Table of Contents
INJURY: RESTITUTIO IN INTEGRUM (RESTORATION TO ORIGINAL CONDITION)
3
JIM RUSSEL V. HITE, [1986]
OUELLETTE V. TARDIF, [2000]
AUGUSTUS V. GOSSET, [1996]
CHAMALLAS AND WRIGGINS, “THE MEASURE OF THE INJURY”
PARKER V. RICHARDS, [1990]
TER NEUZEN V. KORN, [1995]
3
3
4
5
6
7
INJURY: LIMITS OF RECOVERY
8
TER NEUZEN V. KORN, [1995] (REVIEW)
CURATEUR PUBLIQUE V. HÔPITAL ST-FERDINAND, [1996]
MACKAY V. ESSEX AREA HEALTH AUTHORITY, [1982]
MCFARLANE V. TAYSIDE HEALTH BOARD, [1999]
SUITE V. COOKE, [1995]
RADÉ, “ÈTRE OU NE PAS NAITRE?”
MARKESINIS, “RÉFLEXIONS D’UN COMPARATISTE” (OPTIONAL)
JOURDAIN, “LOI ANTI-PERRUCHE”
8
8
9
10
12
13
13
13
DUTY OF CARE AND CAUSATION IN LAW
14
PALSGRAF V. LONG ISLAND RAILROAD, [1928] (AMERICAN)
14
THE CONCEPT OF THE “DUTY OF CARE”
15
DONOGHUE V. STEVENSON, [1932] (REVIEW)
HOME OFFICE V. DORSET YACHT, [1970]
ANNS V. MERTON, [1977]
CITY OF KAMLOOPS V. NIELSON, [1984]
CHILDS V. DESORMEAUX, [2006]
15
15
17
17
17
APPROACHES TO RELATIONAL LOSS: “SECONDARY VICTIMS AND EMOTIONAL LOSS”
18
VAN PRAAGH, “WHO LOST WHAT? RELATIONSHIP AND RELATIONAL LOSS”
RÉGENT TAXI V. CONGRÉGATION DES PETITS FRÈRES DE MARIE, [1929]
AUGUSTUS V. GOSSET, [2009] (REVIEW)
ALCOCK V. CHIEF CONSTABLE, [1991]
18
23
24
24
APPROACHES TO RELATIONAL LOSS: “SECONDARY VICTIMS AND ECONOMIC LOSS” 26
ELLIOTT V. ENTREPRISE CÔTE NORD, [1976]
WELLER V. FOOT AND MOUTH DISEASE RESEARCH INSTITUTE, [1966]
26
27
CIVIL LIABILITY AND THE STATE
28
VAN BOOM AND PINNA, “LIABILITY FOR FAILURE TO REGULATE HEALTH AND SAFETY RISKS”
VAN BOOM, “TORTS, COURTS, AND LEGISLATURES”
BERNÈCHE V. CANADA (PROCUREUR GÉNÉRAL), [2007]
28
31
31
WILLIAMS V. ONTARIO, [2009]
REFERENCE RE BROOME V. PRINCE EDWARD ISLAND, [2010]
32
33
ACTS AND OMISSIONS: GOOD SAMARITAN/“DUTY TO RESCUE”
34
VAN GERVEN, “TORT LAW: SCOPE OF PROTECTION”
KASIRER, “AGAPÉ”
CHILDS V. DESORMEAUX, [2006]
CROCKER V. SUNDANCE, [1988]
35
37
38
39
CAUSAL CONNECTION: DIRECTNESS AND FORESEEABILITY (CML)
40
HART AND HONORÉ, “PHILOSOPHICAL PRELIMINARIES” IN CAUSATION IN THE LAW
CANE, “CHAPTER 5”
IN RE POLEMIS AND FURNESS, WITHY & CO, [1921]
OVERSEAS TANKSHIP V. MORTS DOCK (WAGON MOUND 1) [1961]
40
41
43
44
CAUSAL CONNECTION: DIRECTNESS AND FORESEEABILITY (CVL)
45
STARCK, ROLAND & BOYER, “OBLIGATIONS: RESPONSABILITÉ DÉLICTUELLE”
BRISSON V. POTVIN, [1948]
MORRISSETTE V. MCQUAT, [1958]
JOLY V. LA FERME RÉ-MI, [1974]
HUGHES V. LORD ADVOCATE, [1963]
PALSGRAF (REVIEW)
45
46
47
48
49
50
COMPLICATING THE STORY: MULTIPLE WRONGDOERS AND MULTIPLE CAUSES
50
DEGUIRE V. ADLER, [1963]
Q. V. MINTO MANAGEMENT, [1985]
NATTRASS V. WEBER, [2010]
CANERIC PROPERTIES V. ALLSTATE, [1995]
HOME OFFICE V. DORSET YACHT (REVIEW)
50
52
52
54
55
PREDISPOSITION OF THE VICTIM
55
SMITH V. LEECH BRAIN, [1962]
MARCONATO V. FRANKLIN, [1974]
CORR V. IBC VEHICLES, [2006]
ATHEY V. LEONATI, [1996]
VINEY, “LES CONDITIONS DE LA RESPONSABILITÉ”
55
56
56
58
59
VICTIM’S BEHAVIOUR
59
HYDRO V. GIRARD, [1987]
CONTRIBUTORY NEGLIGENCE ACT
CROCKER V. SUNDANCE, [1988]
WALDICK V. MALCOLM, [1991]
GAUDET V. LAGACÉ, [1998]
60
61
61
62
63
CONCLUSIONS: THE PROMISE AND LIMITS OF PRIVATE LAW
65
ROSS, “RETURNING TO THE TEACHINGS: EXPLORING ABORIGINAL JUSTICE”
ABEL, “A CRITIQUE OF TORTS”
65
65
CONAGHAN AND MANSELL, “CONCLUDING THOUGHTS”
THIBIERGE, “LIBRE PROPOS SUR L’ÉVOLUTION DU DROIT DE LA RESPONSABILITÉ”
SENECA COLLEGE V. BHADAURIA
CURATEUR PUBLIQUE V. HOPITAL ST-FERDINAND (REVIEW)
68
70
71
72
Injury: Restitutio in Integrum (restoration to original condition)
Jim Russel v. Hite, [1986]
Facts:
 Paradis, who ran a race track, habitually put a chain across the access road to
prevent unauthorized use. The chain was usually removed by about 8:00 am.
 At 8:15 am, Hite drove into the chain, seriously disfiguring his face.
 In lower court, H was granted compensatory damages for physical injury and for
moral injury.
Issues:
1. Should the rules of the SCC with respect to compensation in CML restrict CVL
judges?
2. How should judges assess moral damages?
Reasoning:
In CVL, moral damages are compensated as to amend the objective loss of the
victim (personal approach); whereas in CML compensation is granted so the
victim may be able to pursue substitute joys (functional approach).
Injuries should be evaluated not in terms of abstract rules (conceptual approach) but in
terms of the specific individual’s loss/suffering.
The victims injuries must always be evaluated based on the loss suffered by the victim
and not on abstract rules (favoured by CML)
Holding:
1. The rules of the SCC with respect to compensation in CML should not restrict CVL
judges.
2. CVL judges should assess moral damages ‘in concreto’ in terms of the effect on
the plaintiff’s life, personal approach. Ruled for respondent, but damages
reduced.
Rule:
In CVL, moral damages should be compensated via the personal approach, assessing
the damages in terms of the injury’s effect on the specific victim in question and not
on abstract principles.
Ouellette v. Tardif, [2000]
Facts:
Tardif was a priest of university level education who was a devoted volunteer
teacher in Africa. He had a vow of poverty with the order that he served with. The
appellant, Ouellette, hit him with their boat while Tardif was swimming, seriously
injuring him. The trial judge apportioned damage at 75%/25%. Both parties
appealed the decision on the grounds of both responsibility and damages awarded.
Issues:
1. Did the trial judge err in apportioning responsibility for the accident?
2. Did the trial judge err in allocating damages for the accident?
Reasoning: (Quebec Court of Appeal Denis J.)
None of the responsibility for the accident should have been allocated to Tardif. It
should rest 100% on Ouellette.
Multiple factors to take into account for damages in concreto:
- Non pecuniary damages for suffering, etc.: 75,000$
- Pecuniary damages:
1.- His volunteer status and vow of poverty do not affect his
ability to claim damages for his injuries for the full amount that
he would otherwise have made
2.- He should be compensated for the average salary of a university
level professor at UDM, in addition to the social benefits he would
have received in such a position
- Temporary Complete Incapacity: 74 293,36$ x 1.166
years=86 626,06$
- Loss of ability to produce income: Court calculates that Tardif,
at 58yrs of age, had 5.167 years of work left in his life: 5.167 x
74 293,36$ (minus deductions) = 360 286.15$
3.- Extra damages for the burden of working abroad do not apply
because Tardif considered Africa his real home
Holding:
Ouellette’s appeal rejected. Tardif’s appeal allowed: Ouellette is found 100%
responsible and is held to pay a total of 521 965.21$ to Tardif.
Augustus v. Gosset, [1996]
Facts:
Mother claiming moral damages deriving from shooting of her 19 year old son by a
police officer. Her claim for compensatory damages for solatium doloris (solace for
grief) based on arts. 1053 and 1056 CCLC – now replaced by single art. 1457 CCQ.
JH:
 Trial judge refused to award moral damages for solatium doloris – only $9000 for
loss of moral and financial support.
 Court of Appeal found that solatium doloris is a ground for moral damage in
Quebec law, and awarded her $15,000 (the minimum under that head or tort).
Issue:
Can victim’s mother obtain compensatory damages for solatium doloris and, as her
son’s heir, damages for his loss of life? Is solatium doloris the only head or moral
prejudice under which she can claim damages?
Legal Reasoning: (SCC L’Heureux-Dubé J.)
 Unlike common law, civil law never denied that an indirect victim can
obtain compensation for moral prejudice resulting from the death of a
relative or close friend.
o Art. 1053 CCLC allows for a claim in moral damages, even if no pecuniary
damage is proven.
 Erroneous trial judgment followed from Canadian Pacific Railway. Since that
case, Quebec judges awarded compensation for pecuniary consequences of
grief, they generally refused claims of solatium doloris  this position is
incorrect (applied English instead of French law).
o Error as in Russel v. Hite of CVL Courts following CML principles applied
by SCC
 Court of Appeal’s error lies not in its definition of solatium doloris, but in its
assessment of the moral prejudice suffered by appellant.
 They failed to fully compensate her for her grief  didn’t abide by principle of
restitutio in integrum (making victim whole again, restoring original condition).
o * Because of the error in CPR, existing Quebec jurisprudence is unhelpful.
 Court of Appeal’s other major error was in recognizing solatium doloris, but
failing to develop new test for assessing prejudice  deprived appellant of her
right to be fully compensated.
 In developing test for such a personal and emotional issue, must try to retain
objectivity in order to foster moderation and predictability underlying
restitution doctrine.
o Factors to consider  circumstances of death, age of deceased, nature of
relationship, emotional consequences and parent’s ability to handle them,
other children / possibility of having others.
o In this case, son’s unexpected and violent death was exacerbated by
the fact that mother had lost another child and was unable to have
more.
Holding:
Quebec law does recognize the principle of moral damages for solatium doloris.
Given the circumstances, a fair award might be $25,000. Case must be referred back
to AC for quantum.
Chamallas and Wriggins, “The Measure of the Injury”
For damages plaintiffs are required to demonstrate that actual harm occurred, and
to prove every facet of the alleged harm
- Recently scholarship has begun to focus on the different areas for allocating
damages and how they differ between victims
Race and Gender based calculations in damage estimates for life
expectancy/estimated earnings, etc. are an ongoing issue in Tort litigation
- Especially for children (no idea how they will turn out, so statistics play
larger role)
They are a factor in compensatory damages (usually not in punitive damages which
are only found in approximately 5% of Torts cases)
Calculation of Future income loss is inherently hard to calculate (you can’t predict
the future)
- Involve complex policy-laden inquiries about influence of social forces,
etc.
- Future Income loss is often the big-ticket item in cases involving permanent
injury/wrongful death
Race/Gender based calculation tables still used to calculate worklife
expectancy/estimate yearly earnings
- ex. Black men will work fewer years than whites
Results in significantly lower awards for minority men and women
What happens with biracialism?
Beginning of the end of these methods:
- Judge Weinstein in McMillan (U.S.): race as social construct which shouldn’t
factor into calculation at all
- “Have to reach a just and fair outcome that won’t reproduce past
inequalities against social groups” (163)
Race/gender based damages calculations are unreliable:
- “It assumes that race/gender differences are inevitable/enduring
rather than a product of political and social arrangements that are
subject to change” (169)
Parker v. Richards, [1990]
Facts:
The mother of the plaintiff was killed in a car accident, and the grandmother of the
plaintiff is suing for damages on behalf of the plaintiff. The defendant was found
negligent and this is no longer an issue. The victim was a 17 year old single mother
of Native ancestry with grade 6 education and no employment. The claim here is for
loss of financial support, loss of mother’s services, loss of care, guidance, training
and encouragement, and loss of inheritance
Issues:
What damages can be collected by the plaintiff for the loss of her mother?
Reasoning: (Supreme Court of British Columbia)
Financial awards in cases such as these are based on future income prospects of the
deceased
Relevant factors to calculate this amount:
- Gender, age, education, labour force participation, marital status, ethnicity,
socio-economic status background
The future prospects for the deceased (the plaintiff’s mother) would probably have
been bleak (one ranking in the lowest socio-economic brackets in Canada)
The victim’s greatest income would have been Welfare (882$/month)
- only the amount dispensed exclusively for plaintiff’s benefit is due to her
(estimated at 200$/month)
Past (11,583$) + Future losses (126,238$)= 137,821$
+
Loss of care/guidance, etc. (20,000$), Loss of inheritance (5,000$)= 25,000$
Holding:
Due to the bleak prospects of the victim, the claims of the plaintiff are seriously
limited. For the loss of her mother, the plaintiff is awarded (162,821$).
Ter Neuzen v. Korn, [1995]
Facts:
The Doctor, Korn, through no liability of his own, infected the plaintiff with HIV
through artificial insemination. The doctor had no way of knowing this would
happen. This appeal is to decide on the extent of damages that the plaintiff is
entitled to. The judge at trial did not instruct the jury of the limits set on damages,
and the plaintiff was awarded damages by the jury which exceeded the limit or ‘cap’.
Issues:
1. Should the damages awarded for non-pecuniary loss be adjusted in accordance
with the ‘cap’ principles?
2. Did the judge err in failing to inform the jury of the limits of damages?
Reasoning: (SCC Sopinka J.)
Damages:
The rough upper limit for non-pecuniary damages was capped at 240k, but the jury
in this case awarded 460k
It is impossible to put a money value on suffering, therefore the award of nonpecuniary damages is a philosophical/policy exercise rather than a legal/logical one
- rather than evaluating loss of happiness, non-pecuniary damages seek to
provide solace
The amount of the award depends on the ability of money to ameliorate the
condition of the victim in his or her particular situation
- Non-pecuniary damages should only be awarded to the extent that they can
serve a useful purpose
Although the plaintiff’s losses are no doubt tragic, the damage cap is there for a
reason, and this tragedy is no different than others which have respected the cap.
Trial Judge:
This presents a dilemma since a) informing the jury of an upper limit could
unduly influence them, b) not informing them seems wrong as a matter of
policy and law
It comes down to the judge’s discretion:
- The trial judge should instruct the jury if he thinks the damages will be in
the range of, or exceeding, the upper limit
- If the judge believes the damages won’t near the upper limit, then he should
not instruct the jury
Whether the jury is or is not advised, the trial judge should reduce the award to
conform with the ‘cap’
Dissent: (L’Heureux-Dubé J)
Agreeing with Sopinka on the point #1., but dissenting on point #2.
“It has always been held improper for the trial judge or counsel to express any views
as to the quantum of damages.”
- that amount is for the jury to determine as they see fit
- making it “a matter of law” defeats the purpose of trial by jury: the value of
the independent judgment of lay people
Holding:
1. The damages should be adjusted to fit the cap for non-pecuniary damages
2. The judge did not err in not informing the jury of the cap, but he should have
corrected the amount to meet that cap afterwards.
Injury: Limits of Recovery
Ter Neuzen v. Korn, [1995] (Review)
Curateur Publique v. Hôpital St-Ferdinand, [1996]
Facts:
Unionized employees at hospital for mentally disabled went on illegal strike for 33
days in Nov 1984. Thus, 703 patients were deprived of regular care and services.
CP brought class action suit on behalf of patients, seeking compensatory damages
for moral prejudice as well as exemplary damages. Both trial and CA judges
declined to use “functional approach” in assessing moral damages. The former did
not award exemplary damages, but the latter did.
Issues:
 Was the trial judge right not to use the functional approach in assessing moral
damages?
 Should exemplary damages have been awarded?
Legal Reasoning (L’Heureux-Dubé J):
 Functional Approach?
o Functional approach not relevant in QC to determine the right to
compensation for moral damages.
o However, it can be used (along with the conceptual and personal
approaches) to determine the quantum of damages to award.
 Exemplary Damages?
o Art. 49 of QC Charter = Can be awarded “when the person who commits
the unlawful interference has a state of mind that implies a desire or
intent to cause the consequences of his or her wrongful conduct, or when
that person acts with full knowledge of the immediate and natural or at
least extremely probable consequences that his or her conduct will
cause.”
 The C.A. was correct to conclude that the appellants had unlawfully interfered
with the patients’ dignity.
o Dignity guaranteed by s.4 of QC Charter
o The interference was intentional.
Holding:
The trial/appeal courts were right not to use the functional approach, and the
appeal court was right to award exemplary damages. Appeal dismissed.
MacKay v. Essex Area Health Authority, [1982]
Facts:
Two plaintiffs are mother and child. Infant born disabled as a result of rubella
suffered by her mother while pregnant. Plaintiffs allege that but for the negligence
of the defendants (health authority and doctor), mother would have had an
abortion. Child claiming damages on the ground of the doctor’s failure to treat the
rubella, and against both defendants for her having “suffered entry into a life” of
distress.
Issue:
Can plaintiffs succeed on a claim of “wrongful life?”
Legal Reasoning (Court of Queen’s Bench, Stephenson J):
 If child was injured as a result of lack of reasonable care and skill of defendants
(either in utero or after birth), she could have sued them  BUT child was not
injured by either defendant, but by the rubella which infected her mother
absent anyone’s fault.
o Her right not to be injured before birth has not been infringed by either
defendant, any more than if he had been disabled by disease after birth.
o Neither defendant has broken any duty to take reasonable care not to
injure her.
 The only right on which she can rely = a right to be aborted or killed
o The only duty which defendants can owe to the unborn child in this case
is a duty to abort or kill her or deprive her of the opportunity to live.
 With respect to the mother, it is said that the duty doesn’t extend that far. But
complaint of the child is that their negligence burdened her (and her mother)
with her injuries  Defendants’ breaches of duty resulted not just in her
being born, but in being born injured.
 BUT as the injuries or deformities were not the result of any act or omission of
the defendants, the only result for which they were responsible was her
being born.
o Child’s claim against defendants is not just that she suffered deformities.
Her claim is that defendants were negligent in allowing her, injured as
she was in the womb, to be born at all  “wrongful entry into life” or
“wrongful life.”
 Question = How can there be a duty to take away life?
o Child could have legally been deprived of life under Abortion Act 1967.
But does not follow that doctor is under a legal obligation to a fetus to
terminate its life, or that the fetus has a legal right to die.
o ** Neither defendant was under any duty to the child to give its
mother an opportunity to terminate its life. The duty may be owed
to the mother, but cannot be owed to the child.
 To impose such a duty would be contrary to public policy =
o It would mean regarding the life of a handicapped child as not only less
valuable than a normal child, but so much less valuable that it is not
worth preserving.
o Would open up claims of handicapped children against their
mothers for not aborting them.
 The only loss for which those who have not injured the child can be held liable to
compensate the child is the difference between its condition as a result of their
allowing it to be born alive and injured and its condition if its embryonic life had
ended.
o Courts cannot determine that the child has lost anything without the
means of knowing what, if anything it has gained.
 It is not for the courts to make such a decision by weighing life against
death  in principle discloses no reasonable cause of action.
Holding:
The courts cannot weigh the harm caused to the child (being born disabled),
because they cannot measure it against the unknown (not being born at all).
Furthermore, it would be against public policy to impose a duty to prevent a life.
McFarlane v. Tayside Health Board, [1999]
Facts:
Ms had four children and to limit the size of the family, Mr. M had a vasectomy and
was told it was successful. However, Mrs. M then became pregnant and gave birth to
a healthy daughter. Ms brought action in negligence against health board, seeking
damages for the costs of rearing the child and for pain and duress suffered by Mrs. M
during pregnancy.
Issue:
Can Ms successfully bring a claim for the “wrongful birth” of an otherwise healthy
child?
Legal Reasoning: (House of Lords, Lord Millet)
 Positions of the parties:
o Plaintiffs = Ms claim defendants failed to take reasonable care to ensure
that the information provided (that vasectomy was successful) was
correct, and that the unwanted pregnancy was a direct and foreseeable
consequence of that negligence.
o Defendants = Do not admit negligence, but concede that unwanted
pregnancy was the direct and foreseeable consequence of their
information being wrong. However, they deny that the conception and
birth of a healthy baby is capable of giving rise to an action in damages.
 The contention that the birth of a healthy baby “is not a harm but a blessing” is
not an accurate formulation of the issue  Claimants must prove that they have
suffered an invasion of their legal rights and that they have sustained loss as a
result.
o Injury = Occurred when (and if) defendants failed to take reasonable care
to ensure their information was correct.
o Loss = Occurred when Mrs. M conceived. This was an invasion of her
bodily integrity and threatened further damage (physical and financial).
 Judgments in favor of rejecting a claim in respect of the financial consequences
of the birth:
o Are heavily dependent on moral sentiment
o Are essentially claims in respect of pure economic loss
 In this case, distinction between “pure” and “consequential”
economic loss are not relevant, especially because the damage in
question is the very thing the defendants were called upon to
prevent.
 The reasons why parents initially sought to avoid childbirth have sometimes
been treated as material. But to consider the parents motivations is a slippery
slope:
o Is recovery to be denied simply because their motivation was not
financial?
o The parents’ motives may have been mixed
o Motives cannot have been known to defendants, and cannot make their
liability dependent on facts unknown to them at the time.
 Traditionally two major arguments on which such claims have been dismissed:
1) The birth of a healthy baby is not a harm, but a blessing:
 Argument = Costs of providing for a child are offset by benefits supplied by its
existence Presumed by the fact that parent did not abort of place “unwanted”
child up for adoption.
o Accepts that there is something distasteful if not morally offensive in
treating the birth of a normal, healthy child as a matter for compensation.
 This argument can be countered by three main arguments:
o Distinguish between birth of child and its financial consequences = It is
not the child that is unwanted, and the child’s existence is not itself the
damage. The birth is simply the occasion by which the defendant’s
negligence manifests itself in economic injury to the parents. The loss is
in the economic damage, not the birth or existence of the child as
such.
 But aren’t the child and the economic consequences inseparable?
o Denying that the birth of a healthy child is always a blessing and nor a
harm.
o Parents are the best judges of where their interests lie. They should not
be treated as receiving a benefit when it is one they have
deliberately decided to forego.
b) The costs of bringing up the child are not the result of his birth but of the parents’
deliberate decision to keep it (rather than abortion or adoption).
 It can never be unreasonable for parents to keep a child rather than aborting it
or placing it up for adoption  BUT the argument is that, however reasonable,
the parent’s decision to keep the child breaks the chain of causation.
o The opportunity for choice was present and was made deliberately.
Parents are not entitled to damages for the financial consequences of
making that difficult but ordinary human choice.
 Court does not accept the fact that this breaks the chain of causation.
 Defendants were engaged for the purpose of preventing such conception. If
conception nevertheless occurred, its financial consequences were clear
and foreseeable. The costs of bringing her up are no more remote than the
cost of abortion or adoption services.
Conclusions:
 Nevertheless, this is not sufficient to allow plaintiff’s claim  It is morally
offensive to regard a healthy baby as “more trouble and expense than it
is worth.”
o This applies to both claims for rearing the child and the mother’s
pregnancy.
 BUT  They have suffered both injury and loss. They have lost the
freedom to limit the size of their family and have thus been denied an
important aspect of their autonomy.
o Entitled to general damages to reflect true nature of the wrong done
to them.
Holding:
Where medical negligence results in an unwanted pregnancy and the birth of a
healthy child, parents not entitled to recover damages for the cost of rearing that
child. The law must regard the birth of a healthy child as a blessing, not a detriment.
However, they can recover for general damages due to loss of autonomy and the
right to plan the size of their family.
Suite v. Cooke, [1995]
Facts:
S did not want to have any more children, so went to C for sterilization. However, C
did not consult an important pathology report which gave him information
regarding the procedure (and could have prevented the procedure from failing).
The procedure was ineffective. S became pregnant and had a healthy baby.
Issue:
Can Suite claim damages for “wrongful conception”?
Legal Reasoning: (Quebec Court of Appeal, Chouinard J.)
 If the doctor is found at fault, he must take responsibility for the consequences.
o C was negligent in performing sterilization by not consulting report
(fault)
o As a result, S got pregnant (consequence)
 Violated S’s right to choose the size of her family
 Public policy argument = “healthy baby cannot constitute an injury”
o Court  No rule of public policy prevents S from recovering in full the
financial damage sustained by her as a result of doctor’s negligence.
o This applies regardless of whether the child is healthy or abnormal
 * A healthy child can constitute an injury
 CCQ 1607 = Just have to show that the damage occurred is a direct and
immediate result of the fault – even though mother could have had
abortion/adoption, the child is still the direct and immediate consequence
of the doctor’s negligence.
 However, must weigh costs and benefits of having child  in this case, the
benefits are balanced with the costs and therefore reduce the
compensation awarded
 CVL places less emphasis on moral arguments than CML.
Held:
Yes. Quebec CVL is wiling to grant “wrongful conception” claim, recognizing that a
healthy baby can constitute an injury.
Radé, “Ètre ou ne pas naitre?”

Perruche decision:
o Cour de cassation awarded damages for wrongful life to a child born
handicapped as a result of a botched test that would have led to mother
having an abortion.
o Has been universally condemned as making the evaluation that a disabled
life is less valuable then non-life, constitutes an injury, and is not worth
living.
 Social critics argue it will affirm and effectively lead to eugenic
practices.
 In awarding damages designed to compensate the victim they are said to be
making the evaluation that being born handicapped is being worse off than not
being born.
o We disagree  Where damages are awarded for bodily damage they
seek not to put the person back into the same place, but rather to
allow them to make their life more comfortable, to allow them to
live a more normal life.
It is irrelevant that this normality is theoretically linked to a state of non-existence,
because in reality he is living a handicapped life and the repairs can be helpful.
Compensation is forward-looking here, not backward-looking.
Markesinis, “Réflexions d’un comparatiste” (optional)
Jourdain, “Loi anti-Perruche”
The French Parliament, under intense political/public pressure, reversed the
landmark decision in Perruche which allowed for mother/father to collect damages
for child born handicapped, which the mother would have aborted (wrongful life)
- lobbying and protest efforts turned the case into a question of “life as
prejudicial” where the real question was about helping families with
disabled children
- doctors were naturally against it since it removes some of their liability for
these types of cases
- rape-children have no cause of action for moral injuries
Means that handicapped children and their families have to rely on the good-will of
the state entirely for pecuniary aid
Misguided decision by Parliament motivated by political pressure and not
sound rationalization
Duty of Care and Causation in Law
Palsgraf v. Long Island Railroad, [1928] (American)
Facts:
Railway worker helped man onto train and accidentally dropped his package which,
unknown to him, contained fireworks. This caused an explosion which knocked
over scales at the other end of the rail platform, which injured plaintiff.
Issue:
Is there a cause of action for plaintiff? Did defendant owe her a duty of care?
Legal Reasoning (Cardozo CJ):
 What does defendant argue?
o While guard might have acted negligently, he was not negligent towards
the plaintiff, but only towards the man whose package he dropped.
o No indication that the package had the potency of peril to persons
thus removed  not reasonably foreseeable.
 “The wrongdoer is the one who carries the bomb, not the one who
explodes it without suspicion of danger.”
o To establish negligence, must be found “a duty to the individual
complaining”
 Cannot make this case by building the plaintiff’s right on the basis of a wrong to
someone else – must find that defendant committed a wrong to her.
 “The risk reasonably perceived defines the duty to be obeyed, and the risk
imports relation; it is risks to another within the range of apprehension” 
“There was nothing in the situation to suggest to the most cautious mind
that this consequence would follow from the act.”
 Negligence is not a tort unless it results in the commission of a wrong, and the
commission of a wrong imports the violation of a right, in this case…the right to
be protected against interference with one’s bodily security.
o If the harm wasn’t willful, it must be shown that the act had possibilities
of danger so grave as to entitle him to be protected against he doing of it,
even though the harm was unintended
No reasonably foreseeable risk = no wrong committed
(Andrews J, dissenting):
 “Duty of care is a duty imposed on each one of us to protect society from
unnecessary danger, not to protect A, B or C alone”  duty of care should
not define a relationship between the actor and those he might
reasonably expect his act to harm, but between the actor and those
whom he actually does harm.
 Negligent act must be the proximate cause of the damage.
o Proximate cause is (at the very least) something without which
the event could not have happened.
o “Was the one a substantial factor in producing the other?”
o Law declines to trace a series of events beyond a certain point (“it is
practical politics”)
o Stream Analogy: “somewhere they reach the point where they
cannot say the stream comes from any one source.”
o Was there a natural and continuous sequence between cause and
effect?
 In dropping the package, defendant committed a negligent act. This act was
the proximate cause of the plaintiff’s injury. He should therefore be liable.
Holding:
The injury resulting from the action was not reasonably foreseeable. Even if he
knew what was in the parcel, could not have predicted it would spread wreckage so
far.
The Concept of the “Duty of Care”
Donoghue v. Stevenson, [1932] (review)
Home Office v. Dorset Yacht, [1970]
Facts:
Group of prison trainees at island work camp under supervision of officers. During
the night, several prisoners escaped, stole a yacht and collided with the
respondent’s yacht (moored in the vicinity).
Issue:
Does the Home Office (or its officers) owe any duty of care to the respondents
capable of giving rise to liability in damages?
Legal Reasoning: (Lord Reid)
 The officers were clearly negligent in failing to properly supervise the trainees.
They knew or ought to have known that they would try to escape by boat during
the night  So, it was a likely consequence of their neglect of duty that the
respondent’s yacht would suffer damage (foreseeability).
 Question is really one of remoteness and causation  To what extent does the
law regard the acts of another person (the trainees) as breaking the causal chain
between the defendant’s carelessness and the damage to plaintiff.
o Home Office argues that if human action is one of the links in the chain,
cannot be argued that the damage was the inevitable result of the
negligence.
o Court  Can still claim that the damage was the “natural and probable
result” of the breach of duty, regardless of intervention.
 BUT “the action must at least have been something very likely to
happen if it is not to be regarded as a “novus actus interveniens”
breaking the chain of causation.
 There is no novus actus when the trainees damaged the respondent’s
property – it was the direct and foreseeable result of the officers’
negligence.
 Home Office argues that officers were exercising statutory duty (authorized by
Crown) – but they can be held liable when that duty is exercised negligently. In
this case, they were given express orders (to supervise) which they failed to
carry out.
 Home office argues that to find them liable would have serious negative policy
consequences, but Reid gives two reasons why it wouldn’t:
o Would have to be shown that their behaviour was so unreasonable that it
could not be regarded as a real exercise of discretion.
o Would have to be shown that the offence was the natural and probable
(as distinct from merely foreseeable) result of the negligence.
Reasoning: (Lord Diplock)
 This is really a case about policy – whether or not to extend the law of civil
wrongs. Should the general duty of care articulated in D v. S extend to these
circumstances?
 Distinguish from Donoghue v. Stevenson:
o Damage was the direct result of a conscious and tortious act by a third
party interposed between defendant’s negligence and the plaintiff’s
damage.
o Defendants are subject to two potentially conflicting “neighbour
relationships” – one with the plaintiff and one with the third parties.
 “The general rule is that one man is under no duty of controlling another to
prevent his doing damage to a third. There are, however, special relations
which are the source of a duty of this nature”  see CB p. 89 for
characteristics of “special relations”
 It can be presumed that Parliament did not intend to authorize officers to
exercise their statutory powers in such a way as to cause proprietary damage to
private citizens which could be avoided by reasonable care.
o A cause of action is capable of arising from failure by the custodian to
take reasonable care to prevent the detainee from escaping if the escape
was the consequence of an act or omission falling outside the limits of
discretion delegated to officers or contrary to instructions received by
Home Office.
 Scope of duty  Owed only to persons officers could have reasonably
foreseen had property situate in the vicinity of the place of detention which
the detainee was likely to steal or damage in the course of escape.
o The trainees escaped from an island from which the only means of escape
would presumably be a boat accessible from the island. Therefore, the
plaintiff (whose boat was moored adjacent to the island) falls within
the scope of the duty.
Holding:
The officers acted negligently in breach of their statutory duty. Damage to the
plaintiff’s property was a reasonably foreseeable consequence of that negligence,
and falls within the scope of the duty of care owed.
Anns v. Merton, [1977]
Lord Wilberforce:
In order to establish that a duty of care arises in a particular situation, it is not
necessary to bring the facts of that situation within those of previous situations in
which a duty of care has been held to exist
- There is no objective test
- It must be proved in concreto
It is sufficient if:
-1. There is a sufficient relationship of proximity or neighbourhood
(Donoghue) such that, in the reasonable contemplation of the wrongdoer,
carelessness on his part may be likely to cause damage to the victim, in which
case a prima facie duty of care arises (sufficient to establish a fact or raise a
presumption unless disproved or rebutted)
- 2. If answered in the affirmative, it is necessary to consider whether there
are any considerations which ought to negate or reduce the scope of the duty
or the class of person to whom it is owed or the damages to which a breach
or the duty may give rise
- ex. Dorset Yacht: class of potential plaintiffs was reduced to those
with property in the near vicinity which could be damaged/used in an
escape attempt
[Established through Donoghue, Dorset Yacht, and Hedley Byrne]
City of Kamloops v. Nielson, [1984]
SCC Wilson J.:
Parallel with public law duties owed by local authorities there may co-exist private
law duties to avoid causing damage to other persons in proximity to them
Test for Duty of Care:
-1. Is there a sufficiently close relationship between the parties so that, in the
reasonable contemplation of the authority, carelessness on its part might
cause damage to that person? If so…
-2. are there any considerations which ought to negative or limit a) the scope
of the duty, b) the class of person to whom it is owed, or c) the damages to
which a breach of it may give rise?
[Reaffirms the test set out by Lord Wilberforce in Anns v. Merton]
Childs v. Desormeaux, [2006]
Facts:
Z was the host of a party where D became intoxicated. After leaving the party, D
drove his vehicle into oncoming traffic and collided head-on with a vehicle, killing
one and injuring three others, among them was C (she is paralyzed form the waist
down). C is now suing Z, hosts, for the injuries she suffered.
JH:
Trial and appeal of Ontario held that no duty of care existed between the hosts and
the victims.
Issue:
Does a duty of care exist between the hosts of a party and third parties injured by a
guest’s intoxicated conduct?
Reasoning: (McLachlin C.J.)
How do we define the persons to whom the duty of care is owed?
Must apply the Anns Test:
1. Is there a sufficiently close relationship between the parties, or proximity,
to justify imposition of a duty and if so…
2. Are there policy considerations which ought to negative/limit the scope of
the duty, the class of persons to whom it is owed or the damage to which
breach may give rise?
Iacobucci in Odhavji v. Woodhouse: requires reasonable foreseeability, sufficient
proximity, and the absence of overriding policy considerations
- At stage one, foreseeability and proximity must be considered to determine
whether a prima facie duty of care arises
- At stage two, it is decided whether broader policy considerations apply
As case law develops, categories of prima facie duties of care are recognized
which make it unnecessary to go through the Anns Test
- However, where a new category of claim arises, it is necessary to consider
whether proximity is established
In this case, proximity has not been established, and the social hosts of parties
where alcohol is served do not owe a duty of care to public users of highways
- The injury to C was not reasonably foreseeable, and even if it were no
duty would arise because the wrong is a failure to act or nonfeasance in
circumstances where there was no positive duty to act
Holding:
Z has no duty of care towards public users of highways. Appeal denied.
Approaches to Relational Loss: “Secondary Victims and
Emotional Loss”
Van Praagh, “Who Lost What? Relationship and Relational Loss”
Personal Relational Loss
 When someone is hurt or killed by another’s wrongdoing, we know that people
who suffer loss go beyond the immediate victim to those with whom he had a
significant relationship.
o Both Canadian systems recognize that the scope of the defendant’s
responsibility may properly extend to those plaintiffs and their
“relational losses.”
 Civil and common law are characterized by different starting points and
different mechanisms for outlining this responsibility:
o CML  Traditionally very wary of recognizing relational harm
 No one can bring a claim against a tortfeasor for relational harm
stemming from the death of another person (only exception is
“nervous shock” of psychiatric injury claims).
o CVL  No theoretical division between immediate victims and “victims
by ricochet”
 Theoretical starting point in civil law is open and generous =
general obligation set out in art. 1457 CCQ.
 1457 may apply to any person who suffers when someone
else is subject to wrongful physical injury. So long as there is
recognizable injury and causal link between the harm and the
fault, recognized as a victim.
1) “Who Are You?”: The Canadian Common Law Picture
 All of Canada’s CML provinces and federal government have “fatal accident
legislation”  provides a right of action for certain categories of people
(generally close relatives) upon the wrongful death of someone close to
them.
o Traced back to Lord Campbell’s Act of 1846
 Meant to benefit close family members for pecuniary damages
suffered after the death of a relative (justified on the basis that
the death deprived survivors of tangible and expected future
benefits).
 Who  Fatal accident legislation varies by jurisdiction, but overall has
become more generous by broadening categories of potential claimants (who
can bring a claim):
o Now includes grandparents and grandchildren, siblings, adopted
children, same-sex partners.
 What  More restrictive approach to pecuniary losses replaced by broader
attitude that allows for inclusion of pecuniary losses associated with loss of
care and guidance. In some, non-pecuniary losses (e.g. grief and loss of
companionship) are recognized.
 Significant that the approach taken by even the most generous CML
legislation is explicitly based on the relational status of the claimant
(who are you?).
 More accurately referred to as relationship losses = It is the damage to a
personal relationship (which society has recognized as central) that is
important here.
o No initial argument need be made as to the real-life closeness of a
particular parent and child = society assumes significance of the
relationship.
 Problems with this approach:
o Will always be both under and over inclusive:
 Under-inclusive = Some relationships are close in nature but
not packaged in a recognized form.
 Over-inclusive = Some relationships which should be close
enough to give rise to real loss will not actually be that close.
o Emphasis on the “who” question has to acknowledge that statutory
assumptions and the reality of people’s lives and relationships do not
precisely fit together. Relationship losses are tied to assumptions
about the networks and close connections within which people
live and from which they receive support.
o Emphasis on “who are you”  Shows that we are less interested in
supporting survivor in her emotional loss than we are in easing the
burden of being left without a relationship assumed by society to be
central.
 Nervous shock = Exception to traditional CML rule, in principle allows
secondary victims who experience it to recover from tortfeasors.
o Two factors:
 1. Exposure to traumatic experience and/or immediacy of
discovery of immediate victim’s injury or death.
 2. Close relationship or emotional proximity between victims.
 This connection is crucial to the establishment of
duty of care between tortfeasors and relational loss
sufferer.
o Relationship need not play such a role if we take psychiatric damage
seriously.
 * While nervous shock may itself be a relational loss, it need
not be a relationship loss  The victim of shock or psychiatric
damage can be characterized as an immediate or primary
victim of the tort.
 Seems that this area of law confuses two kinds of relational loss –
damage to a personal relationship and injury in relation to a wrongful
event – because it is trying to encompass yet another kind of relational
loss, that of grief or sorrow.
o True targeted injury is the grief and depression lived through by the
survivor.
o These assumptions and emphasis on relationship loss lead to
contortion as the law implicitly mixes together psychiatric damage
(arising from relationship to event) and sorrow (connected to one’s
feelings for the hurt or killed person).
2) “What Have You Lost?”: The Quebec Civil Law Picture
 CVL = complexity of balancing injury to relationship, mind and heart seems
to dissipate:
o Structure of general obligation expressed in the CCQ fits well with the
goal of compensating for actual losses.
o No a priori restriction or categorization of potential claimants for
relational loss.
 “Who are you?” question carries no limiting significance.
 Art 1056 CCLC = Generally understood to be Quebec’s version of fatal
accident legislation, whereby certain family members are granted a right of
action in wrongful death situations and others are explicitly excluded.
o Before 1994, civil law expressed same emphasis as CML on these
relationships.
o Disappearance of 1056 strengthens the liberal view and treats
restriction based on relationships as contrary to the civilian approach.
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Key questions in new CCQ thus become:
o a) What loss has been suffered?
o b) Is the loss the result of wrongdoing?
a) What loss has been suffered?
o Defining the scope of what constitutes recognizable relational harm in
the wrongful death and injury context.
o Civil law focuses on the quality of the loss and in so doing ask how
long the relationship lasted or what features of make the loss a moral
injury.
o The question is never explicitly whether this particular person
counts, but rather whether the quality of the injury complained of
and grounded in the particular relationship allows that loss to
count.
b) Is the loss the result of wrongdoing?
o Reveals causation to be the principal limiting mechanism of the civil
law  Only losses which are the “immediate and direct
consequence” of the wrongdoing will be compensated.
 Restraint does not explicitly exclude “victims by ricochet”
 But it does mean that suffering more appropriately
attributable to another cause will not be the responsibility of
the wrongdoer.
Question of “who” the claimant is implicitly resurfaces in the analysis of both
injury and causation  Assumptions about immediate family underlie
both the civil law’s recognition of real loss and its acceptance of the
causal link.
While “ricochet” aspect does not a priori undermine a claim, it makes it less
likely that a “direct and immediate connection” will be established.
o E.g. Employers have rarely been successful in claiming for death of
employees.
o Even though Regent Taxi opened the door on such claims, relationship
in that case was understood as more as a “family” or “joint venture”
than employment.
Though moral injury of solatium doloris was traditionally unrecognized in
Quebec civil law, this was changed with Augustus v. Gosset “Grief” as a
compensable type of damage.
o But not surprising that it was first recognized in a case of mother
claiming for loss of her young son.
o Demonstrates how meaning and analysis of grief or sorrow as
particular losses uncover assumptions about relationships and
their significance.
Appear to be two separable stages: immediate suffering and emotional pain,
and the long-term losses of companionship and moral support  While
Quebec civil law seems to open the door to both, it only fully recognizes the
second.
o In Augustus = Consider objective factors surrounding the death

(including status of claimant) and loss more than feelings. Loss
of companionship thus outweighs true personal sorrow as the
defining feature of solatium doloris.
o Benefit of this is that it avoids painful incursions into private life of
plaintiff and focuses instead on the type of relationship and its demise.
 Can be explained by difficulties of assessing personal grief and
desirability of delving into grief as a real injury.
** Both CML and CVL link relational loss in a strong way to relationship 
Successful recovery in civil law ends up having much in common with
common law, although the emphasis differs (“who” vs. “what and how”).
Reflections on Relationship in Relational Loss
 “Relationship loss” (injury grounded in the relationship between immediate and
secondary victim) is of central concern within substantially different
frameworks of analysis.
o * CML = Relationship determines the very recognition of the relational
loss
o * CVL = Relationship shapes the possibility and scope of recovery
 At least 3 reactions arise to unwavering centrality of place in recovery for
relational loss:
o 1. Balk at exclusionary categories of potential claimants  Push private
law to revisit its assumptions about close relationships and ask that
traditional limitations be questioned in favor of recognizing a greater
range of personal and emotional ties.
o 2. Question CML’s stubborn refusal to recognize relational loss and
insistence that relationship loss be acknowledged but distinguished from
immediate injury.
o 3. Ask why grief and sorrow remain in practice unrecognized as tangible
and immediate injury and are instead indirectly wrapped up in other
relational losses.
 Perhaps this mirrors important intuition = That perhaps it is only
when the grief is in fact associated with the close relationship
fostered by societal assumptions that we truly feel it falls within
realm of private law.
 Law seems to prefer the notion that only someone like a parent, child or
partner should be comforted and compensated upon the loss of a loved one
 Found in both systems, informed and shaped by societal assumptions about
emotional and family relationships.
o This serves to explain something important about both systems:
 Explains why CVL does not go as far as it promises but is
consistently drawn back to the importance of the damaged close
relationship.
 Explains why CML goes further than it cares to admit towards
recognizing emotional injury.
Grief, then, can be seen by the law, but only when grounded in the emotional
connection (often assumed rather than proven) between victims.
Régent Taxi v. Congrégation des petits frères de Marie, [1929]
Facts:
Plaintiff is a religious community which is incorporated by statute and has the
capacity to sue and be sued. CPFM bringing action against Regent. A member of
their community, Brother Henri-Gabriel, was seriously injured while travelling in
defendant’s omnibus. The injury was attributable to the fault and negligence of
Regent employee. Claim consists of three parts: 1) medical costs, 2) clothing and
person effects, 3) actual damages due to the loss of services.
Issue:
Does the plaintiff have a right of action?
Legal Reasoning (SCC, Anglin CJC):
 Question is whether plaintiff falls within the purview of “another” as used in art.
1053 CCLC.
o Prima facie generality  Confers on every person who suffers injury
directly attributable to the fault of a third person as its legal cause, the
right to recover.
o Courts have given “another” in 1053 its ordinary and unrestricted
meaning.
o To depart from these words by restricting “another” to the immediate
victim would be a departure from golden rule of legal construction
that “the grammatical and ordinary sense of the word is to be
adhered to, unless it would lead to absurdity.”
 There is nothing in art. 1056 CCLC that suggests an intent to narrow the scope of
1053 except in the case where the person dies and the claim is for damages
occasioned by death.
o Had legislature intended to exclude from 1053 other cases so plainly
within its ex facie purview (as the case at bar), a more direct method
would have been used.
 Plaintiff had a reasonable expectation (amounting to moral certitude) that
it would enjoy the full benefit of Brother HG’s services during two years
immediately following the injury.
 This expectation of gain or advantage was interfered with by at of defendant –
suffices to create the interest requisite to give a status to sue for damages.
 Arrangement under which Brother HG joined = In return for his services, CFPM
assumed an obligation to maintain him and were given an interest in his wealth
and welfare.
o Sufficient to justify its claim in damages occasioned by inability on his
part to render to it the services stipulated.
o Relations such as between Brother HG and CFPM  give right of
action under CCLC 1053.
Holding:
Yes. The relationship between Brother HG and CPFM was one capable of giving the
latter a right of action to claim damages for the injury and loss of service of its
member.
Augustus v. Gosset, [2009] (Review)
Facts:
Mother claiming moral damages deriving from shooting of her 19 year old son by a
police officer. Her claim for compensatory damages for solatium doloris (solace for
grief) based on arts. 1053 and 1056 CCLC – now replaced by single art. 1457 CCQ.
Holding:
Quebec law does recognize the principle of moral damages for solatium doloris.
Given the circumstances, a fair award might be $25,000. Case must be referred back
to AC for quantum.
Alcock v. Chief Constable, [1991]
Facts:
Police responsible for crowd control at football match allowed excessive number of
spectators onto the grounds. Stands collapsed – 95 killed, 400 injured. Scene
broadcast live on television. Chief Constable admit liability in negligence in respect
of the deaths and injuries. This case is being brought by 16 plaintiffs, none of who
were present in the area where the disaster occurred. All connected in various ways
to injured persons, and claim nervous shock resulting from psychiatric illness which
they allege was caused by their experience of disaster.
Issue:
Can the plaintiffs extend the boundaries of the cause of action to succeed on claim of
“nervous shock?”
Legal Reasoning (House of Lords, Lord Ackner):
 McLoughlin v. O’Brian established that:
o Claim for damages for psychiatric illness resulting from shock caused by
negligence can be made without plaintiff having to prove that he was
himself injured.
o A claim for damages for such illness can be made when the shock results
from:
 Death or injury to plaintiff’s spouse or child, or fear of such
 The shock has come about through the sight or hearing of the
event or in its immediate aftermath.
 * Plaintiffs seek to extend the boundaries of this cause of action by:
o A) Removing any restrictions on the categories of persons that may sue
o B) Extending the means by which shock is caused to include simultaneous
broadcasts
o C) Modifying present requirement that the aftermath be “immediate.”
 Shock is no longer a variant of physical injury but a separate kind of
damage.
 Following propositions illustrate that the application simpliciter of the
reasonable foreseeability test is, today, far from being operative.
o Even though the risk of psychiatric illness is reasonable foreseeable,
law gives no damages if the psychiatric injury was not induced by
shock.
o Even where the nervous shock and subsequent illness caused by it could
both have been reasonably foreseen, it has generally been accepted that
damages for merely being informed of, reading or hearing about the
accident are not recoverable.
o Mere mental suffering, although reasonably foreseeable, if
unaccompanied by physical injury, is not a basis for a claim for damages.
o No authority establishing that there is liability on the part of the injured
person for mere psychiatric injury which was sustained by another by
reason of shock.
 There must be a limit at some reasonable point to the extent of the
duty of care owed to third parties.
o Shock, in this context, involves the sudden appreciation by sight or sound
of a horrifying event which violently agitates the mind.
The Three Elements
 The Class of Persons Whose Claim Should Be Recognized
o 1. Currently law makes distinction between closest family and total
bystander
 Rationale is that those not close to victim should just deal with
such things, or that defendant cannot be expected to compensate
the world at large.
o 2. Court holds that shock suffered by a third person which is
reasonably foreseeable should in principle be able to recover – if a
reasonably strong-nerved person would have been so shocked.
o * Replacing limited class with an objective test open to all (in principle).
o This especially opens up the class of persons to distant family and friends.
 The Proximity of the Plaintiff to the Accident
o Proximity must be close in both time and space, although direct and
immediate sight or learning of accident is not required.
o Don't consider post-accident identification as sufficiently close in
proximity.
 The Means By Which the Shock is Caused
o Established that shock must come through sight or hearing of event or in
its immediate aftermath  left open question regarding simultaneous TV
broadcast.
o Find that in this case, TV broadcasts cannot be equated with the “sight or
hearing of the event or its immediate aftermath”
 But only rules them out in this case, leaves open for other cases
Holding:
Though the court extended the boundaries of the cause of action, all the plaintiffs in
this case fail to meet the criteria. Either they lacked the requisite proximity or their
shock-induced injuries were not reasonably foreseeable.
Approaches to Relational Loss: “Secondary Victims and
Economic Loss”
Elliott v. Entreprise Côte Nord, [1976]
Facts:
Joint owner and employee of ECN (Giannotti) was injured in car accident caused by
fault of Elliott. Rendered him unable to work and ECN had to hire two temporary
workers to replace him. They ended up paying more than they would have had to
for G’s services alone. ECN bringing action in damages against Elliott for financial
losses incurred as a result of his fault.
Issues:
 Does ECN come within the term “another” in art. 1053 CC?
 If so, is ECN entitled to recover from Elliott the damages it is claiming?
Legal Reasoning (Quebec Court of Appeal, Owen J):
1) Does ECN come within the term “another” in art. 1053 CC?
 ENC claiming under art. 1053 CCLC  primarily deals with meaning of the word
“another.”
 Sylvain (France) = Must be prudent when dealing with claims by employers for
the loss of services of their employees:
o Must be a person who is “irreplaceable”
o Unavailability of worker and/or privation of services is not in itself
sufficient to ground claim in damages.
o Must look at actual losses (context)
 Court rejects French and CML law = must focus on the law of QC
 Taken in its ordinary meaning, “another” as used in 1053 means any person at
all to whom damages are caused by the fault of any person capable of
discerning right from wrong.
o There has been much debate about whether 1053 is restricted to the
immediate victim = question remains open.
 Sufficient control can be exercised without distorting the ordinary meaning of
“another”  By restricting damages to immediate and direct consequence
of the delict in accordance with art. 1075 CCLC.
o Disallowing untenable claims for damages on the grounds of remoteness
rather than on the ground that the person claiming is not the immediate
victim (there should be as many claims as there are people suffering
from the wrongful actions)
 No conflict with art. 1056 = 1056 places a restriction on the general rule in the
case where the injured person dies as a consequence of the delict without having
obtained indemnity. In such a case, only certain persons are entitled to claim.
o 1056 is a restriction on, not an extension of, 1053
 ECN is not precluded from suing Elliott on the grounds that it doesn’t come
within “another” under art. 1053.
2) Is ECN entitled to recover from Elliott the damages it is claiming?
 To succeed, ECN is obliged to prove that their alleged damages were caused
by the fault of Elliott and that they were an immediate and direct
consequence of that fault.
 No dispute that G’s injuries were caused by the fault of Elliott.
 Though G was the only foreman at the time, evidence suggests that ECN would
have had to hire another worker to deal with the increased number of contracts.
o The hiring of two men rather than one was not a consequence of G’s
incapacity, but of the rapid increase in volume of business.
Holding:
ECN does come within the term “another” under 1053. However, evidence suggests
that the damages incurred by ECN were not the “immediate and direct
consequence” of Elliott’s fault, but were necessitated by an increase in ECN’s
business.

In QC CVL Nothing about pure economic loss that sets it apart or requires
that it be treated differently from other kinds of loss. Under language of
1457 this decision makes sense because there is no reason in principle to treat
pure economic injury differently or as falling outside the general clause.
Weller v. Foot and Mouth Disease Research Institute, [1966]
Facts:
FMDRI brought virus for experimental testing into the area, where it escaped and
resulted in an outbreak of foot and mouth disease among neighbouring cattle.
Statutory order closed cattle markets in the district. As a result, the plaintiffs (cattle
auctioneers) were temporarily unable to carry on their business and suffered
financial loss.
Issue:
Assuming a fault was committed by FMDRI, are the plaintiffs entitled to recover on
the basis of financial loss suffered due to closing of cattle markets?
Legal Reasoning (Court of Queen’s Bench, Widgery J):
 Principle of CML duty of care  Plaintiff must establish that he was within
the scope of the defendant’s duty of care on the basis of the “neighbour
principle” set out in D v. S.
 Plaintiffs argue that since defendants should have foreseen damages to them but
still failed to take proper precaution against the escape of the virus, their liability
is established.
o If argument is true, extent of their liability would extend beyond a
reasonable scope.
 Established that a plaintiff suing in negligence cannot recover if the act did
not directly injure (or threaten to injure) the plaintiff’s person or property,
but merely caused a consequential loss.
 Though the categories of negligence are not closed, court must proceed with
caution when asked to recognize a new category.
 Defendant’s duty to take care to avoid escape of the virus was due to the
foreseeable fact that the virus might infect and kill neighbouring cattle. The
duty of care is accordingly owed to owners of cattle in the area, but
plaintiffs are not owners of cattle and hence have no proprietary interest
in anything which might conceivably be damaged by escape of virus (no
recognition of purely financial losses)
Holding:
Even assuming a fault was committed, FMDRI owed a duty of care only to those
whose proprietary interests were foreseeably threatened by the escape of the virus.
Because the plaintiffs only suffered consequential (purely financial loss), their claim
in negligence fails.
CML = More reticent to compensate for pure economic loss
Civil Liability and the State
CCQ 1376. The rules set forth in this Book apply to the State and its bodies, and to
all other legal persons established in the public interest, subject to any other rules of
law which may be applicable to them.
Van Boom and Pinna, “Liability for Failure to Regulate Health and Safety Risks”
Introducing Policy Choice and Tortious Liability
 Can the state be held liable in tort for failure to enact protective legislation
preventing the spread of contagious disease? Can a regulatory agency
responsible for occupational health and safety be held responsible for not
safeguarding employees from being exposed to a specific noxious substance?
o Are civil courts the appropriate forum to evaluate legislative policy
in this respect? Or should they abstain from second-guessing public
policy?
 Aim = To identify some of the arguments used in favor and against judicial
activism concerning liability for failure to regulate.
 Note the term “regulatory failure” = Concept itself is somewhat biased. The
word “failure” implies wrongdoing, so we have already set the scene for a
primarily tort-centered view on regulation of health and safety risks.
  Should courts be second-guessing policy choice or should they show
judicial restraint?
The General Picture is One of Restraint
 European courts tend to act with restraint when dealing with regulators’ liability
and generally do not second-guess regulators’ decisions.
o There is little case law on regulatory failure (most concern failure to
enforce).
o Courts want to leave legislature sufficient space to prioritize policy
objectives.

Most jurisdictions seem to take the position that legislative acts are owed to the
public in general and not to individuals (French system is the exception).
The French Seem to Prefer Second-Guessing
 Damage caused to health by hazards which cannot be prevented or that is too
late to prevent is compensated through a solidarity system and does not require
a claim in tort.
 Theory of “risque-profit” = The party that is liable for the manifestation of such a
risk is the one that has an economic advantage of the risky activity.
o Because of this, there is no reason to sue the state for professional
liability issues when then employer is already liable.
 State liability is part of French administrative law and is not governed by
private law rules on liability (found in art. 1382 CC).
 In ruling on claims for compensation for victims of asbestos-related diseases 
Conseil d’État “discovered” a general obligation of the state to regulate health
and safety risks.
o Liability of the State is base don fault and is not a case of strict liability =
State is liable only for those risks that were known or could have
been known at the time they arose and could have been prevented
or alleviated.
o State is under a general duty with regards to regulation of health and
safety:
 Duty of supervision and vigilance
 Duty of reaction
 Duty of vigilance  May be important to justify liability in case of uncertainty
of dangers of a product or activity, where State might be obliged to impose
precautionary measures.
 What is the scope of the duty?
o No reason to limit the duty to professional risks
o Issue can turn to whether the State sufficiently informed the public of the
inherent risks of a specific activity.
Possible Future Developments
a) The European Convention on Human Rights
 While French approach to regulatory failure is unique, duty to react with
regulatory action cannot be considered a strictly French deviation from
European tort law.
o Overall picture may become “more French”
 Convention may demand a duty to react to known health and safety risks. In
this respect, no distinction between enforcement and regulatory failure.
 Must be established that authorities knew or ought to have known of a real
and immediate risk to the life of an identified individual(s) from the criminal
acts of a third party and that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to avoid
that risk.
o Sufficient for an applicant to show that authorities did not do all
that could be reasonably expected of them to avoid a real and
immediate risk to life which they have or ought to have
knowledge.
 In principle, positive obligation under the Convention is not restricted to a
duty to actively enforce existing regulation, but may also indicate a duty to
implement additional legislative measures.
 Duty to react (based on art. 2 of Convention) only covers personal injury.
2) The Deliberate and Lawful Omission as an Excessive Burden for the Few
 Another possible future development is extension of liability for lawfully
caused losses  shifting burden of regulatory action from groups within
society to public purse.
 Includes regulatory action justified by the public good, burdening specific
persons or groups in society with an excessive burden (usually financial).
o Egalité paradigm  Holds regulator liable to compensate
o Example = Lapierre (damage suffered by the few as a result of the
inherent small risks of compulsory vaccination)
 What is the relevance of egalité paradigm for regulatory inaction?
o Good policy reasons to restrict compensation to cases of willful and
deliberate State intervention, because inaction is virtually boundless.
o Balancing  instrument of compensating these few victims may then
be a logical choice under the egalité paradigm.
o Deliberate inaction has not yet been subject of egalité compensation.
 More compelling if deliberate inaction excessively burdens a
limited group of persons.
 There do not seem to be convincing reasons for distinguishing between
deliberate feasance and deliberate non-feasance in this respect.
Balancing the Arguments
 What are the functions liability would have to perform?
o Efficient deterrence of administrative negligence (law and
economics)
o Means of compensating victims and holding the state publicly
accountable
o Scrutinizing government policy
 Such arguments seem to suggest greater trust in courts than in government
= courts are effectively allowed to second-guess regulators’ choices.
 Other may argue that liability of the State cannot further optimize the pressures
that democratic institutions and the political process already exert (no need for
liability).
 The fact that parliamentary consent was given to regulatory feasance or nonfeasance should not pre-empt the possibility of evaluating the outcome with the
“tort-yardstick.”
 Cane:



o Provides mechanism for judicial input into regulatory standard-setting
process.
o Perhaps to some extent a bit of second-guessing is part of a balanced
legal system.
Where Parliament does not discover negligent non-feasance of State and its
institutions, courts may fill this gap and help democratic checks and balances by
second-guessing.
o But State is not a “normal citizen” and has always been granted special
powers and a special position = regulator allowed more leeway.
o However, sill feel that this does not and should not preclude liability.
In relation to the State, investigative boards have largely pushed tort law into a
residual role concerning mass injury. In jurisdictions with strong tradition of
solidarity, some instances of State liability are virtually pre-empted by ad hoc
compensation schemes.
Serious arguments of a financial nature have been voiced against State liability:
o Would stifle government action or induce regulators to start
“defensive legislating.”
o Would divert resources from budgets where they are most needed.
Conclusion  There is in our legal systems more space for this type of State liability
than one would initially expect. At least in some circumstances, the courts
second-guessing regulators has a beneficial impact on the democratic system.
Van Boom, “Torts, Courts, and Legislatures”
Bernèche v. Canada (Procureur Général), [2007]
Facts:
Mad cow disease in Canada caused international border closure and Quebec cattle
farmers lost sales. Claim is that federal government’s failure to regulate animal feed
that was the cause of the mad cow outbreak, and that their failure to act quickly
enough caused plaintiff’s loss.
Issue:
Can a duty of care be established between the government and Quebec, or can they
be found to have acted in bad faith?
Reasoning: (Quebec Superior Court)
Might have hard time proving causation, but only question is whether he can sue.
o Different from Williams, but in both cases questioning a government
decision.
 Government argues that Canada’s decision was a “policy” decision that cannot
give rise to civil liability except in cases involving bad faith.
o When claim relates to some government policy or decision-making, the
claim is very difficult to make because we’re not looking at individual
actor.
o Result  Claim of liability based on fault is not an option, plaintiffs
can only go forward on claim of bad faith of government act
(separate basis, no fault). He said that even if fault-based could go
forward, not sure they could establish causation.
 Judge torn between whether he is applying the civil code or the CML idea of duty
of care. How do you answer claim brought in Quebec against the federal
government?
o Does it make sense that when federal government acts nationally it acts
under two different systems? Would it be fair to have different results in
Quebec and Ontario?
Holding:
 Court concludes that because it is a policy decision, would fail at second step of
Anns test. But nevertheless allows claim to go forward because claimants
alleged bad faith (different type of complaint, accepted that you can complain of
state action when it is alleged to be in bad faith). So case moves forward only on
this allegation of good faith.
Williams v. Ontario, [2009]
Facts:
Plaintiff is framing claim in negligence: Specifically, Ontario’s failure to control the
first outbreak, failure to properly manage prevention measures, failure to have in
place an adequate public health system, failure to issue proper directives and
prematurely lifting the state of emergency. Plaintiff alleges that Ontario knew or
should have known that failure to eradicate SARS completely would result in a
recurrence. Furthermore, alleges that Ontario’s actions were motivated by bad faith
– concern over WHO travel advisory on Toronto.
Issue:
Does Ontario have a private law duty to individual citizens that would allow a claim
against the government for their failure to prevent spread of SARS?
 The issue is only whether Ontario can get a summary judgment, or if the case
has enough merit to go to trial.
 Ontario bases claim for summary judgment on Eliopoulos = While Ontario did
owe a public law duty to prevent spread of West Nile virus, there was no
relationship of proximity between plaintiff and Ontario giving rise to a
private law duty of care.
Legal Reasoning (Sharpe JA):
1) Does the case fall within a recognized category under the Cooper-Anns test?
 Court finds it necessary to assess the claim using Cooper-Anns test. Facts of
the case do not fit into any pre-established category giving rise to duty
of care.
2) Proximity
 Ontario accepts that alleged harm was foreseeable  issue is only whether
there was a relationship of proximity between Ontario and plaintiff.
 Eliopoulos:
o Exercise of discretionary powers to take measures to protect the
public from the spread of infectious disease did not create a private
law duty.
o Powers are to be exercised in the “general public interest” and are
not aimed at the protection of the private interests of specific
individuals.
o In such circumstances, government must balance a number of
competing interests – inconsistent with imposition of a private law
duty of care.
 Cooper and Edwards
o Both cases involved claims by specific individuals alleging that they
had suffered loss as a result of the failure of a public authority to
exercise its supervisory and investigative powers.
o In both cases, was found that public authority owed no private law
duty of care.
 Proximity argument in this case is even weaker than Cooper or Edwards 
Those cases pertained to a narrow class of individuals. This case is
concerned with a general risk faced by all members of the public and a
public authority mandated to promote and protect the health of
everyone in its jurisdiction.
o This risk is highly generalized  impossible to find requisite
proximity.
 Court rejects plaintiff’s arguments that:
o Ontario’s issuing of directives to hospitals was sufficient to establish
relationship of proximity.
o This case should be distinguished from Eliopoulos because of the
nature of the disease and/or how it is spread.
3) Residual policy concerns
 Even if this case had passed the first stage of the Cooper-Anns test, it would
still fail at the second branch due to overriding policy concerns.
 It would create an unreasonable and undesirable burden on Ontario
that would interfere with sound decision-making in the realm of public
health.
o Public health priorities should be based on general public interest.
Inconsistent with recognizing private law duty of care in such cases.
 Does not rule out ability of plaintiff to claim damages as a result of
negligence at the operational level.
 Plaintiff cannot support generalized claim of bad faith at the policy level.
Holding:
Plaintiff’s case fails at first stage of Cooper-Anns test due to lack of proximity. Even if
it had passed, would fail at second stage due to overriding policy concerns. Ontario
owes a public duty to protect health, but this does not (and cannot) translate into a
private law duty of care.
Reference re Broome v. Prince Edward Island, [2010]
Facts:
Group of people alleged physical/sexual abuse as children while they resided in
privately owned/managed children’s home. Home was closed in 1976 and its
remaining assets vested in the Trust. Both the Trust and the Province deny liability.
Issues:
Did the Province owe the children 1. A general duty of care 2. A non-delegable duty
in respect of the care given to the residents of the Home 3. Vicariously liability for
acts/omissions of the Board of Trustees entrusted with the operation of the home 4.
Fiduciary duty to residents of the Home.
Reasoning: (SCC)
1. The Province owed no duties to the children residing in the Home
- At all relevant times the legislative scheme maintained two separate
streams of child welfare: one private and one public
- There is no evidence that the Board of Trustees consented to Provincial
legislative oversight, therefore not under Province’s purview
The fact that the Province indirectly funded the Home is not enough to establish
proximity necessary for the creation of a duty of care
- Neither does it pass the test for novel duty of care under Anns Test
2. The home was not a child-welfare agency under the legislation, nor were they
foster children or wards of the Province
- The Province had no duty to use care in the first place; took no part in
management, care, or oversight of the Home
3. A sufficiently close connection between the Home and the Province has not been
established
- Placing the children in the home doesn’t provide a foundation for the
Province’s vicarious liability
4. The authority and duties of the Board of Trustees with respect to the operation of
the Home left no room for a fiduciary relationship between the Province and the
children
Holding:
No on all counts.
Acts and Omissions: Good Samaritan/“Duty to Rescue”
CCQ 1457. Every person has a duty to abide by the rules of conduct which lie upon
him, according to the circumstances, usage or law, so as not to cause injury to
another.
- Where he is endowed with reason and fails in this duty, he is responsible for any
injury he causes to another person by such fault and is liable to reparation for the
injury, whether it be bodily, moral or material in nature.
- He is also liable, in certain cases, to reparation for injury caused to another by the
act or fault of another person or by the act of things in his custody.
CCQ 1471. Where a person comes to the assistance of another person or, for an
unselfish motive, disposes, free of charge, of property for the benefit of another
person, he is exempt from all liability for injury that may result from it, unless the
injury is due to his intentional or gross fault.
Quebec Charter of Human Rights and Freedoms
2. Every human being whose life is in peril has a right to assistance.
- Every person must come to the aid of anyone whose life is in peril, either
personally or calling for aid, by giving him the necessary and immediate physical
assistance, unless it involves danger to himself or a third person, or he has another
valid reason.
Van Gerven, “Tort Law: Scope of Protection”





Comparative:
o Civil law = civil liability may arise due to omission as well as a positive
act
o English CML = general reluctance to accept unrestricted liability for
“mere omissions” as opposed to “omissions in action.”
 Rationale = While it is logical that I should be held responsible for
consequences of events that I have initiated, the same cannot be
said of harm which results from a chain of events I have not.
 Extends to failing to prevent a third party from causing harm.
It is one thing for the law to say that a person who undertakes some
activity shall take reasonable care. It is another to require that a person
doing nothing in particular to take steps to prevent another from suffering
harm from acts of third parties or natural causes.
Justifications:
o Political = Invasion of freedom
o Moral = “Why pick on me?” argument
o Economic = Efficiency requires an activity to bear its own costs (one who
causes harm through his actions must compensate). No justification for
requiring a person not doing anything to spend money on behalf of
another.
 “Must be some reason why he should have to put his hand in his
pocket.”
France & Germany  Similar rationale is “obligation de sécurité” = duty to
safeguard another’s interest.
Circumstances under which French and German hold such a positive duty to
exist, and which are also known in English CML:
o Existence of special relationship with the plaintiff
 Examples = parents, guardians, police, employers
o Creation of a danger for one’s own (often economic) benefit
 Seen as an extension of law of control over things = I should not
only guard against dangers which I create myself, but also those
which arise from things I acquire in a dangerous condition.
Example = owner of premises has a duty not only to ensure the
safety of the premises, but also the safety of its guests.
o Imposition of duties by law, contract, ethics or a general principle of
good faith
 France = Duty in law to rescue where it would not pose a risk
 Germany, England = Liability arises only when the law imposing
the duty aimed to protect the victim from the kind of harm
concerned.
 May also arise from failure to comply with contractual obligation.
 Unwritten ethical duties may impose obligation to act.
 Major issue is liability arising from failure to prevent deliberate
wrongdoing of a third party.
o England = No general obligation, but many cases under which such a duty
is imposed (contract, special relationship, creation of nuisance).
o Duty may be imposed where defendant negligently causes or allows
a hazard to arise and it is reasonably foreseeable that the third party
may interfere and cause damage by activating danger.
o Is it too great an invasion of individual’s freedom to oblige him to open his
mouth?
Depends largely on the kind of effort required to act  If it imposes too great a
burden on the rescuer, liability should not arise.

An Act to
Promote Good
Citizenship
The Good
Samaritan
Protection Act

“Rescuer” = A person who, having reasonable cause to
believe another to be in danger of his life or bodily harm,
benevolently comes to his assistance.
 Rescuer who sustains injury (or his family if he dies) may
obtain a benefit from the commission.
This is provincial legislation
A person who voluntarily provides emergency medical
services, air or advice to the victim of an accident or medical
emergency at the immediate scene…is not liable for injury or
death to the victim caused by the persons’ acts or
omissions…unless that person is grossly negligent.
 Does not apply if person
o Is employed expressly for that purpose
o Does so with a view to gain
 Applies to a number of volunteer organizations (e.g. ski
patrol, neighbourhood watch).
Kasirer, “Agapé”
The parable of the Good Samaritan (Luke 10:25-37) is often invoked when speaking
about positive duties to act. In CML, the parable is used rhetorically to illustrate
the difference between law and morals. We accept that the priest and the Levite
acted wrongly, but they did not act illegally. In a situation where there is no
proximity and where there is no specific legislative provision, could a victim sue
someone because he suffered an injury that could have been prevented by that
person?
Thesis: Kasirer suggests that the manner in which lawyers in CML and CVL
represent the parable of the Good Samaritan suggests we should reconsider the
traditional view that the CVL is more charitable than the CML in its attitude towards
persons in distress. Numerous legislative exceptions to the CML’s reluctance to
recognize such duties suggests the 2 legal traditions are more similar than we
think.
Lawyers in both traditions invoke the parable to support the
liberal conception that the duty to rescue is depicted as a
restriction on the personal liberty of the person on whom it’s
being imposed
Theological message of the parable (agapè) in favour of goodness
however seems to contradict the fault-based view of civil
obligations.
 Can agapè be imposed by law? This would require a
major reconfiguring of the concept of civil obligations in
both CML and CVL.
Common Law
Most CML decisions tend to separate moral and legal duties. However, it does
sometimes recognize situations where duty to rescue exists (similar to Van Gerven’s
argument). In these situations there is some element of control and economic benefit
 these duties are separate from the “Good Samaritan,” which are essentially
charitable duties. Agapè is a principle of universal ethic, regardless of previous
relationships, or proximity reasons.
Why common law reluctance to duty to rescue? Infringement of
freedom; def shouldn’t have to assume risks he didn’t create.
Civil Law
No general legal obligation to rescue on the grounds of agapè, suggesting there is
also a disassociation of law and morals in CVL. CVL more charitable than CML
because specific legislative provisions that impose a duty to rescue (e.g. art 2
QC Charter). However, good Samaritan is about being good, whereas art. 2 does not
reflect this principle because of exception which says “every person must come to
the aid of anyone whose life is in peril, either personally or calling for aid, by giving
him the necessary and immediate physical assistance, unless it involves danger to
himself or a third person, or he has another valid reason.”
The whole notion of duty to rescue as an obligation is in complete opposition to the
notion of the Good Samaritan. Agapè n’impose rien, il affranchit; il est un amour
manifeste, un moyen de se réaliser, comme être humain. It is a free, unconditional
response and as such, cannot be converted into an ethical norm or duty. Good
Samaritan is not law, but is used to explain law. Thus both traditions refer to the
notion of the “Good Samaritan” but not as agapè. Civil obligations may not
make people “good” or impose a positive right they do not want.
Childs v. Desormeaux, [2006]
Facts:
Z was the host of a party where D became intoxicated. After leaving the party, D
drove his vehicle into oncoming traffic and collided head-on with a vehicle, killing
one and injuring three others, among them was C (she is paralyzed form the waist
down). C is now suing Z, hosts, for the injuries she suffered.
JH:
Trial and appeal of Ontario held that no duty of care existed between the hosts and
the victims.
Issue:
Does a duty of care exist between the hosts of a party and third parties injured by a
guest’s intoxicated conduct?
Reasoning: (McLachlin C.J.)
How do we define the persons to whom the duty of care is owed?
Must apply the Anns Test:
1. Is there a sufficiently close relationship between the parties, or proximity,
to justify imposition of a duty and if so…
2. Are there policy considerations which ought to negative/limit the scope of
the duty, the class of persons to whom it is owed or the damage to which
breach may give rise?
Iacobucci in Odhavji v. Woodhouse: requires reasonable foreseeability, sufficient
proximity, and the absence of overriding policy considerations
- At stage one, foreseeability and proximity must be considered to determine
whether a prima facie duty of care arises
- At stage two, it is decided whether broader policy considerations apply
As case law develops, categories of prima facie duties of care are recognized
which make it unnecessary to go through the Anns Test
- However, where a new category of claim arises, it is necessary to consider
whether proximity is established
In this case, proximity has not been established, and the social hosts of parties
where alcohol is served do not owe a duty of care to public users of highways
- The injury to C was not reasonably foreseeable, and even if it were no
duty would arise because the wrong is a failure to act or nonfeasance in
circumstances where there was no positive duty to act
Holding:
Z has no duty of care towards public users of highways. Appeal denied.
* Important distinction in CML between misfeasance/nonfeasance; in CML,
generally no duty arising from nonfeasance
Crocker v. Sundance, [1988]
Facts:
Crocker participated in a tubing contest at Sundance ski resort. He was drinking
heavily on the day of the contest – and bought much of the alcohol at the Sundance
bar. Several employees noted his condition and even asked him if he was in any
shape to compete, but took no further steps to dissuade him. He got into a tubing
accident and was rendered a quadriplegic.
Issue:
Is there anything to distinguish the present case from an ordinary extreme sports
accident (which do not generally attract liability)?
 Did Sundance owe a duty of care to Crocker?
o If so, what was the standard and was it discharged?
Legal Reasoning (SCC, Wilson J):
1) Duty of Care:
 CML generally distinguishes between negligent conduct (misfeasance) and
failure to take positive steps to protect others from harm (nonfeasance).
 Grows out of philosophy of individualism
o Involves more serious restraint on individual liberty to require a person
to act than to place limits on his freedom to act.
o Distinguish where individual has created the risk and where he has
merely failed to benefit the victim by not interfering.
 Canada  Courts have been increasingly willing to expand number and kind
of special relationships to which a positive duty to act attaches.
 Jordan House = Court held that tavern owed a duty of care to its intoxicated
patron.
o Invitor-invitee relationship
o Awareness of condition of patron = foreseeability
o Served him alcohol in breach of instructions and statutory injunction
against serving an intoxicated patron.
o Once made aware of his condition and thus the foreseeability that harm
might ensue, incurred a responsibility to see to it that he got home
safely – or at least that he was not turned out alone on the street.
 General rule = One is under a duty not to place another person in a position
where it is foreseeable that the person could suffer injury.
 Restatement of issue  Whether Sundance owed duty to take all
reasonable measures to prevent intoxicated plaintiff from participating
in a dangerous activity which was under its full control and promoted by
It for commercial gain.
o Court finds duty of care
o Sundance must accept responsibility as promoter of a dangerous sport
for taking all reasonable steps to prevent a clearly intoxicated patron
from participating.
2) Standard of Care
 Standard of care is dependent on context  What steps would a reasonable
organization have taken to prevent Crocker from competing?
 Numerous steps were open to Sundance to dissuade Crocker from
participating (e.g. disqualifying him, preventing him from competing,
clearly explaining risk). None of these preventative measures impose a
serious burden on Sundance – yet they did nothing.
 The fact that Crocker was irresponsible and intoxicated is the very reason
why Sundance was legally obliged to take reasonable steps to prevent him
from competing.
Holding:
The relationship between Sundance and Crocker gives rise to a duty of care. They
had an obligation to take reasonable steps from preventing a clearly intoxicated
person from participating in a dangerous activity under their supervision and for
their financial gain. Sundance could have taken numerous steps to dissuade him, yet
they did nothing. Failed to meet standard of care required by law.
Causal Connection: Directness and Foreseeability (CML)
CCQ 1607. The creditor is entitled to damages for bodily, moral or material injury
which is an immediate and direct consequence of the debtor's default.
Hart and Honoré, “Philosophical Preliminaries” in Causation in the Law

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

Law has tended to reject philosophical theories on causation with the insistence
that the lawyer’s causal problems are not “scientific inquests,” but are to be
determined on “common-sense principles.”
Lawyer and historian are both primarily concerned to make causal statements
about particulars = to establish that on some particular occasion, some
particular occurrence was the effect or consequence of some other
particular occurrence.
Characteristic concern with causation is not to discover connections between
types of events, and so not to formulate laws or generalizations, but to apply
generalizations to particular concrete cases (singular causal statements).
Since Hume  Generalization or laws, which it is the prime business of
experimental sciences to discover, constitute the very essence of the notion of
causation.
o Causal character is derivative and lies wholly in the fact that the
particular events with which they are concerned exemplify some
generalization asserting that kinds of classes of events are
invariably connected.
o Neglects the simple fact that every singular causal statement was an
instance of one or more general propositions asserting invariable
sequence, and that causal connection consisted solely in this.

Most notorious difficulty with “singular causal statements”  When
generalizations are used to identify the cause of a particular event on a
particular occasion, the question arises whether something should be said to be
the cause of something else, or only its “condition” (a mere condition or part of
the circumstances).
o E.g. In the case of arson, is the presence of oxygen the “cause” of the fire,
or merely a “condition” allowing for it to happen?
o Common sense view does not normally think of such things as a “cause”
– look for things like lighter or faulty wiring = Says something about the
principles that guide our thoughts in the search for causation.
 Idea of “natural limits”
Contrast of cause with conditions is a feature of all causal thinking and
constitutes much of the meaning of causal expressions as the implicit
reference to generalization does.
Cane, “Chapter 5”


Even where it is clear that the tortfeasor’s conduct was a factual cause of the
victim’s harm, he may be held not liable for damage that has occurred in an
unexpected, unusual or unforeseeable way.
o 1. Where damages are “too remote” in time and space (particularly where
some other event intervenes)
o 2. Where damage follows closely in time and space, but which occurs in
an unusual or freakish way or is of an unexpected kind.
Justifications:
o Tortious conduct was not really the “cause” of the damage (causation)
o The damage was not within the risk required to be guarded against (duty
of care)
o The damage was not foreseeable (foreseeability)
Legal Causation
 The “but-for” test is very indiscriminate in that it will identify as “causes” many
factors that are of little interest because they are merely necessary conditions.
o BUT court is looking for the legal cause or the “real, effective, or
proximate cause” (not just a causa sine qua non).
o All these factors are causes in fact – we are looking for the “cause in
law”
 * The legal causation issue is not concerned with explaining what happened but
with an attributive question = Should we attribute responsibility for this
consequence to that cause?
 When court asks whether this defendant should be held liable to compensate,
they will not relieve him of liability simply because there is some other factual
cause – must find a legal cause with enough “potency” to relieve him.
 What are the criteria that law uses to identify legal causes?
o Human preferred to non-human or natural causes



o Natural cause will have to be “extraordinary” and other human conduct
will have to be “unreasonable.”
o Agent of harm more likely to be treated as its cause than the sufferer.
o Tortious conduct or culpable behaviour more likely to be treated as the
cause than non-tortious or less culpable behaviour.
All these considerations shape the plaintiff’s case:
o Often sue a person they do not consider responsible simply because
they know that it offers them the best hope of compensation.
o Person considered to have done a real wrong will not be sued if plaintiff
knows he cannot win.
Law adopts both a stronger and weaker sense of the word “cause” than normal
parlance:
o Weaker = It will dismiss things that we understand as “causes” if they
are only the factual and not the legal causes.
o Stronger = However, “weaker” forms of the causal connection will
sometimes attract liability (e.g. employer and distributor liability; liability
for omissions).
Just shows that although the questions of whether A caused harm and
whether A ought to be held liable to compensate that harm are related,
they are not one and the same.
Damage not within the risk (Duty of Care)
 Liability for breach of a rule only extends to consequences the risk of which that
rule was “designed” to guard against.
o Defendant is only liable for consequences the risk of which he ought
to have taken precautions against.
o The risks relevant to determining whether defendant was negligent (and
therefore liable at all) are also the risks which define the extent of the
liability. Liability only extends so far as the concept of negligence
itself.
 “Risk theory” of extent of liability has several shortcomings:
o There can be liability in negligence for consequences not reasonably
foreseeable and against which precautions would not be required.
Conversely, there are cases in which even foreseeable consequences may
not fall within the scope of liability even if failure to take precautions
would be negligent.
o While the idea of “harm-within-the-risk” may explain results in certain
cases, it does not give any guidance as to whether a particular outcome is
within a particular risk.
Foreseeability again
 Foreseeability is also used in tort as a criterion to determine the extent of
liability for negligence  If a consequence is very unusual or “remote” from
the conduct, it may be said that the consequence was unforeseeable and that



therefore, the tortfeasor is not liable (even if it was caused, in a factual sense,
by the tort).
Wagon Mound = If there is to be “no liability without fault,” then that maxim
must apply to the extent of liability as much as to the existence of liability.
o Objection = Doesn’t follow. If a person ought to have taken certain
precautions, it is not obviously unfair to hold them liable for the
consequences of their failure to do so, whether or not they were all
foreseeable.
As a test of extent of liability  Only requires that the type or kind of damage
be foreseeable, not its exact extent or manner of occurrence (e.g. Leech
Brain).
o In this way, many injuries or diseases “triggered” by a negligent accident
are thus brought within the scope of the tort system and rendered
compensable.
 Explained by overriding desire to compensate people for tragic
misfortunes, especially where the defendant is insured.
o But isn’t it unfair that the majority go unaided by the tort system, while
the handful able to attribute it to a human cause are generously treated?
o Cases like these might be seen as involving liability without fault = While
initial negligence must be proven, claimant recovers damages for what
most would regard as nothing more than pure accident or coincidence.
Where is there no liability?
o Novus actus interveniens (new act intervening; breaking chain of
causation)
o Economic loss
Conclusion = It is only in a very qualified sense that foreseeability is the test of the
scope of liability for the consequences of which negligence is a factual cause. A
negligent tortfeasor may be held liable for unforeseeable consequences of the tort,
and may escape liability for foreseeable consequences of the tort  Foreseeability
fails as an explanation of the scope of liability for negligence.
In Re Polemis and Furness, Withy & Co, [1921]
Facts:
Ship owners claiming to recover damages for the total loss of their steamship by
fire. The fire occurred after defendants’ servant negligently caused a plank to fall.
The plank set off a spark which caused the fire and subsequently damaged the ship.
Defendants claim they can be liable for unexpected extent of damage (which might
reasonably be anticipated from negligent act) but not for the type of damage (which
could not reasonably have been anticipated).
Issue:
Can defendants be held liable for the damage, even if the type of damage was not a
foreseeable consequence of their negligent act?
Legal Reasoning: (King’s Bench Appeal Division)

The falling of the plank was due to the negligence of the defendant. The
fire was directly caused by the falling of the plank  In these conditions, it
is immaterial that the causing of the spark by the falling of the plank could
not reasonably have been anticipated.
 Appellants seek to distinguish between anticipation of the extent of damage and
anticipation of the type of damage.
o Contends appellants can rely on the fact that he could not reasonably
have anticipated the type of damage which resulted from their negligent
act.
 Banks LJ = Given the breach of duty which constitutes the negligence, and given
the damage was a direct result of that negligence, this is irrelevant  Damages
depend only on whether they are the direct consequence of the negligent
act.
 Scrutton LJ = If the act would or might probably cause damage, the fact that the
damage it in fact causes is not the exact kind of damage one would expect is
immaterial, so long as the damage is in fact traceable to the negligent act.
o The knocking down of planks could reasonably be expected to cause
damage to the ship – whether or not it was the type of damage that
actually occurred.
Holding:
Once an act has been determined to be negligent, the question of whether particular
damages are recoverable depends only on the question of whether they are the
direct consequence of the act. Appeal dismissed; ruled for Polemis.
Overseas Tankship v. Morts Dock (Wagon Mound 1) [1961]
Facts:
Respondent operates ship business at port where Corrimel was moored for repair.
Appellant’s vessel (Wagon Mound) carelessly allowed bunkering oil to spill into the
bay while it was moored at that port. When respondent saw oil, ordered workers to
stop welding and burning. However, an inquiry coupled with his own belief as to
the inflammability of oil in the open led him to think they could safely carry on
operation. However, as a result of their work the oil on the water was ignited and
the fire caused great damage.
Issue:
Is the test for liability dependent on whether the damage was foreseeable, or
whether it was the “direct” consequence of the negligent act (Polemis)?
Legal Reasoning (Simonds):
 Trial judge awarded damages to Morts
 Polemis  Should no longer be regarded as good law
o Not consonant with ideas of justice that for an act of negligence,
however slight or venial, which results in some trivial foreseeable
damage the actor should be liable for all consequences however
unforeseeable and however grave, so long as they can be said to be
“direct.”
o Principle of civil liability is that a man must be considered responsible
only for the probable consequence of his act.
 Not because they are “probable” but because, since are, it is judged
by the standard of reasonableness that he ought to have foreseen
them.
o Polemis was wrong in choosing the test of “direct consequence” over
that of “reasonable foreseeability.”
 If the damage is unforeseeable so as to displace liability at large,
how can the liability be restored so as it make compensation
payable?
 It is irrelevant to the question whether X is liable for
unforeseeable damage that is he liable for foreseeable damage.
 Displace proposition that unforeseeability is irrelevant if damage is “direct”  In
so doing, inevitably insists that the essential factor in determining liability is
whether the damage is of such a kind as the reasonable man should have
foreseen.
o Accords with general view stated in D v. S
o It is unfair to make liability dependent solely on the damage being the
“direct” consequence of a negligent act without regards to foreseeability.
Who knows or can be assumed to know all the processes of nature?
o The fire was not a reasonably foreseeable consequence of the defendant’s
actions.
Holding:
Whether the damage was foreseeable is the effective test of liability - not whether it
was the direct result of the negligent act (Polemis is bad law). Appeal allowed.
Causal Connection: Directness and Foreseeability (CVL)
CCQ 1607. The creditor is entitled to damages for bodily, moral or material injury
which is an immediate and direct consequence of the debtor's default.
Starck, Roland & Boyer, “Obligations: Responsabilité Délictuelle”



Sufficient causation rests on notion of “active wrongfulness” that put the danger
into effect. Yet most situations of damage involve a confluence of factors, each
necessary to have caused the accident. But for each of these factors, the damage
would not have occurred.
Law is not science - it is a normative evaluation that hinges upon notion of
blameworthiness and is directed towards upholding social utility.
o Requires causation to distinguish from amongst these causes one that
deserves to be sanctioned. The condition of directness in causation
flows from this.
Examples can serve to elucidate the notion of directness:
o Direct = At a football match an errant fan shoots a firecracker that kills an
opposing fan. Football club was at fault for not separating the fans in light
of the foreseeability of violence. This fault is the direct cause of the injury.
 Note: An infirmity in the victim, but for which the accident would
not have occurred, does not intervene in the finding of a direct
causal link (thin skull).
o Indirect: A man forgets a checkbook in a phone-book. The checks are used
at a supermarket, but the man does not honour them. His fault for
forgetting the checkbook is not a direct cause of the losses suffered by the
supermarket.
o Direct/Indirect: (1) A harms B in a car accident. Months later B, who has a
history of mental illness, kills himself. The court finds direct causation.
(2) Young B steals from A, who sends B home without shoes to indicate
guilt. B throws self from window. A’s actions not a direct cause of B’s
suicide.
 Cascading Damages = Normally in CVL where one fault causes injury that
necessitates action that causes further injury direct causation is posited given
the but-for test.
o Yet the jurisprudence is not even: often where the fault was not one of
great magnitude its connection to remote damages is restricted.
 One theory: Equivalence of Conditions
o All conditions without which the injury would not have occurred have the
same causal value
o BUT this is fallacious reasoning: From those conditions the ones that
weren’t causes must be eliminated
o Only the conditions proven to be faulty are really withheld
Another theory: Adequate Causation
- Not all conditions are causally equal
- Only those causes that would normally/foreseeably lead to the damage
caused should be considered
- Causes that would lead to the damage only in exceptional/unbelievable
circumstances will not apply
Brisson v. Potvin, [1948]
Facts:
P parked his van on the sidewalk, forcing pedestrians to walk onto the road into
oncoming traffic to get around it. B (6 year old girl) walked around the van and into
the opposite lane where she was hit by T’s car. B sues P.
Issue:
Is there a sufficient causal link to hold P responsible for B’s injury?
Legal Reasoning (Pratte J): (Quebec Court of Appeal)
 P’s parking was clearly a fault = It breached municipal bylaws and was negligent
in breaching common sense use of sidewalks.

Causal question  Was B’s injury the “normal and foreseeable consequence”
of P’s act?
 What will break the chain of causation?
o 1. If the act of another has a more direct relationship to the damage.
o 2. If the damage is not reasonably foreseeable.
 P should not be held liable because:
o B getting hit by a car was not a normal and foreseeable consequence:
 The presence of children
 That B would choose to cross at the point where she had limited
visibility.
o T’s car was a more direct cause of the accident.
o B did not meet the burden of proving that P’s parking was the
natural, direct and immediate cause of the injury.
Dissenting: (St-Germain):
 The collision was ultimately caused by P, whose parking forced motorists into
the wrong lane and blocked B’s vision.
 The Defendant didn’t act as a reasonable person; “bon père de famille” (no cones,
stop sign, etc.)
 The correct test in this case is directness rather than foreseeability. B is six
years old, and it is unfair to hold her responsible for not making the best possible
calculation as to visibility.
 The only reason T was driving through a dangerous space in the first place
was P’s parking.
Holding:
No. In this case the act of a third party breaks the chain of causation because it has a
more direct causal link to the injury.
* They say that driver broke the chain of events = novus actus interveniens
Morrissette v. McQuat, [1958]
Facts:
Appellant is a trucker who stopped at respondent’s warehouse to refill his propane
cylinders. Standing on platform to refill, appellant put too much pressure on the
chains. The chains broke and he fell into a steel spike that pierced and injured him.
He is seeking to recover damages from respondent under either art. 1053 or 1054
CCLC.
Issue:
Can the respondent be held liable under either art. 1053 or 1054? This will depend
on whether a causal link can be found between the respondent’s acts and the
appellant’s injury.
Legal Reasoning: (Quebec Court of Appeal)
 Arguments of the appellant that respondent should be held liable under:
o 1053 = She was negligent in so placing such an object, dangerous by
nature.
o 1054 = Presumption of liability for her failure to guard a dangerous thing.
 Respondent claims the injury is not attributable to her (Superior Court agreed).
 Is there liability under art. 1053? NO.
o It is not sufficient that she is the guardian of the thing. That thing must be
the actual and immediate cause of the injury.
 Cannot just be that “but for” the presence of the thing, the injury
would not have occurred” Must actually have played a causal role
in the injury.
o Obviously the steel spike intervened to contribute to the injury, but it did
not depart from its normal use or condition and remained inactive.
o It was the active intervention to the appellant that was the real case – he
was the immediate author of his own harm.
 Is there liability under art. 1054? NO.
o No doubt it was the steel spike that hurt the appellant, but it didn’t do
anything to make the accident occur (it was inactive).
o It was actually the breaking of the chain that was the “cause génératrice”
of the accident and which played a preponderant role in the injury. It was
the breaking of the chain which caused him to fall on the spike and
sustain the injury.
o Respondent didn’t do anything negligent in leaving it where it was.
 Would have been different if appellant tripped on spike and fallen.
 In this case, the breaking of the chain could have caused him to fall
on the ground and break his neck or sustain some other injury.
The spike was not a necessary factor in the injury.
Holding:
Respondent is not liable under either art. 1053 or 1054. The true cause of the
accident was the appellant’s own actions in putting too much tension on the chain,
which caused him to fall. The respondent in no way “caused” the injury.
Joly v. La Ferme Ré-Mi, [1974]
Facts:
J negligently drove her car into a Hydro pole, causing a power failure on defendant’s
nearby farm. This caused the ventilation system in the chicken coop to stop and the
chickens to suffocate and die.
Issue:
Can the damage (death of the chickens) be considered the direct and immediate
consequence of the appellant’s act under art. 1075 CCLC?
Legal Reasoning: (Quebec Court of Appeal)
 Trial judge found no fault was attributable to either defendants or Hydro. The
only question on appeal is if a causal link can be maintained.
 Though facts are different, court relies on Chartier = A driver who struck a cyclist
could be held liable for damages suffered by the later while in the hospital.
 Relying on reasoning in Chartier  Death of the chickens was an immediate
and direct consequence of the accident.
o There was no novus actus interveniens.
o Sometimes a banal accident has serious repercussions. This does not
change the fact that the appellant is responsible for them.
Holding:
Yes.
* Seem to adopt reasoning similar to Polemis  looking only at directness and not
at foreseeability (ignoring the CML’s rejection of Polemis)
Hughes v. Lord Advocate, [1963]
Facts:
Post Office employees working on phone cables left open manholes on quiet street.
When they went on break, put tarp over and warning lamps around it. After they
left, appellant (8) and his uncle (10) decided to enter the “shelter.” They either
knocked or dropped one of the gas lamps into the manhole, causing a giant
explosion. Appellant sustained serious burns.
Issue:
Can the plaintiff’s injuries be considered a “direct and immediate” cause of the
defendants’ faulty actions?
Legal Reasoning:
 Post Office workmen were at fault in leaving this open manhole unattended. Had
they behaved reasonably, accident would not have occurred.
 It was argued that the appellant cannot recover because the damage he suffered
was of a kind which was not foreseeable.
o Respondent argues that the real cause of the injuries was the explosion,
and that the explosion was not foreseeable. It was caused by a known
source of danger, but was caused in a way that could not have been
foreseen.
o Lord Reid = Facts do not support that argument. Appellant’s injuries were
mainly caused by burns and it cannot be said that injuries from burns
were unforeseeable.
 A defendant will be liable even if the damage may be greater in extent than
was foreseeable. He can only escape liability if the damage can be regarded
as differing in kind from what was foreseeable.
 To focus on how explosion occurred is to concentrate on what is really a “nonessential” element in the dangerous situation created by the allurement.
o The test should rather be = Was the igniting of the paraffin outside the
lamp by the flame a foreseeable consequence of the breach of duty?
 It is not necessary that the precise details leading up to the accident should have
been reasonably foreseeable: it is sufficient if the accident which occurred is
of a type which should have been foreseeable by a reasonable man.
o The type of injury was burns – an explosion is only one way in which
burning can be caused. Can imagine many other ways in which
appellants might have sustained burn injuries from the fault of the
respondents.
Holding:
Yes. Though the precise sequence of events (explosion) might not have been a
foreseeable consequence of the fault (leaving open manholes in alluring fashion),
the kind of injury (burns) was.
* See the court struggling with whether they are satisfied that directness is good
enough test
 From WM and Hughes, see that the answer is no  Directness is not
enough, in and of itself, to justify liability.
 Still want foreseeability
o Hughes = seems to suggest that foreseeability, on the other hand, may
be sufficient (even if fault is indirect).
o If the kind of injury is foreseeable, extent of damage doesn’t matter.
Palsgraf (Review)
Complicating the Story: Multiple Wrongdoers and Multiple
Causes
CCQ 1478. Where an injury has been caused by several persons, liability is shared
by them in proportion to the seriousness of the fault of each.
- The victim is included in the apportionment when the injury is partly the effect of
his own fault.
* See also Athey v. Leonati (semester 1)
Deguire v. Adler, [1963]
Facts:
A administers a vacant apartment on behalf of owner (D). A was also a contractor
and hired painters to work on apartment 6, who shut off the gas flow to the
apartment and disconnected the gas pipes inside the apartment from the stove.
Weeks later, 2 workers hired by D accidentally turned on the gas flow to the
apartment, but did not reconnect the stove. Gas began to fill the unoccupied
apartment. A few hours later a potential tenant was being given a tour they noticed
the smell of gas and left immediately. Despite opening the windows and shutting off
the gas, an explosion occurred 15 minutes later, the exact cause of which was
unknown. The explosion harmed V, the adjacent tenant.
Issue:
Who is responsible for the explosion? If both, how should liability be apportioned?
Legal Reasoning (Quebec Court of Appeal Choquette J)
3 factors are causally connected to the explosion and injury:



(1) Failure to reconnect the stove by the painters employed by A
o Fault = Painters should have foreseen that leaving stove unconnected
could lead to risk of accidental opening of gas. Fault was a direct cause of
the explosion.
(2) Accidental resumption of gas flow to the apartment by D’s workers
o Fault = Workers opened the gas line without inquiring first why it had
been shut. Had they done so, might have led them to realize stove was
disconnected.
(3) Whatever produced the spark
o This is a fault, but cannot determine who committed it.
o Presence of this fault doesn’t negate liability for the earlier two faults.
* Thus there is a “concours des fautes,” which caused the explosion and in which D &
A were both equally involved  responsibility should be shared equally
between D and A.
Casey J (concurring):
 “Where an accident arises in consequence of independent acts of negligence
committed by two sets of persons, both directly contributing to the accident and
to the injury suffered by the plaintiff, each is severally answerable under the
law of Quebec to the plaintiff for the damages sustained by him; a principal
which is applicable here.”
 It doesn’t matter whether the independent acts occurred simultaneously or
sequentially.
Rivard J (concurring):
 It is the union of the two faults together which caused the damage, rather than
the two faults individually.
 Mazeaud’s criteria for joint liability:
o A fault committed by two or more persons
o A causal link between the damage and the faults
o A single damage resulting from the faults.
 These criteria are fulfilled here, so D and A are liable together.
 Rivard insists on the synergy between the faults, rather than their
sequential nature.
Owen J (dissenting):
 The acts of A’s painters, which were the cause of the damages, didn’t constitute
negligence.
 Also, something was required to ignite the fire
o Negligence of the janitors  owner of the building (D) and not
contractors (A) are responsible for this.
o Dismiss liability by A, only D is liable to V.
Holding:
In event of a collective fault (in which two or more faults are necessary to create a
single injury), defendants will be held jointly and severally liable. Both D and A are
responsible, and each must pay 50% of the damages.
* Indivisible Damage: key language in the contributory negligence cases
Q. v. Minto Management, [1985]
Facts:
Plaintiff was raped in her apartment by an employee of her landlord, who had
probably gained access to the apartment with a master key. Another woman had
been raped three months earlier by the same employee. Landlord knew about
earlier rape and knew it likely had been committed by someone with a master key.
But he did not warn the tenants or take additional security steps. Plaintiff brought
action for personal injury against landlord.
Issue:
Can the landlord be held liable for the rape of the plaintiff despite the intervention
of intentional criminal conduct by a third party?
Legal Reasoning (Gray J):
 Action of the rapist (H) was not too remote as to be reasonably foreseeable.
o M may not have foreseen that H was the rapist, but the risk of the same
person entering in the circumstances was a foreseeable risk.
 Law with respect to intervening intentional and criminal conduct:
o Damage may have to be paid for by a negligent actor who creates an
unreasonable risk of such a consequence.
o The “intervening act” was not a “fresh, independent cause”  The
person guilty of the original negligence (M) will still be the effective
cause if he ought reasonably to have anticipated such interventions.
Holding:
Yes. If intervention is foreseeable, original negligence will still be the effective
cause.
Nattrass v. Weber, [2010]
Facts:
N broke his leg and as a result of an unusual adverse reaction to Heparin (blood
thinner) administered during surgery, had to have both legs amputated.
Immediately after accident was being treated by Drs. W and H, who ordered blood
count and prescribed Heparin. This was not deemed negligent because it was the
standard. Over the next week, continued Heparin but no further blood counts done.
This failure to monitor is basis for negligence claim against W and H. All of a sudden
N started having throbbing pain which Dr. S diagnosed as deep vein thrombosis and
gave emergency shot of Heparin while they waited for tests. This dose before tests
is basis for negligence claim against Dr. S. The real cause of the throbbing was HIT,
very rare complication due to Heparin, which then caused the amputation of both
his legs.
Issue:
Which, if any, of the doctors can be held liable for negligence?
Legal Reasoning: (Alberta Court of Appeal)
Negligence of Drs. W and H
 Standard of care expected of a doctor is “the reasonable and average
practitioner.”
 Drs. W and H followed standard practice of their profession.
 They were not negligent  The risk that materialized and precautions that
could have prevented it were not obvious to an ordinary trier of fact, so could
not apply that standard to judge them (have to use medical standard).
o Selection of incorrect standard at trial is an error in law.
o Drs. W and H = not negligent
Dr. S: Causation and Standard of Care
 Test for causation = “but-for” or “material contribution”
o Trial judge simply applied material contribution – never attempted but
for, and never established pre-conditions of material contribution.
 Selection of the wrong test for causation is an error in law
subject to revision.
 1) “Material contribution” test laid out in Athey:
o If X and Y alone each could have been a sufficient cause, then it is unclear
which was the cause-in-fact of the injury. Judge must determine, on a
balance of probabilities, whether defendant’s negligence (X) “materially
contributed” to the injury.
 Multiple causes precedent = Tort causes need not be the sole
cause as long as it “materially contributes.”
 In multiple cause cases, the law does not apportion among causes.
o Could be described as a type of “de minimis” defense or limit on liability.
 2) However, there is another usage of “materially contributes” laid out in Hanke
o “But for” test is the presumptive legal test, but there is an exception
where it is impossible for plaintiff to prove causation to ”but for”
standard.
 Exceptional alternative standard of proof that can sometimes be
used to prove causation.
 No reason why trial judge should have applied “materially contributed” test (in
Hanke sense) rather than the “but for” test.
 No causation  Several key findings of fact needed to satisfy “but for” test.
o Specifically, N cannot prove that he would not have lost his legs even
if Dr. S had done nothing.
 Standard of care = Recognize that an ER doctor should not be held to be at
fault:
o For having to deal with a problem not of his making (already had HIT).
o For selecting one diagnosis over another, especially when it is a rare
condition.
Holding:
No negligence by the doctors (claim against W and H dismissed; new trial ordered
for S).
Caneric Properties v. Allstate, [1995]
Facts:
C is the owner of an immovable that was vacant since 1985 and was set for
demolition. A neighbour (Allstate) complained to C of a leak into his basement.
That day, a team of City of Montreal workers came to fix the problem. The first team
did not complete the job and were replaced by a second team. Leader of second
team said his instructions were to do nothing if there was no one on the scene, so
the repair was never completed. About a week later, the cold intensified and a pipe
burst, flooding and damaging neighbour’s basement.
Issue:
Given the sequence of faults that occurred, what is the legal cause of the damage?
Legal Reasoning (Quebec Court of Appeal, Baudouin J.):
 Fault #1 = Caneric
o C committed a fault in allowing their abandoned building to sit through
the winter without taking precautions. At the very least, should have
turned off the water.
 It is foreseeable that a pipe would burst.
 Fault #2 = Montreal
o The second team (especially leader) committed a fault and invoked a
directive that was never proven (was actually contradicted).
o Could have taken a number of steps, but instead did nothing = gross
negligence.
 Fault #3 = Caneric
o Having been made aware of the situation, they should have taken steps to
ensure that the problem was resolved.
o A reasonable and diligent proprietor with reasonable concern for
his neighbours would have verified the work was done.
 In the case of multiple faults, establishing causation is very difficult.
 General rules on causation:
o Criteria of “causalité adequate” = direct and immediate cause
o Criteria of foreseeability
 All three faults can be shown to be the “cause” of the flood.
 However, fault #1 is probably too remote in time to be able to be called a “direct
and immediate” cause of the flooding, and faults 2 and 3 are more direct
intervening causes.
 Faults 2 and 3 equally contributed to the risk in a direct and immediate
way. Split 50-50.
Holding:
Though the first fault is too remote, the two subsequent faults (one by C, one by
Montreal) are the direct and immediate cause of the flooding.
Home Office v. Dorset Yacht (Review)
Predisposition of the Victim
Smith v. Leech Brain, [1962]
Facts:
In 1950, S was operating crane at LB’s plant. Using only a makeshift piece of iron to
shield himself from spitting molten metal. Inadvertently got outside protection of
shield and sustained bad burn on his lip. Burn did not heal, ulcerated and was
diagnosed as cancerous. Led to secondary growths and S eventually died of cancer
in 1953. S had worked in gas industry from 1926-35 and so was prone to cancer in
that he might have had pre-malignant condition set off by the burn. However,
possible he may have developed cancer without the burn.
Issue:
Can LB be held liable for Smith’s cancer and resulting death?
Legal Reasoning (Lord Parker, CJ):
1) Negligence
 Clear and known danger of molten metal flying from tank  injury by burn
to employees is clearly foreseeable by reasonable employer.
 Clear that policy of using iron sheet as protection was wrong. Almost inevitable
that such an accident would occur.
o Many other galvanizers had advanced to proper shelters.
2) Causation
 Were Smith’s cancer and resulting death caused in whole or in part by the burn?
 Three rival views as to what might have caused the cancer and death:
o 1. Cancer caused by burn without pre-malignant condition.
o 2. Cancer caused by malignant condition without burn.
o 3. Given pre-malignant condition, burn was the promoting agency
which made the cancer develop.
 Court takes this final view
 Though S might have developed cancer eventually, no doubt that the burn
did contribute to the cancer and death.
3) Damages
 Wagon Mound case did not have “thin skull rule” in mind  It has always been
the law that a tortfeasor takes his victim as he finds him.
 Clear distinction between question of whether one could reasonably
anticipate a type of injury and whether one could reasonably anticipate the
extent of injury.
 Test is not whether employer could reasonably have foreseen that a burn would
cause cancer and that he would die. The question is whether employer could
reasonably foresee the type of injury he suffered – the burn.
o Damages which he suffers as a result of that burn depend on
characteristics and constitution of the victim.
Holding:
Yes. LB committed a fault which caused S’s injuries. Even if they could not predict
the extent of the injury due to the characteristics of S, the type of damage was
foreseeable.
Marconato v. Franklin, [1974]
Facts:
F’s car struck M’s and M sustained minor injuries. However, she then developed
symptoms with no physical explanation. M became depressed, hostile and anxious,
leaving her unable to care for her children and home. Psychiatric evidence suggests
that she had paranoid tendencies and that the impact of the accident had brought
about her present condition.
Issue:
Can F be held liable for the injuries suffered by M as a consequence of his fault?
Legal Reasoning (Aikins J):
1) Causation
 Would not usually anticipate, using reasonable foresight, that a moderate
injury would give rise to the consequences which followed for M.
 Her peculiar susceptibility to suffer these greater consequences could be no
more foreseen that a tortfeasor’s victim was unusually thin-skulled and that
a minor blow to the head could cause him serious injury.
 It is plain enough that defendant could foresee probability of physical
injury  Wrongdoer takes his victim as he finds him.
2) Remoteness
 Cites Smith v. Leech Brain
o Thin skull rule
o Distinction between foreseeing extent and type of damage
Holding:
Though M had a pre-existing disposition, her present condition was brought on by
the consequences of the injury caused by F. He is therefore liable for damages.
Corr v. IBC Vehicles, [2006]
Facts:
C was seriously injured and disfigured by a workplace accident. Also caused him
severe psychological trauma which developed into depression. Six years after the
accident, he killed himself. While C was receiving compensation from his employers
for his physical and psychological loss, his wife is now suing them under the Fatal
Accident Act.
Issues:
Was the defendant’s suicide a reasonably foreseeable type of harm at the time the
accident occurred or was it a novus actus interveniens?
Reasoning: (Lord Justice Ward: dissenting)
Big question: what ist he damage for which the dfednat under consideration should
be held responsible?
- From what kind of harm was it the defendant’s duty to guard the claimant?
A breach of duty is established and the causal link was not broken by the suicide
- The question remains, however, whether self-harm is a kind of harm which
was not reasonably foreseeable. What is reasonably foreseeable is the test.
Wagonmound 1:
- Essential factor in determining liability is whether the damage is of such a
kind as the reasonable man should have foreseen
If a depression is foreseeable then it is equally foreseeable that the depressed
person may take his life
- Difference between what was logically foreseeable and what was reasonably
foreseeable
Death caused by suicide after a lapse of time from the original accident and
after the intervention of the depression is a different kind of damage from
death immediately following the cause of the injury
- They have a different character
- Suicide doesn’t occur spontaneously as a symptom of depression
Is it fair, just, and reasonable to hold the defendant responsible for C.’s death?
Was suicide a reasonably foreseeable consequence at the time?
- Must conclude that it was not
- Was an awful/unfortunate accident that cannot be blamed on anyone
Reasoning: (Lord Justice Sedley: majority)
Either the suicide was a product of the depression or it was a discrete event
- The suicide was grounded in post-traumatic depression and nothing else
Foreseeability of psychological harm has already been accepted, and suicide
as a result of that foreseeable harm will only be excluded from damages if
there is a logical/evidentiary/policy break that intervenes; here there is none.
It is argued that the suicide, an act of the victim, was a novus actus interveniens
- * But it is not where his suicide was a direct symptom of his depression
Once liability for the depression is established (which it was here) the question is
only whether the suicide was a direct result of the depression
- It clearly was
Reasoning: (Lord Justice Wilson: concurring)
“Suicide, while deliberate, may often be the product of a will so overborne or
influenced by the worker’s circumstances that it should not be regarded as an
intentional act breaking the chain of causation.”
Holding:
The suicide was a direct and foreseeable type of injury resulting from the
depression caused by the workplace injury and is compensable. The appeal should
be allowed.
Athey v. Leonati, [1996]
Facts:
The appellant suffered back injuries from two major motor-vehicle accidents. Before
the accidents, he had a pre-disposition towards back problems. He was on his way
to recovery from the accidents when he suffered a disc herniation as a result of a
mild stretching exercise; he then brought claims against the other parties of the
accidents.
Issue:
Can loss be apportioned between tortious and non-tortious causes where both were
necessary to create the injury?
Reasoning: (Major J.)
Respondents:
 argue that apportionment is possible according to degree of causation
where loss is caused by both tortious (accidents) and non-tortious (predisposition) causes (Crumbling Skull).
The Thin Skull and “Crumbling Skull” Doctrines:
 Thin Skull: the tortfeasor is liable for the plaintiff’s injuries even where
those injuries are especially severe owing to a pre-existing condition.
 Crumbling Skull: the defendant is liable for injuries caused, but need not
compensate plaintiff for any debilitating effects of a pre-existing
condition which the plaintiff would have experienced anyway.
 The defendant would be liable for the additional damage but not the preexisting damage.
Major J. disagrees: there was no finding of a risk of the herniation occurring
without the accidents.
Causation:
 General Test of Causation: the injury would not have occurred ‘but for’
the negligence of the defendant (accident)
 Courts have recognized that causation is established where defendant’s
negligence ‘materially contributed’ to the occurrence of the injury
o 1. If the disc herniation would likely have occurred without the
injuries sustained during the accident, then NO CAUSATION
o 2. If both pre-condition and accidents were necessary for the
herniation, then YES CAUSATION
o 3. If either the pre-condition or accidents alone could have caused
the herniation, then outcome is unclear and Courts must
determine on balance of probabilities whether the defendant’s
negligence materially contributed to the injury
*The trial judge was correct in finding that both the pre-condition AND the accidents
were necessary for the disc herniation
 The trial judge erred in apportioning damages based on this
 Straightforward application of the ‘Thin Skull Rule’
 **As long as defendant is part of the cause of the injury, the
defendant remains liable for all injuries caused or contributed by
their negligence.
o Law does not excuse defendant from liability merely because
other causal factors for which he was not responsible helped
produce the harm.
Holding:
The finding of material contribution was sufficient to render the defendant fully
liable for the damages flowing from the disc herniation. Appeal allowed.
Ratio:
Once it is proven that the defendant’s negligence was a cause of injury, there is no
reduction of the award to reflect the existence of non-tortious background causes
(the Thin Skull Rule reinforces this conclusion).
Viney, “Les conditions de la responsabilité”
The norm in civil law of Torts is to “take the victim as they come”
- Even if the victim has a predisposition that exacerbates the damages that
the defendant’s actions cause, that defendant is liable for totality of the
injuries that accrue
- The victim’s condition is not a fault nor is it an action under the
victim’s control
- The injury could not occur without the negligent intervention of the
defendant, it should be 100% defendant’s responsibility
- Apportionment of responsibility should not be a recourse
This has been the principle in almost all Criminal/Civil jurisprudence
Some exceptions:
- If the damage would have occurred due to the predisposition with or
without the intervening actions of the defendant
- Doctrine supports apportionment in some cases; courts are hostile to it
Social jurisprudence (ex. Workplace injuries):
- Have proven a bit more accepting of apportionment of liability
- Separation of harm from predisposition and harm resulting from the
injury sustained
- But it goes against what the rest of the courts have almost unanimously
decided
Victim’s Behaviour
CCQ 1474. A person may not exclude or limit his liability for material injury caused
to another through an intentional or gross fault; a gross fault is a fault which shows
gross recklessness, gross carelessness or gross negligence.
- He may not in any way exclude or limit his liability for bodily or moral injury
caused to another.
CCQ 1477. The assumption of risk by the victim, although it may be considered
imprudent having regard to the circumstances, does not entail renunciation of his
remedy against the person who caused the injury.
CCQ 1478. Where an injury has been caused by several persons, liability is shared
by them in proportion to the seriousness of the fault of each.
- The victim is included in the apportionment when the injury is partly the effect of
his own fault.
Hydro v. Girard, [1987]
Facts:
G noticed an electric wire that was hanging off Hydro network. The pole supporting
it was flaming or sparking. He called Hydro but on his way back, noticed it had
descended further and was now making a weird noise. Got out of his car attached it
with a plastic bag to prevent it from falling further and creating public danger.
However, this made it worse and caused a minor explosion in which G was badly
injured.
Issue:
Can Hydro avoid liability on the grounds that G was contributorily negligent?
Legal Reasoning (L’Heureux-Dubé J):
Findings of Trial Court:
 Found G “principally responsible” (75%) for his injury:
o He acted very imprudently considering no one was in immediate
danger.
o He advised Hydro – he should have waited for them to arrive.
o His good intentions are unfortunately irrelevant
 Found Hydro 25% responsible
o Failed in their obligation to maintain their system in good and safe
order. As such, must accept some responsibility.
Court of Appeal:
 Hydro invokes 3 means to counter the trial court’s finding of liability:
o G’s action was a “novus actus interveniens” that effectively broke the
causal link.
o The sole and direct cause of the accident was the extremely imprudent
act of G.
o Trial judge erred in holding that Hydro committed a fault of omission.
 To hold Hydro liable, must establish that they committed a fault under art.
1053 CC, and that this fault caused the injury.
 In effect, it was the gross imprudence of G that was the only and effective cause
of the damages he sustained.
o Neither the plaintiff nor the public was in immediate danger, so he had no
justifiable reason to act as he did (good intentions do not justify his
actions).
o “But for” G’s imprudence, accident would not have occurred.
o This constitutes a veritable “novus actus interveniens.”
Holding:
Yes. G’s imprudence was the sole and effective cause of his injury. Even if Hydro
could be found to have acted negligently, G’s act constituted a “novus actus
interveniens” that broken the chain of causation.
Contributory Negligence Act
Establishes that damages/fault should be apportioned so that the plaintiff has
judgment only for so much as is proportionate to the degree of fault imputable
to the defendant
Where it isn’t practicable to determine the respective degrees of fault, it will be
apportioned equally (jointly severally liable)
Crocker v. Sundance, [1988]
Facts:
Crocker participated in a tubing contest at Sundance ski resort. He was drinking
heavily on the day of the contest – and bought much of the alcohol at the Sundance
bar. Several employees noted his condition and even asked him if he was in any
shape to compete, but took no further steps to dissuade him. He got into a tubing
accident and was rendered a quadriplegic.
Issue:
Is there anything to distinguish the present case from an ordinary extreme sports
accident (which do not generally attract liability)?
 Did Sundance owe a duty of care to Crocker?
o If so, what was the standard and was it discharged?
Legal Reasoning (SCC, Wilson J):
1) Duty of Care:
 CML generally distinguishes between negligent conduct (misfeasance) and
failure to take positive steps to protect others from harm (nonfeasance).
 Grows out of philosophy of individualism
o Involves more serious restraint on individual liberty to require a person
to act than to place limits on his freedom to act.
o Distinguish where individual has created the risk and where he has
merely failed to benefit the victim by not interfering.
 Canada  Courts have been increasingly willing to expand number and kind
of special relationships to which a positive duty to act attaches.
 Jordan House = Court held that tavern owed a duty of care to its intoxicated
patron.
o Invitor-invitee relationship
o Awareness of condition of patron = foreseeability
o Served him alcohol in breach of instructions and statutory injunction
against serving an intoxicated patron.
o Once made aware of his condition and thus the foreseeability that harm
might ensue, incurred a responsibility to see to it that he got home
safely – or at least that he was not turned out alone on the street.
 General rule = One is under a duty not to place another person in a position
where it is foreseeable that the person could suffer injury.
 Restatement of issue  Whether Sundance owed duty to take all
reasonable measures to prevent intoxicated plaintiff from participating
in a dangerous activity which was under its full control and promoted by
It for commercial gain.
o Court finds duty of care
o Sundance must accept responsibility as promoter of a dangerous sport
for taking all reasonable steps to prevent a clearly intoxicated patron
from participating.
2) Standard of Care
 Standard of care is dependent on context  What steps would a reasonable
organization have taken to prevent Crocker from competing?
 Numerous steps were open to Sundance to dissuade Crocker from
participating (e.g. disqualifying him, preventing him from competing,
clearly explaining risk). None of these preventative measures impose a
serious burden on Sundance – yet they did nothing.
 The fact that Crocker was irresponsible and intoxicated is the very reason
why Sundance was legally obliged to take reasonable steps to prevent him
from competing.
Court finds Crocker partially responsible and Sundance partially responsible
(apportionment of responsibility)
Holding:
The relationship between Sundance and Crocker gives rise to a duty of care. They
had an obligation to take reasonable steps from preventing a clearly intoxicated
person from participating in a dangerous activity under their supervision and for
their financial gain. Sundance could have taken numerous steps to dissuade him, yet
they did nothing. Failed to meet standard of care required by law.
Waldick v. Malcolm, [1991]
Facts:
W seriously injured after falling on icy parking area of M’s farmhouse. M claimed it
was local (rural) custom – no one salted driveways. W was aware laneway was
slippery, condition clearly visible.
Issue:
Did M fail to meet statutory duty of care imposed by Occupier’s Liability Act? Was W
contributorily negligent under the Act?
JH:
Both trial court and AC of Ontario held M liable for W’s injuries.
Legal Reasoning: (Iacobucci J.)
Courts rarely take judicial notice of custom – custom not decisive against negligence.
If plaintiff acted unreasonably, it matters not that his neighbours also acted
unreasonably.
Custom was never proven
 M found to have breached s.3(1) of Act notwithstanding local custom
Act meant to discourage such generalized negligence and impose standard duty of
care for occupiers. It mandates positive action on part of occupiers to make
premises reasonably safe. Where no such effort has been made, exceptions to duty
of care will be few and narrow.
Test of reasonableness and foreseeability  Conditions of the icy laneway were
not unexpected, and M did nothing to eliminate the risk even though they knew it
would be used by visitors . In doing nothing, failed to meet duty of care required by
s.3(1) of the Act.
 M argues that standards should be lower for rural environment:
 But point of scheme was to limit arbitrary rules applicable to different
kinds of premises in favour of a generalized duty of care.
M’s duty was not to make the whole farmground safe, only the area in which they
knew people would be (close to entrance / parking area)
Earlier courts found no contributory negligence under s.4(1) of the Act – this court
agrees.
 Does “risks willingly assumed” entail proceeding in the face of knowledge
of the risk, or is it codification of volenti non fit injuria doctrine (‘to a
willing person injury is not done)?
 Essentially = merely knowing of the risk v. consenting to legal risk
 Mere knowledge of conditions is not what is meant by s.4(1) – the mere
fact that a visitor observes a risk does not relieve occupier of
statutory duty of care.
Volenti = s.4(1) was meant to embody this doctrine - does not bar the claim because
there was no agreement to waive legal rights.
Very rare for plaintiff to genuinely consent to accept all risks (narrow exception).
Holding:
M breached standard duty of care in Act. W was not contributorily negligent. M is
therefore liable for injuries W sustained on their property. Appeal dismissed.
Custom does not excuse negligence.
Ratio:
Common practice and custom do not exonerate liability where those practices are
inherently unreasonable.
Gaudet v. Lagacé, [1998]
Facts:
Gaudet (11), Lagacé (12) and Gauthier (13) took gas and a lighter from Lagacé’s
home (parents busy with guests). They went to the forest to play with fire – not the
first time. Gaudet dipped a branch in gas and lit it. When he set it down, flames
spread towards gas tank. Gauthier tried to stop it but accidentally kicked it – fire hit
tank and exploded. Lagacé was apart from the scene. Gaudet severely burned.
Judicial History:
Trial judge rejected Gaudet’s claim because he was unable to determine who started
the fire.
Legal Reasoning:
Trial judge concluded that if anything, Gaudet himself started the fire. Therefore
didn’t look at liability of other boys’ parents (and anyway said they had educated
their sons well).
 Doesn’t qualify as “perilous activity” – looking for novus actus intervenius,
the causal link between the first fault and the damage.
 The boys knew that it was dangerous – their parents informed them of
this. They thus committed a fault which was foreseeable and was the
direct cause of the damage.
Contributory negligence?
 Victim knew of danger and risk
 Victim nevertheless accepted the risk in participating
But does contributory negligence eliminate recourse to liability? CCQ 1477 says no
– despite his imprudence, he has recourse against the author of his harm.
Court finds all three boys share contributory negligence equally.
Parental Responsibility?
 Three components:
o Presumption lessened by advanced age of children – proof
sufficient to lift presumption.
o Surveillance – don’t expect parents to watch adolescents every
minute, or to lock up such innocent things as gas or a barbecue
lighter.
o Proper education – established that they knew it was dangerous.
No parental liability in this case.
Holding:
No parental liability, but negligence on the part of all three boys. As a result,
plaintiff can recover damages from other two boys. Appeal rejected against
parents, granted against boys.
* See also Resurfice v. Hanke
* CML: Even where everything is checked off for defendant to be liable, if
defendant can show that plaintiff didn’t look out for his own interests,
(voluntary assumption of risk) then the entire case crumbles for the plaintiff
(complete defence)
- In both traditions there is contributory negligence; apportionment of
responsibility (Crocker) so voluntary assumption of risk is very hard to get
 Have to know that you’re walking into a situation where you accept that
you won’t be able to bring a claim (Hydro v. Girard)
CVL: you can share responsibility between defendant and plaintiff
Doesn’t recognize complete defence of voluntary assumption of risk (CCQ
1477)
Conclusions: The Promise and Limits of Private Law
Ross, “Returning to the Teachings: Exploring Aboriginal Justice”
Abel, “A Critique of Torts”
Thesis = The purposes of tort law are to pass moral judgment on the wrong
committed, respond to the victim’s needs, and encourage future safety. It does a
poor job of all three.
1) Moral Judgment
 Incoherent as a moral system  Consistently violates basic principle of
proportionality between the wrongfulness of the defendant’s conduct and
the magnitude of the penalty.
o Punishment is either too severe or too lenient (momentary inadvertence
can lead to catastrophic injury; egregious conduct results in little or no
injury).
 Notions of fault constructed when individuals were the significant actors and
technology was simple are inadequate to assign responsibility today.
o While strict liability and liability insurance ensure compensation, they
obviate the need to assign blame and insulate tortfeasor from moral
judgment.
 Affront moral intuitions of laypeople = Victims and public believe that
compensation ought to be divorced from fault. Most cases are settled anyway,
and often explicitly deny fault.
 Apply different standards of care without explaining why each is appropriate.
 Inconsistencies in underlying systems:
o Difficulty of utilitarian system, but non-consequentialist system is no
better.
o Tort law often employs language of economics, but in fact rejects many of
their pivotal recommendations.
 E.g. Coase theorem sees tort liability as superfluous whenever
parties could have negotiated safety.
2) Compensation
 Tort is an unsatisfactory mechanism of compensation, both in material
consequences and as an ideology  Cannot adequately compensate victims
because liability is a function of fault rather than need.
Material
 Indeed, the goal is not to compensate the victim but to spread the financial
burden. But only does this when victim is uninsured and defendant is insured or
a large corporation.
 Relatively few victims succeed and since other sources of compensation are also
inadequate, many victims are severely impoverished.
 Tort damages are also unequal, thereby symbolizing and intensifying existing
inequalities:
o Some victims are more likely than others to be victimized by tortfeasors
who cannot or will not pay compensation.
o Process of making a claim is institutionalized to varying degrees in
different settings (in public versus in the home).
o Measure of damages is unequal and reproduces existing distribution
of wealth. And the cost of preserving privilege is borne by everyone
buying liability insurance.
 Even if these could be overcome (which they can’t), tort would still be inefficient
 A very large proportion of compensation awards are consumed by insurers,
lawyers and courts – victims only receive a small percentage.
Ideological
 Fundamental justification is thoroughly inadequate  money cannot
restore victims; it cannot be equated with non-pecuniary loss.
 What does the tort system “say” about our culture?
o Reaffirm existing (unjust) distribution of resources.
o By monetizing intangible injuries, extends a fundamental concept of
capitalism (the commodity form) from the where or production to
reproduction.
 Damages commodify unique experience by substituting the universal equivalent
– money. This process is dehumanizing and has negative results on victims.
3) Safety
 Going into the future, safety should be our biggest concern  Reducing the
cost of injuries must take priority over both morality and compensation.
 Although tort is not the only means of fostering safety, alternatives have major
problems (e.g. self-interest; altruism; regulation).
 Tort is the most efficient way to achieve optimum level of safety = Internalizes
accident costs by making tortfeasors liable for their consequences.
 Theoretical flaws with Learned Hand theory in context of promoting safety:
o Though it is theoretically possible to calculate costs of safety precautions,
not possible to calculate benefits of accident avoidance.
o Tort liability necessarily translates unequal recoveries into unequal
exposure to risk.
o Threat of liability can elicit optimum level of safety only if the
potential tortfeasor knows that judge or jury will perform costbenefit analysis correctly. But that calculation is theoretically
impossible.
o Every tort system (fault or strict based) must determine whether this
defendant caused this plaintiff’s injury. But can only talk in terms of
“probabilities.”

o Safety sometimes must defer to the other two goals (this is what courts
are essentially doing when they evoke concepts of “duty” and “proximate
cause” in seeking to limit extent of liability that seems disproportionate.
o Efficacy in encouraging safety rests on several dubious assumptions
about economic rationality and market conditions (e.g. some actors are
not maximizers; liability is no threat to those who are judgment-proof).
o * Tort will produce optimum safety only if all victims recover all
their damages from those who caused their injuries. Yet only a
fraction of victims recover anything.
 A rational actor will discount safety expenditures by likelihood of
being forced to pay. System would drive out of business anyone
who indulges in higher level of safety.
 Tort encourages actors to minimize liability, not accident costs.
Tort law fails as deterrence even when evaluated by its own criteria.
o Subverts a collective response to all those endangered by risk.
o Because liability only arises when an injury has occurred, tort law fails to
address the underlying problem of risk.
o Collectivizes tortfeasors through the corporate form.
Proposals
Moral Judgment:
 State should impose regulations or criminal sanctions against safety
offenders
 Victims require a different kind of moral response:
o Must recognize their injury and sense of grievance.
o Tortfeasors must acknowledge wrongdoing and apologize.
o Moral judgment must occur every time someone is injured or endangered.
o Stop blaming victims.
Compensation:
 Only governmental programs can meet the criteria advanced below.
 Compensation should respond to what happened rather than how - to need
rather than to cause or fault.
o Compensation should be universally available to those suffering
congenital disability as well as injury, whether or not they can identify a
culpable agent and even if they have themselves to blame.
 State compensation should affirm the equal humanity of all victims (materially
and symbolically).
 There should be no compensation for intangible harm.
Safety
 Safety should be our first priority – we want to prevent accidents, not
respond to them. The more we prevent, the less important responses
become.
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1) Reforms  Must take seriously the role of tort in deterring unsafe behaviour:
o Liability should be strict rather than based on fault. This would force
people to reduce accident costs rather than liability costs.
o Victim behaviour should not bar or diminish recovery.
o Damages should reflect all costs of the accident. Doctrines of duty and
proximate cause should not terminate liability (should be eliminated).
o Claims should be actively encouraged.
 2) Total restructuring  Universal compensation
Liberalism conceptualizes encounter with risk as a matter of individual choice – but
individuals choose within a framework constructed by others. Most important
decisions about risk are made by collectives (corporations and government) 
those exposed to risk must also respond collectively.
Conaghan and Mansell, “Concluding Thoughts”
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“The tort system is but one small aspect of a society which chooses to allow
most provision, beyond minimal, for those in need, to be left largely to
individual chance or misfortune.”
o Most but not all will be held responsible for events over which they have
little or no control, whether stemming from congenital illness,
misadventure (including non-tortious misconduct by others) or merely
limited intelligence.
BUT  Many of the most immediately attractive solutions to concerns raised by
a needs-based perspective suddenly appear not only limited, but scarcely more
rational than our present system of privileging some needs over others.
o If we were to move to a needs-based system, would still require criteria
to distinguish different sorts of need, assuming a hierarchy which
determines which needs ought to be met and to what extent.
Cannot forget the ideological underpinnings of tort when engaging in this
critique:
o The “twin concepts” of fault and individual responsibility inform the way
in which we understand these problems, making it hard to escape their
constraints.
o The premises upon which a capitalist society depends (growth,
competition, individualism) might be seen as antithetical to more
collective ideas.
Dilemma = Improvements which merely ameliorate the current system might
have the effect of drawing new but equally arbitrary distinctions between
varieties of need.
o The effort to secure modest reform is not misguided if informed by a
wider understanding of the limits of such a strategy and its role within
the broader endeavor towards social change.
Atiyah’s criticisms:
 Directed both to the system in general and to its particular tendency to
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recognize more causes of action for more types of harm.
Central argument = Present method of awarding damages for personal
injury is “as unjust and inefficient as could be”  leads to many of the
wrong people being compensated in circumstances where “they get too
much and the wrong people pay for it.”
o Particularly focuses on insurance companies = While they are viewed as
being able to cover the loss, it is actually the public that pays for it.
Expansion of negligence liability has severely exacerbated existing inequalities.
Plaintiffs now recovering for damages that would not before have been deemed
negligent:
o Absence of fault or inability to prove causal link
o Types of harm which tort law has not typically remedied
(psychiatric, economic).
Atiyah’s proposed reforms:
 “It is highly desirable to shift the law away from the strongly paternalist
ideology… paternalism underlies the blame culture.”
o May well be that collapse of welfare system is partly responsible for
increasing number of litigation claims.
o Encourage people to foist responsibility onto others rather than assuming
it.
 Suggestions to enhance individual responsibility:
o Encourage individuals to take out first party insurance to protect
themselves.
o No-fault scheme for road accidents.
o Abolition of tort actions for personal injury in relation to other accidents,
injuries and disabilities.
 These proposals would allow each to assess and insure against risks to himself
and give them free choice to decide what kind of insurance they want.
Problems with Atiyah’s reforms  Might work in highly developed welfare state.
But would still produce arbitrary distribution of loss and maybe even greater
unfairness.
 The very people most at risk will have the least disposable income to allocate to
protect against dangers which for most, will never materialize.
o Inefficient allocation of resources for low-income earners to get
insurance.
o Same difficulty with the differential cost of maiming or killing the rich as
opposed to the poor would remain.
o Would perpetuate an enormous injustice in enabling the rich to
protect themselves quite completely while leaving the poor to
“choose” to assume risks unprotected.
 While Atiyah recognizes that “some” state social security safety net would be
needed, deserves more attention than he gives it.
o Disagree that social response to individual need is a denial of personal
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responsibility.
Atiyah has not solved the problem of the “damages lottery,” he has simply
substituted one arbitrary system for another.
Real problem is the capitalist framework within which Atiyah’s reforms are
operating.
Hutchinson
 Idea that we need to empower people rather than the state.
o Escapes traditional accusation that social responsibility restricts freedom
(individuals’ power to decide what is in their own best interests).
 Becomes easier to see that an injury to one is indeed an injury to all 
Every individual who is prevented (or disabled) from participating fully in
society is deprived of contributing as he would have. We have become so used
to arguments about the limits to resources avaialable for compensation that we
have forgotten about the colossal waste in perpetuating people in a state of
poverty and dependence.
Conclusion  Until we fundamentally reassess what we perceive as injury and
how we should respond to it, we are in no position to view compensation as
anything other than payment to enable victims to avoid participation. In this
sense, Hutchinson is right to lead us away from focus on compensation
towards the key issue of democratic empowerment.
Thibierge, “Libre propos sur l’évolution du droit de la responsabilité”
Thesis = Not trying to break past construction of responsibility, but to enlarge
it  Imagine responsibility can be not only curative, but preventive – that we
may have a responsibility not only to prevent, but to anticipate.
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New category of “dommages grave et irreversibles” = The aim here is not to
compensate, because it is impossible to repair the damage. It involves
preventing, foreseeing, acting prudently so that the damage never materializes.
French civil liability is already moving towards a responsibility to anticipate.
o Changes in the idea of causal link:
 Presumption of causality in cases of inherent incertitude
 Notion of “creation of risk” even in absence of direct causal
link
Idea that some risks are simply not acceptable to create – such as those for
“grave and irreversible” dangers. This is where liability should extend to impose
a duty to anticipate.
Legal “responsibility” focuses on the obligation to repair past harms  But the
commonplace understanding of the term is not limited in this way. You can have
a responsibility to take care, to anticipate, to prevent.
o If this is not what responsibility actually means, why does the law treat it
that way?
How can “responsibility” be extended?
 1) Extension of the object of responsibility
o Not just responsible to others, but to the environment and the world as a
whole.
 2) Extension of responsibility in time
o Not just responsibility for what you have done, but for what you should
do.
o We have an obligation to the future, an obligation to ensure the existence
of humanity (not just now, but always).
 3) Extension of responsibility towards people
o We do not have the right to choose the non-existence of future
generations in favor of our own, nor do we have the right to risk it.
o Not just responsible to people who exist now, but to those who will exist.
How can we change the system of civil liability?
 “Rupture” occurs when the dominant foundations or paradigm prove limited in
the face of new risks  see p. 284 for history.
 Now, we see a triple point of rupture with the existing system:
o Temporal = While responsibility has typically focused on the present and
past, now looking towards the future.
o Spatial = Major risks can now affect entire regions (e.g. Chernobyl) and
others risk the entire planet.
o Human = Starting to view ourselves as intimately connected with future
generations.
Constructing a new system (see p. 286 CB) = Fault (individual)  Risk (individual
and public)  Responsibility (both past and future) Precaution?
Seneca College v. Bhadauria
Facts:
B. is East Indian woman who was denied an interview at S. 10 different times. She
claims it is because of discrimination based on her ethnicity. Instead of bringing it
before Human Rights Tribunal, she brought it before the courts directly suing under
‘Tort of Discrimination.’ Allowed at Ontario Court of Appeal, appealed by S. to SCC.
Issue:
Does a ‘Tort of Discrimination’ exist?
Reasoning: (SCC, McLachlin CJ)
Discrimination by way of repeated denial of employment opportunity on alleged
grounds of racial origin DOES NOT give rise to a CML Tort, especially when the The
Ontario Human Rights Code provides for an administrative inquiry/remedial relief
- This option was open to plaintiff, and she ignored it
Holding:
There is no CML Tort of discrimination. Have to go through HR Tribunals. Appeal
allowed.
Curateur Publique v. Hopital St-Ferdinand (Review)
Facts:
Unionized employees at hospital for mentally disabled went on illegal strike for 33
days in Nov 1984. Thus, 703 patients were deprived of regular care and services.
CP brought class action suit on behalf of patients, seeking compensatory damages
for moral prejudice as well as exemplary damages. Both trial and CA judges
declined to use “functional approach” in assessing moral damages. The former did
not award exemplary damages, but the latter did.
Issues:
 Was the trial judge right not to use the functional approach in assessing moral
damages?
 Should exemplary damages have been awarded?
Legal Reasoning (L’Heureux-Dubé J):
 Functional Approach?
o Functional approach not relevant in QC to determine the right to
compensation for moral damages (not a Torts case, a Human Rights
Case)
o However, it can be used (along with the conceptual and personal
approaches) to determine the quantum of damages to award.
 Exemplary Damages?
o Art. 49 of QC Charter = Can be awarded “when the person who commits
the unlawful interference has a state of mind that implies a desire or
intent to cause the consequences of his or her wrongful conduct, or when
that person acts with full knowledge of the immediate and natural or at
least extremely probable consequences that his or her conduct will
cause.”
 The C.A. was correct to conclude that the appellants had unlawfully interfered
with the patients’ dignity.
o Dignity guaranteed by s.4 of QC Charter
o The interference was intentional.
Holding:
The trial/appeal courts were right not to use the functional approach, and the
appeal court was right to award exemplary damages. Appeal dismissed.