitive, we
expect them to take measures to protect themselves (get a
thicker skin)
 The talk of ordinary fortitude suggests that we will recognize a duty to those
people from whom you have taken away the opportunity to brace themselves
against psychiatric impact

This arises from the shock, immediacy, close ties with the
person getting injured

These tend to be easy cases

There seems to be a sense about the impact of love on your
mental health

We don’t expect you to brace yourself in a loving
relationship – since it’s an unconditional relationship, we
expect to throw yourself in

We do expect you to brace yourself for harms that you
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
might see against a stranger though, for ex.

The more gruesome the case, the more we are willing
to hear your claim though – is the familial and loving
relationship required?
o Unsure – but we have in the past been
sympathetic to rescuers
 Where, however, a person has the opportunity to brace themselves, they will
be held to be the single author of the psychiatric harm
 HELD: no liability
Mustapha
 Remoteness case
v. Culligan
 Everyone expected that this would answer all our questions re: the
differences between deserving and undeserving cases
Mustapha
is a
 Two issues emerging in this case:
o 1) It seems that the court is saying that the thin skull rule does
customer
not apply when we are dealing with questions of liability – that it
of Culligan
only applies when we are dealing with damages
water.
o 2) Would the situation be different if Mustapha had consumed the
Sees flies
fly, suffered gastroenteritis, and then suffered some psychiatric
in an
damage? AKA if some physical harm was suffered
unopened
delivered
bottle of
water,
 Common law countries are in complete disagreement re: how we deal with
these kinds of cases
o In UK, the courts adopted an idea of primary vs. secondary victims

and
Mustapha
Primary victim = Mustapha, a duty of care is owed to them
and breached against them. He has suffered harm

The position of primary victims is very different than the
suffers
position of secondary victims – ex. the mother seeing the
psychiatric
dead son
harm

If the primary victim suffers harm, we should apply the “take
from the
your victim as you find them”, regardless if it’s psychiatric
disgust he
illnesses or physical illnesses alone
experience
s

It’s only with secondary victims that we expect victims to be
able to brace themselves, have ordinary fortitude etc.
o SCC: we’re not going to draw this line. We’re going to draw the
normal principles of negligence liability and see where that gets us
 In Mustapha, they don’t even go into the Cooper analysis – they just
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
state that duty of manufacturer to customer is just a duty
o This is quite radical!
o SCC could have said that up until now, the manufacturer has had a
duty only to guard against PHYSICAL harm! Not PSYCHIATRIC
harm!
o SCC accepts that physical and psychiatric harms are the same thing
(any harm)
 The SCC also states (easily) that Culligan has a duty to prevent foreign
objects from falling into the water
o Galloway: this is a bit too quick – we’re worried about animals, body
parts, feces, falling into the water but we’re less worried about
food colouring etc.
 SCC states that, given there’s a breach and the suffering of recognized
illness, the issue in this case is remoteness
o The SCC could have dealt with this under the thin skull rule BUT
they don’t want to go in that direction

Don’t think it’s fair for Mustapha to succeed
o SCC finds that this is not the type of injury that Culligan risked by
letting flies fall in the water

AKA defendant is not responsible for every consequence, just
ones that occur in the ordinary course of events

This is not the ordinary course of events because we expect
people to have an ordinary fortitude

Thin skill doesn’t get off the ground because the breach of
duty has only caused one sort of injury, and that sort is one
that we don’t think should be ordinarily compensable! This
isn’t the kind of harm you risk by breaching your duty
 This case deals with psychiatric injury – and Mustapha passes that
o The law does not recognize upset disgust or anxiety as injury
 Para 16: Tort imposes an obligation to compensate for harm done on a basis
of reasonable foresight, not as insurance (Galloway: this is the turning point
of the case)
o Just like in Wagon Mound where you don’t associate bunker oil with
large fire
o Reading paragraph 16, do you get the idea that the thin skull rule is
being rejected?
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

We ask whether a person of ordinary fortitude would suffer
the psychiatric harm
o Is it significant that Mustapha had not suffered any harm? Had he
swallowed the fly, suffered gastro-enteritis and then depression,
would he be able to recover? (Compare the person who swallows the
fly suffers gastro-enteritis and then has kidney failure because of a
weak kidney)
 In the “duty cases” we require people to brace themselves
 In the remoteness cases we expect the same - the failure of Mustapha to
brace himself is seen as an intervening factor! We’re adopting the secondary
claim analysis – and we’re treating Mustapha like a secondary victim! We
expect you to brace yourself, and you can’t blame those who have wronged
you for your failure to brace yourself!
o We’re telling Mustapha that he has a sensitivity, and that his
opportunity to brace himself has not been taken away just by a fly
o We identify Mustapha as the author of his problem
 We’re essentially saying that some claims are meritorious and some are not
to restrict what will get through – but it’s not really fair to draw it this
way
 SCC also says though that if the defendant knew the plaintiff had specific
weaknesses (ex. if Culligan knew that Mustapha was sensitive to flies) then
the ordinary fortitude requirement need not be applied strictly
o = in situations where there’s knowledge
o Galloway: how does that knowledge have an impact on the
explanation?! If we’re telling Mustapha that his weakness is
something that he alone is responsible for (ie he is the intervener),
then how does the knowledge mater??
 Thin skull only gets off the ground when we find that the defendant is
liable for something – not in determining whether there was a tort

PURE ECONOMIC LOSS
 DUTY issue
 Economic loss that is not derivative of any physical harm (personal injury or damages
to one’s property)
 In Dorset Yacht we saw that Lord Reid note that if we based tort liability on the
reasonable foreseeability of financial losses, competitive markets would cease to function
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
o In the market, when someone wins, someone loses
 As with psychiatric harm, we can identify 2 questions:
o 1. When do you owe a duty to take steps to prevent others from suffering
economic loss?
o 2. If you’ve breached a duty in relation to property damage but have only
caused economic losses, when should you be liable?
 Recognized categories
1. D makes a negligent misstatement (= negligent misrepresentation). P relies on it
and suffers loss;

When do you owe a duty not to make a negligent mis-statement?

Ex. Hedley Byrne. Someone trusts another for information, relies on it to
their economic detriment

In these cases, courts may recognize liability for economic losses under
tort liability

Hedley Byrne, Hercules
2. D provides that service for P’s benefit but does so negligently do that P does
not benefit;

When do you owe a duty

In these cases, there may be liability even if the plaintiff has not relied on
it to their detriment!

Ex. if a lawyer is working for someone drafting their will, if the lawyer
negligently drafts the will so that their void, and the person who loses is
the beneficiary under the will (not the testator)

Can the beneficiary sue the lawyer? Yes. And there need not be
reliance in this situation until after the fact (after discovering the
will is void)


Since the lawyer has undertaken to provide a service
Overlaps with the first, but this category is very slim
3. D markets a dangerous good. P must spend money in order to render it safe;

This is a remoteness case

If you have marketed a dangerous good but before the danger manifests
itself the consumer discovers it and has to spend money to render the
danger safe, there’s been no personal injury/ property damage

But given you’ve breached your duty, can you be liable for those
expenses to render it safe?
4. D harms 3P’s prop. Relies on that property in order to make a profit. P
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
alleges relational economic loss;

You don’t have a property interest, but you use someone else’s property

This is not normally a situation that gives rise to tort liability for your
economic losses (this is quite clear now)

Ex. driver negligently hits hydro pole, knocks electricity out of
homeowner’s house, and unable to carry on their business and make
money. Can they sue the person who damaged the hydro pole? Probably
not.
NEGLIGENT MISREPRESENTATION
Hedley
 Held: the bank is not liable – they covered themselves with a disclaimer
Byrne v.
 However, it’s not problematic that D didn’t know who would be using the
Heller
info Lord Reid rejects out of hand the argument that the D is not liable
because it did not know the ID of the P
Easipower
wants to
buy
advertisin
g from P
(on
credit),
but P
wants to
o D bank knew there was a client out there who would be relying on
the information, and for contractual purposes
o Therefore Lord Reid treat it as a case of info directly given to the P

Dismisses the bank as agent as an important element
o Therefore leaves open the Q of “the degree of proximity” to focus
on the issue of economic loss due to negligent misrepresentation
 1. P’s first argument: rely on Donague (p188)
o Lord Reid rejects the Donaghue and Stevenson ruing in this case

ensure
a. There is a difference between words and actions

Ex. on social occasions people give opinions even when
that
they see that others are likely to rely on their
Easipower
statements
is good

for its
on a business occasion
obligations
. P’s bank
They don’t take the same level of care that they would


Therefore no duty of care on these occasions
b. A negligently made article will only cause on accident: the
approache
level of proximity is easy to determine. On the other hand,
d D bank
words can be broadcast without consent. K can’t cover all
to get
these third parties
credit
rating
reference
o Therefore there’s good sense behind the generality that there’s no
liability for economic losses caused by negligent misstatements
 2. For liability something more is needed: the D must have undertaken
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
for
some responsibility (p. 189) or performed a gratuitous service (some
Easipower.
authority that there can be liability there)
D gave
references
that were
o The basic requirement is that a person, through their words in the
context, is taking on responsibility
 3. Lord Reid goes further to develop this legal principle: on its surface,
not
Derry v. Peek seems to suggest that there can be liability only for
justified
fraudulent mistakes.
and P
o However, the later cases indicate that courts have recognized
relied to
innocent or negligent misrepresentation in cases of special relationships
their
that give rise to liability for economic losses (p.190)
detriment
o What are these special relationships?

All those relationship where the party seeking information was
relying on the other where 1) one party trusts/ relies on the
other to exercise due case 2) it’s reasonable to do so because
of the circumstances 3) where the party giving the information
knew or ought to have known the other’s reliance

When all these elements are present, we conclude that the
person has undertaken a responsibility!

Applying this to a professional setting: where D provides
information to another who is relying and the circumstances
make it reasonable to rely, D will be liable
 How well does the undertaking analysis work?
o If someone comes into your office for advice (and you know you’re
being trusted in your advice) you could:

1. Keep silent

2. Give an answer but make a statement that no
responsibility is accepted

3. Answer without qualification

Therefore the choice is up to the person giving the
information, but if you choose step three then you’ve
accepted responsibility!
o Therefore this doesn’t cover a social situation!
o Would it cover a situation where P2 passes on the information to
P2?

If the test is just reasonable foreseeability, then this might be
covered (where you get a professional opinion it is foreseeable
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
that you will pass it on)

If you say the test is reasonable foreseeability plus reasonable
reliance, then it may still be covered

BUT if the basis of the rule is that you have undertaken
responsibility (“you may trust me on this”) then you have
made no such statement to a 3P
o So maybe there are 2: reasonable reliance + special relationship and
undertaking
 Lord Morris
o Voluntary undertaking can give rise to the duty to exercise
reasonable care where another person relies
o Where possessor of special skills undertakes to exercise those skills
for the assistance of another who relies on them, a duty of care will
arise (irrespective of contract)
o Where it is reasonable for others to rely on skills of a person and
that person takes it upon himself to give information or allow it to
be passed on to a person who, as he should know, will rely, then
there is a duty of care.
 What is the critical issue?
o Is it the reliance and the reasonableness of reliance? Or is it the
assumption of responsibility?
o In Hedley Burne it doesn’t matter since either will decide the case
o But in later cases, we find assumption of responsibility without
reliance
 Remember: there was on K between the banks
BG Checo
 Can sue in both tort and K
v. BC
 In Hedley there is no K – but what if there is a K?
Hydro
o Central Trust – like Hedley Byrne. Professional relationship, defined
by K. Can party due in tort and K? Yes
Tender
o Checo
for a K

Tort liability and contractual liability can run concurrently
to erect

Where they do, P may select the action that is more
transmissi
on towers
and to
string
advantageous, or sue in both

Where D is under a tort duty to P, they may include that
duty as part of a K
 Three situations:
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
transmissi
on lines.
o Iacobucci’s dissent

BC Hydro
claims
duty, P can only sue in K

that land
will first
be cleared
Tort liability will only apply if the K does not address the
required behaviour
o LaForest/ McLachlin (majority)

by a third
party.
If parties specify a duty in L then whether or not it’s a tort
No that’s too narrow – we should allow concurrency to allow
the plaintiff to recover

1) Where a contract stipulates that a party will live up to his
Checo bids
tort responsibilities, then the other party may sue either in
and wins
tort or contract.
the K –

2) Where the contract requires a person to go further than
then
he would have to in tort, the tort duty remains open but it
discovers
is likely that the party will sue in contract.
the

clearing
hasn’t
3) Where the contract allows a party to reduce or nullify
liability in tort. Must be in clear terms.
 An interesting twist in Checo! The last line: a contractual limitation that
been done
limits tort liability (even clearly) may not apply where the tort is
or has
independent of the K
been done
poorly,
and that
they’ll
o Therefore there’s a field that the K covers, but anything outside
that field is fair tort game
o A mysterious provision! On the same day the court decides Cognos:

FACTS: P is an IT specialist, who is hired to the operation in
lose
Ottawa (made to feel very wanted by Cognos). P agrees to
money by
move from Calgary to Ottawa, and signs an employment K
completin
that can terminate him without cause
g the K.

P is brought to Ottawa on the basis of negligent
BC Checo
representations about the nature of the work he will be
wants to
doing. Turns out that the project P is hired for is just a pipe
sue in
dream (there’s no financing behind it), he is terminated and
tort and
loses his job
K, even
though K
stipulates

HELD: The contract allowed him to be terminated without
cause – this relates to the doing of the project

to something independent of the employment K
what the
standard
The representations made to make P leave Calgary relate

La Forest and Iacobucci see the tort to be independent
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
will be
of the contract! Iacobucci: the representations relate to
the nature and the reality of the project not to the
amount of involvement.

Galloway: this is ridiculous, and a much too narrow way to
construe the K!
Hercules
 Pre-Cooper case. During this time, McLachlin and (Laforest) REALLY
Mgmt v.
disagreed about the meaning of tort law, and what proximity in tort law
Ernst and
meant
Young
o LaForest: instrumentalist view of tort – it’s meant to achieve
certain social ends. Therefore we need to exercise controls to
SCC 1997
prevent it leaking to areas where it doesn’t serve a social purpose
o McLachlin: tort is about private relationships between parties, the
Is an
auditor
notion of proximity is first and foremost to negligence
 LaForest’s decision (Maj)
liable to
o Adopts 2 part Anns Test
investors

(sharehold
Prima facie duty of care at first stage
o But claims that in cases of negligent misrep, most of the work will
ers) in a
be done at the second stage
company

who relied
Social/ policy reasons for limiting/ recognizing tort liability
o Acknowledges there’s some argument that the Anns test doesn’t
on its
apply to negligent misrep cases, but he doesn’t accept this
negligently Analysis:
prepared
 The concept of proximity is seen to be key
audits of
 Para 23 and first part of para 24 is consistent with but not as well
the
company
developed as the later statement in Cooper
 But they key to understanding proximity is identified in para 24 as reliance
that were
o The reliance in these circumstances is reasonable!
prepared
o The D ought to reasonably foresee that P will rely on the
for all
representation; the plaintiff’s reliance is in the particular
shareholde
circumstances reasonable
rs?
Some
shareholde
o Therefore, since these two elements are met, there’s a special
relationship
 When is reliance reasonable? Para 43: 5 indicia
rs are
o 1) Def has direct financial interest
claiming
o 2) Def was a professional or someone possessed of special skill
that they
o 3) Advice provided in course of business
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
relied on
the
negligently
prepared
document
o 4) Given deliberately and not on a social occasion (old Hedley Byrne
notion)
o 5) Given in response to a specific enquiry or request (fact situation
in Hedley Byrne)
o LaForest: Don’t need to meet all five (here only first four are met)
in order
because it’s not a test of reasonableness, it’s just indicating where
to make
negligence is reasonable vs. where it is not
further

investmen
ts and
that if
Ernst and
Emphasizing not the relationship of the parties, but the
professionalness of the services
 How is this different from Hedley Byrne?
o In Hedley: if you’re a professional – you have 3 choices as to what
you can do
Young had

Don’t give info
done their

Qualify the info
job

Make unqualified statement
properly,
o Galloway: Hedley suggests that it’s easy for a person putting info
the
into the public to avoid tort liability just by adding a disclaimer
shareholde
(“this info can only be used for limited purposes” ex. just for one
rs would
client)
have

withdrawn
their
money,
BUT it’s up to the person providing the information to make
the choice on what to do!!
o But there is nothing in the analysis about Ernst and Young
undertaking or assuming responsibility for the individuals’ losses!
preventing

the
personal
Usually when we think undertaking, we thing about
someone asking “can I trust you” and you saying “yes”
o LaForest: no! The burden shouldn’t be on the information provider!
losses
To meet Pt 1 of the Ann’s Test, just have to be in a situation
they’ve
where economic loss is reasonably forseeable and the other party is
suffered.
reasonably relying
Therefore

Primary basis on reasonable reliance
given

But now leaving it open for individuals to be liable for general
there’s a
statements they release into the public, so then creating the
duty to
control mechanisms
shareholde

Therefore saying that there’s a limited amount of
rs
people who can rely on Ernst and Young. Court must
generally,
create the limitations, via proximity
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
can

individuals
Lord Reid would say different: he’d say that Ernst and
Young could limit their own liability with a disclaimer
sue when
o So we move onto Pt 2 of the Anns Test
they

There are potentially enormous social costs – the number of
experience
tort actions will explode. So we introduce 2 control
personal
mechanisms:
losses

1) Only owe duty of care to individuals for whom you
made the statements
o You know their identity or the class to which
they belong

2) Only owe duty of care if the information is used for
the very purpose for which it was created
o For LaForest, this is the easy way to deal with the solution! But by
emphasizing reasonable reliance as the key to the index of when
there’s a duty of care, he may be causing problems for himself later
on
 In this case, the audit wasn’t created for individuals to make investments
although it’s reasonable for people to use it that way. It was created so
that shareholders as a group can make decisions re: the management of
the company.
 HELD: therefore no liability in this case

Galloway:
o This is a convoluted way of looking at a problem! That could’ve been dealt with
easily under the Lord Reid method!
o Instead adopts this:

1) broad notion of proximity, take reasonable reliance loosely

2) limit liability for social reasons
o This might end up being a good answer but it creates TWO PROBLEMS:
 ISSUE 1 WITH HERCULES: if the basis of liability is the reasonable reliance of the
plaintiffs, than can you ever (in a neg misrep case) have contributory negligence?
o You should be able to determine that the defendant is still liable, but only so
for a percentage or proportion of the losses

If we base it on the reasonable reliance of the plaintiff, though, this
becomes no longer available
o If the reliance was unreasonable then there would be no tort. The court in Avco
tries to resolve the issue – says that contributory negligence should still be
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
available

There can be reasonable reliance, and also responsibility for own downfall
to some extent

Ex. Business owner, gets a reference letter giving a great reference to a
worker, but the writer gives the reference negligently (ex. they think
they’re writing about someone else) and business owner hires them, who
turns out to be an embezeller

1) I was reasonable to rely on the reference writer

2) But I might be contributorily negligent for not protecting my
business against embezellers
o This isn’t too troubling
Avco
 Contributory negligence is still available!
Financial
v.
Norman
NEGLIGENT PROVISION OF A SERVICE
 ISSUE 2 WITH HERCULES: what if the person harmed is not the person who relied
(the person to who the statement is made) but the person about whom the
statement is made??
Haskett
Creditor wants to
 Hercules decision based on reliance can’t deal with
know the person’s
this case! Because plaintiff hasn’t relied but there
creditworthiness.
should still be liability nonetheless!
Bank says they
aren’t
creditworthy when
they actually are,
have to pay a lot
 Court suggests that reliance is not necessary
Use the Cooper analysis instead:
 1) is this case analogous to an established category of
case where we recognize liability?
 2) if this isn’t a recognized level, the relationship
more to borrow,
here is sufficiently proximate to fairly create a new
and experience
category hold there’s liability (recognizing negligent
losses, due to the
misrepresentation not based on reliance)
negligence
misstatement even
though they’re
not relying upon it
o They’re saying reliance is not necessary – that
this is analogous even without reliance
o Monumental! Note the equivocation – the
situation is analogous to the causes of action
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
where liability for negligent misrepresentation
has been recognized.
o Court relies on Feldthusen in Cognos (who
LaForest in Hercules relied on): Reliance not
necessary – para 33 of Haskett
o The key is a special relationship (not reliance)
o Para 34 the representor has effectively
assumed responsibility because of the potential
harm.

Where assumed or imposed liability exists
(para 39)

= ignore later precedent of the SCC and
using a prior precedent
 3) are there any social/ policy reasons to not
recognize this new category in 2)? No – not in this
case
o Indeterminacy not a problem here. Knowledge
and Control (para 45)
o Are other legal remedies available, such that we
don’t have to extend tort law into an area
where it’s not necessary?

Can’t this be treated under the law of
defamation?

Court: no – the law of defamation is
insufficient (para 50), it’s too broad
and has developed in a way that doesn’t
sufficiently protect plaintiffs

Allows defences: politicians and judges
have “qualified privilege” against
defamation, doctrine of qualified privilege
also allows employers to give references
without being subject to tort liability for
negligence
o Para 55 recognition that it may be problematic
to recognize a tort duty in commercial
negotiations involving sophisticated parties.
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
This seems to be the basis of 2008 decision in
Design Services (materials p 261)

Court: this is not a situation in which
the parties are in complex negotiations

This is different
 Galloways conclusion re: negligent provision of a service
o Where a person has assumed responsibility for another person’s economic wellbeing, they are responsible when they exercise that responsibility negligently.
o The fact that the subject of a credit report is totally vulnerable and that
“fairness is a clear legislative imperative” allow the court to hold that
responsibility is assumed.
o Same logic as in Cf. Childs! Implied responsibilities of those involved in a
commercial or public venture.

If you’re engaged in a commercial/public activity on which other people are
completely dependent, then you owe them a duty

We’re dealing with a situation in which one party has all the power and
the other all the vulnerability = assumption of responsibility
o The lawyer cases also back this up!

This seems to apply in the case of the lawyer and the disappointed
beneficiary

The lawyer when undertaking to draft a will is assuming responsibility over
the economic interests of the beneficiary

Even though it is not a negligent misrep case, the same principle should
apply to the negligent provision of a service due not to reliance, but due
to dependence

As in Hedley Byrne an analogy is drawn with fiduciary relationships

Plus the beneficiary is “wholly dependent” on the solicitor (para 39)
 = extraordinary counter strategy, against the LaForest decision in the SCC!
o Negligent misrep vs. negligent provision of a service are competing now – perhaps
two forms of tort law are emerging?
o How are these treated in the future? How does BDC adopt it?
Wilhelm
v. Hickson
 HELD: lawyers owe a duty of care to beneficiaries
named in a will when drawing and executing a will,
breach of which may render him/her liable to pay
damages suffered by the beneficiaries as a result of
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
the breach
 Even though the beneficiary did not rely
BDC v.
Government takes
Hofstrand
charge of a
Farms
document, has
 Government assures to take charge and offers to
deliver the document
o BDC takes responsibility to deliver the
nothing to lose if
document from the government, but don’t
the document is
know why it’s being delivered and why it has to
late but if the
be on time
plaintiff has it
 HELD: no liability
delivered late,
o 1) BDC has no knowledge or constructive
then the
knowledge that the party exists. Unless its
plaintiff’s
being told about a third party or has
contracting
constructive knowledge, can’t owe them a duty
partner can back

lawyer cases (Wilhelm)
out of the
contract
Distinguished this from Haskett and the
o 2) There is no reliance. The person allowing the
Plaintiff needs the
government to go to the courier company isn’t
contract
relying itself on the courier company

Galloway: this is weak

And adds to the idea that these kinds of
cases are not about reliance at all
NEGLIGENT SUPPLY OF A SHODDY PRODUCT
 Where a manufacturer sells a shoddy good that doesn’t work, the consumer is out of
pocket (must buy another or must get a repair). Tort law will not usually compensate
leaving it to the law of contract.
 However where the product is dangerous (risk of personal injury/ property damage),
and the consumer pays money to render it safe, Winnipeg Condo suggests that tort
law may step in.
o Galloway: we don’t know how broad a precedent Winnipeg Condo stands for
though
o This is the most general message that could come from Winnipeg Condo
o Why? By producing/ marketing a dangerous product, you’ve breached a duty to
your consumer. Will you be held liable if the damages are purely economic losses
(different in kind than the losses you would have expected)?
o Galloway: this may be a case about the construction industry and who should
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
bear the risks in a construction industry – so is it about negligently built
buildings or dangerous products? The judgment doesn’t say.
 Galloway: this is super problematic – an even deeper hole for us to fall into
 Laforest is attempting to deal with liability for economic losses by looking at torts
from the instrumentalist point of view
o This view should be doubted – and this is the prime example!!
Winnipeg
Condo
 1) There is some question whether the damage suffered is pure economic
loss v. property damage (para 14-15) (Negligently installed ties caused
damage to cladding)
Company
o Addressed via the complex structure argument
builds
o The argument put forward is that the damages in this case is actual
condo so
negligently
property damage, and not pure economic losses

that it
becomes
Ex. cladding falls off the building because of the negligently
manufactured metal ties

dangerous
If it can be held that a latent defect of a specific part of the
building, that problematic piece is a property damage issue,
not pure economic loss

AKA dividing the building into its constituent harms
o Laforest

No – this is one building, all part of the same thing that is
one entity and has an identity

What makes the ties and cladding part of the building is
that they’re interdependent – one is fully dependent on
another and it forms one thing

A furnace, though, can be taken out – it’s new
property. If a building burns down due to the furnace,
then that’s property damage

Therefore economic losses
 HELD: the individual can turn to the original builder and sue them for the
economic losses incurred to negate the danger
o Laforet seems to say often that there’s good reason to not extend
liability to economic losses – try to box off and limit this area as
much as possible
o AND YET for reasons of social policy, more than willing to recognize
economic losses in the Winnipeg condo case, and this does not open
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
the door to indeterminacy
 RATIO - LaForest: Assuming the losses are economic, para 21 suggests
that a person participating in the construction of a large and permanent
structure that has the capacity to cause serious damage to other persons
should be held to a reasonable standard of care
 Galloway: he does so for social/ policy reasons, hasn’t really thought
through what the consequences are
 1) The first argument seems to be based on social responsibility
(undertaking to build a permanent building) that gives rise to liability to
the public, rather than on any relationship with the future owners.
o Buildings have a long life: duty not only to original inhabitant but
to future inhabitants (there are the members of the public likely to
be affected) too (para 35)

This is who bears the risk

Galloway: but I thought the duty was actually to the owners!

What if the owners of the building are not the inhabitants?
The owners are not at risk of being hurt …

If the building falls apart, the owners are only suffering
economic loss


Are the builders are liable for that??
Laforest isn’t super helpful here
 2) Rivtow Marine Argument (follows dissent – it’s efficient to allow
people to sue original contractor)
o FACTS: Crane is faulty (has a crack), manufacturer informs charter,
costs money to repair
o Dissent: there should be liability for repair

“It follows that the contractor should also be held liable
where the damage is discovered and the owner wishes to
mitigate the damages” (para 36)

Does it?
o ISSUE WITH ANALOGIZING RIVTOW MARINE: there’s a difference
between the owner (responsible for losses) and the inhabitants (liable
to suffer the physical damage if we let it unfold

Therefore there’s a difference between allowing certain people
to be hurt, and therefore owing a duty to an owner to
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
compensate them

This doesn’t follow if these aren’t the same people

Consider: the owner is informed of the potential danger. The
owner is now responsible for preventing harms to third people
(ex. those living there). If the owner does nothing, the third
party people could go after (joint and severably) either the
owner or the manufacturer of the building

Laforet: it follows as a matter of course that we should hold
the contractor liable to the owner. If we didn’t, then the
owner would have no incentive to fix the damages and prevent
harm to third parties. We want that – the deterrence of
disaster

BUT Galloway: if the owner can be jointly and severably liable
to third party harms, then they do have greater incentive to
repair, regardless of whether they get money back form the
contractors

Laforet: consider a second owner (contractors build it, first
owner, sell it to second owner). If second owner finds that
the building will collapse and we won’t impose liability on the
contractor, there will be no incentive to prevent danger
occurring

BUT Galloway: there is incentive to repair! They could be
liable!
o Therefore there’s something weird going on

UK courts: People who buy products/ buildings that are
defective, they have just lost out – they made a poor
investment

If you’ve bought a dangerous product and you know it can
cause harm, it’s your responsible for discarding it

Laforet: housing is different than this, because it would be
terribly inefficient to require people to discard houses. We
shouldn’t regard a dangerous building as a broken pen

Laforet: when people are in the largest investment of their
life and it’s not a sophisticated commercial transaction, we
should offer them protection from losses, through tort law
 ANNS TEST PART 2
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
o Laforet claims that there is no issue of indeterminancy, because we
limit claims to those of “real and substantial danger” for the
“useful life of a building”

What is a reason and substantial danger? Cladding falling off if
clearly dangerous. But what about building leaks, mould, bad
smells, poor air circulation …

Inhabitability is not just a lack of danger though, it
involves a level of pleasant and healthy life!!

What is the “useful life of a building”?

This is actually an onus of proof issue

Liability on owner to show that at the time the
building was being constructed, it was foreseeable the
danger would occur
o The longer the building exists, the harder it is to
show that the defect is caused by design flaw,
not wear and tear

Laforet is not treating this as a time span issue (ex.
30 years) necessarily
 Problems with this judgment:
o
Laforet does equivocate between homeowners and building owners!

The reasons behind Laforet’s decision is protecting vulnerable
people

Is the duty owed to a non-inhabiting investor though?
o Is this a case about buildings or is it a case about dangerous
products?
o He creates a 2 tier system: original owner who buys it from builder
may not be able to sue because there might be a limited liability
clause in their contract

But, if this individual sells to someone else, then that second
party may be able to sue!
o This actually discourages people form making fast repairs!

Something may not be a real and substantial danger yet – but
the contractors won’t be liable under it becomes a real and
substantial danger

Therefore instead of fixing mould (at own cost), may wait
until the mould takes over, when it becomes dangerous, to
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
charge the contractor

 Galloway: pure economic losses in Canada have been shaped primarily by LaForet, but
his view of tort liability and the purpose of tort is very different than McLachlin
(who shaped the Cooper analysis)
o We adopt the McLachlin template generally
o So there seems to be a fight to get Laforet model into the law
 There in the negligent misrepresentation case, liability for repairs of dangerous
problems, LaForet’s voice is very strong
Hasegawa
v. Pepsi
 HELD:
o There was not enough evidence here that the product was dangerous
o If the product was dangerous and not just impure (ex. if there was
Pepsi
bottles
water for
Aqua
P buys
water
poison in it) then Hasegawa might have an action against Pepsi
o But in this case, action not available
 RATIO: for a manufacturer to be responsible for a product, it must be
dangerous, not just shoddy
 Rejects Junior Books as an authority in BC law
o Galloway: this it unfortunate and very sad because the analysis in
from
junior books is very much like Mclachlin’s take on tort in Cooper,
Aqua for
and worth looking at
sale in
Japan,
but
because of
impurity
o RATIO: for a manufacturer to be responsible, there doesn’t have to
be a contract, a close relationship will suffice
o FACTS: JB enters into K with contractor to building factor

Contractor gets into touch with Veitchi, the floor specialist,
because JB suggests they do so
it is

Therefore flooring is subcontracted to Veitchi
unsellable

Veitchi and JB are in contact during the building by the
(Pepsi has
contractor
allowed
o There is no K between JB and Veitchi, but there
mould in
is a close relationship developing between
the
commercial actors
water,
o Not negotiating rights/ obligations, but discussing
and
and trying to resolve problems
Japanese
health
o Not done so in contractual terms though

Flooring turned out to be substandard – not dangerous
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
authority
but didn’t meet JB’s needs (defective)
refuse to
o No contract, but had been in a close relationship
allow it)

When floor needs repairing, contractor is out of business
o Argues that relationship between JB and Veitchi
was not contractual, it was close enough to give
rise to a duty of care

Accepted by House of Lords! And J. Wilson in
Kamloops.
 Rivtow Martine
o FACTS: M – D – Charter (Rivtow Marine)
o Crane hired for the logging industry
o Rivtow Marine in K with distributor, and they are contacting the
manufacturer all the time for advice about use of the crane

Therefore there’s a very close non contractual business
relationship between the M and Rivtow Marine

Therefor through conversations get to know a lot about the
seasonal aspect of logging, of the nature of Rivtow Marine’s
business
o At the low season, manufacturer finds out that another one of
their cranes has cracked causing great danger

Low season is a good time to warn

However, M is worried about liability so doesn’t warn

By the time M warns, it’s high season
o Rivtow marine suffers great losses taking the crane out of service in
the high season
o Rivtow argues that they should recover the economic losses that
they incurred due to losses in high season versus low season
o HELD: YES – manufacturer is held liable for the losses

Manufacturers in a very close relationship with the user of
the product – you can be held liable for the economic losses

This relationship is independent of K and it’s close enough
that it can be acted on!

Therefore business people can take on obligations in tort
just by establishing a tort obligation!

= duty to other individuals in business where a close
relationship has been undertaken!
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
 In Hasegawa though, the BCCA is saying that business is a hardline between
having contractual rights or not – a relationship between business people will
not lead to tort liability. Have to go back on relying on K
o Galloway: it’s sad that we can’t rely on talking about our needs and
products and communication between parties any more. Now, we do
have to rely on negotiation and contracts.
RELATIONAL ECONOMIC LOSS

The economic losses that third parties suffer when a second party has been injured
(physically or property damage by defendant) but economic consequences borne by
third party
o UK: absolutely not!!
o Canada: maybe
CNR v.
Norsk
 ISSUE: can railway sue barge? The economic losses are suffered by a
different party than the property losses are suffered by. If we recognize
the economic losses, where will we stop in the future? We’re hoping to
SCC 1992
see a judgment that will clear up the extend of liability for economic losses
– instead we get 3+3+1 and no majority.
Bridge,
 Note: if bridge and railway were owned by the same company, then
barge, and
property harm and the economic loss tied to the property harm would be
railway
no issue – tort liability would be found
company.
K
between
 Laforest (+2): NO! Proximity is a hopeless concept with no meaning.
Pragmatically, we need to look at social policy reasons
o We need a clear and certain rule! We can’t allow property owners/
bridge and
those who use another’s property to go about business not knowing
railway
whether they should insure themselves
company.
o Certainty would be provided by a dominant exclusionary rule (not
Barge
recognizing parasitic/ relationship economic losses) with precise
steerer is
exceptions
drunk,
hits the
bridge,
o We already have precise islands where economic loss to 3rd parties
have been recognized in the past – they’re technical, well defined:

bridge is
damaged.
Ex. 1) where P has a possessory interest,


Issue: who is a stakeholder?
2) Where there’s a joint venture (individuals coming together
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
Railway
and sharing the same objectives, out to achieve the same ends
loses a
but rely on property owned by 1 party),
lot of

money
law
because it

can’t go
over the
This is complicated, but it has gained traction in the
If damage done to property of one, done to both
parties

bridge,
General averaging cases (Galloway – this is really arcane, from
maritime law):
but it

Ship owners and cargo owners own different property,
doesn’t
but enter into commercial arrangements in which if
own the
there’s damage done to the boat, the cost of getting
bridge
the boat (and cargo) would be split proportionally
company
between boat owner and cargo owners

= proportionality of sharing losses, to get the result of
safety

If one boat owners crashed into another causing damage,
the damaging boat owner owes the damaged boat owner
the money to be split among ship owner and cargo
owners, even if no cargo is harmed

Transferred loss cases

Prior to ownership passing, non-owners are responsible
for damage to the property, ex. construction steel

And that’s it! Certainty is our prime interest.
 McLachlin (+2): Yes. Outlines the prototype for Cooper. First let’s look at
the relationship between the parties and deal with it using proximity. A
flexible solution is needed (to avoid arbitrary delineations)
o Let’s look into the notion of a joint venture, and take a realistic
look at what a property interest means

There’s little difference between a user with property interest
and an investor in the bridge

So let’s actually look at how merged the economic interests
are

Liability for econ. Loss has been recognized in a joint venture
situation. It is fair to extend that class of cases to cover this
one:

CN supplied materials, inspection, consulting services and
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
was recognized in the periodic negotiations surrounding
the closure of the bridge

Bridge integral to railway system

For practical purposes, P’s position is indistinguishable
from the P owner’s!

The pragmatic arguments: insurance cots, loss spreading and K
allocation of risks – rests on questionable assumptions
 Stevens: yes, there is liability because the barge should have known about
the train
 Laforest – we need to meet an amicable arrangement!! And wins the day
through Bow Valley. Then loses the war through Cooper.
 Caltex oil case (Australia)
o Similar to Norsk
o Boat hits the pipeline, damaging it (property damage to the
pipeline), oil going into the water
o The company that owned the pipeline was not the company that
used it to transport oil
o Can the oil company sue the pipeline?
Bow
Bow Valley and
Valley
Husky Oil get
together and set
up a 3
rd
company
offshore (BV
Bermuda) in order
 Allows LaForest and McLachlin the opportunity to
form a compromise
o It seems that McLachlin has turned her back on
the idea of a flexible “just” solution – looks like
a political compromise

She may have been persuaded that her
to get a govt
hope for a role for tort law in
grant (a tax
sophisticated business relations is
dodge). BVB hires
problematic
J to build an oil

There may have been a tradeoff – keeping
rig. On oil rig,
the proximity approach in exchange for
there’s a heat
finding no liability
transferer, with a
lot of
manufacturer’s
 Galloway: the situation became worse. At the end
though, it seems that LaForest has won the day
 ISSUE: does manufacturer of heat transferer owe a
defects (J in K
duty to J to own a duty of fire? YES. Do they owe
with heat transfer
a duty to the rig (BVB) to warn it may go on fire?
builder). Rig goes
YES. Do they have a duty to warn those that only
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
on fire – property
have an economic interest in the rig (BV and HO)
damage. In K,
that it may go on fire? Majority: no
agreement that
even if BVB goes
 McLachlin
o Because it is foreseeable that people will suffer
out of commission,
financially as a result of any fire, you owe them
BV and HO will
a duty to warn about that danger
still pay the

expenses
Proximity (looking at the relationship) is
out the door – collapsing foreseeability
and proximity into Anns test Part 1
(met)
o However, this would lead to an indeterminate
solution and floodgates issue under Anns test
Part 2
o Accepts LaForest’s general rule of exclusion for
economic losses, to stop indeterminate liability
at Anns Part 2
o Why did we get here? When you are dealing
with multi-billion dollar transactions and
sophisticated parties setting up large corporate
shells, you don’t need tort law as a back up for
K law

The parties want certainty

Parties want K values to operate, and
tort values to not interfere

Given that there’s no vulnerable parties
here and only people who should know
what they’re doing, we don’t need tort
law here
o If we’re building a building and one party is
homeowners, we may need tort law to protect
homeowners

BUT once you’ve tied your economic
interests to someone else’s property,
you’re not longer a vulnerable person
that tort wants to protect
o True McLachlin (doesn’t come out here): we
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
should recognize that there can be a source of
obligation not tied to vulnerability but instead
tied to honourable interactions and dealings and
the relationships we form – that’s a very
different decision than here
 NEW CATEGORIES!
 Design services case
o FACTS: a building is about to be built by government

At tendering stage, party puts in a bid for themselves, even though it
would involves lots of subcontractors

Awards contract to a party not entitled to be selected

Suit by all the subcontractors that were economically dependent on the
bid being accepted

Claiming the government has not just wronged the bidder, has
harmed the subcontracting individuals
o HELD: no

Instead of being a dependent company, could have become a joint venture
with a bidder, in a contractual relationship

Court says that in declining to create K rights – if you’re interested, you
should have been formal about it
o Court seems to be saying that we don’t want to make tort liability available to
those who are in sophisticated commercial transactions – they can protect
themselves through K
o If a party in an economic relationship has the opportunity to become a
contractual party in the cases, then they should do so because the consequences
of not doing so would be unknown
WHEN SHOULD THE GOVERNMENT BE SUBJECT TO TORT LAW?

1) We have a regime of controlling government (the public law regime) which requires
public officials to stay within the bounds of their legal authority
o Where govt fails to respect an individual’s rights, dignity, humanity etc., can
seek an order from the courts based upon a public wrong

Need not rely on the same notion of fault, if they move out of their
public law power (have done something they have no legal authority to
do)
o = TORT LAW NOT NECESSARY – PUBLIC LAW MODEL OF WRONGDOING
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway

2) However, government may provide goods and services like private actors, which may
expose people/ their property to danger

Seems acceptable to ask whether there is a relationship of proximity in
these situations
o = TORT LAW NECESSARY – TORT MODEL OF WRONGDOING

In Cooper, even though McLachlin opens the notion of duty of care as being based on
proximity, the court recognized this tension
o Even at the first stage of the Anns test there is a tension between private and
public duties

If the issue is a mix of 1) and 2), which model of wrongdoing should be
used?!
THE TORT OF GOVERNMENT LIABILITY
Just
 Arguments:
o Arg Driver: breach of duty of care giving rise to this injury, govt
Governme
nt has
taken
should be liable
o Govt: we own no liability here because the decision is a political one
about how we should inspect the cliffs that abut the road
charge of

We act in a political capacity when we send people to inspect
inspecting
cliffs – as long as they stay within the boundaries of their
highway
legal powers, their decisions must be unassailable
99 and
trying to
negate
 Do we apply private or public law model?
o Cory borrows concept from public law: we can distinguish between
good faith decisions and bad faith decisions by government actors
the
 HELD: case sent back to determine standard of care
danger of
 Not focusing on proximity re: the government issue. Instead:
rock falls
on the
o 1) Is the standard of care we expect from government the same as
it would be for private actors
road.
Rock fall
occurs,

o 2) Whether there are policy reasons not to recognize a duty (Anns
2)
hit a car,

kill one
person
and
No – the standard is different!
Government status can be a reason to immunize a party from
tort liability
 Therefore less of a focus on duty, and greater on standard and policy
reasons
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
injures
the other
 Cites Barrat: roads inspected for potholes once every two weeks – day
after checking, someone hits a pothole and has an accident. Court draws
distinction between negligent inspection (grounds for liability) and a
negligent regime of inspection (immune from liability – political decision).
Not for the court to tell legislature how much the roads should be
inspected
o Cory: this is problematic! Surely a decision to inspect every 5 years
would be subject to liability …
o Tie this in with what he says later about bad faith – because a
decision to inspect every 5 years would be a bad faith decision!

Bad faith is not about dishonesty, malice (what we usually
think of) – it’s the idea that govt have acted for reasons
that are way beyond the reasons it’s entitled to act for

If you set up a municipality and say the municipality has the
right to inspect roads (taking it on and preventing private
actors from coming in), you can’t say that there’s a duty
only to inspect certain roads, or to inspect every 5 years –
because then you’re not really taking on the power!

Kind of like the positive duty argument where you have no
duty to rescue, but if you do decide to rescue, you have to
follow through because you’ve deprived the person of help
from other rescuers
 Cory: governments should be able to make policy decisions free from judicial
interference
o 1) BUT must be good faith decisions (can’t exercise policy or fail to
exercise policy – Kamloops),
o 3) AND not every government decision is a policy decision – some are
operational – these are held to liability but lower standard

Challenge is distinguishing between policy and operational
decisions

From Heyman: no duty of care in relation to decisions which
involve or are dictacted by financial, economic, social or
political factors or constraints (P. 273 at the bottom)

Trying to articulate where we want govt to be held
responsible to the electorate vs. the courts?

But it may be otherwise where the crt is assessing
Sharon Zheng | LAW 108C | Spring 2012| Donald Galloway
action/inaction that is the product of administrative directive
o Lighthouse example: economic decision that money formerly spent on
lighthouse inspection should now be diverted elsewhere is political and
unassailable

This would be a bona fide exercise of discretion

If the decision was not bona fide (abusing discretion, not based
on appropriate reasons), the implication is that it can be
subject to tort scrutiny
Galloway:
 Two issues:
o 1) Notion of bona fide is hard to define

How to you know when and administration is stepping out of
its bounds?
o 2) The introduction of a new policy may require some public
announcement because of reliance issues

Galloway: giving far too much power to govt decision making

We may see governments making valid political decisions

But if govt hasn’t treated members of society well enough by
informing them of political decisions, isn’t there a tort?

Ex. what if you’re in a boat when the government
decides to cut the lighthouse, and you were relying on
it?
 However, in Cooper and later in Hill, using proximity to address these
tensions
Kamloops
 Bad faith policy